Rich v. U.S.

• Decision Date: 14 November 1997
• Docket Number: No. 96-6180,96-6180
• Citation: 119 F.3d 447
• Parties: Betty Jean RICH, Individually and as Administratrix of the Estate of John Barry Rich, Deceased and as Executrix of the Estate of Johnny N. Rich, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 447

119 F.3d 447

Betty Jean RICH, Individually and as Administratrix of the Estate of John Barry Rich, Deceased and as Executrix of the Estate of Johnny N Rich, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 96-6180.

United States Court of Appeals Sixth Circuit.

Argued June 12, 1997.

Decided July 22, 1997.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 14, 1997.

Kurt W. Maier (argued and briefed), Jason P. Wright (briefed), English, Lucas, Priest & Owsley, Bowling Green, KY, for Plaintiff-Appellant.

Kathryn S. Firsching (argued and briefed), U.S. Army Corps of Engineers, Nashville, TN, James H. Barr (briefed), Office of the U.S. Attorney, Louisville, KY, for Defendant-Appellee.

Before: KENNEDY, GUY, and MOORE, Circuit Judges.

OPINION

MOORE, Circuit Judge.

Plaintiff-Appellant Betty Jean Rich, individually and as Administratrix of the Estate of John Barry Rich, and Executrix of the Estate of Johnny N. Rich, appeals from the district court order granting summary judgment in favor of Defendant-Appellee United States of America in this action based on the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1992) (FTCA). The district court determined that the actions of the United States Army Corps of Engineers ("Corps") relating to the deaths of Mrs. Rich's husband and son were protected by the discretionary function exception to the FTCA. Accordingly, the district court held that under Feyers v. United States, 749 F.2d 1222 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985), it was without subject matter jurisdiction. We affirm.

I

The facts of the incident are undisputed. On the morning of April 24, 1993, Johnny N. Rich and his son, John Barry Rich, were killed when their pickup truck went over the side of the bridge abutment leading to the Wolf Creek Dam at Lake Cumberland, Kentucky, on U.S. Highway 127. The road was slick from an early-morning rain, and their truck was unable to make the 90-degree turn at the bottom of a steady 25-degree downgrade. The truck jumped a curb and went through the barrier at the south end, falling to the bottom of the dam before bursting into flames. The boat and trailer remained on the highway above. Both of the men died at the scene as a result of injuries sustained in the accident. Joint Appendix (J.A.) at 57 (Kentucky State Police Report, 4/24/93).

The area where the accident occurred is administered and maintained by both the Corps and the Commonwealth of Kentucky. The dam is owned by the United States, but the roads, originally designed by the Corps, were later conveyed to and are now owned and maintained by Kentucky. J.A. at 60-61 (Easement p 1); J.A. at 87-90 (Quitclaim Deed). Part of the conveyance included an easement which states "the United States shall not be responsible for damages to property or injuries to persons which may arise from or be incident to the construction, maintenance, and use of said road." J.A. at 62 (Easement p 11). Although the United States retained responsibility for the maintenance and upkeep of the roadway over the concrete portion of the dam, it does not maintain the 90-degree curve. The 90-degree curve is part of the portion of the road maintained by Kentucky, and Kentucky is responsible for traffic control devices warning of the approach of the curve. J.A. at 62 (Easement pp 14-15). The road had flashing lights, arrow signs, and speed limit warnings leading down to the dam. See Appellant's Br. at 30.

There have been a number of accidents over the years in the area around the dam. Following an accident on February 12, 1993, the Corps replaced approximately 30 feet of guardrailing. The railing, and two steel posts, were damaged when Nelson Horst lost control of his truck traveling down the same section of road as the Riches. J.A. at 213 (Monthly Operating and Maintenance Summary, February 1993). A new guardrail was in place by the time of the Rich accident, constructed using the same design as the guardrail which gave way to the Horst vehicle. The Rich vehicle broke through the replacement railing a little over a month later. See Appellant's Br. at 11.

Rich instituted this suit in the U.S. District Court for the Western District of Kentucky. The United States moved for summary judgment on the grounds that the district court lacked subject matter jurisdiction because the actions of the United States qualified for the discretionary function exception to the FTCA. The plaintiff contends the Corps's actions were not discretionary and that the Corps was required to warn of a known and hidden danger. The district court granted the defendant's motion, finding the United States was insulated from liability under the exception, and dismissed for lack of subject matter jurisdiction. ¹ We affirm the district court's order.

II

Because the question before us is the legal issue of the district court's jurisdiction, we review the decision below de novo. Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1248 (6th Cir.1996) (question of federal subject matter jurisdiction reviewed de novo). A dismissal for lack of federal subject matter jurisdiction is appropriate if the United States qualifies for the discretionary function exception to the FTCA. 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 district court had jurisdiction, if at all, under 28 U.S.C. § 1346, as the United States is defending the claim. We have jurisdiction over this timely appeal under 28 U.S.C. § 1291.

A

Rich brought her case under the Federal Tort Claims Act, which waives some of the United States' sovereign immunity and generally authorizes suits against the United States for damages

for injury or loss of property, or personal injury or death caused by the negligent 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.

28 U.S.C. § 1346(b). The discretionary function exception of the FTCA, however, preserves some of the sovereign immunity. It states that the provisions of the Act shall not apply to

[a]ny 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.

28 U.S.C. § 2680(a). When the circumstances of a case fall within this statutory exception, the court lacks subject matter jurisdiction. Feyers, 749 F.2d at 1225.

The text of the statute seems clear. The interpretation of the exception, however, has been difficult for the courts. The hallmark case interpreting the discretionary function exception was Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). The Supreme Court stated that discretionary acts and functions of government were intended to be protected from suit, and that "[w]here there is room for policy judgment and decision there is discretion." Id. at 36, 73 S.Ct. at 968. The concept of protection of policy judgments is maintained in the current Supreme Court standard for interpreting the discretionary function exception articulated in Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), and later upheld in United States v. Gaubert, 499 U.S. 315, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991).

The Berkovitz analysis involves two conditions which must be met for the exception to apply. The first condition a court must find is that the action involved was a matter of choice for the employee. "[C]onduct cannot be discretionary unless it involves an element of judgment or choice." Berkovitz, 486 U.S. at 536, 108 S.Ct. at 1958 (citing Dalehite, 346 U.S. at 34, 73 S.Ct. at 966). The logic behind this first condition is that the exception should not apply if there is a federal statute, regulation, or policy specifically prescribing a course of conduct or action for the employee. If there is no such prescription, the employee must exercise judgment and some protection should be provided for this exercise. Id.

Assuming the challenged action of the government involves an element of judgment, a second condition must be met for the exception to apply. "[A] court must determine whether that judgment is of the kind that the discretionary function exception was designed to shield." Id. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984), explains the logic of this second condition. "Congress wished to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort." Id. at 814, 104 S.Ct. at 2764.

"In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment." Berkovitz, 486 U.S. at 537, 108 S.Ct. at 1959. The district court found that the Corps's decision to replace the guardrail with one of the same design was discretionary as a matter of law, and this court agrees.

As the district court notes in its thoroughly analyzed and carefully written opinion, the plaintiff offered several design guidelines for bridges, attempting to convince the court that the Corps was under a duty to follow them. Rich cited standards set forth in the American Association of State Highway and Transportation Officials MANUAL FOR BRIDGE MAINTENANCE (1987) ("AASHTO Manual"), the...