Lakeland R-3 School Dist. v. United States

• Decision Date: 03 August 1982
• Docket Number: No. 80-0188-CV-W-8.,80-0188-CV-W-8.
• Parties: LAKELAND R-3 SCHOOL DISTRICT, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

546 F. Supp. 1039

LAKELAND R-3 SCHOOL DISTRICT, Plaintiff, v. UNITED STATES of America, Defendant.

No. 80-0188-CV-W-8.

United States District Court, W. D. Missouri, W. D.

August 3, 1982.

COPYRIGHT MATERIAL OMITTED

C. E. Weedman, Jr., Crouch, Crouch, Spangler & Douglas, Harrisonville, Mo., for plaintiff.

Robert E. Larsen, U. S. Atty., Kansas City, Mo., for defendant.

ORDER

STEVENS, District Judge.

This is an action for damages to the elementary school in Deepwater, Henry County, Missouri, which is owned by plaintiff, Lakeland R-3 School District. Plaintiff alleges that the damage to the school occurred on March 8, 1978, when the United States Army was using explosives to destroy Missouri State Bridge No. 5, located approximately 1.5 miles from the school. Federal jurisdiction is premised upon the Federal Tort Claims Act, 28 U.S.C. Section 2671 and 28 U.S.C. Section 1346(b). The complaint was timely filed pursuant to 28 U.S.C. Section 2401.

The court trial of this matter consumed two days. At the close of plaintiff's case, the defendant moved for a directed verdict, which was taken under advisement and is now overruled. A brief review of the facts as jointly stipulated and as presented at trial through testimony and documentary evidence is necessary prior to the discussion and resolution of the remaining issues presented.

Construction on the Harry S. Truman Dam and Reservoir near Warsaw, Missouri, by the United States Army Corps of Engineers had been ongoing for several years prior to March, 1978. It was anticipated that the lake waters would inundate some roads in the Henry County area so the Fifth Engineer Battalion (Combat) of the United States Army at Fort Leonard Wood, Missouri, was offered the opportunity to destroy two bridges in the area. Prior to the demolition of State Bridge No. 5, the plans to destroy the second bridge were cancelled so the Army was only involved in the elimination of one bridge from the Truman Lake area.

The Fifth Engineer Battalion utilized the "Warsaw Project," as the demolition of the bridge was known, as a training exercise to provide the men of the Battalion with experience in "combat" bridge demolition. The Army's preparation for demolition included aerial reconnaissance of the blast site, preliminary surveys of some structures near the site (but not the school) and development of a plan for the project based on materials known as Army Field Manuals. The project was begun in late February, 1978, and State Bridge No. 5 was destroyed by the battalion on March 7-8, 1978. The plaintiff's claim for damages in the amount of $175,000 was presented to the Army Corps of Engineers on December 14, 1978, was considered under provisions of 10 U.S.C. Section 2733, and was denied by the Army on September 7, 1979. This action was commenced February 22, 1980.

The Discretionary Function Exception

The threshold question presented in this action is whether the discretionary function exception to the Federal Tort Claims Act bars suit against the defendant.¹ Whether a particular act of a government official can be defined as the performance of a discretionary function is a jurisdictional issue, which, if so defined, bars the plaintiff's claim, Konecny v. United States, 388 F.2d 59 (8th Cir. 1967).

The court's search for the answer to the "discretionary function question" — that is, a determination of whether the Army's acts here involved such a function — begins with the seminal case on that subject, Dalhite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The inquiry necessary to determine if the exception applies focuses on whether the particular act of a government agent is one involving the formulation of government policy or whether the act in question occurred while implementing at an operational level a policy which had already been set. There is extensive discussion within the cases concerning the distinction between the formulation of policy and performance which reflects an already settled policy. Blessing v. United States, 447 F.Supp. 1160 (E.D.Pa. 1978), which contains a very thorough examination of the discretionary function exception concludes that lower court decisions since Dalhite do not comprise a "particularly coherent body of case law." 447 F.Supp. at 1172. It may be said, however, that the cases generally consider the level at which the act occurred, the ability of the judiciary to evaluate the act, and "whether judicial evaluation would impair the effective administration of the government." Lindgren v. United States, 665 F.2d 978, 980 (9th Cir. 1982).

Additional criteria for distinguishing between planning and operation were suggested in Driscoll v. United States, 525 F.2d 136 (9th Cir. 1975), which held that the decision of an army engineer not to install warning devices at an intersection was an operational act, not a discretionary one, and was thus actionable. Such additional criteria include the character and severity of the plaintiff's injuries; the existence of alternative remedies; the capacity of the court to evaluate the propriety of the official's actions; and the effect of liability on the administration of the function in question.

A recent opinion of this court found no discretionary function exception and hence no jurisdictional bar to plaintiff's action for wrongful death, alleging governmental liability where an electrical power line strung over a river did not appear on government air charts as required by governmental specifications. Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980). Allnutt held that because the United States had a policy regarding power lines as contained in the agency specifications, the question of defendant's negligence in preparing charts in accordance with those developed specifications was actionable and defendant's act was an operational level function.

There was no question during the trial of this action of the Army's policy regarding demolitions. The evidence adduced demonstrated that the Army officers who planned and executed the demolition of the bridge (Major Ronald D. Laux, Captain Jerry G. Love, and Sergeant Richard L. Demby, all of whom testified) relied on Army Field Manuals 5-25 and 5-34, on the Corps of Engineers United States Army Manual 385-1-1, and on the Safety Annexes to the "Military Operations/Logistics Order" pertaining to the project.

Defendant contends that the acts leading to the establishment of the plans and specifications for the demolition of this particular bridge are covered by the discretionary function exception. Each of the Army personnel who testified indicated that the materials just identified were used as guidelines. Major Laux described Field Manual 5-25 as containing "all the information we really need on demolitions ..." and he said the Corps of Engineers Manual 385-1-1 was referred to when they "couldn't get any other training guidelines." He also testified that he reviewed the plan with Captain Love to insure that it met the Army's specifications. The existence of these manuals indicates that the Army had already made a decision as to its policy on demolitions; the acts performed by the United States Army personnel were an attempt to implement that policy, thus the act in question occurred at an operational level.

To determine whether the discretionary function exception applies, the court must consider the other factors listed in Lindgren, 665 F.2d at 977, which refer to the court's ability to evaluate the act in question and the impact of judicial review upon the effective administration of government. Applying those factors to the case at bar, the act in question, blasting, is an act which courts are "`fully capable of scrutinizing ... by the usual standards applied to cases of professional negligence.'" Blessing, 447 F.Supp. at 1182-83, (quoting Griffin v. United States, 351 F.Supp. 10, 33 (E.D.Pa. 1972)). A review by this court of the Army's act involved here will not have an adverse impact upon the effective administration of government or the administration of Fort Leonard Wood nor "will it make the United States liable for large and numerous claims." Driscoll, 525 F.2d at 138.²

This court concludes that the acts performed by the United States Army in demolishing State Bridge No. 5 were performed at an operational level and thus this court has jurisdiction under the Federal Tort Claims Act to adjudicate plaintiff's claim against defendant United States.

Negligence

The jurisdictional issue having been resolved, the court must determine whether there was any operational level negligence in the demolition of State Bridge No. 5. The issue of liability under the Federal Tort Claims Act is to be determined by the law of the place of the tort. In Missouri the general rule is that when one intentionally detonates explosives, he is "absolutely liable for any injuries and damages which are the proximate result of such explosions." Donnell v. Vigus Quarries, Inc., 526 S.W.2d 314, 316 (Mo.App.1975). That state standard cannot be employed here, however, because Dalhite held that the United States cannot be held to a standard of strict liability without fault.

The post trial memorandum filed by plaintiff reviews the evidence which plaintiff contends establishes the Army's negligence in demolishing the bridge. However, plaintiff has not directed the court to any cases which fill the void created by the court's inability to apply the strict liability standards of the State of Missouri. Defendant, on the other hand, in its post-trial brief, analogizes to other cases involving the accidental, not intentional, detonation of liquid explosives. In Paisley v. Liebowits, 347 S.W.2d 178, 183 (Mo.1961), which involved a child trespasser who was injured when explosive liquid stored on the defendant's land accidentally exploded, the court stated that the standard of care for one using explosive materials is that of a "reasonably careful person under the same...