Weiss v. U.S.

• Decision Date: 27 March 1986
• Docket Number: No. 84-1227,84-1227
• Citation: 787 F.2d 518
• Parties: Joseph WEISS, Jr. and Brigitte Weiss, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 518

787 F.2d 518

91 A.L.R.Fed. 1

Joseph WEISS, Jr. and Brigitte Weiss, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 84-1227.

United States Court of Appeals, Tenth Circuit.

March 27, 1986.

Shelley B. Don (David L. Hiller with him on the briefs), Denver, Colo., for plaintiffs-appellants.

Nancy E. Rice, Asst. U.S. Atty., Denver, Colo. (Robert N. Miller, U.S. Atty., with her on the brief), for defendant-appellee.

Before BARRETT, LOGAN, and BALDOCK, Circuit Judges.

BARRETT, Circuit Judge.

This appeal is taken by plaintiffs-appellants, Joseph Weiss, Jr. and Brigitte Weiss, from a final order of the district court granting summary judgment in favor of defendant-appellee United States. The district court found that under the Federal Tort Claims Act the plaintiffs' first claim was barred by the discretionary function exception under 28 U.S.C. Sec. 2680(a) and plaintiffs' second claim failed to show an actionable duty under Colorado law. Jurisdiction to consider this appeal is conferred upon this court under 28 U.S.C. Sec. 1291.

On August 23, 1976, Joseph Weiss was piloting a helicopter on a search and rescue mission in Buckskin Canyon, near Alma, Colorado. Weiss was searching Buckskin Canyon when he lowered his helicopter to speak to individuals on the ground below. While descending, one of the blades struck an aerial tramway cable about 150 feet above the ground, causing the helicopter to crash. A passenger aboard was killed and Weiss was seriously injured.

The tramway cable struck by Weiss' helicopter was part of an abandoned mining operation and was partially located on federal lands. One end of the cable was connected to a tower erected on federal land. Approximately two-thirds of the length of the cable extended above federal lands.

Weiss and his wife, Brigitte, filed suit in the United States District Court for the District of Colorado under the Federal Tort Claims Act (FTCA), 28 U.S.C. Secs. 1346, 2671-2678, and 2680. They alleged two separate negligence claims under section 1346(b) of the FTCA: (1) that the United States, through the National Oceanic and Atmospheric Administration (NOAA), was negligent in failing to depict the aerial cable as an obstruction on the Denver Sectional Aeronautical Chart, 15th Edition, August 12, 1976 (Sectional Chart); and (2) that under Colorado law the United States, through the Department of Agriculture, Forest Service, owner of the lands on which the aerial cableway was located, was negligent in failing to remove the cable or to attach warning devices to it.

The United States moved for summary judgment on both claims. The United States asserted that the first claim was barred because the decision whether or not to depict the aerial cable on the Sectional Chart was a "discretionary" act falling within the discretionary function exception of the FTCA. 28 U.S.C. Sec. 2680(a). The United States asserted that the second claim for relief was barred because the United States had not erected, maintained, or owned the cable over its land and therefore had no legal duty under Colorado law to remove it or to warn of its existence. The district court granted summary judgment essentially adopting the arguments of the United States. Plaintiffs appeal the district court's grant of summary judgment on both claims.

I.

Claims for money damages against the United States are barred under the doctrine of sovereign immunity except where the Congress has consented to such claims. See generally, Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Under section 1346(b) of the FTCA, Congress consented to suits against the United States for money damages "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. Sec. 1346(b).

The Government's liability under section 1346(b) is limited, however, by section 2680 which enumerates exceptions to the waiver of sovereign immunity under the FTCA. For instance, the doctrine of sovereign immunity continues to bar suits against the Government for certain discretionary acts of its employees. Specifically, under section 2680(a) the Government is immune from claims brought under 1346(b) "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the federal agency or an employee of the Government, whether or not the discretion involved be abused. " 28 U.S.C. Sec. 2680(a) (emphasis added).

In support of its motion for summary judgment, the United States argued that NOAA employees exercised a discretionary function under section 2680(a) in excluding the Buckskin Canyon cable from the Sectional Chart. Plaintiffs contend that the district court misapplied the discretionary function exception in granting the Government's motion for summary judgment. We agree with the district court that the discretionary function exception applies to this claim.

In considering this issue we must first decide whether or not the decision by NOAA cartographers to exclude the Buckskin Canyon cable from the Sectional Chart involved the exercise of discretion. If so, we must then decide whether or not the cartographers' exercise of discretion comes within the discretionary function exception of 28 U.S.C. Sec. 2680(a).

In preparing Sectional Charts, NOAA cartographers are required to follow specifications developed and promulgated by the Inter-Agency Air Cartographic Committee (IACC), a Committee of the United States Government. "These specifications shall be complied with without deviation until such time as they are amended by formal IACC action." (R., Vol. III, p. i). The parties agree that the relevant IACC specifications are, in part, as follow Chapter III

1. COMPILATION

b. Detail Selection and Density

(1) Rigid rules to satisfy requirements in the selection and density of chart detail cannot be formulated in view of the multiple requirements. For this reason, the finished product may not necessarily represent optimum in the presentation of chart detail; however, the selection of criteria detailed herein should suffice to serve as general guidance in achieving the best overall balance and relativity of the chart features portrayed.

(2) Utmost discretion must be used in determining the quality and selection of detail to be shown. Unnecessary information and indiscriminate selection of features is not advisable in congested areas and shall be avoided. However, all essential information required must still be retained, especially OUTSTANDING features for use as checkpoints.

(R., Vol. III, p. 14 (emphasis added).)

6. CULTURE

f. Miscellaneous Cultural Features

(13) Aerial Cableway, Ski Lifts, Conveyor Belts and Similar Features.

(a) Only those that may fall in the obstruction category or have visual significance from the air shall be shown.

(R., Vol. III, p. 56 (emphasis added).)

9. AERONAUTICAL INFORMATION, CIVIL FORMAT

e. Navigational and Procedural Information

(6) Obstructions.

(a) All cultural features which extend 200 feet or more above surrounding terrain shall be considered as a "vertical obstruction."

1 The obstruction symbol shall normally be shown for obstructions such as TV or radio towers 200' or more above the terrain. Where several obstructions occur within close proximity one to the other, or within a limited area, only the values of the highest shall be shown with the group obstruction symbol. Minor obstructions which are not in critical locations shall be omitted in congested areas.

2 Examples of features considered a hazard to low level flight are tanks, factories, lookout towers, smokestacks and elevated features such as cables or pipelines crossing rivers or valleys. These are extremely important because of the hazard to low level flight and the vertical dimension which facilitates identification at a distance.

(b) Obstructions less than 200' in height should also be shown if the location is critical and chart congestion permits; for example, if location on the ground is much higher than the surrounding terrain or very near an airport.

(R., Vol. III, p. 115 (emphasis added).) These specifications can be summarized as requiring obstructions to be depicted if they are 200 feet or more in height. Cartographers are encouraged, but not required, to show obstructions less than 200 feet in height if the location is critical and chart congestion permits.

Plaintiffs contend that NOAA cartographers had a mandatory duty to depict the Buckskin Canyon cable on the Sectional Chart and their failure to do so constitutes actionable negligence not barred by the discretionary function exception. Plaintiffs urge us to adopt the reasoning of the district court in Allnutt v. United States, 498 F.Supp. 832 (W.D.Mo.1980), which considered the mandatory nature of depicting aerial obstructions on a Sectional Chart under facts almost identical to these.

In Allnutt, plaintiffs brought suit against the United States for failing to chart or to depict a power line on a Sectional Chart. The relevant IACC specification the court considered required the following: "Power transmission lines, with pictorial pole (pylon) symbols, shall be shown on the chart to a density short of over-congestion...." Id. at 838-39. Upon review of this specification, the court ruled that "the discretionary function exception does not apply to the mechanical preparation of charts when such preparation fails to conform to specific IACC standards of specification." Id. at 838 (emphasis in original).

We believe the Allnutt case can be distinguished from this case. Unlike the specification in the case at bar which states that obstructions less than 200 feet should also be shown, the specification for power...