Mahler v. United States, Civ. A. No. 17923.
| Decision Date | 15 September 1961 |
| Docket Number | Civ. A. No. 17923. |
| Parties | Leopold W. MAHLER and Helen E. Mahler, his wife, and Bertha Ebertsheim, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Nathan Schwartz and Robert A. Cohen, Pittsburgh, Pa., for plaintiffs.
Joseph Langbart, Tort Section, Civ. Div., Dept. of Justice, Washington, D. C., and George Sewak, Asst. U. S. Atty., Pittsburgh, Pa., for defendant.
This is a suit under the Federal Tort Claims Act seeking damages for personal injuries and property damage sustained by the plaintiffs in a car accident that occurred on September 21, 1958. On that evening plaintiff Leopold W. Mahler was operating an automobile in a westerly direction on the Penn Lincoln Parkway on the extreme right-hand lane. Plaintiffs Helen E. Mahler and Bertha Ebertsheim were passengers in his automobile. The weather was clear and the road was dry. Plaintiff Leopold Mahler was operating his vehicle at a speed of approximately 35 MPH upon the parkway, which is at this point a six-lane concrete highway, three lanes in each direction. When he had reached a point approximately 500 feet west of the Bates Street Exit, and proceeding toward the ramp leading toward the Boulevard of the Allies, a large rock, together with other smaller rocks, earth, and debris, it is alleged, suddenly and without warning fell or rolled down from the hillside immediately on the right side of the Parkway directly in front and onto the front end of plaintiffs' automobile. There was a collision causing serious injuries to the plaintiffs.
That evening the lane in which he was proceeding was open to traffic although there may have been some minor rock slides earlier in the day. Slides had occurred on occasion prior to this accident, and this lane had been closed on other occasions. The plaintiffs allege that there was negligence on the part of agents or employees of the federal government which was the proximate cause of this accident. They allege that certain employees of the federal government participated with employees of the Department of Highways of the Commonwealth of Pennsylvania in the design of the projected highway. They allege that the design of the highway was a joint effort of the United States and the Commonwealth of Pennsylvania. They allege that the federal employees failed to review and discuss the nature and composition of the hillside involved here; that there was inadequate provision made for the safety of highway users. They further allege that no experts were called in by the federal government to review the core borings and design specifications as they pertained to the hillside. Nevertheless, the plans were approved by the federal government, and federal money was made available for this project. When construction began the Federal Bureau of Public Roads had its employee inspect the job, and they allege that the inspector was not qualified to make inspections. The inspection consisted merely of an on-the-spot review of the entire project during a few hour periods once a month, and that the inspector never discussed the problem concerning the hillside. They allege that if the federal government was dissatisfied with the design they could have cut off funds, but they never did this. They further allege that the federal government was negligent in its supervision of the maintenance of the highway. The Government only had one individual to inspect the highway, and he inspected this section of the parkway only on one occasion and reported that the maintenance of the highway was normal.
The plaintiffs propose to offer evidence that this hillside was dangerous, and that it was of such a nature that it had a tendency to form fissures resulting in rock falls and slides, that knowing this there should have been precautions taken that were not taken.
The Government has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C. asserting that the complaint does not state a cause of action against the United States, for the reason that the claim is based on the discretionary function exception of the Tort Claims Act, 28 U.S.C. 2680(a), and that Section 7 of the Federal Road Act, 23 U.S.C. § 48,1 excepts the United States from liability. There have been extensive arguments and voluminous briefs filed in this case. The question before the Court is very clear and rather simple. Its answer, however, is neither clear nor is it simple. The issue is whether under the facts, as we have attempted to set them forth, the United States may be held liable for this accident. The Government seems to assert that it is exempt from liability in this case due to the discretionary function exception to the Federal Tort Claims Act. However, it appears to this Court that the most logical way to approach this is to review this rather complex total relationship alleged here in its simplest terms. For in order to hold anyone liable in any type of tort relationship there first must be a duty owed to a person who is injured. There must be a breach of that duty, the breach must come about as a result of negligent activities, and that negligence should be the proximate cause of the accident and injury on which the complainant seeks redress. This is, of course, subject to the age-old theory of contributory negligence, and then all of those are subject to those exceptions that would immune someone from liability that would otherwise be imposed. Many of these are familiar to us, such as, the charitable institutions, and the immunity of the sovereign. Here the immunity of the sovereign—the United States—has been waived, except in certain situations, but before we can decide whether there has been a waiver of the Government's immunity or whether the act is an exception to the waiver, we should first determine whether there is a duty owed by the United States to this plaintiff. Therefore, we must determine what is the duty that the United States owes to this plaintiff, and how has it breached that duty?
In order to determine whether there is any duty owed to this plaintiff, the Tort Claims Act directs that liability be imposed on the government where there is a negligent or a 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). This means that there must be liability under the law of the state in which the wrongful act allegedly took place.
The plaintiffs assert that the duty owed by the United States to them arises under the provisions of the statutes dealing with the federal aid to highways.
To continue reading
Request your trial
-
Gaborik v. Rosema
...and Rubber Company, 523 F.2d 389 (CA6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich 1968); Mahlar v. U.S., 196 F.Supp. 362 (DC Pa 1961). These guidelines will be adhered to as substantive issues of the motion are II. Plaintiff's Claim Against Defendant Van Bu......
-
United States v. Davidson
...Company, 523 F.2d 389 (CA 6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich.1968); Mahler v. United States, 196 F.Supp. 362 (DC Pa.1961). These guidelines will be adhered to as substantive issues of the motion are In response to Plaintiff's motion, Defendant Da......
-
Lopez v. Ruhl
...and Rubber Company, 523 F.2d 389 (CA 6 1975); Holmes v. Insurance Company of North America, 288 F.Supp. 325 (DC Mich 1968); Mahler v. US, 196 F.Supp. 362 (DC Pa 1961). Viewing the Complaint and the facts before the Court under these standards, and giving Plaintiffs the benefit of every favo......
-
Millbrook v. United States
...breach of said duty; and (3) that the negligent breach was the proximate cause of the plaintiff's injury/loss. Mahler v. United States, 196 F.Supp. 362, 364 (W.D.Pa.1961), aff'd, 306 F.2d 713 (3d Cir.), cert. denied, 371 U.S. 923, 83 S.Ct. 290, 9 L.Ed.2d 231 (1962). It is well-settled that ......