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Tort/Negligence – No FTCA Claim for Injury at Navy Training Facility

Wood v. U.S. (Lawyers Weekly No. 001-011-17, 22 pp.) (Niemeyer, J.) No. 15-2106, Jan. 4, 2017; USDC at Norfolk, Va. (Jackson, J.) 4th Cir.

Holding: A Norfolk sheriff’s deputy who was seriously injured during a training session on a Naval base when she jumped from a training structure onto a set of mats, landing in a gap between them, cannot sue the U.S. for her injuries; the 4th Circuit agrees that the challenged Navy conduct fell within the “discretionary function exception” of the Federal Tort Claims Act.

We conclude the Navy’s decisions regarding the maintenance of its military bases for use by civilian law enforcement involved policy judgments that Congress sought to shield from tort liability under the FTCA.

Discretionary Function

Plaintiff was injured when she jumped about 20 feet down from the second story of a structure used to simulate shipboarding or exiting a building at an elevated height. The fall caused a burst fracture of her 12th thoratic vertebra, rendering her a paraplegic. The district court dismissed her negligence suit under the discretionary function exception, 28 U.S.C. § 2680(a).

On appeal, plaintiff contends her claim for premises liability is a “garden variety” negligence claim that involves the failure to make premises safe for invitees or to give them warning of a known danger.

The discretionary function exception is driven by separation of powers concerns, shielding decisions of a government entity made within the scope of any regulatory policy expressed in statute, regulation or policy guidance, even when made negligently. The analysis does not depend on whether the conduct was that of a high-level agency official making policy or a low-level employee implementing policy. Rather, the analysis must focus solely on whether the government conduct involved choices implicating policy.

Given the designed purpose of the mock-ship and the mats, which were intended only as backup protection for armored soldiers climbing the ship in harnesses, it could be unjustifiably costly to protect against and warn civilian trainees of the dangers arising out of uses for which the facility was not designed.

The Navy’s decision to leave the mats near the mock-ship in a certain condition, its allegedly infrequent inspections of the mock-ship, its decision not to warn civilian trainees itself about the quality of the ship and its decision to qualify the civilian user’s agent as a Range Safety Officer responsible for safety, each fall comfortably within that overarching policy of balancing open civilian use, civilian safety, military preparedness and costs.

Where Congress by statute and the Navy by internal policy have established a regulatory mission of making military bases available for civilian law-enforcement training, the Navy’s decisions affecting the safety of its bases for civilian trainees should not be subjected to judicial second-guessing.

Dismissal of the suit affirmed.

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