Hernandez v. United States, Civ. 1028.
Decision Date | 03 June 1953 |
Docket Number | Civ. 1028. |
Citation | 112 F. Supp. 369 |
Parties | HERNANDEZ et al. v. UNITED STATES. |
Court | U.S. District Court — District of Hawaii |
Hyman M. Greenstein, Honolulu, Hawaii, for plaintiff.
A. William Barlow, U. S. Atty., District of Hawaii, Honolulu, Hawaii, Winston C. Ingman, Asst. U. S. Atty., District of Hawaii, Honolulu, Hawaii, for defendant.
This is an action for damages brought under the Federal Tort Claims Act, 28 U.S. C.A. §§ 1346(b), 2671-2680. The complaint alleges that, prior to September 16, 1950, the employees of the United States erected a road block or obstruction across John Rodgers Road at a point intersecting a runway of Hickam Field, a United States military airfield. It is alleged that John Rodgers Road is under the exclusive control of the United States and open to public travel. On September 16, 1950, the plaintiff, while a passenger on a motorcycle, was injured when the motorcycle was forced to run off John Rodgers Road to avoid hitting the road block. The action is based on the alleged negligence of the United States by its employees in obstructing John Rodgers Road "without proper warning signal, sentries or guards, protection or anything else to indicate danger or give notice to travelers or passers along said highway against accidents."
The United States has entered a motion to dismiss on the ground of lack of jurisdiction over the subject matter. Reliance is placed on 28 U.S.C.A. § 2680, which provides in part as follows:
The Government contends that the erection of the road block in question and the placing of warning signals and guards are discretionary functions or duties of the employees of the United States charged with the administration of Hickam Field.
"Section 2680 is definitive of the jurisdiction of the court to entertain suits under the Tort Claims Act." Toledo v. United States, D.C.D.Puerto Rico 1951, 95 F.Supp. 838, 840. Consequently, if the subject matter of the complaint in question fall within exception (a) of Section 2680, this Court has no jurisdiction to adjudicate the claim.
Congress has not defined the vague phrase "discretionary function or duty" in the Act. Legislative history is of little assistance. Judicial inconsistency and confusion pervade this area of federal tort liability. See Note, 66 Harvard Law Review 488 (1953). However, in this case, this Court finds it unnecessary to label the pertinent governmental function or duty either discretionary or nondiscretionary.
Like this Court, other federal courts must be aware of the words "performance" of "a discretionary function or duty" in subsection (a) of 28 U.S.C.A. § 2680. However, a line of federal cases holds that, once discretion is exercised and a decision made, there is duty on the part of government employees to proceed with due care. In Somerset Seafood Co. v. United States, 4 Cir., 1951, 193 F.2d 631, the plaintiff sought to recover for the loss of an oyster boat, alleged to have been stranded on a wreck of a ship which had been sunk by the United States in navigable waters. It was alleged that the loss was due solely to the negligence of the Government in creating and marking the wreck. The court held that the "discretionary function" exception of Section 2680 was not applicable since the Wrecks Act, 33 U.S.C.A. §§ 409, 736, 14 U.S.C.A. § 86, made it mandatory for the United States to mark or remove the wreck. However, Judge Dobie further stated in 193 F.2d at page 635:
(Emphasis added.)
The above quotation may be obiter...
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