ELR Citation: ELR 20017
No(s). 99-3357 (3d Cir. Aug 28, 2000)

The court holds that the discretionary function exception to the Federal Tort Claims Act (FTCA) barred an individual's FTCA claim against the National Park Service for failure to repair or improve a drainage ditch and head-wall along a road in the Delaware Water Gap National Recreation Area. After her car ran off the road and into the drainage ditch and head-wall, the individual brought suit claiming that the Park Service negligently failed to make necessary repairs to the ditch and the head-wall. The court first holds that the Park Service's decision to repair the ditch and head-wall was a discretionary decision that implicated a number of policy considerations. There were numerous aspects of the road's design, condition, and safety that called for the Park Service's attention, but the Park Service was forced to prioritize among these projects because of its restricted budget and the limited ability to make repairs. Thus, the decision to repair the ditch and head-wall involved an element of choice, and the Park Service legitimately exercised discretion in determining the priority of road repairs and redesigns. The court next holds that the Park Service's exercise of discretion was of the type that the discretionary function exception to the FTCA was intended to shield. Failure to repair can fall under the discretionary function exception if it is based on public policy rationale. Here, because the Park Service did not have sufficient funds to complete reconstruction of the road, it needed to determine priorities among desirable improvements. Among the roadside obstructions on the Park Service's roads, the Park Service noted that those within one or two feet of the road were of particular concern. The ditch and the head-wall were five feet from the roadway, and the Park Service had to balance the costs of repair of every culvert with other safety issues. Thus, the Park Service articulated several policy considerations for its decision not to repair the ditch and head-wall. Under these circumstances, the discretionary exception to the FTCA applies and the lower court did not have the subject matter jurisdiction to entertain the suit against the Park Service.

Counsel for Appellant
Douglas Hallward-Driemeier
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellee
J. Craig Currie
Currie & Strawley
Two Penn Center
1500 JFK Blvd., Ste. 1032, Philadelphia PA 19102
(215) 564-0833

Before Sloviter and Barry, JJ.