Stanford v. United States

• Decision Date: 21 January 2014
• Docket Number: Civil No. 12–93–ART.
• Citation: 992 F.Supp.2d 764
• Parties: Matthew STANFORD, Plaintiff, and Kentucky Association of Counties Workers' Compensation Fund, Intervenor Plaintiff, v. UNITED STATES of America, Defendant and Intervenor Defendant. United States of America, Third–Party Plaintiff, v. United States Army Cadet Corps, Inc., et al., Third–Party Defendants.
• Court: U.S. District Court — Eastern District of Kentucky

992 F.Supp.2d 764

Matthew STANFORD, Plaintiff,

and

Kentucky Association of Counties Workers' Compensation Fund, Intervenor Plaintiff,

v.UNITED STATES of America, Defendant and Intervenor Defendant.

United States of America, Third–Party Plaintiff,

v.United States Army Cadet Corps, Inc., et al., Third–Party Defendants.

Civil No. 12–93–ART.

United States District Court,

E.D. Kentucky,

Southern Division,

London.

Jan. 21, 2014.

Christopher P. Evensen, Evensen Law Office, William J. Driscoll, Driscoll & Associates, P.S.C., Louisville, KY, for Plaintiff.

MEMORANDUM OPINION AND ORDER

AMUL R. THAPAR, District Judge.

The plaintiff in this heartbreaking Federal Tort Claims Act (“FTCA”) case seeks to hold the United States liable for negligently causing him grievous injury while visiting a National Guard training facility in eastern Kentucky. The government now moves to dismiss. It contends the Court lacks jurisdiction because the allegedly negligent government employees acted pursuant to a discretionary function and thus the FTCA's limited waiver of sovereign immunity does not apply. Since it remains unclear whether the government's alleged conduct fell within its discretion, the Court will deny without prejudice the United States' motion to dismiss and order new briefing on the remaining questions.

BACKGROUND

This case arises out of a tragic accident at the Harold L. Disney Training Center (“HLDTC”), a military training ground in Artemus, Kentucky, used primarily by the Kentucky Army National Guard and the United States Army Reserve.¹ R. 127 at 7; R. 153 at 3 (accepting this description of HLDTC). At the time of the accident, plaintiff Matthew Stanford was working as an instructor and camp counselor for the United States Army Cadet Corps, Inc. (“Cadet Corps”), a private nonprofit corporation with no official ties to the military. R. 127 at 6–7. Stanford's role was to supervise the young civilian “cadets” and lead them through physical training. Id. at 6. During the summer of 2009, Stanford visited HLDTC along with Cadet Corps. Id. at 10. While at HLDTC, he and the cadets used the Center's obstacle course, including the “Slide for Life” or “zip line.” Id. at 12–13. Despite knowing that Cadet Corps intended to use the obstacles on its visit, no one from HLDTC asked the Corps to bring its own safety equipment, gave Stanford a safety briefing, or warned the cadets that certain obstacles were out of order or off-limits. Id. at 3, 9–11. And on the day of the accident, nothing suggested that the zip line was broken or otherwise closed to use. Id. at 12. The obstacle did not feature fall protections, such as a safety harness, net, or soft materials beneath. Id. Nevertheless, several of the cadets navigated the zip line without incident, but Stanford sadly did not. Id. at 12–13. After the zip line cable jerked unexpectedly, Stanford lost his grip and fell to the hard ground below. Id. at 13. The fall fractured his hip and spine, resulting in quadriplegia. Id.

Stanford sued the United States for negligence pursuant to the Federal Tort Claims Act. See R. 1. The Kentucky Association of Counties Workers' Compensation Fund (“KACo”) also joined the suit as an intervening plaintiff. R. 12. Stanford and KACo ² claim that United States employees 1) failed to warn Stanford that the zip line was not ready for use, R. 1 at 5–7 ¶¶ 39–57; 2) failed to take reasonable steps to guard against an accident on the zip line, negligently designed the zip line, and breached their general duty of reasonably maintaining the premises at HLDTC, id. at 7–9 ¶¶ 58–87; and 3) violated various mandatory safety standards and regulations governing the Training Center, id. at 7 ¶ 66; R. 81 at 2; R. 100 at 2–5; R. 139 at 2–4.

The United States disavows any fault in Stanford's accident, see R. 11, and moved to dismiss Stanford's complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, or in the alternative, for summary judgment, see R. 108.³ The government specifically argues that the Court lacks subject matter jurisdiction over the plaintiffs' claims, because they challenge the exercise of a “discretionary function” and thus are not covered by the FTCA's waiver of sovereign immunity.

DISCUSSION

Most of the plaintiffs' arguments against the application of the discretionary function exception are unavailing. But because some legal questions remain, the Court will order new briefing.

I. The Federal Tort Claims Act and the Discretionary Function Exception

The Federal Tort Claims Act is a “limited waiver” of the government's sovereign immunity. Molzof v. United States, 502 U.S. 301, 305, 112 S.Ct. 711, 116 L.Ed.2d 731 (1992). Generally speaking, that waiver exposes the United States to liability for torts “in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674; see also28 U.S.C. § 1346(b)(1) (conferring original jurisdiction on district courts over tort claims arising from injuries caused by federal employees that would otherwise be actionable if the United States were a private party). But there are several important exceptions. Federal courts lack jurisdiction over claims arising out of “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). The purpose of this carve-out, commonly known as the discretionary function exception (“D FE”), is “to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy.” United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 814, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984).

Determining whether the DFE bars liability involves a two-part test. See United States v. Gaubert, 499 U.S. 315, 322–23, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). First, the Court must determine “whether the challenged actions were discretionary, or whether they were instead controlled by mandatory statutes or regulations.” Id. at 328, 111 S.Ct. 1267. If those actions violated a mandatory regulation or policy, the DFE does not apply because without “an element of judgment or choice,” the federal employee had “no rightful option but to adhere to the directive.” Berkovitz ex rel. Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). Second, even assuming the allegedly tortious conduct was discretionary, the Court must consider whether that conduct is “of the kind that the discretionary function exception was designed to shield” from liability. Id. Regardless of an employee's subjective reasons for his actions, if the challenged conduct is objectively “susceptible to policy analysis,” then it falls within the scope of the DFE. See Gaubert, 499 U.S. at 325, 111 S.Ct. 1267. The “nature of the conduct,” rather than the rank of the actor, is what matters. Id. (internal quotation marks omitted). Government decisions therefore need not be made at the “policymaking or planning” level to be protected by the DFE; day-to-day operational decisions can qualify. Id. So, for example, the routine decisions of federal airplane safety inspectors are covered because they require policy judgments balancing compliance, staffing, and funding. See Varig Airlines, 467 U.S. at 820, 104 S.Ct. 2755.II. The Standard of Review

The DFE is not merely an affirmative defense; it is a jurisdictional bar. If an alleged tort falls within the exception, the Court lacks subject-matter jurisdiction over the associated claim and accordingly must dismiss it. See Kohl v. United States, 699 F.3d 935, 940 (6th Cir.2012). A motion to dismiss based on the DFE is thus properly brought under Rule 12(b)(1). See Hatcher v. United States, 512 Fed.Appx. 527, 528 (6th Cir.2013).

Attacks on subject-matter jurisdiction under Rule 12(b)(1) come in two forms: facial and factual. See Gentek Bldg. Prods., Inc. v. Sherwin–Williams Co., 491 F.3d 320, 330 (6th Cir.2007). Facial attacks assert that the plaintiff has not sufficiently pled subject-matter jurisdiction. Id. When considering a facial attack, the Court must take the plaintiff's allegations as true. Id. Factual attacks, on the other hand, challenge the particular facts that support subject-matter jurisdiction. Id. When it comes to such jurisdictional facts there is no presumption of truthfulness. Id. In response to a factual attack, the Court must weigh the conflicting evidence in the record to determine whether jurisdiction exists. Id.; see also Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990) (noting court has power to resolve factual disputes on 12(b)(1) motion). And if the record reveals genuine issues of material fact, then the Court can only make the necessary factual findings after a preliminary hearing or hearing at trial. See Commodities Exp. Co. v. U.S. Customs Serv., 888 F.2d 431, 436 (6th Cir.1989). The standard for determining whether a hearing is needed is thus the same as the standard that applies at summary judgment. Id. Absent complex factual questions, the Court is not required to hold a hearing. See Cook v. Providence Hosp., 820 F.2d 176, 178 (6th Cir.1987).

The government here has mounted both a facial and factual attack on jurisdiction.

Factual Attack: The government mounts a factual attack on subject-matter jurisdiction because it argues that no regulation removes federal employee discretion regarding the conduct at issue. See R. 108–1 at 13–22; R. 153 at 9–21. The plaintiffs allege the violation of several mandatory regulations, see R. 1 at 7; R. 81 at 2; R. 100 at 2–5; R. 139 at 2–4, which meets their initial burden to plead conduct outside the protection of the DFE. See Carlyle v. U.S., Dep't of the Army, 674 F.2d 554, 556 (6th Cir.1982) (holding that the plaintiff must first invoke the court's jurisdiction “by a pleading...