Four v. U.S. ex rel. Bureau of Indian Affairs

• Decision Date: 10 May 2006
• Docket Number: No. 1:05-CV-001.,1:05-CV-001.
• Citation: 431 F.Supp.2d 985
• Parties: Patricia FOUR, individually and as the surviving widow of Eugene Four, Plaintiff, v. UNITED STATES of America, acting through the BUREAU OF INDIAN AFFAIRS and the Department of the Interior, Defendants.
• Court: U.S. District Court — District of North Dakota

Page 985

431 F.Supp.2d 985

Patricia FOUR, individually and as the surviving widow of Eugene Four, Plaintiff, v. UNITED STATES of America, acting through the BUREAU OF INDIAN AFFAIRS and the Department of the Interior, Defendants.

No. 1:05-CV-001.

United States District Court, D. North Dakota, Northwestern Division.

May 10, 2006.

Kent M. Morrow, Severin & Ringsak, Bismarck, ND, for Plaintiff.

Cameron W. Hayden, U.S. Attorney's Office, Bismarck, ND, for Defendant.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

HOVLAND, Chief Judge.

Before the Court is the defendants' Motion for Summary Judgment filed on March 1, 2006. The United States asserts that it is immune from suit under the discretionary function exception to the Federal Tort Claims Act. For reasons outlined below, the Court grants the motion.

I. BACKGROUND

The following facts are undisputed. The plaintiff, Patricia Four ("Four"), brought this wrongful death action as the surviving spouse of Eugene Four, a 74-year-old man who was killed in a two-vehicle accident caused by a drunk driver, Lawrence J. Cheauma, Jr. The accident occurred on August 8, 2002, at 2:04 p.m., within the exterior boundaries of the Standing Rock Sioux Reservation, at the Fort Yates Exit Road in Fort Yates, North Dakota (also referred to as 94th Street or BIA Highway 31).

Four timely filed an administrative claim with the MA on June 2, 2004. In the administrative claim, Four alleged that unnamed employees of the BIA's Office of Law Enforcement Services at Standing Rock, negligently failed to respond to several 911 emergency calls reporting the drunk driving of Cheauma in the hours prior to the incident.¹ Four's administrative claim sought $1 million in wrongful death damages, but did not assert any personal injury or property damages.

The BIA police dispatch log from August 8, 2002, reveals only one report by an unidentified female at 1402 (2:02 p.m.), two minutes prior to the accident at 1404. The log entry for this call states:

1402 adv'd almost ran over by Jr. Cheaume his parked at College could be drunk, adv'd Ofc Mel [Ambre McLaughlin] on call Blue Ford PICK up, no tail gate.

See Exhibit A, p. 19, (Docket No. 26). Two minutes later, at 1404 (2:04 p.m.), a BIA officer received a report from an unidentified male.

1404 call reported accident end of exit. ADV'D Ofc Mel on traffic.

See Exhibit A, p. 19 (Docket No. 26).

The North Dakota State Highway Patrol and the local Sheriff were called to assist and prepare accident reports. Based on the statements in the BIA's Case Report, it appears that the decedent, Eugene Four, was traveling east on BIA Highway 31 from Sitting Bull College to Fort Yates, in a 1976 Ford pickup when he was rearended by the 1980 Chevy pickup truck driven by Cheauma. The area was posted with a speed limit of 30 miles per hour. As a result of the collision, Eugene Four's truck went into the south ditch, rolled and came to rest facing west. Eugene Four was found on the passenger side of his vehicle and was pronounced dead at Fort Yates Hospital shortly thereafter with the cause of death as "blunt force injuries of chest due to a motor vehicle collision." Cheauma survived and was arrested by the BIA for driving under the influence. The passenger in Cheauma's vehicle (Gerald Silk) was ejected and pronounced dead at the scene.

The United States asserts that it should be granted summary judgment for three reasons: (1) the discretionary function exception to liability under the Federal Tort Claims Act bars Patricia Four's claims; (2) the United States did not have a duty to control the actions of Lawrence Cheauma, Jr.; and (3) the actions of Lawrence Cheauma, Jr. in causing the death of Eugene Four were `a superceding intervening cause. Four responds by contending that (1) there are genuine issues of material fact that demonstrate that the local BIA Personnel Manual mandated intervention and that such lack of discretion removed the officer's decision from the discretionary function exception to the Federal Tort Claims Act; (2) the United States had a duty to control the actions of Lawrence Cheauma, Jr, and prevent the death of Eugene Four, Sr; and (3) the law of intervening superceding causes is no longer strong enough to dismiss Four's claim.

II. LEGAL DISCUSSION

A. STANDARD OF REVIEW

It is well-established that summary judgment is appropriate when, viewed in a light most favorable to the non-moving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c); Graning v. Sherburne County, 172 F.3d 611, 614 (8th Cir.1999). A fact is "material" if it might affect the outcome of the case and a factual dispute is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The basic inquiry for purposes of summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law. Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376 (8th Cir 1996). The moving party has the initial burden of demonstrating to the Court that there are no genuine issues of material fact. If the moving party has met this burden, the non-moving party cannot simply rest on the mere denials or allegations in the pleadings. Instead, the non-moving party must set forth specific facts showing that there are genuine issues for trial. Fed. R.Civ.P. 56(e). A mere trace of evidence supporting the non-movant's position is insufficient. Instead, the facts must generate evidence from which a jury could reasonably find for the non-moving party. Anderson v. Liberty Lobby, Inc., 47'7 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

B. DISCRETIONARY FUNCTION EXCEPTION

It is well-established that Congress has waived the sovereign immunity of the United States by giving district courts jurisdiction over certain tort actions. 28 U.S.C. § 1346(b). However, Congress has excepted from this limited waiver "[a]ny claim ... 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 an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). If a case falls within this statutory exception to the Federal Tort Claims Act, the Court lacks subject matter jurisdiction. See Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984) cert denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

"Though discretionary function is a difficult concept to specifically define, the Supreme Court has stated that it includes initiation of programs and activities as well as determinations made by executives or administrators in establishing plans, specifications or schedules of operations." E. Ritter & Co. v. Department of Army, Corps of Engineers, 874 F.2d 1236, 1240 (8th Cir.1989). The discretionary function exception prohibits any claim against the United States that is 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 an employee of the Government, whether or not the discretion involved be abused. 28 U.S.C. § 2680(a). It "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." Dykstra v. U.S Bureau of Prisons, 140 F.3d 791, 795 (8th Cir.1998). Its purpose is to prevent "judicial secondguessing of legislative and administrative decisions grounded in social, economic, and policy through the medium of an action in tort." United States v. Gaubert, 499 U.S. 315, 323, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). When properly construed, it "protects only governmental actions and decisions based on considerations of public policy." Id; see Kane v. U.S., 15 F.3d 87, 89 (8th Cir.1994) (day-to-day decisions, made in furtherance of the policy, may be protected under the exception). Therefore, its application is a jurisdictional issue which precedes any negligence analysis. Johnson v. U.S., Dept. of Interior, 949 F.2d 332, 335 (10th Cir.1991). The applicability of the discretionary function exception is governed by the nature of the conduct at issue, rather than the status of the actor. Berkovitz v. U.S., 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988).

The United States Supreme Court has articulated a two-part test to be applied in determining whether a particular claim falls under the discretionary function exception to the waiver of sovereign immunity. See United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). The first part of the test requires a determination of whether the challenged act or omission violated a mandatory regulation or policy that allowed no judgment or choice. If so, the discretionary function exception does not apply because there was no element of judgment or choice in the conduct at issue. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335. The Supreme Court has recognized that the requirement of judgment or choice is not satisfied if there is a statute, rule, regulation or administrative policy that specifically prescribes a course of action for an employee to follow.

However, if the challenged conduct is determined to be discretionary, the secand and part of the Gaubert test is to determine whether the conduct is "of the kind that the discretionary function exception was designed to shield." Gaubert, 499 U.S. 315, 322-323, 111 S.Ct. 1267, 113 L.Ed.2d 335. As previously noted, when Congress enacted the Federal Tort Claims Act, its desire was to...