McMellon v. U.S.
| Decision Date | 18 October 2005 |
| Docket Number | No. 3:00 CV 0582.,3:00 CV 0582. |
| Citation | 395 F.Supp.2d 422 |
| Parties | Carrie A. MCMELLON, et al., Plaintiffs, v. UNITED STATES of America, et al., Defendants. |
| Court | U.S. District Court — Southern District of West Virginia |
Todd M. Powers, Schroeder Maundrell Barbiere & Powers, Cincinnati, OH, for Plaintiffs.
Charles T. Miller, Michael L. Keller, Rebecca A. Betts, Stephen M. Horn, U.S. Attorney's Office, Charleston, WV, David W. Ogden, Assistant Attorney General of the United States, Stephen R. Campbell, U.S. Department of Justice, Washington, DC, for Defendants.
On August 5, 1999, plaintiffs were injured when their personal water crafts went over the Robert C. Byrd Locks and Dam on the Ohio river. The dam is operated by the United States Army Corps of Engineers (Corps) and is owned by the United States. Although unfamiliar with the section of the river on which they were traveling, plaintiffs had not consulted any navigation charts, chartlets, maps, publications, or other navigational aids. As they traveled towards the dam, plaintiffs failed to see any of the warning signs posted along the river. They contend that the signs failed to signal the danger of the dam to watercraft traveling the middle of the river channel, and that some of the warning signs were obscured by bushes and trees.
In 1993, the Corps installed warning buoys on the upstream side of the dam. In 1995, however, the Corps removed the buoys after deciding that they posed a safety threat to vessels that were working on an extensive rehabilitation project on the dam. At the time of the accident, the upstream buoys had not been replaced, and the signs along the river bank were the only warning to boaters approaching the dam.
The plaintiffs, alleging negligence on the part of the United States and the Corps, sued under the Suits in Admiralty Act ("SIAA"), 46 U.S.C. § 742 (2000) and filed their complaint in the United States Southern District of West Virginia on September 10, 2000 [Docket # 1]. On September 7, 2001, the United States filed a motion to dismiss, or in the alternative, for summary judgment [Docket # 20], which this court granted on April 5, 2002. McMellon v. United States, 194 F.Supp.2d 478 (S.D.W.Va.2002). The plaintiffs appealed the dismissal to the Fourth Circuit Court of Appeals. In a panel opinion, the Fourth Circuit found that this court erred when it found that the United States did not have a duty to warn the plaintiffs of the dam's presence downstream. McMellon v. United States, 338 F.3d 287, 297-303 (4th Cir.2003). The court then reheard the appeal en banc, found that the SIAA contains an implied discretionary function exception to its general waiver of sovereign immunity, and vacated the opinion of the panel. McMellon v. United States, 387 F.3d 329 (4th Cir.2004) (overruling Lane v. United States, 529 F.2d 175 (4th Cir.1975)). The case was remanded to this court for a ruling consistent with that finding, and this written order and opinion reflects that effort.
Although the court is ruling on a motion to dismiss, the case is well into its discovery phase, and material outside of the pleadings has been presented and considered by the court. Therefore, the defendant's motion to dismiss, or in the alternative, for summary judgment, must be evaluated under the standard set forth in Rule 56 of the Federal Rules of Civil Procedure. Fed.R.Civ.P. 12(c). Rule 12(c) states that "if, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56." Fed.R.Civ.P. 12(c). Rule 56(c) states that a party is entitled to summary judgment in its favor "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden of establishing the absence of any genuine issue of material fact pursuant to Rule 56(c) rests upon the movant. Collard v. Smith Newspapers, Inc., 915 F.Supp. 805, 809 (S.D.W.Va.1996).
Once the movant satisfies that burden, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. Summary judgment is appropriate when the nonmoving party fails to establish a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Further, in ruling on a motion for summary judgment, a trial court "must believe the evidence of the nonmovant, and all justifiable inferences must be drawn in the nonmovant's favor." Estate of Kimmell Through Kimmell v. Seven Up Bottling Co. of Elkton, Inc., 993 F.2d 410, 412 (4th Cir.1993) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). Nonetheless, the nonmoving party must satisfy this burden of proof by offering more than a "mere scintilla of evidence" in support of his or her position. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In the case at bar, however, much of the defendant's argument in its motion to dismiss or, in the alternative for summary judgment, is premised upon legal issues that would either deny this court jurisdiction or establish that the plaintiffs have no cause of action.
Perceiving that this accident occurred on the navigable waters of the United States and that it therefore falls within the admiralty jurisdiction of the federal courts, the plaintiffs correctly bring their complaint under the SIAA. The SIAA is a waiver of sovereign immunity by the federal government for actions arising under maritime law. Kelly v. U.S., 531 F.2d 1144, 1148-49 (2d Cir.1976) (). This deliberate exposure to liability by the United States occurs "[i]n cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained." 46 U.S.C. § 742 (2000). However, the waiver of immunity in the SIAA is limited by a "discretionary function exception" that operates to shield the government from liability for injuries caused by the negligence of a government actor lawfully exercising his or her judgment or discretion. See McMellon v. United States, 387 F.3d 329, 338 (4th Cir.2004) ().
The defendant argues that decisions involving the implementation of a warning system to alert upstream boaters of the presence of the Robert C. Byrd Locks and Dam require the government actor to consider public policy matters, and that therefore the discretionary function exception to the SIAA acts as a bar to liability in this case. Furthermore, the defendant argues that, even if the discretionary function exception does not apply, the United States has fulfilled any duty it may have owed to these plaintiffs. Finally, the defendant asserts that the sole cause of plaintiffs' injuries was their own negligence. The court will address each of these arguments in turn.
The discretionary function exception's application to this case is a jurisdictional question. Therefore, the court will consider this issue before determining whether the elements of a cause of action are present, or if any genuine issue of material fact exists.
In McMellon v. United States, 387 F.3d 329 (4th Cir.2004), the Fourth Circuit, sitting en banc, found that "the government's waiver of sovereign immunity reflected in the Suits in Admiralty Act is subject to an implied exception similar to the discretionary function exception contained in the Federal Torts Claims Act." 387 F.3d at 331. The McMellon court further instructed that "it is therefore appropriate for FTCA cases to guide the application of the exception under the SIAA." Id. at 349. Therefore, this court will apply the same discretionary function analysis employed under Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680 (2000), claims to the facts in this case.
The discretionary function exception to the FTCA and SIAA is a difficult area of the law because it challenges typical notions of liability. Under the discretionary function analysis, exposure to liability is based, not upon negligence, but upon questions of "public policy." The exception exists in order "to prevent judicial `second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984). As such, the exception is an acknowledgment that an agency, charged with the daunting task of administering a government policy or agenda, cannot be expected to create regulations that serve as a blueprint for all conceivable factual situations arising within the scope of its regulatory authority. Thus, when necessary, agencies may enact regulations that empower government decision-makers with the authority to make choices or judgments based on the underlying policy goals of the regulatory regime. Such decisions are protected from liability by the discretionary function exception to the SIAA when the decision-maker, exercising his or her government-created discretion, bases the decision on the policy concerns of the governing regulatory regime.
On the other hand, agencies rarely attempt to regulate menial, everyday decisions. To do so would be excessive because such activity...
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...administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.'" McMellon v. United States, 395 F. Supp. 2d at 427 (quoting United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814 (1984)). "[T]he e......
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