Morris v. United States, 83-1009-CV-W-1.

• Decision Date: 03 May 1984
• Docket Number: No. 83-1009-CV-W-1.,83-1009-CV-W-1.
• Parties: Elmer L. MORRIS and Ethel P. Morris, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Missouri

585 F. Supp. 1543

Elmer L. MORRIS and Ethel P. Morris, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 83-1009-CV-W-1.

United States District Court, W.D. Missouri, W.D.

May 3, 1984.

Dan K. Purdy, Osceola, Mo., for plaintiffs.

Robert G. Ulrich, U.S. Atty., Anita L. Mortimer, Asst. U.S. Atty., Kansas City, Mo., for defendant.

MEMORANDUM OPINION, FINDINGS OF FACT, AND CONCLUSIONS OF LAW

JOHN W. OLIVER, Senior District Judge.

I.

This is a Federal Tort Claim action. The plaintiffs are the parents of David Allen Morris who lost his life when a motor vehicle he was driving struck an earthen berm constructed partially across a roadway on land within the Harry S. Truman Dam and Reservoir project. It is necessary that we state in some detail the procedures under which the case was submitted for decision on a fully stipulated record.

A.

Plaintiffs' complaint alleged that plaintiffs' administrative claim had been improperly denied and then alleged in paragraphs 7 through 10 of their complaint the following:

7. That prior to the 17th day of July, 1982, Defendant herein, took possession of and control of a certain portion of former Missouri Highway 82 where said highway intersects with the body of the Truman Reservoir, and purported to place a "barricade", on top of an earthen berm, which extended partially across said roadway.

8. That on or about the 17th day of July, 1982, Plaintiff's decedent, David Allen Morris, was operating a motor vehicle in a generally westerly direction on old or former Missouri Highway 82 at or near that point where it intersects with the body of water known as the Harry S. Truman Resevoir, when he struck the earthen berm constructed partially across the roadway, causing the motor vehicle which he was operating to be upset, turning over, thereby causing the death of the said David Allen Morris.

9. That Defendant, the UNITED STATES ARMY CORPS OF ENGINEERS were negligent in that said Defendant failed to properly close said roadway, or to post signs indicating the closure of said roadway, all in violation of the Manual on Uniform Traffic Control Devices; that the Defendant, the UNITED STATES OF AMERICA, failed to indicate an appreciable distance from the point where said roadway enters that body of water known as Harry S. Truman Reservoir, that said road was a dead-end road, with no outlet; further that the earthen berm constructed by the Defendants, which extended partially across said roadway, was not illuminated, nor was it cleared of weeds and other materials so that the signs which had been installed at the top of said earthen berm, could be clearly distinguished at nighttime with the headlights of a motor vehicle.

10. That as a direct and approximate sic result of the aforesaid wrongful acts of the Defendants, Plaintiffs herein have suffered the loss of their said son; have incurred substantial expense for medical attention, ambulance expense, as well as funeral expenses; in addition to the pain and the suffering sustained by Plaintiff's decedent, David Allen Morris prior to his death.

The defendant admitted in paragraph 7 of its answer that "it placed an earthen berm across the westerly bound lane of traffic approximately 375 feet west of and within the project boundary on a portion of former Missouri Highway 82, said portion located between Brush Creek and Weableau Creek, in St. Clair County, Missouri and that it placed reflectorized delineators or markers on top of or in the earthen berm." In paragraph 8 of its answer, the defendant further admitted "that on or about 17 July 1982, plaintiffs' decedent, David Allen Morris, was operating a motor vehicle in a generally westerly direction on old or former Missouri Highway 82, when he struck an earthen berm constructed partially across the roadway and that, as a result of the accident, David Allen Morris died and that, at the time of the accident, the earthen berm was located at a point approximately 370 to 380 feet east of the edge of the water known as Truman Lake."

Defendant alleged in its answer as an affirmative defense that "The court lacks jurisdiction over the subject matter of this action for the reason that any claim based upon the facts alleged in plaintiffs' complaint falls within the discretionary function exception to the Federal Tort Claims Act as set forth in 28 U.S.C. § 2680(a)."

Defendant's answer also pleaded a number of additional defenses which alleged in substance that the defendant did not violate any duty owed plaintiff; that defendant's conduct was not the proximate cause of plaintiff's death; that David Allen Morris' conduct was the sole direct proximate cause of his death; and that the decedent was contributorily negligent under the circumstances. Those defenses will be discussed in part IV of this memorandum opinion.

B.

A combined scheduling and discovery conference was held in this case. Thereafter the Court, by formal order, approved the parties' agreement that they would, after the close of discovery, hold an across-the-table conference on or before March 2, 1984 for the purpose of agreeing upon (i) a stipulation of fact regarding the authenticity of all documentary evidence; and (ii) a stipulation of additional facts designed to avoid unnecessary proof.

The case was further considered at final pretrial conference on March 20, 1984 and set for trial on a nonjury trial docket to commence April 9, 1984. On April 6, 1984 defendant filed a submission to which it attached copies of (1) defendant's proposed stipulation to the authenticity of documents; (2) defendant's proposed stipulated findings of fact; (3) defendant's proposed stipulation regarding the testimony of Dr. Donald Goodwin; (4) defendant's proposed stipulation in regard to the testimony of Charles Durham; and (5) defendant's proposed stipulation in regard to the testimony of Doris Brendel.

The defendant's April 6, 1984 submission stated that the issue of liability in this case could be tried on the basis of a stipulated record; that the stipulations of fact and testimony proposed by the defendant were reasonable stipulations based upon information available to or discoverable by both the plaintiffs and the defendant in this case; and that the defendant had made diligent efforts to contact counsel for the plaintiffs to discuss proposed stipulations and other matters regarding the trial of the case, but that counsel for the plaintiffs failed or refused to cooperate in these regards.

When the case was reached for trial on April 9, 1984, counsel for both parties executed all five of the stipulations that defendant had proposed in its April 6, 1984 submission. The only change made in the stipulations as proposed by the defendant was the addition of paragraph 36 to the stipulation to the authenticity of documents which added a copy of the Manual on Uniform Traffic Control Devices as an exhibit in the case.

C.

The transcript of the proceedings on April 9, 1984, the day this case was reached for trial, will show that the parties agreed with the suggestion stated in defendant's April 6, 1984 submission that the issue of liability could and should be determined on the record established by the five stipulations executed by the parties on that day. We therefore incorporate by reference all five of the stipulations, together with the various exhibits identified therein, as the undisputed findings of fact of this case.¹ The factual inferences which may properly be made with regard to the undisputed factual circumstances will be stated in later parts of this memorandum opinion.

II.

The defendant contends that the government's placement of the earthen berm and its determination of the type and placement of the "Road Closed" sign and its placement of the reflectorized markers on top of the berm fall within the discretionary function exception of the Federal Tort Claims Act as set forth in 28 U.S.C. § 2680(a). We disagree.

Defendant's trial brief quotes but does not properly apply that portion of Dalehite v. United States, 346 U.S. 15, 42, 73 S.Ct. 956, 971, 97 L.Ed. 1427 (1953), which limits the applicability of the discretionary function exception of Section 2680(a) to the "planning rather than the operational level." Defendant's brief does not cite or discuss Indian Towing Company v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 124, 100 L.Ed. 48 (1954), Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354 (1957), or the recent Eighth Circuit cases of Gross v. United States, 676 F.2d 295, 302 (8th Cir.1982), and Madison v. United States, 679 F.2d 736, 739 (8th Cir.1982), all of which state the principles to be applied in determining whether a particular governmental decision should be considered as a planning or as an operational decision.

We are satisfied that the government's decision in regard to what roads within the Truman Dam area should or should not have been closed must be considered as a decision involving policy and therefore within Section 2680(a)'s discretionary function exceptions. On the other hand we find and conclude that the decisions regarding the use and placement of berms, completely or partially across a particular road, and decisions in regard to how a particular berm and how a particular closed road was to be marked involve routine operational level decisions that fall outside the Section 2680(a) exceptions. See Foster v. United States, 183 F.Supp. 524 (D.N.M.1959), aff'd without written opinion, for the reasons stated in the trial court's memorandum opinion in 280 F.2d 431 (10th Cir.1960), in which it was held that the government's alleged negligence in failing to place guardrails on a bridge across a canal and an alleged failure to keep a fence on the side of the canal do not fall within the exceptions of Section 2680(a). See also American Exch. Bank of Madison, Wis. v. United States, 257 F.2d 938 (7th Cir.1958), holding that the government's alleged negligence in failing to...