Madison v. U.S.

• Decision Date: 03 June 1982
• Docket Number: 81-2000,Nos. 81-1980,s. 81-1980
• Citation: 679 F.2d 736
• Parties: Leonard MADISON, Administrator of the Estate of Lula Mae Madison, Deceased, Appellant, Oscar Walker, Administrator of the Estate of Eliza Walker, Deceased, Appellant, Willie H. Moody, Administrator of the Estate of Geraldine Moody, Deceased, Appellant, Willie D. Kelly, Administrator of the Estate of Shirley J. Kelly, Deceased, Appellant, v. UNITED STATES of America, Appellee. Carl McMICHAEL, Administrator of the Estate of Emma McMichael, Deceased, Appellant, Mrs. Lamar Bartlett; Mr. Winfred Lowe, Administrator of the Estate of Mrs. Thelma Lowe, Deceased; Mrs. Edna Rogers; Mrs. Flora Weaver; and Mrs. Georgia Ray, Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 736

679 F.2d 736

Leonard MADISON, Administrator of the Estate of Lula Mae

Madison, Deceased,

Appellant, Oscar Walker, Administrator of the Estate of

Eliza Walker, Deceased,

Appellant, Willie H. Moody, Administrator of the Estate of Geraldine Moody, Deceased, Appellant, Willie D. Kelly, Administrator of the Estate of Shirley J. Kelly, Deceased, Appellant, v. UNITED STATES of America, Appellee.

Carl McMICHAEL, Administrator of the Estate of Emma

McMichael, Deceased, Appellant,

Mrs. Lamar Bartlett; Mr. Winfred Lowe, Administrator of the

Estate of Mrs. Thelma Lowe, Deceased; Mrs. Edna

Rogers; Mrs. Flora Weaver; and Mrs.

Georgia Ray, Appellants, v. UNITED STATES of America, Appellee.

Nos. 81-1980, 81-2000.

United States Court of Appeals Eighth Circuit.

Submitted March 11, 1982.

Decided June 3, 1982.

McMath & Leatherman, P. A. by James Bruce McMath, Little Rock, Ark., for appellants McMichael et al.

Whetstone & Whetstone by Bernard Whetstone, Little Rock, Ark., for appellant Madison.

Larry R. McCord, U. S. Atty., Floyd Clardy, Sp. Asst. U. S. Atty., Fort Smith, Ark., for appellee.

Before HEANEY, BRIGHT and HENLEY, Circuit Judges.

HEANEY, Circuit Judge.

These consolidated cases were filed individually against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2678, 2680. The plaintiffs seek damages for injuries and deaths caused by an explosion near Camden, Arkansas, on March 8, 1976. The explosion occurred at a plant where Celesco Industries, Inc., an independent contractor, was producing ammunition pursuant to a contract with the United States. The plaintiffs appeal from the district court's order granting the government's motion for summary judgment on the ground that the plaintiffs' tort claims were barred by the discretionary function exception to the FTCA. We affirm in part, reverse in part and remand for proceedings consistent with this opinion.

I.

On June 20, 1975, the United States awarded a contract to Celesco to produce highly explosive M123AL photo-flash cartridges. Celesco was the only company to submit a bid. The contract provided that Celesco was to produce 36,000 units, and it was to be paid $900,957.

Before the contract was awarded, the government evaluated Celesco to determine if it possessed the necessary technical and production capabilities to properly manufacture the ammunition. A safety survey was also prepared by Lawrence Del Regno, a Defense Contract Administration Services regional officer. The survey indicated that Celesco could comply with the safety requirements of the contract. It also stated that Del Regno had personally made the required on-site evaluation of the Celesco plant. In fact, he had not visited the plant during the pre-award survey, although he had previously viewed the facilities.

After the contract was awarded, Del Regno and the quality assurance representatives under his supervision were responsible for continuing to monitor Celesco's compliance with the contract's safety requirements. ¹ According to the parties' stipulation, however, these government officials made only periodic inspections and permitted Celesco to continue its operations despite numerous safety violations.

On March 8, 1976, as a thunderstorm was approaching, ² an explosion occurred in the cartridge assembly building. Seven employees were killed; five others were seriously injured. Other employees suffered less serious injuries. The building was completely destroyed. Celesco never resumed production of the photo-flash cartridges and, apparently, has failed to fulfill its contractual obligations.

The plaintiffs filed suit against the United States, advancing three theories of liability under the FTCA. They alleged that the government was negligent in (1) awarding a contract to produce a highly dangerous commodity to Celesco, which possessed neither the necessary skills or proper facilities; (2) promulgating inadequate safety standards in the Department of Defense Contractor's Safety Manual; and (3) failing to enforce Celesco's compliance with the safety requirements of the Contractor's Safety Manual.

The United States moved for summary judgment on the ground that the plaintiffs' claims were barred by the discretionary function exemption of the FTCA. ³ The district court granted the motion. The plaintiffs now appeal.

II.

Summary judgment should not be granted unless there is no genuine issue of material fact, and the moving party is entitled to judgment as a matter of law. Ralph's Distributing Co. v. AMF, Inc., 667 F.2d 670, 672 (8th Cir. 1981). The drastic nature of the summary judgment remedy imposes on the moving party the burden of establishing, with such clarity as to leave no room for controversy, that the plaintiffs are not entitled to recover under any circumstances. Id. All evidence must be viewed in the light most favorable to the party opposing summary judgment. Id.

III.

Under the FTCA, the United States is liable for any "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 omission occurred." 28 U.S.C. § 1346(b). There are, however, certain exceptions enumerated in the FTCA to the government's liability for its employees' negligence. In this case, the United States seeks to invoke the discretionary act exception, 28 U.S.C. § 2680(a). ⁴

The United States cannot be liable under the FTCA for a discretionary function or duty performed by the government. Dalehite v. United States, 346 U.S. 15, 18, 73 S.Ct. 956, 959, 97 L.Ed. 1427 (1953). In defining a discretionary function, the Dalehite Court distinguished between decisions made on the planning level and those made on the operational level. Id. at 35-42, 73 S.Ct. at 967-971. The United States is immune from suit with respect to the exercise of discretion at the planning level, but it may be sued under the FTCA for negligent decisions made at the operational level. Id.; Indian Towing Company v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1955).

The planning level consists of decisions involving questions of policy, that is, the evaluation of the financial, political, economic and social effects of a plan. See, e.g., Dalehite v. United States, supra, 346 U.S. 35-42, 73 S.Ct. 967-971; Swanson v. United States, 229 F.Supp. 217, 220 (N.D.Cal.1964). On the other hand, the operational level involves decisions relating to the normal day-to-day operations of government. See, e.g., Dalehite v. United States, supra, 346 U.S. at 35-42, 73 S.Ct. at 967-971; Swanson v. United States, supra, 229 F.Supp. at 220.

Plaintiffs' three theories of recovery raise two major questions. First, are the negligent acts or omissions discretionary functions which are immune from suit under the FTCA. Second, if-and only if-these acts or omissions are not discretionary functions, are the theories cognizable under the law of Arkansas, the state where the tort occurred. ⁵

The district court reached only the first question because it held that the discretionary function exception barred recovery under all three of plaintiffs' negligence theories, and granted summary judgment in favor of the United States. We agree that the awarding of the government contract and the promulgating of the Department of Defense Contractor's Safety Manual and regulations are exempt discretionary functions. These acts were planning level decisions involving the weighing of various facts and policies and, hence, the United States is not liable under the FTCA even if the responsible governmental employees performed their duties negligently. See, e.g., Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252, 1256 (2d Cir. 1975) (contract awarded); Scanwell Laboratories, Inc. v. Thomas, 521 F.2d 941, 948 (D.C.Cir.1975), cert. denied, 425 U.S. 910, 96 S.Ct. 1507, 47 L.Ed.2d 761 (1976) (contract awarded); Market Insurance Co. v. United States, 415 F.2d 459, 463-464 (5th Cir. 1969) (safety regulations and manual issued). This conclusion disposes of plaintiffs' first two theories of recovery and, thus, we need not consider whether they are cognizable under Arkansas law.

We cannot, however, agree with the district court's conclusion that the plaintiffs' third theory of negligence is also barred by the discretionary function exemption. The parties stipulated for purposes of the summary judgment motion that the United States failed to enforce compliance with the regulations of the Contractor's Safety Manual. In determining that these failures were exempt discretionary acts, the district court did not conclude, or cite any authority indicating that, these decisions were made at the planning level. Indeed, it did not even use the traditional discretionary function analysis which distinguishes between planning and operational level decisions. Instead, it relied solely on a line of cases stating that the government has only the right-not the duty-to enforce safety rules. E.g., Zabala Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir.), cert. denied, 435 U.S. 1006, 98 S.Ct. 1876, 56 L.Ed.2d 388 (1978); Gibson v. United States, 567 F.2d 1237, 1243 (3d Cir. 1977), cert. denied, 436 U.S. 925, 98 S.Ct. 2819, 56 L.Ed.2d 768 (1978); Market Insurance Co. v. United States, supra, 415 F.2d at 463. This reliance was misplaced.

The cases relied on by the district court are plainly distinguishable from the one here. In those cases, the plaintiffs sought to recover from the government for the negligence of independent contractors on theories of vicarious, absolute or strict liability. It is beyond cavil that the United States cannot be held vicariously, absolutely or strictly liable under the FTCA for the negligence of independent contractors employed by the government. See 28 U.S.C. §§ 1346, 2671....