Galanti v. U.S., 82-8184
| Decision Date | 11 July 1983 |
| Docket Number | No. 82-8184,82-8184 |
| Citation | 709 F.2d 706 |
| Parties | Vivian W. GALANTI, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Eleventh Circuit |
Knox & Zacks, David M. Zacks, Raymond G. Chadwick, Jr., Augusta, Ga., for plaintiff-appellant.
Nina Loree Hunt, Asst. U.S. Atty., Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Northern District of Georgia.
Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge.
Vivian W. Galanti, plaintiff-appellant, brought this action against the government in the District Court for the Northern District of Georgia under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b), claiming that her husband, Isaac N. Galanti, died as a result of negligence committed by an agent of the Federal Bureau of Investigation (FBI). The district court concluded that no actionable negligence exists under the pertinent facts and granted the government's motion to dismiss for failure to state a claim. We affirm the district court's order for the following reasons.
The facts giving rise to appellant's claim are undisputed. 1 In October of 1978, Isaac N. Galanti and Roger Dean Underhill were shot to death on a secluded tract of undeveloped property in Fulton County, Georgia. Galanti was interested in purchasing the property from Underhill, and the two men were inspecting it at the time of their deaths. Unknown to Galanti, Underhill was a key witness in the government's investigation into the criminal activity of Michael G. Thevis. Thevis, a convicted felon, had escaped from federal custody six months earlier and was still a fugitive at the time of the murders. He was apprehended a month later and eventually convicted in federal court of violating Underhill's civil rights by having him murdered, along with the innocent bystander Galanti, in order to prevent Underhill's testimony in the government's case.
For several months before his death, Underhill traveled a great deal and kept a low profile, although he frequently contacted F.B.I. Agent Paul V. King, Jr. King was in charge of the Thevis investigation and knew that Thevis had made earlier attempts to kill Underhill. King considered Underhill to be in extreme danger at all times. For this reason, the government arranged for Underhill to enter a witness protection program in which Underhill would be given a permanent, new identity with government assistance, but Underhill refused to enter the program until he sold the undeveloped property in Fulton County. He ignored advice to retain a real estate agent and insisted on personally handling the sale of his property. In the week preceding his death, Underhill repeatedly visited the property even though King advised him of the needless danger involved. On the night before the murders, Underhill called and informed King that he would be showing the property the next day to Galanti who had answered a newspaper advertisement. King made no attempt to contact and warn Galanti of the potential danger, nor did he arrange for surveillance of the property. This is the conduct which formed the basis of appellant's suit in the district court. She claimed that King's failure to warn or protect Nicholas Galanti against a specific, foreseeable danger was a negligent act and the proximate cause of her husband's death. 2
This action was necessarily filed in federal court under the provisions of the FTCA since appellant seeks to hold the government liable for the negligence of its employee, but both parties agree that Georgia law controls the negligence issue. See Johnson v. United States, 576 F.2d 606 (5th Cir.1978), cert. denied 451 U.S. 1018, 101 S.Ct. 3007, 69 L.Ed.2d 389 (1981). In Georgia there are four essential elements of a negligence action:
(1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm;
(2) A breach of this standard;
(3) A legally attributable causal connection between the conduct and the resulting injury; and (4) Some loss or damage flowing to the plaintiff's legally protected interest as a result of the alleged breach of the legal duty.
Bradley Center v. Wessner, 250 Ga. 199, 200, 296 S.E.2d 693 (1982). It is the first element with which we are concerned in this appeal. The court below concluded that under no circumstances could appellant establish a legal duty owed by King to Nicholas Galanti, and accordingly granted the government's motion to dismiss for failure to state a claim. Appellant vigorously challenges this conclusion and relies on a large number of state and federal cases, some very recent, in order to support her argument. After a careful review of the various claims and the relevant law, we find that the district court's order must be affirmed. 3
The general rule in Georgia is that one has no duty to warn or protect another person from a foreseeable risk of harm simply because of one's knowledge of the danger. See Bradley Center, Inc. v. Wessner, 250 Ga. 199, 201, 296 S.E.2d 693 (1982); Thomas v. Williams, 105 Ga.App. 321, 124 S.E.2d 409 (1962). In other words, the mere foreseeability of injury to another person does not of itself create a duty to act. 4 This rule is not applicable in three distinct factual situations, however, and appellant contends that each of the three exceptions is present here. First, the duty to protect or warn against danger will arise if the defendant has in any way taken an affirmative step to create the danger. In the recent case of United States v. Aretz, 248 Ga. 19, 26, 280 S.E.2d 345, 350 (1981), the Georgia Supreme Court held that "where one by his own act, although without negligence on his part, creates a dangerous situation, he is under a duty to remove the hazard or give warning of the danger so as to prevent others from being injured where it is reasonably foreseeable that this will occur." In that case, the United States Army provided one of its contractors with mistaken information concerning the appropriate storage classification of explosive materials. The Army later realized the mistake, but failed to communicate it to the contractor, and the materials exploded causing injury and death to several of the contractor's employees. The Georgia court, upon certification from the Fifth Circuit Court of Appeals, held that the Army's failure to inform the contractor of the change in classification was a breach of duty which arose when the Army mistakenly classified the materials in the first place. The Aretz decision relied heavily on an earlier Georgia case, Hardy v. Brooks, 103 Ga.App. 124, 118 S.E.2d 492 (1961)...
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