Zabala Clemente v. U.S., No. 77-1156

• Decision Date: 05 October 1977
• Docket Number: No. 77-1156
• Citation: 567 F.2d 1140
• Parties: Vera ZABALA CLEMENTE et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1140

567 F.2d 1140

47 A.L.R.Fed. 70

Vera ZABALA CLEMENTE et al., Plaintiffs, Appellees, v. UNITED STATES of America, Defendant, Appellant.

No. 77-1156.

United States Court of Appeals First Circuit.

Heard Oct. 5, 1977.

Decided Dec. 16, 1977.

As Amended Jan. 23, 1978.

Stuart M. Speiser, Washington, D. C., with whom Speiser, Krause & Madole, Washington, D. C., was on brief, for plaintiffs, appellees.

Before COFFIN, Chief Judge, CAMPBELL, Circuit Judge, CRARY, District Judge. ^*

COFFIN, Chief Judge.

On December 31, 1972 Roberto Clemente, two other passengers and two crewmen were killed in the crash of a private plane off the coast of Puerto Rico. Clemente, an outstanding professional baseball player, had chartered the aircraft to carry relief supplies to the victims of an earthquake in Nicaragua. Plaintiffs, the relatives and representatives of the deceased passengers, sued the United States under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2671 et seq.), alleging that employees of the Federal Aviation Administration (FAA) acted negligently in failing to warn Clemente and the other passengers that the aircraft they were about to embark on was overweight and lacked a proper flight crew. Further details of the accident and the events preceding it are described at length in the district court's opinion, 422 F.Supp. 564 (D.P.R.1976).

A prerequisite for recovery under the Federal Tort Claims Act is that there be a "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) (emphasis added). Here the law of Puerto Rico is controlling.

In denying the government's motion for reconsideration of the court's original opinion and order, the district court pointed out, 426 F.Supp. 1 (D.P.R.1977), that Article 1802 of the Puerto Rico Civil Code (31 LPRA 5141) ¹ creates an extremely broad "basis for tort liability". While the civil law concept of fault may indeed appear to be sweeping, we do not understand the district court to suggest that it is tortious conduct in Puerto Rico to fail to inspect another person's property or vehicle and consequently to warn him of impending injury unless the alleged tortfeasor has some duty to the victim requiring the performance of these protective measures. Indeed, the court acknowledges that "In this case we are concerned precisely with neglect of duty . . .", 426 F.Supp. at 2. Moreover, none of the cases cited to us by the district court or appellees have found liability in such a situation. ²

The critical question then is whether the FAA staff in Puerto Rico was under a duty to inspect the aircraft and to warn plaintiffs' decedents of any irregularities. The district court found that such a duty was created "in a general manner" when Congress passed the Federal Aviation Act and "in a more precise fashion" through the issuance of Order SO 8430.20C ³ by the Director of the Southern Region. The court concluded that since the Southern Region's order was mandatory and had the "force of law", it established an actionable duty to those whom the order sought to protect.

This analysis oversimplifies a complicated legal situation. It is obvious that one of the purposes of the Federal Aviation Act was to promote air travel safety; but this fact hardly creates a legal duty to provide a particular class of passengers particular protective measures. While the Federal Aviation Act empowered the administrative staff of the FAA to issue an order such as SO 8430.20C, the Act itself does not require this conduct. ⁴ The agency, in issuing the order, was acting entirely gratuitously and was under no obligation or duty to plaintiffs' decedents or any other passengers.

Given this general scope of statutory authority and the lack of any specific legislative mandate concerning the measures allegedly required by the Southern Region's order, the issue is whether the promulgation of that order created a duty of care on the part of the government to plaintiffs' decedents in light of the Federal Tort Claims Act's requirement that the United States be held liable only if private parties would be liable for comparable conduct. We sympathize with the district court's struggles in attempting to apply the Tort Claims Act's conceptually difficult provision. Because the powers of the United States are so vast and because the government necessarily includes a wide variety of institutional forms and legal relationships, the United States cannot easily be envisioned as a single entity in the "man in the street" world of common law torts.

Much of the problem results from the fact that the government frequently acts in a sovereign capacity. In one sense whatever the government says is law. However, for the purposes of the Federal Tort Claims Act the sovereignty of the government must, in many cases, be ignored. Clearly "no private individual has power to assume the prerogatives of sovereignty", Union Trust Co. of District of Columbia v. United States, 113 F.Supp. 80, 82 (D.D.C.1953). It was therefore perhaps understandable that the government would argue that when it acted in its sovereign capacity it was excluded from liability under the Act since there could be no comparable private conduct. The courts, recognizing that such a doctrine would unduly restrict the scope of the Act beyond the intent of Congress, have consistently rejected this " sovereignty" defense at all judicial levels. See, e. g., Union Trust Co.,supra; Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). But this decision to ignore the government's sovereignty operates in the reverse direction as well. Just as the government cannot invoke sovereignty as a defense to distinguish its conduct from that of private persons, plaintiffs cannot use the implicit sovereignty of the government to argue that all its internal communications establish standards of care similar to those created by duly promulgated laws of general application. Not all acts and orders of the United States government are so sovereign that they must be treated as commands which create legal duties or standards, the violation of which involves breaking the law. A considerable part of the government's conduct is in the context of an employer-employee relationship, a relationship which includes reciprocal duties between the government and its staff, but not necessarily a legal duty to the citizenry.

In the present case a member of the FAA staff, in an attempt to implement agency policy, ordered the Flight Standards District Office to take certain steps regarding the surveillance of large turbined powered aircraft. Even assuming, as plaintiffs contend, that this order was mandatory, the duty it creates is that of the District Office employees to perform their jobs in a certain way as directed by their superiors. This duty to comply with the directives of their superiors is owed by the employees to the government and is totally distinguishable from a duty owed by the government to the public on which liability could be based. The failure to perform the order may be grounds for internal discipline, but it does not follow that such conduct necessarily constitutes the kind of breach cognizable by tort law. ⁵

The appropriate analogy to private life seems to be that of a corporate employer who has hired a safety director to insure that the firm's business environment is free from accidents and health hazards. Acting entirely within his authority the safety director orders his staff to check that other firms in the vicinity are meeting fire regulation standards. If one such employee fails to inspect a nearby firm's building and if it burns to the ground thereafter because of unsafe conditions which would have been rectified had the employee carried out his assigned task, is either the employee or the employer liable for this failing? We think not. No Puerto Rico case alleging a remotely similar basis for liability has been brought to our attention. ⁶ Moreover, the Restatement of Torts 2d §§ 323 and 324A ⁷ makes it clear that liability in such a situation must be predicated on one of three grounds: the conduct of the employee actually increased the risk of harm to the damaged firm; the harm to the damaged firm resulted from its reliance on the employee carrying out the inspection as ordered; or there existed a prior duty to inspect owed by the employer to the damaged firm. See generally Davis v. Liberty Mut. Ins. Co., 525 F.2d 1204 (5th Cir. 1976). None of these conditions apply to our analogy or to plaintiffs' claims in the matter before us. There was no underlying statutory duty to offer special protection to plaintiffs' decedents; the failure to inspect in no way added to the risk of injury to the passengers or crew; and there is no evidence that anyone relied on the contents of SO 8430.20C and limited their own safety precautions accordingly. Therefore there can be no basis for liability under general principles of tort law and the Federal Tort Claims Act.

To hold otherwise would be to interpret every command made as an exercise of discretion by the supervisory or administrative staff of any federal agency as creating a duty of the federal government to the beneficiaries of that command such that the government would be liable to the beneficiary if the command was not carried out. ⁸ We do not believe the Federal Tort Claims Act was intended to expose the government to such limitless liability and would not so hold unless we were required to do so by established precedent. Indeed, because the policy implications of finding liability on the grounds suggested here would be so severe, and because the surrender of sovereign immunity by the government should be interpreted...