United States v. DeCamp
| Decision Date | 25 April 1973 |
| Docket Number | No. 26199.,26199. |
| Citation | 478 F.2d 1188 |
| Parties | UNITED STATES of America, Appellant, v. Catherine DeCAMP, Appellee, Truck Insurance Exchange, Intervenor-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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Alan S. Rosenthal, Washington, D. C. (argued), Robert L. Meyer, U. S. Atty., Larry L. Dier, Asst. U. S. Atty., Robert V. Zener, Civil Div., Dept. of Justice, Washington, D. C., for appellant.
Allan L. Steele (argued), Ghitterman, Spielman & Steele, Ventura, Cal., for appellee.
Timothy J. Sargent (argued), Bodkin, Breslin & Luddy, Los Angeles, Cal., for intervenor-appellee.
Before MERRILL, ELY and TRASK, Circuit Judges.
This wrongful death action was brought by the widow of Paul DeCamp against the United States under the Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-80. The husband was fatally injured on June 28, 1967, during the course of his employment under a contract between his employer, Beecham, and the Army Corps of Engineers. The contract called for the removal and disposal of debris along the Salinas River near San Luis Obispo, California.
The injury occurred when DeCamp's bulldozer made contact with a live willow tree. The tree snapped over the top of the brush rake, inflicting a fatal blow. The District Court found that the accident would not have occurred had the bulldozer been equipped with a canopy guard.
There was testimony that prior to submission of bids on the project, the decedent's employer and other prospective bidders had specifically inquired of the Corps' resident engineer, one Caniff, whether the Government would require the successful bidder to equip its bulldozers with canopies. Since these devices were not customarily used in the area, compulsory installation would have entailed additional, and not inconsiderable, expense. The contractors' apprehension was prompted by a provision of the Corps of Engineers' safety manual that provides:
Department of the Army Corps of Engineers, General Safety Requirements § 18-20 (1958). After determining that canopy guards were not appropriate for the particular project, Caniff advised the bidders that their installation would not be required.
Plaintiff charged that the Government violated a duty to decedent by (1) failing to provide him a safe place to work; (2) not requiring the use of canopies; and (3) permitting the equipment to be used without canopies.
Intervenor Truck Insurance Exchange, the workman's compensation insurance carrier of decedent's employer, asserted its claim for a lien on any judgment for plaintiff to the extent that it had paid benefits to the widow. Since California predicates such a lien on the absence of negligence by the insured, Witt v. Jackson, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641 (1961), the question of whether the decedent's employer had negligently caused the accident was squarely presented.
The District Court, sitting without a jury,1 held that decedent's employer, R. H. Beecham, did not breach any duty owing to decedent. At the same time, the court concluded that the failure of the United States to require Beecham to install bulldozer canopies constituted negligence, proximately causing the fatal injury.
Even though the Government admitted subject matter jurisdiction in its answer and has not raised the issue on appeal, we are required first to consider the statutory requirements for maintaining suit against the United States under 28 U.S.C. § 1346(b). Jurisdictional defects cannot, of course, be waived. Canton v. United States, 388 F.2d 985, 986 (8th Cir. 1968); United States v. Rochelle, 363 F.2d 225, 230 (5th Cir. 1966); Armstrong v. United States, 283 F.2d 122, 123 (3d Cir. 1960).
The plaintiff invoked federal jurisdiction under 28 U.S.C. § 1346(b), which provides in relevant part:
"District courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for 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."
This statutory grant is, however, subject to the "discretionary function" exception set forth in 28 U.S.C. § 2680(a):
Here, the resident engineer made an administrative decision that the project was not one appropriate for canopy guards, a decision that assertedly contributed to the death of DeCamp. To come within the jurisdictional ambit of Section 1346(b), it must appear that this decision did not involve the kind of discretion that Section 2680(a) seeks to protect. Conversely, if such discretion was involved, a claim cannot be made out under the Tort Claims Act.
Whether the claim arises out of a discretionary action, bringing it within the exception of Section 2680(a), must be resolved under federal law. Cf. United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961); Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). To resolve whether the decision was "discretionary" or "operational", we adopt the analysis suggested by Judge Waterman in Hendry v. United States, 418 F.2d 774, 782-784 (2d Cir. 1969).
The initial consideration is whether the complaint is essentially leveled against the content of the regulation or against its application. It is clear in this case that the plaintiff's allegations attacked only the manner in which the resident engineer applied Regulation 18-20 — not the regulation itself.2 In this context we also note that the decision of "inappropriateness" was not predicated upon considerations of public policy but upon general standards of safety. Accordingly, state tort law can capably measure the reasonableness of the engineer's judgment in applying professional standards of safety. It is apparent, finally, that the merits of this case are not laden with political questions or other elements suggesting non-justiciability. In fact, the type of decision assailed is frequently subjected to judicial scrutiny.
Concluding that the District Court had jurisdiction to entertain the action, we now turn to the merits of the claim.
Under the Tort Claims Act, the United States is liable for the negligence of its employees "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). Accordingly, the law of California governs the liability of the United States for this alleged tort. E.g., United States v. White, 211 F.2d 79 (9th Cir. 1954); see Roberson v. United States, 382 F.2d 714, 717 (9th Cir. 1967) (applying Arizona law); Kirk v. United States, 270 F.2d 110, 116 (9th Cir. 1959) (applying Idaho law).
The Government urges that the District Court erred in finding that decedent's employer was not negligent. The testimony convinced the district judge that by custom and usage, contractors in the area "did not use canopies or roll bars on their tractors . . . when said tractors were being used for clearance projects." While this finding does not dispose of whether adherence to such practices constitutes negligence, it does provide an acceptable basis for determining the absence of negligence. Cf. Diamond v. Grow, 243 Cal.App.2d 396, 52 Cal.Rptr. 265 (1966). It is especially persuasive when considered in conjunction with the uncontradicted testimony of several contractors that canopies were not indicated safety devices on debris clearance projects in the area. Thus, we are not persuaded that we should overturn the finding that the employer's failure to equip his bulldozers with canopy guards was not a negligently contributive omission.
The essential remaining question is under what circumstances, in the absence of negligence by the independent contractor, the Government will nevertheless be found to have a duty toward the employees of that contractor working under a government contract. The District Court found that the circumstances here give rise to the imposition of such a duty. With this determination, we cannot agree.
According to the trial court, the negligence of the Government is bottomed upon the statement of the resident engineer to Beecham that canopies would not be needed on the project. The court concluded that (1) this statement served to waive application of a regulation that would have required canopies; and (2) this waiver breached the Government's duty of care toward the decedent.3 We believe that this reasoning is premised upon a misinterpretation of the legal effect of the statement made by the resident engineer.
Quite to the contrary of deciding not to enforce Regulation 18-20, the resident engineer applied its safety standards and determined...
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...government might be influenced by a plaintiff with no governmental responsibility." 375 F.2d at 247. The case of United States v. DeCamp, 478 F.2d 1188 (9th Cir. 1973), is similar in some respects to McGarry v. United States, supra, however, with important distinctions. In DeCamp action was......
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