Leone v. US

Decision Date08 June 1988
Docket NumberCV 87-1609 (RJD).,No. CV 87-1568 (RJD),CV 87-1568 (RJD)
PartiesReynold LEONE, as Administrator of the Estate of Andrea Leone, also known as Andrea Held, deceased, Plaintiff, v. UNITED STATES, Defendant. Frances S. COSTIGAN (now known as Costigan-Leeds), as Executrix of the Estate of George B. Costigan, Jr., deceased, Plaintiff, v. UNITED STATES, Defendant.
CourtU.S. District Court — Eastern District of New York

Milton Sincoff, Margaret Sowah, Kriendler & Kriendler, New York City, for plaintiffs.

Thomas B. Almy, Torts Branch, Civil Div., U.S. Dept. of Justice, Washington, D.C., for defendant.

MEMORANDUM AND ORDER

DEARIE, District Judge.

This is a Federal Tort Claims Act ("FTCA") suit by the estates of two persons who died in an airplane crash when the pilot suffered a heart attack and the plane crashed, killing all aboard. Plaintiffs claim that the doctors who performed medical exams of the pilot, which are conditions precedent to obtaining a pilot's certificate, were government employees who conducted the exams negligently.

The United States has moved to dismiss on two grounds. Plaintiffs have cross-moved for partial summary judgment. For the reasons stated below, the government's motion is denied in its entirety and the plaintiffs' cross-motion for summary judgment is granted.

FACTS

On November 16, 1984, a single engine Piper aircraft crashed, killing plaintiffs' decedents, who were passengers in the aircraft. The aircraft crashed when the pilot, Irwin R. Small, apparently suffered a heart attack and lost control of the aircraft. At the time of the crash Mr. Small had the required Federal Aviation Administration ("FAA") third-class medical certificate enabling him to operate his aircraft.1

The Code of Federal Regulations sets out various physical requirements for those seeking to obtain medical certification as a pilot. The regulations for a third class medical certificate, 14 C.F.R. § 67.17 (1987), provide that an applicant must have no established medical history or clinical diagnosis of (1) myocardial infarction; (2) angina pectoris; or (3) coronary heart disease that has required treatment or, if untreated, that has been symptomatic or clinically significant. Those charged with the responsibility of issuing or denying medical certificates based upon whether or not applicants meet these medical standards are referred to as aviation medical examiners ("AMEs"). See Federal Aviation Administration's Guide to Aviation Medical Examiners (1981).

Two AMEs conducted physical exams of Mr. Small. In September, 1982, Dr. John Sabatine examined Mr. Small for the issuance of his third-class medical certificate. In August, 1984, Dr. John Conlon examined Dr. Small for the purpose of renewing that certificate.2

Plaintiffs claim in their complaints that the physicians were negligent in their examinations in (1) failing to question or inadequately questioning Mr. Small about his medical history; (2) failing to or inadequately performing a stethoscopic examination of Mr. Small's heart; (3) failing to or inadequately examining Mr. Small's skin by failing to see a catheterization scar or obtain information about it; and (4) failing to find the medical history or clinically significant signs of angina or coronary heart disease. Plaintiffs further allege that the negligence of the AMEs proximately caused the deaths of their decedents, thus subjecting the United States to liability under the FTCA.

DISCUSSION

The FTCA, 28 U.S.C. § 1346(b), authorizes suits against the United States for damages

for injury or loss of property, or personal injury or death caused by the negligent 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 the omission occurred.

The FTCA further provides that the United States shall be liable with respect to tort claims "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674.

The FTCA did not waive the sovereign immunity of the United States in all respects; rather, Congress carved out various exceptions to the FTCA's broad waiver of immunity. One of those exceptions provides that the FTCA shall not apply to

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.

28 U.S.C. § 2680(a) (emphasis added). The legislative history of the discretionary function exception indicates that it was

designed to preclude application of the act to a claim based upon an alleged abuse of discretionary authority by a regulatory or licensing agency ... It is neither desired nor intended that the legality of regulations, or the propriety of a discretionary administrative act should be tested through a damage suit for tort. The same holds true of other administrative action not of a regulatory nature, such as the expenditure of Federal funds, the execution of a Federal project, and the like.

Hearings on H.R. 5373 and H.R. 6463 before the House Committee on the Judiciary, 77th Cong.2d Sess. 28, 33 (1942) (quoted in Pelham v. U.S., 661 F.Supp. 1063, 1070 (D.N.J.1987)). This discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa De Viacao Aerea Rio Grandense, 467 U.S. 797, 808, 104 S.Ct. 2755, 2762, 81 L.Ed.2d 660 (1984) (hereinafter Varig Airlines).

Seizing on the language of §§ 2674 and 2680(a), the government makes two arguments for dismissal. First, the government argues that because there is no comparable authority in the private sector for the certification of pilots, the United States cannot be held liable for negligence in the regulation of its pilots through its medical certification process. Second, the government argues that the certification of pilots in question here fits squarely with the discretionary function exception. Plaintiffs urge the Court to reject the government's arguments and to grant them summary judgment striking the government's affirmative defense of discretionary function. The Court will address the government's arguments in reverse order.

1. Discretionary Function Exception

The Supreme Court examined the nature and scope of the discretionary function exception in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Dalehite involved claims for damages against the government arising out of an explosion of ammonium nitrate fertilizer, which had been produced and distributed under the direction of the government for export to areas occupied by the allied forces after the Second World War. The plaintiffs alleged that several acts of the government constituted negligence: the cabinet-level decision to institute the fertilizer export program; the failure to experiment with the fertilizer to determine the possibility of explosion; the drafting of the plan of manufacture; and the failure properly to police the storage and loading of the fertilizer.

The Supreme Court concluded that the allegedly negligent acts were governmental duties protected by the discretionary function exception. Describing the discretion protected as "the discretion of the executive or the administrator to act according to one's judgment of the best course," 346 U.S. at 34, 73 S.Ct. at 967, the Court stated:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.

Id. at 35-36, 73 S.Ct. at 968.

Several years after Dalehite, the Second Circuit, in Hendry v. United States, 418 F.2d 774 (2d Cir.1969), had occasion to consider that case in the context similar to that in the case at bar. In Hendry, plaintiff was licensed by the Coast Guard as qualified to sail as master of a steam vessel. Following certain bizarre behavior by the plaintiff, the Coast Guard conducted an investigation and requested that plaintiff give up his license until he was declared fit by the U.S. Public Health Service. Plaintiff assented to this. Id. at 777.

A psychiatrist at the Public Health Hospital conducted an initial examination of the plaintiff and, although evincing some doubts, declared the plaintiff "fit." On the day after the exam, however, that psychiatrist received a copy of the Coast Guard report on the plaintiff and copies of letters the plaintiff had written. After seeing these items, the psychiatrist ordered a psychological exam, which was later conducted by a second doctor and which concluded that plaintiff was psychologically unfit. Upon receiving the results of the second exam, the first doctor concluded plaintiff was unfit for sea duty. Plaintiff objected to that conclusion and underwent a psychiatric exam through a private doctor, which resulted in a finding of fitness. Thereafter plaintiff sought reexamination by the Coast Guard, which was later had and resulted in a finding favorable...

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4 cases
  • Sabia v. State, s. 93-594
    • United States
    • United States State Supreme Court of Vermont
    • October 30, 1995
    ...Act does not require showing that private person would have been liable under precisely same situation as state); Leone v. United States, 690 F.Supp. 1182, 1189 (E.D.N.Y.1988) (Second Circuit has "not required exactly the same private sector activity as a predicate for finding liability"); ......
  • Navajo Agric. Prods. Indus. v. United States
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 13, 2022
    ...government assumed a duty and may strengthen claims of justifiable reliance." Id. (collecting cases). See also Leone v. United States , 690 F. Supp. 1182, 1190 (E.D.N.Y. 1988) (finding that "[t]he United States assumed the duty of licensing pilots" pursuant to FAA regulations and thus could......
  • Navajo Agric. Prods. Indus. v. United States
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • June 13, 2022
    ...government assumed a duty and may strengthen claims of justifiable reliance.” Id. (collecting cases). See also Leone v. United States, 690 F.Supp. 1182, 1190 (E.D.N.Y. 1988) (finding that “[t]he United States assumed the duty of licensing pilots” pursuant to FAA regulations and thus could b......
  • Leone v. US, CV 87-1568.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • June 27, 1989
    ...stricken. SO ORDERED. 1 The facts are set forth in greater detail in this Court's prior decision in this action, Leone, et al. v. United States, 690 F.Supp. 1182 (E.D.N.Y. 1988). 2 This Court has previously held that the FTCA's "discretionary function" exception does not apply to AMEs becau......

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