# Jay L. Caplan and Eva M. Caplan v. United States

> Court of Appeals for the Sixth Circuit · June 30, 1989 · 877 F.2d 1314

URL: https://www.frixlaw.com/law-library/cases/9479176

## Case

- **Full name:** Jay L. CAPLAN and Eva M. Caplan, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** June 30, 1989
- **Citations:** 877 F.2d 1314; 1989 U.S. App. LEXIS 9428; 1989 WL 70465
- **Precedential status:** Published
- **Opinion:** Concurrence by Martin
- **Judges:** Martin, Ryan, Smith
- **Cited by:** 21 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9479176

## How later opinions describe it (automated extraction)

- holding that where the hazard was created by the natural elements and the platform plaintiff slipped on was outside, wet, contained a “glare of ice,” in broad daylight, and plaintiff was fully aware of ice and snow accumulation, no duty was breached
- holding in a case predating the objective test established by Gaubert that the government’s failure to warn of a dangerous condition in a forest did not involve policy judgment and thus was not protected by the DFE
- stating Kentucky landowners are insulated from liability for failure to warn or protect against “dangers that are created by the elements, such as forming of ice and the falling of snow”
- noting that once the government established a policy of deforestation, it was accountable for negligence in the implementation of such policy

## Opinion text

BOYCE F. MARTIN, Jr., Circuit Judge,
concurring.
The majority has, I think, reached a fair conclusion in finding that the United States Forestry Service was negligent in not providing Jay Caplan with information regarding the still standing dead trees. Based upon the analysis used, however, I cannot see how this result squares with Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986), cert. denied, 480 U.S. 948 , 107 S.Ct. 1608 , 94 L.Ed.2d 793 (1987). Knowledge of a dangerous condition is the crucial issue in each case. I add the following to help clarify what I take to be an ambiguous and quite often confusing area in the law.
Under the Federal Tort Claims Act, 28 U.S.C. §§ 1346 , 2671 et seq., Congress granted a general waiver of sovereign immunity by authorizing suits against the United States for damages
for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the *1319 United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346 (b). Congress preserved the government’s sovereign immunity for
[a]ny claim ... based upon the exercise or performance or the failure to exercise or 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.
28 U.S.C. § 2680 (a). The majority correctly notes that while “the boundaries of the discretionary function exception are not altogether clear, the Supreme Court has emphasized that the purpose of the exception is to protect governmental conduct involving the exercise of policy judgment ...” (emphasis in original), citing Berkovitz v. United States, 486 U.S. 531 , 108 S.Ct. 1954 , 100 L.Ed.2d 531 (1988) and United States v. Varig Airlines, 467 U.S. 797, 814 , 104 S.Ct. 2755, 2765 , 81 L.Ed.2d 660 (1984).
The majority asserts that the present case is “governed by a line of cases that hold that once the government makes a policy decision protected by the discretionary function exception, it must proceed with due care in the implementation of that decision.” As an example of this line of cases, the majority cites Indian Towing v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955). In that case, the Supreme Court held that the Coast Guard’s decision to operate a lighthouse was discretionary, but that once it “exercised its discretion to operate a light ... and engendered reliance on the guidance afforded by that light, it was obligated to use due care to make certain that the light was kept in good working order....” Id. at 69 , 76 S.Ct. at 126-27 . This Court applied a similar analysis in Reminga v. United States, 631 F.2d 449 (6th Cir.1980), when it held that the Federal Aviation Administration’s negligent preparation of a navigation chart was not a discretionary function. “Though not required by the law to do so, when the FAA arranges for the publication of aeronautical navigation charts and engenders reliance on them, it is required to use due care to see that they accurately depict what they purport to show.” Id. at 452 (footnote omitted).
As these cases suggest, it is helpful to view governmental conduct as a two step process: first as a discretionary decision and second as the implementation of that decision requiring due care. One court has found this distinction originating in Dalehite v. United States, 346 U.S. 15 , 73 S.Ct. 956 , 97 L.Ed. 1427 (1953). See Alabama Electric Co-op, Inc. v. United States, 769 F.2d 1523, 1526-28 (11th Cir.1985) (referring to this distinction as the “planning/operational distinction”). The majority correctly applies this distinction to the facts of the present case. It correctly finds the Forest Service’s decision to clear and reforest certain areas of Daniel Boone National Forest was a decision that involved the exercise of policy judgment. This decision falls within the discretionary function exception. The majority also correctly concludes that the government’s failure to warn Jay Caplan of the dangerous condition present was not a decision involving the exercise of policy judgment and therefore was not a discretionary function.
My difficulty with the majority’s opinion is its failed attempt to make this opinion consistent with this Court’s opinion in Myslakowski v. United States, 806 F.2d 94 (6th Cir.1986), cert. denied, 480 U.S. 948 , 107 S.Ct. 1608 , 94 L.Ed.2d 793 (1987). In Mys-lakowski, the Postal Service sold a number of its surplus jeeps to the public. These vehicles had a propensity to rollover, causing injury to the occupants. The government was aware of this defect when it sold the jeeps. Id. at 95. The Postal Service, however, instructed its district managers to sell the jeeps “as-is-where-is.” Id. at 96. In the Court’s words, that instruction “included, inferentially no test driving, no mechanical inspection, no refurbishing or reconditioning, no express warranties, and certainly no warnings.” Id. at 98. The Court concluded that the Postal Service’s decision to sell the jeeps in this manner, “omitting to require that any warnings be given concerning the performance of jeep vehicles, whether purposeful or negligent, was an inherent part of the discretionary *1320 decision to sell the vehicles ‘as-is-where-is.’ It gives rise to no liability.” Id. at 99. Contrary to Indian Towing and Reminga , the Court did not view the governmental conduct in Myslakowski as a two step process composed of a discretionary decision to act and implementation of that decision requiring due care. Instead, the Court collapsed these two steps into one discretionary act. This move cannot be squared with the analysis of governmental conduct in the present case. 1
The source of my disagreement with the majority’s application of Myslakowski is, I suspect, due to the fact that the line between a discretionary decision and its implementation is not so clear cut. The demarcation between planning and operation is often ambiguous. At some point, it seems, reasonable persons can disagree as to the characterization of a governmental act as a discretionary policy decision protected by the Federal Tort Claims Act or as the mere execution of that decision to which the standard of due care applies.
This ambiguity and the consequent disagreement is particularly acute in those instances where the government specifies certain procedures or methods for implementing its policy decision. Some courts view this act as “an inherent part of the discretionary decision,” Myslakowski at 99 , while others see it as a separate act to which the standard of due care applies so that “the government [is] treated, as Congress intended as any private entity.” Barlieb v. Turner & Newall, Ltd., 588 F.Supp. 473, 475 (E.D.Pa.1980). 2
The Supreme Court has avoided resolving this ambiguity in terms of specifying the level of governmental activity to which the discretionary function no longer applies. In Dalehite v. United States, 346 U.S. 15, 35 , 73 S.Ct. 956 , 97 L.Ed. 1427 (1953), the Court stated that “[i]t is' unnecessary to define, apart from this case, precisely where discretion ends.” Similarly, in United States v. Varig Airlines, 467 U.S. 797, 813 , 104 S.Ct. 2755, 2764 , 81 L.Ed.2d 660 (1984), the Court found that it was “unnecessary — and indeed impossible — to define with precision every contour of the discretionary function exception.”
Perhaps, though, the search for some line of demarcation between discretionary decision and non-discretionary implementation is the wrong question and courts should attempt to reformulate the inquiry. The Supreme Court took the first step in this regard in United States v. Varig Airlines 467 U.S. 797 , 104 S.Ct. 2755 , 81 L.Ed.2d 660 (1984). In that case, the Court stated that “it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.” Id. at 813 , 104 S.Ct. at 2764 . The “basic inquiry” in this regard “is whether the challenged acts ... are of the nature and quality that Congress intended to shield from tort liability.” Id. Regarding Congress intent, the Court stated that “whatever else the discretionary function exemption may include, it plainly was intended to encompass the discretionary acts of the government acting in its role as a regulator of the conduct of private individuals.” Id. at 813-14 , 104 S.Ct. at 2764 (footnote omitted). In doing this “Congress wished to prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort.” Id. at 814 , 104 S.Ct. at 2765 . This was “an exception for discretionary governmental functions....” Id. In Varig Airlines , the Court went on to find that the Federal Aviation Administration’s choice of a “spotcheck” program *1321 to monitor aircraft manufacturer compliance with FAA regulations was a discretionary act.
Varig Airlines suggests that the general question “Did the government exercise discretion in this case?” is not adequate to address the many ambiguities present in Federal Tort Claims Act cases. It is only a threshold question. If the answer to it is “yes,” a court may then ask whether, in reviewing governmental conduct in a tort suit, it will be required to “second-guess” the government’s decisions based on “social, economic, and political policy” in a tort action. That is, given that some discretion is present in a governmental act, what kind of judgment is being exercised behind this discretion. If the judgment exercised is of a policy nature, involving social, economic and political factors, then the discretionary function exception applies.
An example of this inquiry can be seen in Alabama Electric Co-op, Inc. v. United States, 769 F.2d 1523 (11th Cir.1985). In that case, the Army Corps of Engineers was accused of causing erosion beneath an electrical transmission line tower located on the bank of the Alabama River through construction of a dike upstream. The power company which owned the tower was forced to stabilize it at a substantial cost. The district court dismissed the power company’s suit against the Corps under the discretionary function exception. The Eleventh Circuit reversed, following Varig Airlines . The court held that “where the Corps makes a social, economic or political policy decision concerning the design of a particular project, that decision is excepted from judicial review under § 2680(a). In the absence of such a policy decision, the Corps’ design decisions are subject to judicial review_” Id. at 1536-37. The court found no policy decisions made by the Corps concerning the dike, but remanded the case to the district court for expansion of the record. Id. at 1537. 3
The court’s approach in Alabama Electric could adequately address the problem presented by Caplan’s case. Because no policy judgment was exercised in the decision not to warn Jay Caplan of the dangerous condition of the forest, the discretionary function exception does not apply. This approach remains troubling, however, because it leaves open the possibility that the government could intentionally engage in negligent conduct causing injury to individuals and yet remain immune from suit. For example, under this approach the Coast Guard could have intentionally operated the lighthouse in Indian Towing in a hazardous fashion if it had considered this type of operation to be cost-effective. Similarly, the FAA could have intentionally made faulty navigational charts, or the Postal Service could decide to sell, without warning, surplus vehicles known to be defective if these actions involved government cost calculations. See Myslakowski, 806 F.2d at 99 (government decision to sell jeeps without warning of defect “whether purposeful or negligent was an inherent part of the discretionary decision ... ”).
Fortunately, the Court in Varig Airlines suggested another factor to examine. It suggested that courts look to see whether the government is acting in. its role as regulator, or in some other role. In those cases where the government is not fulfilling a governmental function, where the government is not acting as “a regulator of private individuals,” Varig Airlines, 467 *1322 U.S. at 813-14 , 104 S.Ct. at 2764 ; but as a private individual itself, courts should be less inclined to apply the discretionary function exception. 4 The district court in Barlieb v. Turner & Newall, Ltd,., 588 F.Supp. 473 (E.D.Pa.1980), took just such an approach. In Barlieb , the court refused to dismiss a case against the United States in which the government was accused of negligence in the sale of asbestos. In reaching this conclusion, the court considered whether the government’s “decision to sell the asbestos without warning was a ‘discretionary function.’ ” Id. at 477 (emphasis in original). Although this case was decided before Varig Airlines , the court noted “that the decision to sell the asbestos in unmarked crates to knowledgeable buyers involved ‘a weighing of economic and other policy factors.’ ” 588 F.Supp. at 477 quoting Stewart v. United States, 486 F.Supp. 178, 184 (C.D.Ill.1980). The court found that “[cjertainly the costs factors were present, but they were precisely the cost factors involved in any sale: repackaging, transportation, and so forth.” 588 F.Supp. at 477 . It found that “the weighing of ‘policy’ consideration ... in the context of governmental function ended when the decision to sell was made in a manner that would not disturb the usual markets for asbestos. Any subsequent activity on the part of the government created exactly the kind of ‘like circumstances’ anticipated by the Federal Tort Claims Act, and the government should be treated, as Congress intended, as any private entity.” Id.
This approach can explain why Myslakowski was not properly decided. In that case the government acted “as any private entity,” Barlieb at 477 , in selling certain motor vehicles. As such, the government was obliged to sell its vehicles with due care as provided by state law. It could not exempt itself from potential liability by providing, through the exercise of its discretion, the manner in which vehicle sales were to take place. Although cost factors may have been involved in the sale of these vehicles “they were precisely the cost factors involved in any sale” id, by any private party. Congress did not intend to grant the government freedom from liability under these circumstances.
While the alternative lines of inquiry suggested by Varig Airlines are admittedly not applicable to all Federal Tort Claims Act cases, they may help resolve those cases where the discretionary nature of a governmental act is uncertain. The first factor suggested will ensure that only those discretionary decisions involving policy judgment will be exempted. The second factor suggested will ensure that the government is held to the same standard of care as private parties in those instances where it acts as a private party even though some “policy” decision may be involved. This is desirable because it is what I think Congress intended.
. The decision in Myslakowski is in accord with the Postal Service jeep litigation decisions of several other federal courts. See, e.g., Ford v. American Motors Corp., 770 F.2d 465 (5th Cir.), reh'g denied, 776 F.2d 1048 (5th Cir.1985); Shirey v. United States, 582 F.Supp. 1251 (D.S.C.1984); Louviere v. AM General Corp., 620 F.Supp. 6 (W.D.La.1985).
. In Barlieb the court found that the government's allegedly negligent sale of asbestos without warning of the harmful effects of exposure did not fall within the discretionary function exception, but see Stewart v. United States, 486 F.Supp. 178 (C.D.Ill.1980) and Smith v. Johns-Manville Corp., 795 F.2d 301 (3rd Cir.1986), where the court in each case found that the decision to sell asbestos without warning was a discretionary function.
. In its well-reasoned opinion, the court cited cases in which discretionary acts by government officials were actionable because they involved the exercise of professional judgment rather than the formulation of government policy. See, e.g., Griffin v. United States, 500 F.2d 1059 (3rd Cir.1974) (professional, scientific judgment exercised in approving live polio virus vaccine held actionable); Hendry v. United States, 418 F.2d 774 (2d Cir.1969) (medical judgment of government psychiatrist and psychologist in diagnosis of patient held actionable). The court also cited numerous cases in which design decisions were actionable under the Federal Tort Claims Act and those which were not. Cf. Seaboard Coast Line Railroad Co. v. United States, 473 F.2d 714 (5th Cir.1973) (government’s negligent design of drainage system diverting water to railway’s right-of-way was actionable) with Payne v. United States, 730 F.2d 1434 (11th Cir.1984) (dredging and widening of river by Corps of Engineers caused erosion and collapse of plaintiffs house not actionable because Corps decided cost of erosion studies exceeded cost of after-the-fact property acquisition).
. Note that this is the reverse of what the government argued in Indian Towing v. United States, 350 U.S. 61 , 76 S.Ct. 122 , 100 L.Ed. 48 (1955). In that case the government argued that the discretionary function exception necessarily applies to "uniquely governmental functions." Id. at 64 , 76 S.Ct. at 124 . The Court rejected this argument, in part, in order to avoid "the 'nongovernmental’-'govemmentar quagmire.” Id. at 65 , 76 S.Ct. at 124 . I think that criticism of this approach remains valid.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9479176. Public record. Not legal advice.