Miller v. U.S.

• Decision Date: 17 June 1983
• Docket Number: No. 79-1605,79-1605
• Citation: 710 F.2d 656
• Parties: Karen Lee MILLER, individually; Earl Edward Miller, individually, Plaintiffs-Appellants, v. UNITED STATES of America, DEPARTMENT OF TRANSPORTATION (including the National Highway Traffic Safety Administration), Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 656

710 F.2d 656

Karen Lee MILLER, individually; Earl Edward Miller individually, Plaintiffs-Appellants, v. UNITED STATES of America, DEPARTMENT OF TRANSPORTATION (including the National Highway Traffic Safety Administration), Defendants-Appellees.

No. 79-1605.

United States Court of Appeals Tenth Circuit.

June 17, 1983.

Jeffrey S. Pop, Beverly Hills, Cal. (Thomas G. Hahn of Pop & Hahn, Beverly Hills, Cal., and Michael M. McGloin of Arkin, McGloin & Davenport, Denver, Colo., with him on the briefs), of Pop & Hahn, Beverly Hills, Cal., for plaintiffs-appellants.

Sandra Wien Simon, Washington, D.C. (Alice Daniel, Acting Asst. Atty. Gen., Leonard Schaitman and Robert Kaplan, Attys., Dept. of Justice, Civil Division, Appellate Staff, Washington, D.C., and Joseph F. Dolan, U.S. Atty., Denver, Colo., with her on the brief), of Dept. of Justice, Civil Division, Appellate Staff, Washington, D.C., for defendants-appellees.

Before HOLLOWAY, McWILLIAMS and BARRETT, Circuit Judges.

HOLLOWAY, Circuit Judge.

Plaintiffs-appellants brought this action under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671 et seq. (FTCA), and the Federal Highway Safety Act, 23 U.S.C. Secs. 401 et seq., for personal injuries resulting from an automobile accident which occurred December 18, 1977, on U.S. 6 (Interstate 70) in Garfield County, Colorado. Prior to discovery the district court granted defendant's motion to dismiss, basing its decision on the pleadings and affidavits and thus entering a summary judgment for the defendants on two grounds: (1) that the discretionary function exception, 28 U.S.C. Sec. 2680(a), precludes any liability of the United States for its acts or omissions in connection with this cause; and (2) that any negligent acts or omissions of the State of Colorado were those of an independent contractor for whose negligence the United States could not be held liable. We affirm the district court's judgment.

I

Plaintiffs, husband and wife Earl and Karen Miller, were driving their Volkswagen "bus" eastbound on U.S. 6 (Interstate 70), approximately three miles east of the Garfield-Mesa County line in Colorado, near mile marker 67, when the vehicle skidded off the slippery roadway onto a narrow shoulder and down a steep embankment. (Complaint paragraphs 7, 8). As a result of this tragedy, Karen Miller is a paraplegic. (Complaint p 23). Following administrative denial of plaintiffs' tort claims (Complaint p 9), they filed this action for general damages, medical expenses, property damage, lost earnings, and loss of consortium.

Plaintiffs allege that defendants United States and the Department of Transportation ¹ failed to inspect construction plans to Plaintiffs state that the United States had authority and means available to have posted signs, markings and devices to warn of the dangerous condition and to install guardrails to rectify the condition (Complaint paragraphs 18-19); that the Government knew or should have known that the accident site was dangerous and that there had been numerous accidents involving serious injury in the area (Complaint p 20); that the Government negligently failed to follow its normal and established highway safety criteria, which demand utilization of warning and safety devices such as guardrails on interstate highways at places similar to the site of the accident. (Complaint paragraphs 21-22). Plaintiffs allege further during 1970 or 1971 the United States approved construction plans and provided funding to the State for improvement and widening of U.S. 6 in Garfield County. (Complaint p 3). The second count of the complaint alleged federal question jurisdiction and asserted a claim under the Highway Safety Act, 23 U.S.C. Secs. 401 et seq., and incorporated the foregoing factual averments. Count three presented a claim against the Government for negligent infliction of emotional distress on Karen Miller. The fourth and fifth counts are Earl Miller's claims against the United States for negligence and loss of consortium.

                assure compliance with the Government's own design criteria as mandated in the National Cooperative Highway Research Program Reports Nos. 54 and 118, as well as other Government manuals and regulations.  (Complaint p 5).  Plaintiffs state that the highway "was regulated, inspected, controlled and designed by Defendant United States, and said Defendant United States was charged with the duty of approving, supervising and inspecting the designing and building of [the highway], as well as monitoring safety features, controlling, maintaining, repairing and keeping in a safe condition [the highway] for the use of the public."    (Complaint p 10).  They aver that the United States, in carrying out its duties of supervising, inspecting, designing, building, repairing and maintaining the highway in a safe condition, negligently caused this portion of highway to exist with a deficiently narrow shoulder which sloped excessively away from the roadway;  that the highway sloped downhill and that there was a severe dropoff which could not be observed by a motorist exercising reasonable care;  that the Government knew or should have known that snow or icy conditions would exist and failed to place signs and negligently allowed the highway to be deceptively marked so as to increase danger to eastbound travelers at or near the accident site;  that the defendant United States failed to install a guardrail or other device and failed to correct the defectively designed shoulder.  (Complaint paragraphs 11-16)
                

In February 1979 plaintiffs served their complaint and a demand for production of documents, request for admissions, and interrogatories. ² The Government filed its motion to dismiss or for summary judgment in April and at the same time requested a protective order staying all discovery, pending disposition of the motion to dismiss. ³ (I R. 11). Plaintiffs responded with an affidavit of counsel requesting a stay of summary judgment proceedings pending completion of discovery, pursuant to Fed.R.Civ.P. 56(f), and outlining the reasons that the plaintiffs could not, without discovery, file responsive affidavits or otherwise be prepared to meet the motion for summary judgment. (I R. 64-65).

In support of its motion to dismiss or for summary judgment, the Government filed the affidavit of A.J. Siccardi, Division Administrator of the Federal Highway Administration (FHWA). (I R. 38; hereafter the Siccardi affidavit). ⁴ The affidavit outlined the statutory procedures for construction of federal-aid highways and briefly recounted events in 1951 and 1952 relating to funding and approval of the relevant stretch of U.S. 6. A "Project Agreement" dated March 23, 1951, and reflecting the agreement between the United States and Colorado, was attached to the affidavit. ⁵ (I R. 39-42). Neither the Siccardi affidavit nor the Project Agreement discloses any events after May 29, 1952. ⁶

The relevant stretch of highway was constructed in 1951 under the Federal-Aid Highway Act, 23 U.S.C. Secs. 101 et seq., according to the Siccardi affidavit. The State of Colorado determined the location and design of the section of road, acquired the right of way, prepared plans, specifications, and cost estimates, and submitted the same to the Public Roads Administration, Federal Works Agency for approval. (I R. 37-38). Approval was given, thus making the project eligible for federal highway funding of approximately 50% of the total estimated cost. (I R. 38, 41). In return for the federal funds, the State contracted to construct and maintain the highway. (I R. 38, 39-42). The State awarded the construction contract, and the Public Roads Administration concurred in the award. (I R. 38). The United States inspected and approved the project in 1952 after construction was completed. (I R. 38).

Before ruling on the discovery matters, the district court held a hearing and announced entry of judgment for defendants on May 16. In his oral ruling the judge stated that his review of the brief of defendant, the Siccardi affidavit and a copy of the project agreement between the Government and the State of Colorado led him "to the conclusion that both the defendants' motion to dismiss for failure to state a claim and the motion for summary judgment should be granted." (II R. 4). The ruling was based on the discretionary function exception of the FTCA, 28 U.S.C. Sec. 2680(a), and on the immunity of the Government for acts of Colorado, an independent contractor.

II THE STATUTORY FRAMEWORK

Two statutory schemes are pertinent to the issues before us. The first, the Federal-Aid Highway Act (the Highway Act), first beginning with enactment of the Federal-Aid Road Act of 1916, and now codified at 23 U.S.C. Secs. 101 et seq., was intended to stimulate and accelerate the nation's developing highway system by providing federal financial aid for approved state highway construction projects. D.C. Federation of Civic Ass'ns v. Airis, 391 F.2d 478 (D.C.Cir.1968). A state seeking funds under this scheme of federal aid must submit a program of proposed projects, together with any required plans, specifications and cost estimates, ⁷ to the Secretary of Transportation who may approve them in whole or in part. ⁸ 23 U.S.C. Sec. 105(a). Federal approval of plans and specifications is required for funding. Id. at Sec. 106(a); 23 C.F.R. Sec. 630.203(d) (1977). Approved projects must be "conducive to safety, durability, and economy of maintenance ... [and] constructed in accordance with standards best suited to accomplish the foregoing objectives and to conform to the particular needs of each locality." 23 U.S.C. Sec. 109(a)(1), (2). Since 1966 this statute has required the Secretary in approving programs to "give priority to those projects which incorporate improved standards and features with safety benefits." Id. at Sec. 105(f). Construction standards adopted by the Secretary in cooperation with state highway departments...