Hinson v. United States (Lawyers Weekly No. 002-004-17, 12 pp.) (Terrence Boyle, J.) 514-cv-00877; E.D.N.C.
Holding: The discretionary-function exception to the Federal Tort Claims Act’s waiver of sovereign immunity does not apply to an agency’s decision as to when to add safety features to a ladder/access door combination or whether to take the unsafe ladder out of service.
The court denies defendant’s motion to dismiss or for summary judgment.
Plaintiff was a maintenance lighting electrician for the National Institute of Environmental Health Sciences. He was asked to repair an inoperable lightening circuit.
He climbed a wall-mounted fixed ladder and unlocked an access door. The door swung open, knocking plaintiff off the ladder. Plaintiff fell 10 feet to the concrete floor, sustaining multiple injuries.
This type of ladder had been deemed unsafe, and other ladders with safety features provided access to the space plaintiff needed to reach. Nevertheless, this ladder had not been taken out of service.
Although the Federal Tort Claims Act did not waive sovereign immunity for policy-based discretionary acts, the choice of whether to begin or delay implementation of recommended safety changes or whether to remove a ladder from service hardly implicate such considerations of economic, social, or political policy as to constitute a choice of federal government policy. Matters of cost, timing or priority for minor projects that are largely unrelated to the central mission or concerns of an agency are not matters of discretionary agency policy.
Because the government’s decision not to add additional safety features to the ladder or take it out of operation before plaintiff’s fall is not the type of action that is susceptible to the type of social, economic, or political policy analysis meant to be shielded from tort actions, the discretionary function exception of the FTCA does not apply, and the court has jurisdiction to hear this case.
Where a security video captured the accident but was overwritten while in defendant’s possession, the court is obligated to draw reasonable inferences in favor of plaintiffs. However, the court need not at this time decide the issue of spoliation.
There are material facts in dispute as to whether the alleged safety hazard of the ladder-access door combination was open and obvious and whether plaintiff was contributorily negligent in his choice or operation of the ladder.