Cisco v. United States

No. 83-3316 (S.D. Ill. April 11, 1984)

The court holds that suits brought by residents of Jefferson County, Missouri charging the Environmental Protection Agency (EPA) with negligence for failure to warm them of a dioxin contaminated landfill or to remove the contaminated soil are barred by the discretionary function exception to the Federal Tort Claims Act. The Act allows compensation for injuries arising out of operational decisions but not out of policy decisions. Plaintiffs have made no allegations of operational error or of any regulatory limits on EPA's discretion. EPA's decision not to issue a warning or initiate a cleanup action was a protected policy decision involving the weighing of competing interests and is thus immune from judicial review via a tort action.

[The decision on appeal to the 7th Circuit appears at 15 ELR 20571.]

Counsel for Plaintiffs
Patrick S. O'Brien, Paul L. Pratt
P.O. Box 179, East Alton IL 62024
(618) 259-8011

Counsel for Defendants
Richard K. Willard, Jeffrey Axelrad, Donald E. Jose, Arvin Maskin
Civil Division
Department of Justice, Washington DC 20530
(202) 633-3301

Frederick J. Hess
Criminal Division
Department of Justice, Washington DC 20530
(202) 633-3684

Bruce E. Reppert, Ass't U.S. Attorney
Room 330, 750 Missouri Ave., East St. Louis 62202
(314) 277-9361

[15 ELR 20570]

Foreman, J.:

Memorandum and Order

This matter is before the Court for resolution of defendants' Motion to Dismiss. Plaintiffs filed suit under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) to remedy alleged personal injuries and property damages resulting from exposure to dioxin contaminated soil used as landfill in Jefferson County, Missouri. The Complaint charges the Environmental Protection Agency (EPA) with negligence for failure to warn residents near the landfill about the contaminated soil, failure to remove the soil, andfailure to otherwise protect plaintiffs from exposure to dioxin.

Plaintiffs allege that on or about June 11, 1971, waste oil contaminated with 2, 3, 7, 8 tetrachlorodibenzo-para-dioxin was sprayed at the Bubbling Springs Horse Arena in Missouri. On August 23, 1971, the EPA investigated the possible toxicity of the waste oil which was sprayed at two other horse arenas and private roads in Missouri. Plaintiff alleges that through its investigation EPA learned that 850 cubic yards of dirt from Bubbling Springs Horse Arena was used as landfill in residential areas around Imperial, Missouri. Despite this knowledge, plaintiffs maintain EPA made no effort to remove the contaminated soil or to warn the residents in the area about the danger.

Plaintiffs' theory of recovery is premised on the good samaritan doctrine recognized under Missouri law. Plaintiffs concede that EPA had no duty to conduct an investigation into the contaminated soil, however, once EPA decided to conduct an investigation it had a duty to remove the contaminated soil and warn plaintiffs about the danger. Plaintiffs argue this situation is analogous to a physician's liability in aiding an auto victim he encounters on his way home from work. The physician has no duty to stop and treat the victim, but if he chooses to do so and treats the victim negligently, he would be liable for malpractice. In its motion, the Government argues (1) plaintiffs have not alleged facts which trigger the good samaritan doctrine as defined by Missouri law; and (2) even if EPA had a duty to plaintiffs, this action is barred under the discretionary function" [15 ELR 20571] and "misrepresentation" exceptions to the Federal Tort Claims Act. As discussed below, the Court finds that plaintiffs' claims are barred by the discretionary function exception, 28 U.S.C. § 2680(a) and thus, the Complaint must be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure.

This Court has exclusive power to hear a tort claim for money damages against the United States by virtue of the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq. (FTCA). The FTCA is a limited waiver of sovereign immunity, and the statute contains some express exceptions to tort liability. The discretionary function exception is codified at 28 U.S.C. § 2680(a) which states that liability under § 1346(b) does not apply to —

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise and perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

(Emphasis added). The purpose of the discretionary function exception is to prevent the courts from intruding into the decisionmaking authority of the other branches of the Government through the vehicle of tort suits. Estate of Callas v. United States, 682 F.2d 613, 620 (7th Cir. 1982). As stated in Blessin v. United States, 447 F. Supp. 1160, 1170 (E.D. Pa. 1978) "[t]ort law simply furnishes an inadequate crucible for testing the merits of social, political, or economic decisions."

The scope of the discretionary function exception has been the subject of much judicial discussion. The Seventh Circuit takes the position that the "applicability of the exception rests upon the characterization of the challenged behavior as either a policy decision or an operational decision." (Emphasis added). Preston v. United States, 696 F.2d 528, 541 (7th Cir. 1982). A review of recent cases in this Circuit illustrates this standard. In Estate of Callas v. United States, supra, plaintiffs brought suit alleging the Army Corp of Engineers was negligent in its operation of a lock and dam on the Mississippi River resulting in the death of two persons. The Court analyzed each decision by the Government to determine whether it was a policy decision or an operational one. The Court found the Government's decision to open up more area in front of the dam to the public for recreation, to not erect a physical barrier around the perimeter of the restricted area and its decision not to take more extensive steps to warn boaters about the perils of the dam were all policy decisions. Id. at 20-21. However, the Court held once the Government chose to warn the public about the boating risks around the dam through the use of signs and other devices, the Government's failure to use due care in warning the public of danger could be a basis for liability. Thus, the Government's decision to use a particular sign to warn the public was an operational decision which is outside the scope of the discretionary function exception. Id.

The Seventh Circuit's holding in Bearce v. United States, 614 F.2d 556 (7th Cir. 1980) is also instructive. In Bearce plaintiffs alleged the Coast Guard was negligent in failing to erect another light at the entrance of a harbor. The Court found that the Coast Guard's decision to place a certain number of lights in the harbor was a policy decision made at the administrative level. In Bearce there was no negligence at the operational level because all the Coast Guard's aids to navigation were operational as planned at the time of the accident. The Court distinguished cases involving the negligent maintenance of a lighthouse and the negligent placement of a bouy on the basis that those cases involved "the breach of the non-discretionary duty to operate the aids with due care." Id. at 560. The policy decisions protected in Callas and Bearce all involved the weighing of competing interests such as public safety, the public use and enjoyment, budgetry restraints, administrative capabilities, and the technical feasibility of a project or improvement. Unprotected operational decisions, on the other hand, involved errors in the performance of routine duties, or the failure to act reasonably once the decision to act has been made.

III

A review of the Complaint in light of the above discussion reveals that plaintiffs are complaining about policy decisions made by the Government. Plaintiffs allege the Government failed to warn them about the contaminated soil, failed to remove the soil, and otherwise failed to protect them from the effects of dioxin. Completely lacking from the Complaint are any allegations of an operational error by the Government or any regulations or standards which curb the discretion of the EPA in this situation. The Government's alleged failure to warn in this caseis analogous to its decision not to erect a protective barrier in Callas, and its decision to place only one light in the harbor in Bearce. In each case the government entity weighed the competing interests and decided not to act. This Court is not empowered or equipped to reweigh the competing interests via a tort action.

Accordingly, the Court finds that plaintiffs' claim falls within the discretionary function exception to liability under the Federal Tort Claims Act. Defendants' Motion to Dismiss is wereby GRANTED and this action is DISMISSED.

IT IS SO ORDERED.