Medley v. United States

• Decision Date: 01 June 1979
• Docket Number: Civ. A. No. 77-43-S.
• Parties: Billy D. MEDLEY, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Middle District of Alabama

480 F. Supp. 1005

Billy D. MEDLEY, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 77-43-S.

United States District Court, M. D. Alabama, S. D.

June 1, 1979.

Euel A. Screws, Jr., and Robert D. Segall, Montgomery, Ala. (Hobbs, Copeland, Franco & Screws), Montgomery, Ala., and Joe S. Pittman, Enterprise, Ala., for plaintiff.

Barry E. Teague, U. S. Atty., and Kenneth E. Vines, Asst. U. S. Atty., M. D. Ala., Montgomery, Ala., for the United States.

OPINION

FRANK M. JOHNSON, Jr., District Judge.

While assisting with clean-up operations in the aftermath of hurricane Eloise, plaintiff Billy D. Medley was seriously injured. He brings this action pursuant to the Federal Tort Claims Act, charging the United States with negligently causing his injury. 28 U.S.C. §§ 2671-2680. Plaintiff having made presentation of his claim to the appropriate federal agency more than six months prior to his commencement of this suit and no action having been taken, the Court has jurisdiction. 28 U.S.C. §§ 1346(b), 2675.

In October, 1975, hurricane Eloise caused extensive damage in Coffee County, Alabama. Units of the Alabama National Guard were activated to assist in the subsequent clean-up operation. When these units were deactivated, the National Guard agreed with officials of Coffee County to permit the continued use of Guard equipment to complete the operation, provided Guardsmen were paid by the county. It was at this time that a fellow Guardsman, Sgt. Ricky Snellgrove, invited Medley to join the clean-up effort. Medley had not previously been activated and had joined the Guard only the month before. Unable because of the heavy rains to work in his usual job as a brick mason, Medley agreed to work in the clean-up operation.

During his first two days, Medley rode with Sgt. Snellgrove to observe the procedures being followed. The work consisted of loading tree stumps onto the five-ton M-817 dump trucks owned and issued by the United States to the National Guard. Sgt. Snellgrove and Medley testified that the dump truck drivers would occasionally assist in the loading of the stumps in two ways. They would stand on the cab protector of the truck to help direct the crane operator in placing the stumps in the dump body. In addition, it was often necessary for the drivers to climb into the dump body after the stump had been set down in order to unhook the chains. On his third day, Medley began driving one of the M-817 dump trucks. On his fourth day, October 12, 1975, Medley was standing on the cab protector of his truck to assist in loading a stump when the dump body unexpectedly kicked up. Medley fell back onto the cab frame and was crushed when the dump body came down, pinning him against the metal frame of the cab. There is no dispute that the engine was off and that the lever for the hydraulic lift was in the neutral-lock position.

Prior to the accident, Medley and the crane operator, Sgt. O'Ferrell, had had some difficulty loading the stumps so as not to strike the power lines under which the dump truck was driven. At the time of the accident, therefore, O'Ferrell was attempting to load the stump with the roots down and toward the cab. Because the mass of roots caused the stump to be too high, O'Ferrell attempted to use the arm of the crane to press the stump and roots further down into the dump body. Although O'Ferrell testified that he had already swung the boom away from the truck, the Court finds that it was as he was still using the boom to force down the stump that the dump body rose, then fell, injuring Medley.

The evidence further reflects that, at the time of the accident, the tailgate of the dump truck was in a cocked position. Like many commercial dump trucks, the M-817 has a tailgate that can be hinged both from the top and the bottom. The tailgate is hinged from the top for spreader operations —e. g. to dump sand or gravel evenly. When hinged from the bottom, the tailgate can be let down in a horizontal position supported by chains, thereby lengthening the bed of the truck. Unlike most commercial trucks, however, the M-817 has a third tailgate position. The M-817 gate may be hinged from the bottom and placed in a cocked position, supported by heavy, metal flange panels attached to the dump body. When the tailgate is in the cocked or "rocker" position, large, heavy objects can be dumped over the tailgate without damaging it. Thus commercial dump trucks used in quarries incorporate the "rocker" fixture as an integral part of the dump body itself. Such trucks have no gate.

Plaintiff's case pivots on the tailgate design of the M-817 dump truck. Plaintiff argues that with the tailgate in the cocked position, the length of the dump body is, in effect, extended and the leverage characteristics of the dump body are thereby changed. With the tailgate in the cocked rather than in the closed position, only one-third the weight is necessary to cause the dump body to rise.¹

Plaintiff contends that, after the stump was placed in the truck, it rolled against the cocked gate. This substantial weight at the point of maximum leverage, plaintiff says, caused the dump bed to kick up unexpectedly. Plaintiff's theory is that this sequence was foreseeable by a design engineer with a basic knowledge of physics. Therefore, the United States was negligent in failing to install a mechanical locking device to prevent dumping while the truck is being loaded. It is urged that the United States was also negligent in failing to warn that the M-817 might unexpectedly dump when the gate is in the cocked position. The Court finds, however, that the evidence fails to establish that the United States was negligent in any way. Even if the United States was negligent, plaintiff was guilty of contributory negligence and is barred from recovery.

I. DISCRETIONARY FUNCTION

At the outset, the United States argues that it is immune from suit upon these facts. The Federal Tort Claims Act grants immunity to the United States against "any claim . . . based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). In Dalehite v. United States, 346 U.S. 15, 36, 73 S.Ct. 956, 968, 97 L.Ed. 1427 (1953), the Supreme Court gave that exception a broad reading, stating that "where there is room for policy judgment and decision there is discretion." Arguing that the M-817 represents the implementation of such a policy decision, the United States claims immunity from this action.

Dalehite did not, however, immunize all governmental decisions. It distinguished "planning" decisions, which are not actionable, from "operational" decisions, which are. Yet in drawing the distinction, the Supreme Court explained that planning-level decisions include more than the initiation of programs and activities. They include determinations "in establishing plans, specifications or schedules of operations" and even reach "the acts of subordinates in carrying out the operations of government in accordance with official directions." Id. The Supreme Court clearly intended the exception to cover more than the largest and most comprehensive planning decisions. But to read "plans, specifications or schedules of operations" as expansively as does defendant is to all but erase the distinction between planning and operational choices. As the Fifth Circuit cautioned in Smith v. United States, 375 F.2d 243, 246 (1967):

Most conscious acts of any person whether he works for the government or not, involve choice. Unless government officials . . . make their choices by flipping coins, their acts involve discretion in making decisions.

If the Tort Claims Act is to have the corpuscular vitality to cover anything more than automobile accidents in which government officials were driving, the federal courts must reject an absolutist interpretation of Dalehite, and that interpretation is rejected by Indian Towing Indian Towing Co. v. United States 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955) and especially by Rayonier Rayonier, Inc. v. United States 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957).

The danger to be avoided by the courts is an application of the planning-operational standard without reference to its underlying rationale and that of Section 2680(a).

The exception carved out by Section 2680(a) safeguards the separation of powers. It serves to prohibit judicial interference with decision-making properly exercised by the other branches of government and thereby protects "the Government from liability that would seriously handicap efficient government operation." United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963). Appreciating this rationale, the Supreme Court in Dalehite contrasted the discretion of an executive to act according to his best judgment on matters of policy with judgments made "within the limits of positive rules of law subject to judicial review." 346 U.S., at 34, 73 S.Ct., at 967. These rules are absent "when the question is not negligence but social wisdom, not due care but political practicability, not reasonableness but economic expediency. Tort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions." Blessing v. United States, 447 F.Supp. 1160, 1170 (E.D.Pa.1978). Some areas of governmental activity, by their nature, involve weighing social, political, and economic factors. The courts routinely find that discretion is involved in the promulgation of regulations and the awarding of government contracts. First National Bank v. United States, 552 F.2d 370 (10th Cir.), cert. denied, 434 U.S. 835, 98 S.Ct. 122, 54 L.Ed.2d 96 (1977) (regulations); Miller v. United States, 522 F.2d 386 (6th Cir. 1975) (regulations); Myers & Myers, Inc. v. United States Postal Service, 527 F.2d 1252 (2d Cir. 1975) (government contracts). The same is true of...