Rutherford v. United States

• Decision Date: 21 December 2017
• Docket Number: Civil Action No. CV 15–S–560–NE
• Parties: Shannon RUTHERFORD, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Alabama

295 F.Supp.3d 1258

Shannon RUTHERFORD, Plaintiff,

v.UNITED STATES of America, Defendant.

Civil Action No. CV 15–S–560–NE

United States District Court, N.D. Alabama, Northeastern Division.

Signed December 21, 2017

Thomas Barton Siniard, Thomas H. Siniard, William L. Messervy, Siniard, Timberlake & League, P.C., Huntsville, AL, for Plaintiff.

US Attorney Jay E. Town, Jack B. Hood, Jason R. Cheek, US Attorney's Office, Birmingham, AL, for Defendant.

MEMORANDUM OPINION

C. Lynwood Smith, Jr., United States District Judge

"Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have observed, 'Sometimes the questions are complicated and the answers are simple.' "¹ Regrettably, this is not one of those times. Not only are the issues in this case complex, but so also are their answers.

I. SUMMARY OF FACTS

Plaintiff, Shannon Rutherford, seeks damages for personal injuries sustained on Redstone Arsenal: a 38,125 acre (7.9 square mile) United States Army garrison adjacent to the City of Huntsville in Madison County, Alabama.² Access to the Arsenal is restricted because the garrison is a military installation, and important research and development functions are performed there. More than sixty federal organizations and contractor operations occupy facilities on the Arsenal, including nine Commands of the United States Army,³ five agencies of the United States Department of Defense,⁴ and the National Aeronautics and Space Administration's George C. Marshall Space Flight Center.⁵ Persons authorized to enter the garrison do so through one of six gates, which are referred to in Army regulations as "Access Control Points (ACPs)."⁶ The events leading to this action occurred at "Gate 1" on Martin Road East: a four-lane highway that traverses the Arsenal from east to west. The security guards who served at that Gate were employed by the United States Army Aviation & Missile Command, and had at their disposal an "active vehicle barrier"⁷ known as a "Ground Retractable Automobile Barrier (GRAB)," which is described as an "electrically powered, hydraulically operated, sub-surface mounted device designed to be fully functional at stopping a vehicle attempting unauthorized entry on the installation."⁸ Colonel Michael Robert Sheehy (U.S. Army Ret.) was Director of Emergency Services at Redstone Arsenal on the date of the events leading to this suit.⁹ He explained that the GRAB Barriers at Gate 1 were located

approximately 900 feet from the Access Control Point itself [i.e. , the entry gate house at which Security Guards were stationed]. And in between the inbound and outbound lanes there is ... a [concrete] physical barrier that would prevent vehicles from passing from one side to the other.

The distance [between the gate house and GRAB System barriers] is designed to give the guards ... enough time to assess the situation and to activate the GRAB net barrier before a potential threat can enter the Arsenal.

Doc. no. 51 (Transcript—Sheehy), at 42 (alterations and ellipses supplied).

Plaintiff was employed at NASA's George C. Marshall Space Flight Center as a "Flight Systems Engineer."¹⁰ She had obtained permission to be off work for several hours on Thursday, May 10, 2012, on "sick leave," in order to be examined by a private physician in the Huntsville Hospital Medical Mall on Governors Drive.¹¹ She was driving her personal automobile in the right-hand, outbound lane of Martin Road at approximately 9:30 a.m., and about to exit the Arsenal through Gate 1: a point that was approximately five miles from plaintiff's NASA workplace.¹²

Shortly before plaintiff reached the exit, however, a pick-up truck driven by an older man named Tommy Bannister approached Gate 1 from the opposite direction.¹³ Mr. Bannister did not possess credentials to enter the Arsenal, and appeared to Gate Guard James Jones to be "a little confused" and "lost."¹⁴ Mr. Bannister said that he was attempting to reach the municipal airport or some other address on the opposite, west side of the Arsenal, off Government property, and thought he could cut across the garrison as a means of shortening the driving distance to his intended destination. Gate Guard Jones explained to Mr. Bannister "that he couldn't just pass through, that it was a controlled area," and instructed him to drive forward a few feet, to the so-called "turn-around lane," where he could make a "U–Turn" into the outbound lanes of Martin Road.¹⁵ Mr. Bannister did not follow that instruction, however. Instead, he drove past the turn-around lane,¹⁶ but only "at an average take-off speed"¹⁷ of "about 10 to 15 miles an hour."¹⁸ Jones stepped into the Gatehouse and depressed a button to activate the GRAB System,¹⁹ and steel-net barriers rose from the ground under both the inbound and outbound lanes of Martin Road.²⁰

Before Jones activated the GRAB System, he did not make any attempt to survey the outbound lanes of Martin Road in order to determine whether the barrier might impact innocent motorists about to exit the Arsenal.²¹ As a result, plaintiff's automobile collided with the barrier that rose from the ground under the outbound lanes, and she was seriously injured.²² She filed an administrative claim with the United States Army Aviation & Missile Command on October 30, 2012, and commenced this action on April 3, 2015.

II. PLAINTIFF'S CLAIMS

Plaintiff alleges under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 2671 – 2680 ("FTCA"), that the following acts by representatives of the United States were negligent, and that each "independently caused (and/or combined and concurred to cause) plaintiff's injuries":²³ (1) the Army's decision to design the GRAB System installed at Gate 1 with a single, master-control button that simultaneously activated the steel-net barriers stored under both the inbound and outbound lanes of Martin Road; (2) Gate Guard James Jones's failure to retain Mr. Bannister's driver's license, which contributed to Bannister's failure to turn his truck around and exit Arsenal property; (3) Jones's decision to activate the GRAB System when none of the threat scenarios specified in controlling Army regulations were presented;²⁴ and (4) Jones's failure "to make a 'reasonable effort to ensure' that no other vehicles would be affected by deploying the GRAB System."²⁵ Defendant's primary response to those claims is based upon the "discretionary function exception" to the FTCA, which deprives federal courts of subject-matter jurisdiction over tort claims resulting from a federal employee's performance of a "discretionary function."²⁶ Accordingly, that issue must be resolved before taking any steps to address the merits. Morrison v. Allstate Indemnity Co. , 228 F.3d 1255, 1275 (11th Cir. 2000).

III. THE DISCRETIONARY FUNCTION EXCEPTION

Historically, suits seeking damages for the negligent or wrongful acts of employees of the United States Government were barred by the common-law doctrine of sovereign immunity. See , e.g. , Alden v. Maine , 527 U.S. 706, 715, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) ; Cohens v. Virginia , 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821).²⁷ A limited waiver of that immunity was created in 1946 with the enactment of the FTCA, which grants district courts exclusive jurisdiction over civil actions to recover money 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)(1). See also, e.g. , Federal Deposit Insurance Corp. v. Meyer , 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994) (observing that § 1346(b)"waived the sovereign immunity of the United States for certain torts committed by federal employees"). The FTCA makes the United States liable for torts to which it applies "in the same manner and to the same extent as a private individual under like circumstances." 28 U.S.C. § 2674.

Even so, the FTCA does not waive the sovereign immunity of the United States in all respects. Instead, as the Supreme Court observed,

Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims. Of particular relevance here, 28 U.S.C. § 2680(a) provides that 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. " (Emphasis added.)

The discretionary function exception, embodied in the second clause of § 2680(a), marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.

United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines) , 467 U.S. 797, 808, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

District courts are instructed that the exception must be strictly construed in favor of the Government; and, if it appears that a claim falls within the exception, the court lacks subject-matter jurisdiction. See , e.g. , Swafford v. United States , 839 F.3d 1365, 1369–70 (11th Cir. 2016) (citing U.S. Aviation Underwriters, Inc. v. United States , 562 F.3d 1297, 1299 (11th Cir. 2009) ; JBP Acquisitions, LP v. United States ex rel. FDIC , 224 F.3d 1260, 1263 (11th Cir. 2000) ).

A. The Test for Determining Whether the Exception Applies

District courts must apply a test framed by the Supreme Court's opinion in United States v. Gaubert , 499 U.S. 315, 111 S.Ct. 1267, 113...