Discretionary function exception to FTCA does not apply to government's enforcement of safety regulations for logging operation

Law Reporter, Jun 2001

Bear Medicine v. United States, 241 F. 3d 1208 (9th Cir. 2001).

The Ninth Circuit Court of Appeals held that the discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C. (secs)2671-2680, does not apply to the federal government's negligent enforcement of safety measures on a logging operation.

Here, a logging company contracted with a Native American tribe to cut down trees on a reservation. The Bureau of Indian Affairs-which is responsible for authorizing any logging activities on the reservation-authorized the contract and reserved the right to suspend the operation should the company fail to comply with safety provisions in the contract. During the logging operation, a member of the tribe died after being struck by a tree. A representative of the member's estate, among others, sued the United States under the FTCA, alleging the bureau was negligent in authorizing the contract and failing to ensure appropriate safety measures were taken. The trial court granted defendant summary judgment, holding that the bureau's actions were protected under the discretionary function exception to the FTCA.

Reversing, the Ninth Circuit noted that the discretionary function exception exempts from liability any claim based on a federal agency's performance of or failure to perform a discretionary function. In Berkovitz v. United States, 486 U.S. 531 (1988), the U.S. Supreme Court held that, to determine whether the exception applies, a court must consider whether (1) the action was a matter of choice for the federal agency and (2) the challenged action involved a policy judgment. An action specifically prescribed by a federal statute is not discretionary, the Court said.

Applying this test here, the court agreed with plaintiffs that the bureau's negligence in supervising the safety aspects of the logging operation was not protected by the discretionary function exception. The contract gave the bureau power to suspend the operation if the logging company failed to comply with prescribed safety regulations. The bureau regularly inspected the site to ensure compliance, the court noted. Although a general statutory duty to promote safety is not sufficient to reject application of the exception, the court explained, a failure to enforce policy choices already made is not protected by the exception. Thus, even if the bureau had discretion in monitoring the operation, its actions in carrying out its responsibilities were not protected policy judgments that satisfy the second prong of the test.

The court noted that, in general, once the federal government has undertaken responsibility for the safety of a project, the execution of that responsibility is not subject to the discretionary function exception. The court rejected defendant's argument that both the decision to take safety measures-a policy consideration-and the negligent implementation of those measures are protected policy decisions. Accepting this argument would allow the government to administratively immunize itself from tort liability as a matter of policy, the court reasoned. Thus, the bureau's failure to require safety measures was not a policy judgment that Congress intended to protect from FTCA liability, the court concluded.

Accordingly, the court remanded.

Plaintiffs' Counsel

*Monte D. Beck, Bozeman, Mont.

*Joe Bottomly, Kalispell, Mont.

Comment. See also Smith v. Washington Metro. Area Transit Auth., - F. Supp. 2d -, No. AW-99-2187, 2001 WL 227064 (D. Md. Feb. 5, 2001). There, Smith suffered a fatal heart attack after climbing an escalator at a subway station. Two of the three station escalators were not in service at the time and the third one was shut down to be used as a stairway. Smith's parents sued the transit authority for negligence. Defendant moved for summary judgment arguing, among other things, that it was immune from liability.

Denying the motion, the court found that defendant is immune from liability for discretionary actions, but can be liable for conduct that implements its discretionary decisions. The discretionary function exception, the court explained, applies to decisions grounded in economic, social, or political policy considerations. In this case, the exception does not apply because maintaining and repairing the entrances and exits to subway stations is not the type of decision inherently grounded in such policy considerations. Common carriers have a duty to provide a safe means of entering and exciting their stations. This is especially true in situations involving subways, where the common carrier controls the entrances and exits, the court said. *Lawrence S. Lapidus and Jack A. Gold, both of Washington, D.C., represented plaintiffs.

Documents in Smith are available through the Litigation Resources section in the back of this issue, courtesy of Mr. Lapidus.