Myslakowski v. U.S., s. 85-1527

• Decision Date: 26 November 1986
• Docket Number: 85-1528,Nos. 85-1527,s. 85-1527
• Citation: 806 F.2d 94
• Parties: Matt MYSLAKOWSKI, Individually and as Next Friend of Marie Myslakowski, a Minor (85-1527), and Betty Galanos, as Personal Representative of the Estate of Tina Marie Kelly, Deceased (85-1528), Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 94

806 F.2d 94

55 USLW 2372

Matt MYSLAKOWSKI, Individually and as Next Friend of Marie

Myslakowski, a Minor (85-1527), and Betty Galanos, as Personal Representative of the Estate of Tina Marie Kelly, Deceased (85-1528), Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Nos. 85-1527, 85-1528.

United States Court of Appeals, Sixth Circuit.

Argued Aug. 15, 1986.

Decided Nov. 26, 1986.

Ellen G. Ritteman, Asst. U.S. Atty., Detroit, Mich., Gary M. Maveal, Asst. U.S. Atty. (argued), John P. Schnitker, Robert S. Greenspan, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant.

Allen S. Miller, Gary C. Berger, Detroit, Mich., Mikael G. Hahner (argued), for plaintiffs-appellees.

Before ENGEL, KRUPANSKY and RYAN, Circuit Judges.

RYAN, Circuit Judge.

These are personal injury and wrongful death actions brought under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b). The district court entered judgment for the plaintiffs after rejecting the government's contention that it was entitled to immunity under the discretionary function exception to governmental tort liability in 28 U.S.C. Sec. 2680(a). We reverse.

I.

These cases arise out of an accident that occurred on October 13, 1979, when a jeep motor vehicle, owned by Robert Pace and formerly owned by the United States Postal Service, collided with another vehicle and rolled over, killing one of the occupants of the Pace vehicle and injuring others. Marie Myslakowski, who was injured, and Tina Marie Kelley, who died following the accident, were passengers in the Pace vehicle which was being driven by 17-year-old Renee Pace. Robert Pace, Renee's father, purchased the vehicle in August of 1979 from Peter Plummer. Plummer acquired it from John Greenway, who originally purchased it from the Postal Service in 1975.

Plaintiffs claimed that the government was negligent in (1) selling the vehicle in question to the public, (2) failing to affix proper warnings on the vehicle, and (3) designing the vehicle with dangerously low rollover resistance. The district court dismissed the design claim after concluding that the plaintiffs failed to prove that the government was responsible for the design of the jeep. In opposition to the remaining claims, the government asserted that it is immune from liability because its acts involved the exercise of a discretionary function. Rejecting this contention, the district court found the government negligent in failing to warn the jeep's users of its high propensity to roll over, when used as a passenger vehicle. 608 F.Supp. 360 (E.D.Mich.1985).

There was evidence before the district court that the government was aware of the so-called Cornell Report ¹ which is an extensive study of the rollover propensity of vehicles of the same type involved in this case. The report contained test results from which it was specifically concluded that the vehicles tended to roll over more often and more easily than ordinary passenger automobiles.

In this appeal, the government contends that it is immune from liability for any negligence associated with the sale of the jeep; that even if it were not immune from liability, its failure to give a written warning against use of the jeep as a passenger vehicle was not negligence; and that even if its failure to issue such written warning was negligence, such negligence was not a proximate cause of the injuries and death that occurred in the accident.

We have no occasion to address the latter two contentions because we conclude that under 28 U.S.C. Sec. 2680(a), the government is immune from liability for the acts and omissions complained of, and that the district court's contrary conclusion is error requiring reversal.

II.

At common law, the United States, its agencies and employees, were exempt from suits brought by its citizens. Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 411-12, 5 L.Ed. 257 (1821). In Sec. 1346(b) of Title 28 of the United States Code, however, the government partially waived its sovereign immunity from tort liability. That section provides:

"Subject to the provisions of chapter 171 of this title, the district court ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligence or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred."

But an exception to this waiver is found in Sec. 2680 of chapter 171 of Title 28 which provides:

"The provisions of this chapter and section 1346(b) of this title shall not apply to--

"(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused."

Thus, the government's waiver of sovereign immunity in Sec. 1346(b) does not apply when the challenged act or omission involves a discretionary function or duty. Indeed, "[i]f a case falls within the statutory exceptions of 28 U.S.C. Sec. 2680, the court lacks subject matter jurisdiction." Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

The vehicle involved in the accident in this case was a Jeep Dispatcher 100 Model DJ-5A designed at the order of the Postal Service and used for mail delivery purposes. In its original condition, it was a right-hand drive vehicle with a letter tray positioned to the left of the driver, and storage space behind the driver and letter tray. The front right and left side doors slid open horizontally, and access to the rear of the vehicle was through two outward opening doors. A cab enclosed the entire vehicle.

Before Mr. Pace bought the jeep, it had been modified by removal of the letter tray and installation of a seat to the left of the driver. In addition, the entire interior of the vehicle had been covered with carpeting, including all of the dashboard except for the instruments.

The Postal Service sold the jeep to the original purchaser, Mr. Greenway, as part of a program to dispose of its surplus property. The authority for the sale is found in 39 U.S.C. Sec. 401(5), enacted in 1970, which provides:

"The Postal Service shall have the following general powers:

* * *

* * *

"(5) to acquire, in any lawful manner, such personal or real property, or any interest therein, as it deems necessary or convenient in the transaction of its business; to hold, maintain, sell, lease or otherwise dispose of such property or any interest therein and to provide services in connection therewith and charges therefor...."

Following the Post Office Department's decision to sell thousands of surplus jeeps, the department adopted and promulgated a Central Regional Instruction regarding sale of vehicles and a Central Regional Memorandum instructing postal district managers on the methods of sale (auction, spot sale, or sealed bid), and containing the following note:

"All vehicles are to be advertised for sale as-is-where-is with customers given an opportunity to inspect the vehicles before bidding. Vehicles may be started but not driven by prospective buyers. Vehicle Maintenance history record (form 4620) may be shown to prospective buyers and given to the individual making the actual purchase. Limit number of vehicles offered for sale to fifteen for best results." (Emphasis added.)

The district court found that the departmental decision to dispose of the jeep was a "policy-based discretionary" decision:

"[T]he Government's decision to sell the jeeps to the public was clearly a policy based discretionary function which is specifically within the purview of the execution of a statute and regulation (39 U.S.C. Sec. 401(5) and 39 C.F.R. Sec. 211.2).... The evidence before this Court indicates that, in making that decision, the Government considered the economic need to operate efficiently by recouping some of its expenditures through the sale of surplus goods.... If the threat of tort liability hung over the Government for the mere decision to sell such surplus goods, it would improperly impede a Government function and, thus, put the Courts in the position of interfering with policy decisions which have been properly reserved to another branch."

608 F.Supp. at 371.

The court then distinguished between the "decision to sell the jeep" and "the decision as to the manner of the sale of [the] jeep," declaring that the latter was a "separate matter." 608 F.Supp. at 371. The district court determined that "the decision not to warn subsequent purchasers that the jeep, if used as a passenger vehicle, had a dangerous risk of rollover was not the exercise of a discretionary function," and that no immunity attached for the failure to give that warning. 608 F.Supp. at 372.

The distinction, according to the district court, is that the government made no executive level discretionary decision--no policy-based choice--"not to warn subsequent purchasers of the dangers of use of the jeep as a passenger vehicle." According to the court, the failure of the Postal authorities to require that warnings be given was not a deliberate decision at all, but a mere omission, an act of default, attributable to department shortsightedness. Since no discretionary decision was taken--no "political, economic or social policy" choices made--concerning warnings, the statutory exception for such decisionmaking is inapplicable. The "decision" to give...