concluding that, “[w]ith-out question, a weather service constitutes [a discretionary function]” and holding that the United States was not hable for death of fishermen who drowned in storm which NWS failed to predict
How later courts described this case
- concluding that, “[w]ith-out question, a weather service constitutes [a discretionary function]” and holding that the United States was not hable for death of fishermen who drowned in storm which NWS failed to predict
- concluding that discretionary function exception barred negligence claims brought by relatives of fishermen who drowned during a storm that the National Oceanic and Atmospheric Administration failed to predict
- distinguishing Indian Towing, where “the government created a danger by representing that an operating lighthouse was present” from cases where the government does not itself create the danger, as in the case where the government issues weather advisories but does not control the weather
- “[H]ow much money [the defendant] is to spend, measured, necessarily! by Congressional appropriations, must be for the government’s uncontrolled discretion.”
Written by the judges who cited it.
The opinion
PETTINE, Senior District Judge,
concurring.
While I concur in the result reached by my brethren, I feel compelled to write separately to clarify my reasons for joining the reversal of the judgment below. The opinion of the district court judge was provocative, well-reasoned, and obviously carefully thought through. I feel constrained for two interrelated reasons, however, to reverse. First, our opinion in Chute v. United States, 610 F.2d 7 (1st Cir.1979), cert. denied, 446 U.S. 936 , 100 S.Ct. 2155 , 64 L.Ed.2d 789 (1980) indicated that the discretionary function exception precludes a court from evaluating whether a particular service provided by the government is “effective” or “adequate.” We made clear, however, that under the rationale of Indian Towing Co. v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955), a government entity’s discretion is confined by the requirement that once it undertakes to provide a given component of a service and renders reliance on that particular component, it is obligated to exercise due care in making certain that aspect of the service is kept in good working order. 610 F.2d at 13 .
This brings me to my second reason. The plaintiffs’ reliance in this case, as well stated by my colleagues, was not on an affirmative misstatement of fact, i.e., was not on information provided by the Georges Bank buoy, but rested on the prediction itself, which at any one time is made up of a number of different factors, no one of which is necessarily determinative. If *205 courts are to interfere so as to ensure that the weather service continues to maintain a given level or quality of prediction, which is made up of numerous and varied factors, in effect, courts would be assessing the adequacy of this government service, for who is to say what components are necessary to maintaining the previously set level of prediction. I, therefore, believe this case different from Indian Towing.