Ford v. American Motors Corp., Civ. A. No. H-81-1922.

• Decision Date: 24 January 1984
• Docket Number: Civ. A. No. H-81-1922.
• Citation: 621 F. Supp. 685
• Parties: Julia FORD and Joe Ford, Plaintiff, v. AMERICAN MOTORS CORPORATION, American Motors Sales Corporation, Jeep Corporation, AM General Corporation and the United States of America, Defendants.
• Court: U.S. District Court — Southern District of Texas

621 F. Supp. 685

Julia FORD and Joe Ford, Plaintiff, v. AMERICAN MOTORS CORPORATION, American Motors Sales Corporation, Jeep Corporation, AM General Corporation and the United States of America, Defendants.

Civ. A. No. H-81-1922.

United States District Court, S.D. Texas, Houston Division.

January 24, 1984.

Carl Crow, Crawford, Grissom, Crow & Richards, Houston, Tex., for plaintiff.

William H. Payne, Fulbright & Jaworski, Houston, Tex., for American Motors Corp., American Motors Sales Corp., Jeep Corp. and AM General Corp.

Asst. U.S. Atty. Letitia Taitte, Houston, Tex., for U.S.

ORDER

CARL O. BUE, Jr., District Judge.

Came on to be heard on the 28th day of October, 1983, the Motion of Defendant United States for Dismissal from this cause, and it appearing to the Court that it lacks subject matter jurisdiction over the United States in this cause, the Motion is hereby granted.

This action was filed against Defendants American Motors Corporation, Jeep Corporation, and American Motor Sales Corporation on July 30, 1981. Suit was filed against the AM General Corporation on March 22, 1982 and against the United States on July 8, 1982, for injuries sustained as a result of a vehicular accident.

This Court entered a Docket Control Order on October 6, 1982 setting May 2, 1983 as the last day for completion of Discovery and trial for May/June, 1983. A Continuance was granted and a new Docket Control Order set October 10, 1983 as the date for completion of Discovery.

After consideration by the court of the pleadings and memoranda of law, the record herein and of the oral argument of counsel for all parties, the court is of the opinion that the acts of the United States of which Plaintiffs complain were of a discretionary nature, involving judgments at a policy-making level. As such, they cannot form the basis for suit under the Federal Tort Claims Act, 28 U.S.C. 2675, 28 U.S.C. 2680(a).

Plaintiffs allege that, in 1979, they purchased a surplus Postal delivery vehicle at a public sale. In 1980, Plaintiff Julia Ford, while driving this vehicle, sustained injury when it tipped on its side. Plaintiffs contend that the vehicle was designed without sufficient resistance to "rollover". The only act of the United States of which Plaintiffs complain in their Fourth Amended Complaint is the failure to warn purchasers of surplus Postal vehicles of various design characteristics which were alleged by Plaintiffs to result in a low resistance to rollover during normal and anticipated operation. Plaintiffs do not allege a specific manufacturing defect peculiar to a single vehicle.

The particular vehicle owned by Plaintiffs is a type known as a DJ-5b "quarter ton vehicle" (capacity of a quarter ton). The vehicle is a light truck by Department of Transportation classification and so states in a decal on its dashboard. The DJ-5b had been produced during 1971-2, introduced by the United States Postal Service (USPS) into use in 1972, and used until a set number of years or miles travelled were reached. These vehicles were then sold as surplus to USPS needs in accordance with the policy and practice of the USPS.

The decision to sell postal vehicles to the general public after a specified useful life for postal delivery purposes, was a discretionary function duly exercised by the United States Postal Service. Congress has granted the Postal Service the power:

(5) to acquire, in any lawful manner, such personal or real property, or any interest therein, as it deems necessary or convenient in the transaction of its business; to hold, maintain, sell lease, or otherwise dispose of such property or any interest therein; and to provide services in connection therewith and charges therefor. 39 U.S.C. 401.

The decisions as to whether and what vehicles to acquire, and to routinely sell as surplus, are made within the United States Postal Service by the Director of the Office of Fleet Management. The Office of Fleet Management, from 1971 forward, considered the possibility that some of the DJ-5 series of postal vehicles might be susceptible to a higher incidence of rollover than passenger cars and trucks. The Office of Fleet Management evaluated various studies and requested and evaluated others, and concluded that the vehicle performed satisfactorily as a light truck. The Postal Service, in considering and evaluating questions regarding performance of these vehicles, decided the vehicles were not defective. Moreover, the Postal Service has continued to order vehicles which are substantially similar in design. Evaluation of the reports on the vehicles performance, and determination that they performed satisfactorily as light delivery trucks, without modification or any particular "warning" to the drivers, was made at the level of the Director of the Office of Fleet Management.

Any claim based upon an action or omission of the Government exercising due care, in the execution of a statute or regulation, whether or not such regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a) (emphasis supplied). Accordingly, to the extent that Plaintiffs seek to predicate liability based upon any act or omission which constitutes a discretionary function, this attempt must fail because such a claim is barred by this provision.

In the landmark decision in this area, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court discussed at length the meaning of the "discretionary function" exemption of the Federal Tort Claims Act. The plaintiff in that case sought recovery for an alleged wrongful death resulting from a catastrophic explosion of ammonium nitrate fertilizer aboard two steamships. The explosion levelled the ships and much of Texas City, Texas. Dalehite, the test case on liability, was one of some 300 separate personal and property damage claims which aggregated two hundred million dollars. The district court found causal negligence on part of the United States in: (1) the adoption of the fertilizer export plan; (2) the manufacturing process; and (3) the dereliction of official duty in failing to police the shipboard loading. Reversal of this decision by the Fifth Circuit was upheld by the Supreme Court which had granted certiorari "because the case presented an important problem of federal statutory interpretation." 346 U.S. at 17, 73 S.Ct. at 958. The Supreme Court held as a matter of law that the claim was based upon a discretionary function or duty within the intendment of 28 U.S.C. § 2680(a), and did not establish a cause of action cognizable under the Federal Tort Claims Act.

Dalehite noted...