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Civil Procedure/Federal Torts Claim Act: Discretionary Function

Posted by Ted A. Schmidt | Jul 27, 2018 | 0 Comments

Civil Procedure/Federal Torts Claim Act: Discretionary Function

Morales v. United States, __F3d__, No. 17-15215 (July 13, 2018) (J. McKeown)


The estate of a pilot and the owner of the helicopter he was flying sued the United States alleging the United States Geological Survey [USGS] was negligent in failing to mark a cable which the helicopter hit resulting in a crash killing the pilot and destroying the helicopter.

 Under the Federal Torts Claim Act [FTCA] the U.S. government waives sovereign immunity for tort claims arising from the negligent acts of government employees acting within the scope of their employment. However, there is an exception to the waiver where it is found a government employee or agency's alleged negligent act is based upon the exercise of a discretionary function.

 Berkowitz   v.   United   States, 486 U.S. 531 (1988) sets forth a two-step process for determining  application of this exception. Here both steps were found to require application of the discretionary function exception.

 First, there was nothing found in USGS's policy creating a mandatory and specific directive to mark the 40 foot high Verde River cable in question. Instead the policy left employees with discretion as to which cables created a hazard and needed to be marked.

 Second, the court found the USGS's decision was susceptible to policy analysis grounded in social, economic and political concerns. Specifically, the USGS deferred to the Federal Aviation Administration's [FAA] role and expertise in regulating navigable airspace and affirmatively decided to defer to that agency's standards with respect to marking cable. The FAA exercising its discretion determined that only cables 50 feet or higher need be marked as the FAA further required that aircraft not fly lower than 50 feet. To mark a 40 foot cable could confuse pilots as to how low they were actually flying  Further, the USGS considered the risk to USGS personnel as well as economic cost of installing and maintaining such markers.

 “All of these considerations embody the type of policy concerns that the discretionary function exception is designed to protect, reflecting that USGS's decision was based on competing policy considerations related to safety to aircraft, safety to USGS personnel, financial burden, protection of scenic integrity and respect of the objectives of land-management agencies.“

 Finally, the mere fact the decision involved considerations of public safety does not render the exception inapplicable.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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