Driscoll v. U.S., 74-3072

• Decision Date: 15 October 1975
• Docket Number: No. 74-3072,74-3072
• Parties: Charles W. DRISCOLL, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 136

525 F.2d 136

37 A.L.R.Fed. 530

Charles W. DRISCOLL, Appellant, v. UNITED STATES of America, Appellee.

No. 74-3072.

United States Court of Appeals Ninth Circuit.

Oct. 15, 1975.

Taylor & Petica, Scottsdale, Ariz., for appellant.

William C. Smitherman, U. S. Atty., Phoenix, Ariz., for appellee.

OPINION

Before DUNIWAY and SNEED, Circuit Judges, and WEIGEL, ^* District Judge.

SNEED, Circuit Judge:

The plaintiff and appellant, Charles W. Driscoll, brought this suit against the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671-2680, and Lance A. Harmon to recover medical expenses incurred, income lost, and compensation for pain and suffering resulting from an accident occurring on Luke Air Force Base, Arizona. Driscoll, at the time a civilian employee working on the Base, was struck by a car driven by Harmon, an employee of the United States, while walking to the building in which he worked from a parking lot located across the street.

The claim against Harmon was dismissed without prejudice for want of jurisdiction pursuant to 28 U.S.C. § 2679(b) which makes suit against the United States the exclusive remedy for claims such as Driscoll's "resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment . . . ". This dismissal rested on the alternative ground that Harmon was not acting in the course of his employment at the time of the accident, a position stipulated by counsel for Driscoll and the United States.

Thereafter, the United States moved to dismiss Driscoll's complaint under Rule 12(b), Fed.R.Civ.P., and in the alternative for summary judgment under Rule 56, Fed.R.Civ.P. Interrogatories were promulgated by Driscoll and answered by the United States. A statement of facts was filed by the United States and both parties filed memoranda of authorities. The ground on which the United States relied in support of its motion was that the conduct of the United States came within the discretionary function exclusion of the Federal Tort Claims Act, 28 U.S.C. § 2680(a). The trial court granted the motion and dismissed Driscoll's action with prejudice. Driscoll appealed. We reverse and remand for such further proceedings as are consistent with this Opinion.

The motion to dismiss Driscoll's complaint against the United States is a "speaking motion" and must be considered as one for summary judgment. Rule 12(b), Fed.R.Civ.P.; 2A Moore's Federal Practice, P 12.09; 6 Moore's Federal Practice, P 56.08 (1974). Under such circumstances the moving party, the United States, is not entitled to the benefit of any favorable inferences to be drawn from its moving papers. All such papers must be construed favorably to Driscoll. Wright, Law of Federal Courts, 445 (1970).

Following the stipulation that Harmon was not acting in the course of his employment at the time of the accident, Driscoll's cause of action against the United States rested on his allegations in paragraph VI of his complaint which reads as follows:

At all times herein mentioned, said Defendant, United States of America, had the duty to maintain and properly place adequate warning devices; and provide adequate crosswalks for pedestrians and provide warning devices and speed control devices and cautionary devices and signs for the protection of pedestrians crossing from said parking area to said building across said street.

Said negligence of the Defendants included the foregoing, and consisted in addition thereto negligence and failure to properly locate, construct and maintain said street, parking area, and building and crossing in such a manner that such street was dangerous to persons lawfully traveling thereover, and failing to construct and maintain said street in conformity with the generally accepted and recognized modes of construction and maintenance and in failing to provide adequate or any warning signs at or about such street, parking lot and building and failing to construct and maintain sufficient or any protecting walls, barriers or devices between the parking area and the building across, around or through said street.

The United States contends that this paragraph sets forth a claim excluded by the discretionary function exception. The exclusion is applicable because the Base Civil Engineer, whom the interrogatories reveal to be the responsible official, exercised his discretion and chose not to install warning devices, barriers, speed control devices or crosswalks. The discretionary function exception would be inapplicable, it contends, only if such devices had been installed and improperly maintained.

The interrogatories also reveal that there exist no rules or regulations pertaining to the establishment of signs, warning devices, markings and crosswalks and that no records of any traffic studies applicable to Luke Air Force Base exist. In addition, the interrogatories reveal that the parking lot and the building in which Driscoll worked were completed at the same time, that it was known that persons would park in the lot and walk to the building, that the Wing Safety Officer and the Chief of Security had a duty to bring to the attention of the Base Civil Engineer any unsafe condition of which they become aware, that no recommendations regarding the area in question had been made by anyone, that no one had been injured as was Driscoll prior to his accident, and that no one in authority assumed that a pedestrian would cross the road in violation of Arizona traffic regulations.

A review of the pertinent authorities must begin with Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Although it has been qualified by subsequent decisions of the Supreme Court, it continues to stand for the proposition that the discretionary function exception is limited to decisions made at the planning rather than the operational level. Id. at 42, 73 S.Ct. 956. Decisions at the latter level may be actionable even though they involved an element of discretion. Distinguishing between the two levels is not easy. Professor Jaffe has suggested in drawing the distinction that consideration be given to such factors as the character and severity of the plaintiff's injury, the existence of alternative remedies, the capacity of a court to evaluate the propriety of the official's action, and the effect of liability on the effective administration of the function in question. See Jaffe, Suits Against Governments and Officers: Damage Actions,77 Harv.L.Rev. 209, 219 (1963).

In any event, the immunities derived from the law of municipal corporations are of limited utility in interpreting the discretionary exemption. It is clear, for example, that injuries resulting from operational level decisions do not cease to be actionable simply because under the law of municipal corporations the wrongdoing government is engaged in a governmental, as opposed to a proprietary, function. See Indian Towing Co. v. United States, 350 U.S. 61, 65, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Moreover, the United States may be liable under...