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Andrews v. United States

ELR Citation: 28 ELR 20158
Nos. Nos. 95-3377 et al., 121 F.3d 1430/(11th Cir., 09/17/1997)

The court holds that the discretionary function exception of the Federal Tort Claims Act (FTCA) shields the government from liability for a contractor's negligence in disposing of wastes removed from two naval bases in the Jacksonville, Florida, area. The residents of a neighborhood surrounding a landfill near Jacksonville seek damages for injuries resulting from contamination of groundwater near the landfill, which was caused by hazardous waste from the naval bases. The court first holds that the discretionary function exception shields the government from tort liability for consequences flowing from the U.S. Department of Navy's (Navy's) decision to delegate waste disposal to the contractor. The law is clear that the government may delegate its safety responsibilities to independent contractors in the absence of federal laws or policies restricting it from doing so. No such laws restricted the Navy in this case. In addition, the Navy's decision to delegate was grounded in policy concerns. The court next holds that the government is not strictly liable under Florida law for the contractor's negligence.

The court also holds that the government is not liable for negligent failure to supervise the contractor. The discretionary function exception encompasses government decisions about how and how much to supervise the safety procedures of independent contractors. Although the contracts between the Navy and the contractor provided that the Navy would supervise the contractor's disposal activities, the contracts did not specify how the Navy would carry out that supervision. Thus, the Navy acted within the province of its discretion in deciding how to supervise the contractor's performance under the contract.

The court holds, however, that the discretionary function exception does not insulate the government from liability under the FTCA for damages that resulted from the Navy's failure to segregate waste. The exception does not apply to the Navy's violation of its mandatory duty not to place flammable liquid waste in the on-base dumpsters. But the plaintiffs' negligence claim based on the Navy's negligent failure to obey its mandatory contractual duty to segregate flammable waste must fail because a critical element of negligence under Florida law—causation—is missing. The Navy's failure to separate flammable waste from other waste (hazardous and not) did not cause the contamination of plaintiffs' wells. The contract did not restrict the Navy's disposal of nonflammable hazardous waste. Thus, there was no nexus between the Navy's breach of its duty to segregate and the destination of its waste.

Counsel for Plaintiffs
David F. Sorensen
Berger & Montague
1622 Locust St., Philadelphia PA 19103
(215) 875-3000

Counsel for Defendant
S. Michael Scadron
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Hill and Gibson,* JJ.