Gonzalez v. US

• Decision Date: 15 July 1988
• Docket Number: No. 87 Civ. 8492 (PNL).,87 Civ. 8492 (PNL).
• Citation: 690 F. Supp. 251
• Parties: Maria GONZALEZ and Vincent Gonzalez, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

690 F. Supp. 251

Maria GONZALEZ and Vincent Gonzalez, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 87 Civ. 8492 (PNL).

United States District Court, S.D. New York.

July 15, 1988.

Robert S. Michaels, New York City, for plaintiffs.

Rudolph W. Giuliani, U.S. Atty., S.D.N.Y. by Allan N. Taffet, Asst. U.S. Atty., New York City, for defendant.

MEMORANDUM AND ORDER

LEVAL, District Judge.

This is a personal injury action brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 2671, et seq. The Government moves to dismiss for lack of subject matter jurisdiction. The Government contends that the acts complained of are "discretionary functions" for which liability does not lie under the FTCA. Plaintiffs respond that defendant's negligent acts were operational choices rather than policy decisions and fall within the Act's general waiver of sovereign immunity. Because the court finds that plaintiffs' allegations describe a classic common law tort rather than a governmental decision guided by concerns of public policy, the motion to dismiss is denied.

Background

In evaluating the Government's motion to dismiss, the court assumes the truth of the allegations in the complaint. Bass v. Jackson, 790 F.2d 260 (2d Cir.1986). Plaintiff Maria Gonzalez was injured by a falling metal stanchion in the United States Post Office at 90th Street and Third Avenue in Manhattan.¹ A fellow postal patron leaned on the rope connecting stanchions which defined the "queue" of those waiting for service at the station's windows. Because of the negligence of postal employees in operating (or maintaining) the system of ropes and stanchions, the stanchion fell and injured Ms. Gonzalez. Specifically, plaintiffs contend that the government negligently chose an inherently dangerous design of dividers with metal "posts supporting the divider rope which were not secured to the ground" and were thus unstable and likely to fall in response to pressure on the connecting ropes.²

The Government's response centers on its contention that a decision was made at a central, policy level of the United States Postal Service to employ a flexible system of portable stanchions at postal stations nationwide.³ (The planners envisioned a system which would permit the movement of ropes and stanchions to create different configurations as the need arose.) Plaintiff's allegation that the design was the cause of her injuries fails, defendant contends, because the Government is immune from liability for injuries caused by such a "policy" decision.

Discussion

In the Federal Tort Claims Act, the United States has partially waived its traditional sovereign immunity from tort liability. 28 U.S.C. § 1346(b) vests the district court with jurisdiction over damage actions

for injury or loss of property, or personal injury or death caused by the negligence or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

There are, however, a number of torts for which Congress specifically declined to waive immunity. Relevant here is the exception for injuries caused by a government employee performing a "discretionary function." Section 2680(a) provides that the FTCA shall not apply to

any claim ... based upon the exercise or performance of 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.

This section creates a jurisdictional bar to suit because it deprives federal courts of subject matter jurisdiction over tort actions based on the exercise of discretionary functions by federal employees. Garcia v. United States, 826 F.2d 806, 809 (9th Cir. 1987); Baird v. United States, 653 F.2d 437, 440 (10th Cir.1981), cert. denied, 454 U.S. 1144, 102 S.Ct. 1004, 71 L.Ed.2d 296 (1982).

The Government seeks dismissal of the Gonzalez' claims on the ground that the challenged decision to install an allegedly inherently dangerous queuing system was made by employees in the exercise of discretionary duties. By this contention, defendant seeks a novel, expansive reading of the discretionary function exception. The court is compelled by the statute and the consistent interpretation rendered it to reject the broadening of the discretionary function exception sought by defendant.

Scope of Discretionary Function Exception

The United States is generally liable to the same extent as other property owners for personal injuries to invitees on federal property. See e.g., Cooks v. United States, 815 F.2d 34, 35 (7th Cir.1987) (liability for sidewalk defects); Haugen v. United States, 492 F.Supp. 398, 401 (E.D.N.Y. 1980) (New York landowner liability standard), aff'd without opinion, 646 F.2d 560 (2d Cir.1980); Salim v. United States, 382 F.2d 240 (5th Cir.1967) (duty to maintain post office steps in safe condition); Blaine v. United States, 102 F.Supp. 161 (E.D. Tenn.1951) (liability for negligent maintenance of post office sidewalk). In fact, injury to a patron on the grounds of a post office caused by the negligence of a federal employee has specifically been found to fall outside the exception of Section 2680(a). American Exchange Bank of Madison v. United States, 257 F.2d 938, 941 (7th Cir. 1958) (decision not to install handrail on post office steps not discretionary). See also Miller v. United States, 710 F.2d 656, 665, 665 n. 16 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983) (negligent acts in "operation of a federal facility" not within Section 2680(a)). Postal patrons, as invitees, are owed the same duty of care imposed by state law on all property owners. Doe v. United States, 718 F.2d 1039 (11th Cir.1983).

Defendant's attempt to evade the force of the clear language of the statute and precedent upholding liability for personal injuries of patrons at postal stations is inconsistent with the narrow construction given the discretionary function exception. Although most acts of federal employees involve some element of discretion, the exercise of choice alone is inadequate to qualify for the protection of this provision. Only those acts which stem from the exercise of judgment grounded in concerns of public policy are immunized as discretionary functions.

The Supreme Court has recently reaffirmed that the "basis for the discretionary function exception was Congress' desire to `prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through an action in tort.'" Berkovitz v. United States, ___ U.S. ___, ___, 108 S.Ct. 1954, 1959, 100 L.Ed.2d 531 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)). The Court held that the exception "applies only to conduct that involves the permissible exercise of policy judgment." ___ U.S. at ___, 108 S.Ct. at 1960.⁴ See also Boyle v. United Technologies Corp., ___ U.S. ___, ___, 108 S.Ct. 2510, 2517, 101 L.Ed.2d 442 (1988) (decision involving "judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness" within discretionary function exception).

Since the Supreme Court first construed the exception, it has been settled that this narrow provision does not immunize the government for torts which do not arise from the exercise of discretion grounded in considerations of public policy. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Court reviewed the Act's legislative history and concluded that Congress aimed specifically to waive immunity for "ordinary common-law torts" committed by its agents. In support of its conclusion that Section 2680(a) did not impair liability for such injuries, the Court noted that "congressional thought was centered on granting relief for the run-of-the-mine accidents." To the extent federal employees commit ordinary, non-governmental torts, the statute renders the Government as accountable as any other tortfeasor. Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 126-127, 100 L.Ed. 48 (1955).

In light of Congress' intent, the discretionary function exception has been held to protect only activities which—because they further policy goals—are uniquely governmental. To the extent federal employees in the course of their work engage in activities which are not specifically tied to the policy mission of their agencies, the United States is held liable to the same extent as any other employer. Dalehite, 346 U.S. at 34, 73 S.Ct. at 967. ("We know that the draftsmen did not intend Section 2680(a) to relieve the Government from liability for such common law torts as an automobile collision caused by the negligence of an employee.")

In addition to personal injuries on government property, the limited exception of Section 2680(a) has been held generally inapplicable to torts arising from conduct of government actors which can be judged by general standards of reasonableness without requiring courts to pass upon policy justifications. The Supreme Court recently noted that if a "determination involves the application of objective scientific standards" rather than "policy judgment," the exception is unlikely to apply. Berkovitz, ___ U.S. at ___, 108 S.Ct. at 1963. The adjudication of a claim of inherently dangerous design such as is asserted here turns on just such objective criteria. In rejecting the contention that Section 2680(a) protects the Government from liability for negligent design decisions in a flood control project, the Eleventh Circuit noted that some design decisions might fall within the exception if...