McNamara v. United States, Civ. A. No. 3768-60.

• Decision Date: 16 December 1961
• Docket Number: Civ. A. No. 3768-60.
• Citation: 199 F. Supp. 879
• Parties: Helen E. McNAMARA and John F. McNamara, Plaintiffs v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Columbia

199 F. Supp. 879

Helen E. McNAMARA and John F. McNamara, Plaintiffs v. UNITED STATES of America, Defendant.

Civ. A. No. 3768-60.

United States District Court District of Columbia.

December 16, 1961.

Sidney A. Cohen, Washington, D. C., for plaintiffs.

David Acheson, U. S. Atty., Sylvia A. Bacon and Joseph M. Hannon, Asst. U. S. Attys., Washington, D. C., for defendant.

HOLTZOFF, District Judge.

This is an action against the United States under the Federal Tort Claims Act to recover damages for personal injuries sustained by the female plaintiff, Helen E. McNamara, and for loss of services suffered by her husband, John P. McNamara, the male plaintiff, as a result of his wife's injuries.

The facts out of which this case arose are not in dispute. The two plaintiffs and their son were visitors to Washington on the day in question in this case. As is true of numerous sightseers, they went to see the Capitol. They were walking along the corridor leading from the center of the building to the Senate wing. As they walked along, Helen McNamara slipped and fell on the floor near the point where there is a door from the corridor leading to the Senate Restaurant. She sustained serious injuries as a result of her fall.

This suit is grounded on alleged negligence on the part of the United States in the maintenance of the floor of the Capitol building where the female plaintiff fell. It is claimed that the floor, through the course of time, had become somewhat worn and uneven and, therefore, dangerous to passersby, and that this condition had reached such a degree as to constitute a violation of the duty of the Government to keep the place in a reasonably safe condition for those who were going to use it. There is no claim that there was any foreign substance on the floor or that anything else caused the plaintiff to fall except that the floor had become slippery, worn and dangerous as a result of continuous wear by millions of pedestrians over the many years of the existence of the Capitol.

At the outset of the trial the Government interposed two preliminary objections concerning which a word should be said. The first objection was that this action did not lie as a matter of law in that the scope of the Federal Tort Claims Act was limited to the Executive Branch of the Government and did not comprise the activities of the Legislative or Judicial Branches. The Court overruled this objection and is adhering to its ruling, after further consideration.

The Federal Tort Claims Act is a comprehensive statute, the purpose of which was to waive governmental immunity to suit in tort which this country originally inherited from the immunity accorded to the King of England, and it might be said in passing that the British Sovereign has also waived immunity to suit in tort some years ago. The Act was a far-reaching reform in jurisprudence. It was the work of many minds over many years, and unlike other statutes waiving governmental immunity to suit in specific matters, this statute should receive and has received a liberal construction. When we look at the phraseology of the statute it is not limited to the Executive Branch of the Government. It refers to the liability of the United States (28 U.S.Code, § 1346) and to the negligent or wrongful act or omission of any employee of the Government. There is no limitation there to the Executive Branch of the Government or to the employees of the Executive Branch of the Government.

It is true, as is pointed out by Government counsel, that 28 U.S.Code, § 2671, describes the meaning of the term "federal agency". It should be observed that this is not an exclusive definition, but provides that the term "federal agency" shall include certain branches of the Government. It is obvious that the purpose of that definition was to make certain that government-owned corporations and government-controlled corporations should be included as branches of the Government for the purpose of the Federal Tort Claims Act. The Court is unable to see any other purpose of that clause.

Finally, there is no legislative history indicating any desire or intention to limit the statute in the manner contended in this case. It is the view of this Court that to adopt such a narrow limitation would defeat a part of the beneficent purposes of the statute. For this reason, the Court adheres to its ruling that the statute applies to all three branches of the Government.

The second preliminary objection was of a different nature. While the Federal Tort Claims Act constitutes a general waiver on the part of the Federal Government of immunity to suit in tort, there are certain torts that are expressly excepted from the Act. They are listed in 28 U.S.Code, § 2680. The Court is of the opinion that these exceptions should be narrowly construed. One of the exceptions contained in Paragraph (a) of this Section is a claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty. This clause has been somewhat troublesome because its meaning is, at times, difficult to discern. Does it mean that no claim can be predicated on an error of judgment in determining whether to perform or not to perform a function that is discretionary, or does it mean, as well, negligence in the performance of such a function? The Court is of the opinion that the phrase should be limited to the first alternative. It is inconceivable that if the Government undertakes to perform a discretionary function and does it negligently, thereby injuring somebody, such an act should be excepted from the Federal Tort Claims Act.

It is not necessary, however, for the purposes of this case to determine the exact meaning of the words discretionary function or duty. It may be that designing a building is a discretionary function, but maintenance of a safe condition within a building is not a discretionary function. By way of illustration the Court might refer to its decision, when sitting in the Southern District of California, in Peets v. United States, D.C., 165 F.Supp. 177, in which the plaintiff was awarded damages for personal injuries caused by an unsafe condition of a ramp leading from a public building on a military base. Consequently, the Court is of the opinion that this case is not within the exception of discretionary duties or functions and, therefore, adheres to its ruling made at the opening of the trial overruling this objection on the part of the Government.

This brings us to the merits of this case, and this case should be and will be decided on the merits. Under the Federal Tort Claims Act the Government is liable in the same manner and to the same extent as would be a private individual under like circumstances. The substantive rights of the plaintiff and of the defendant in such a case must be measured by the law of the state in which the cause of action arose. In this instance, it is the District of Columbia. Consequently, the tort law of the District of Columbia governs the plaintiffs' rights and the defendant's liabilities.

Counsel for the plaintiffs cogently argued that the liability of the defendant in this case would be somewhat similar to the liability of...