Garbarino v. U.S., 80-1227

• Decision Date: 24 December 1981
• Docket Number: No. 80-1227,80-1227
• Citation: 666 F.2d 1061
• Parties: Betty GARBARINO, as Administratrix of the Estate of Edward J. Garbarino, deceased, and individually, Plaintiff-Appellant. v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1061

666 F.2d 1061

Betty GARBARINO, as Administratrix of the Estate of Edward J. Garbarino, deceased, and individually Plaintiff-Appellant. v. UNITED STATES of America, Defendant-Appellee.

No. 80-1227.

United States Court of Appeals Sixth Circuit.

Argued Oct. 6, 1981.

Decided Dec. 24, 1981.

Marvin L. Berris, Zeff & Zeff, Patrick Bruetsch, Detroit, Mich., for plaintiff-appellant.

William D. Blakely, Civ. Div., Torts Branch, U. S. Dept. of Justice, Washington, D. C., James K. Robinson, U. S. Atty., Detroit, Mich., for defendant-appellee.

Before KEITH and MERRITT, Circuit Judges, and PHILLIPS, Senior Circuit Judge.

PHILLIPS, Senior Circuit Judge.

This is an appeal from a summary judgment dismissing a complaint brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

On June 4, 1974, the plaintiff-appellant's decedent was a passenger in a Cessna 177 airplane which crashed shortly after take-off from the city airport in Detroit, Michigan. The decedent, Edward J. Garbarino, was burned severely in the crash and died several days later.

In June 1978, appellant, as administratrix of Mr. Garbarino's estate, brought an action in a Michigan State court against the owner and the manufacturer of the airplane, and the present action in the district court against the United States. ¹ In both actions the appellant sought damages for the wrongful death of Mr. Garbarino.

The first count of the complaint in the district court alleged negligent conduct of federal air traffic controllers. That count was voluntarily dismissed. The second count alleged that the United States, through the Federal Aviation Agency, negligently certified the Cessna 177 for airworthiness. Specifically, the appellant alleged that the FAA was negligent in:

a) failing to inspect and test said aircraft for crashworthiness;

b) failing to inspect and test said aircraft adequately for crashworthiness such as would reveal deficient and inadequate parts to wit: the fuel tank assembly and placement of said assembly which could not be jettisoned in an emergency situation so as not to endanger the occupants of said aircraft;

c) failing to test and inspect said aircraft for airworthiness and deficient and inadequate parts, to wit: the defective stabilator assembly, and stall warning system;

d) failing to test and inspect said aircraft for design defects, to wit: defective wing design, and ability to recover from a stall situation;

e) failing to determine that the design of said aircraft, and in particular the fuel tank assembly and fuel line system, would upon impact cause or enhance expected injuries.

The Government answered the complaint with a general denial of the allegations and the assertion of several affirmative defenses. On November 27, 1979, the Government moved for summary judgment and asserted that the appellant's action was barred by the misrepresentation exception, 28 U.S.C. § 2680(h), and the discretionary function exception, 28 U.S.C. § 2680(a), to the Federal Tort Claims Act (FTCA).

On January 31, 1980, District Judge Julian Abele Cook, Jr., granted the motion for summary judgment. He held that the discretionary function exception barred the claim that the Government failed to consider the doctrine of crashworthiness in its promulgation of airworthiness regulations. He held further that the misrepresentation exception barred the claim that the Government negligently inspected and certified the airplane in issuing an airworthiness certificate.

This appeal followed. The jurisdiction of this court is invoked under 28 U.S.C. § 1291. We affirm for the reasons set out in this opinion.

I

Under the Federal Aviation Act of 1958, 49 U.S.C. § 1301 et seq. :

(a) The Administrator is empowered and it shall be his duty to promote safety of flight of civil aircraft in air commerce by prescribing and revising from time to time:

(1) Such minimum standards governing the design, materials, workmanship, construction, and performance of aircraft, aircraft engines, and propellers as may be required in the interest of safety;

(2) Such minimum standards governing appliances as may be required in the interest of safety;

(3) Reasonable rules and regulations and minimum standards governing, in the interest of safety, (A) the inspection, servicing, and overhaul of aircraft, aircraft engines, propellers, and appliances; (B) the equipment and facilities for such inspection, servicing, and overhaul; and (C) in the discretion of the Administrator, the periods for, and the manner in, which such inspection, servicing, and overhaul shall be made, including provision for examinations and reports by properly qualified private persons whose examinations or reports the Administrator may accept in lieu of those made by its officers and employees;

(4) Reasonable rules and regulations governing the reserve supply of aircraft, aircraft engines, propellers, appliances, and aircraft fuel and oil, required in the interest of safety, including the reserve supply of aircraft fuel and oil which shall be carried in flight (5) Reasonable rules and regulations governing, in the interest of safety, the maximum hours or periods of service of airmen, and other employees, of air carriers; and

(6) Such reasonable rules and regulations, or minimum standards, governing other practices, methods, and procedure, as the Administrator may find necessary to provide adequately for national security and safety in air commerce.

49 U.S.C. § 1421(a)(1)-(6).

The Administrator is empowered to issue type certificates for aircraft, aircraft engines and propellers after testing to determine whether the aircraft and the equipment meet minimum standards for safe operation. 49 U.S.C. § 1423(a). If the Administrator determines that duplicates of the prototype will conform to the type certificate, a production certificate for the aircraft will be issued to the manufacturer. Id. at § 1423(b). If the Administrator determines that an individual aircraft conforms to the standards prescribed in the type and production certificates, an airworthiness certificate will issue for the individual aircraft. Id. at § 1423(c). Apparently the responsibility for the inspection of the individual aircraft often is delegated to the manufacturer. Cessna performed the airworthiness inspection of the aircraft in which Mr. Garbarino was fatally injured.

The FAA regulations promulgated pursuant to the above authority are contained in 14 C.F.R. parts 21 and 23. Part 21 covers the procedural requirements for the issuance of airworthiness, type and production certificates. Part 23 sets out the minimum standards that small aircraft, such as the Cessna 177 in this case, must satisfy before a type certificate will be issued.

Appellant contends that the FAA was negligent in failing to promulgate regulations which would have required a test for "crashworthiness" in the certification procedure. She asserts that an essential element in determining the safety of any moving vehicle is the doctrine of crashworthiness. Second, she charges that the Government was negligent in its inspection of the Cessna aircraft in which the FAA determined that the airplane satisfied existing regulations for the issuance of an airworthiness certificate.

II

The Federal Tort Claims Act was enacted by the 79th Congress in 1946. Before this statute was passed, the only relief available against the Government for substantial claims growing out of the torts of its employees acting within the scope of their employment was the passage of a private bill through Congress. "(T)he private bill device was notoriously clumsy." Dalehite v. United States, 346 U.S. 15, 24-25, 73 S.Ct. 956, 962, 97 L.Ed. 1427 (1953). This Act waived the Government's sovereign immunity to the extent set forth therein and afforded access to the federal courts for the torts to which it applied.

The Act was not a total waiver of sovereign immunity. It was aimed primarily at the "ordinary common-law torts." Dalehite, supra, 346 U.S. at 28, 73 S.Ct. at 964. 28 U.S.C. § 2680 excludes several types of claims from the coverage of the Act.

The following claims, inter alia, are exempt from the coverage of the Act:

(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or 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 an employee of the Government, whether or not the discretion involved be abused.

(h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights:

(Emphasis added.) 28 U.S.C. § 2680(a) & (h).

The United States can be sued only to the extent that it has waived sovereign immunity. If one of the Act's exceptions applies to a claim for relief against the Government, that claim cannot be maintained under the FTCA. See United States v. Orleans, 425 U.S. 807, 813-14, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); Dalehite, supra, 346 U.S. at 30-31, 73 S.Ct. at 965.

III

28 U.S.C. § 2680(a), set out above, is the "discretionary function" exception. This court discussed the exception in Reminga v....