Lisellotte Moyer, Etc. v. Martin Marietta Corp., Etc.
481 F.2d 585
5th Cir.
1973
Check Treatment

*2 GODBOLD, Before SIMPSON Judges. CLARK, Circuit Judge: SIMPSON, Circuit Moyer, pilot Larry Eugene em- a test Inc., Airmotive, ployed by at American fly Miami, preparing Florida, was owned the United B-57A aircraft 22, 1964, April America on States of triggered when the seat was ground. plane still on the while the was pilot air The thrown into the charge explosive with the associated instantly was killed seat and paved runway. he on the fell and administratrix widow brought Moyer, decedent, suit Lisellotte below, wrongful court death for against the air the manufacturer craft, Corporation Marietta Martin (Martin) 1, the manufacturer Mechanics, ejection seat, Inc. Aircraft (Aircraft), Juris and the United States. against corporate de diction for suit diversity of citi based fendants was zenship. jurisdictional basis against the the action United States 1346(b) and the Title Sec. 28 U.S.C. Act, Title 28 U.S.C. Federal Tort Claims Kay, Arthur J. Hawkesworth & Schwartz, Jr., Hawkesworth, Horton & Secs. 2672-2680.2 1346(b), case, Title States in this 2. United Section The B-57A aircraft involved part, Code, reads, pertinent AF-52-1469, as follows: sold to delivered No. chapter “Subject provisions July, Martin title, courts district 171 of jurisdic- have exclusive shall against independent and Air- make The claims Martin decision against craft tried same issues to a United States. He ground time the court tried the tort claim dismissed action on the “discretionary close At the was barred States. plaintiff’s chief, exception the trial case function” to the Federal Tort judge Act, in favor of the directed verdict Claims Title Sec. U.S.C. *3 2680(a).5 corporate Moyer States, defendants.3 The “Motion two v. United S.D. Fla.1969, F.Supp. for of the Directed Verdict” United rul 1235.6 These ings, trial continu- States was denied and the as well as the instructed verdicts ed, remaining advisory jury against corporate defendants, the an the are 39(e), jury pursuant challenged by appeal. to Rule F.R.Civ.P. this find mer We appellant’s At the conclusion evidence it in contentions and reverse interrogatories special found to proceedings. in answer and remand for further negligent that the United had been States furnishing improperly of an UNDISPUTED both FACTS preparing in and aircraft and question, The B-57A aircraft in No. issuing 876,4 that Technical Order No. damage AF-52-1469 sustained its fu- to negligence “legal this a cause” of was selage emergency in the course of an Moyer’s death, Moyer had been not landing in Alaska was sent to Amer- contributively negligent, that Mrs. Airmotive, Inc., Miami, Florida, ican in Moyer’s damages of the amount repairs. In the course of this work $700,000. pilot’s placed seat was removed and on a Inasmuch as the verdict was purely bench. While the aircraft un- was dergoing repairs by advisory, judge required structural Airmo- the trial was to originally party against a third defendant under tion of civil actions on claims party States, money States, damages, a third claim the United accruing January 1945, Party 1, as well as a under Third on and after Claim (cross claim) by injury Aircraft, granted property, per- was or loss of or by summary judgments May 1968, injury 16, sonal or before death caused negligent wrongful the main suit went to trial. or act or omission any employee of of the Government 2680(a), 5. Section Title United States acting scope while within of his Code, provides: employment, office or under circum- provisions chapter “The of this States, stances where the if United 1346(b) section of this title shall not private person, would be to the liable claim, -Any apply upon based an act to— claimant with the accordance law of employee or omission of an of the Gov- place tho where the act or omission ernment, exercising care, due occurred.” regulation, execution of a statute or regula- orally grounds or On the whether not such statute or stated that: “ question valid, upon tion be . . or based the exercise .on of interven- ing performance weighing or cause exer- the facts of failure to perform discretionary law, cise case the Florida I am func- duty convergence of the view the tion or agency on the of a number of federal distinctly employee of unusual and fac- Govern- unrelated necessary happening ment, tors as to the whether or not the discretion simply this accident could have been involved be abused.” reasonably foreseen either Martin relieving 6. In addition to the United States Marietta or Aircraft Mechanics and liability “discretionary under the func- happenings were not set in motion exception, tion” the district ex- court alleged negligence of the defend- respect onerated the with United States (T. 2488) ants.” preparation to the of Technical Order directing 4. Which directed modifications on the seat No. modifications of the ejection system question ejection respect alleged and which seat with making drafting been the basis for those modi- of the order by employees ejec- fications of American Air- as a of the malfunction Corporation (Airmotive) repairer Moyer motive tion seat. Fla., v. United S.D. F.Supp. appeal of the aircraft under contract 390. No Airmotive, Air United States Force. was taken the latter decision. through the armrest was tive, issued the collar when Air Force position pulled up the horizontal direct- lB-h 7-876 Order No. Technical ejection required to con- use pilot. Bass was modifications several pin. learning the roll force remove Upon techni- siderable the new seat. ground removed, he pin permis- requested After Airmotive cal order clear- perform the to insure down collar Air Force to sion of the specified order. the technical still ance plane while modifications assembly, reassembling ap- the armrest plant. Force The Air at its Miami neglected pin. March, replace proved request Bass assigned employee, A1 Bass’ tool box The roll was found in Airmotive April modify Bass, seat. after fatal accident purpose order the technical trigger making 1964, prior type April 22, to install a new On mechanism, guard flight air- for the scheduled test craft, the B-57A *4 right-hand Moyer on the the external was located made usual which Bass, qualified company inspection plane as a was of the in the armrest. who ground mechanic, worker, out mod- metal carried the sheet his Seftchick. “j” paragraphs inside, ejec- pilot pulled the ifications called then climbed through pins, into He “I” of the technical order. tion seat initiator and climbed perform opera- proceeded Moyer his pilot’s the the to then to seat. reached holding by paragraphs “q” right and, and one directed out with tions while para- spring-loaded pin “r” in the of the order. These latter located hand a drilling (which graphs required jerked collar, hole had the of a he the armrest through right-hand pi- support permit entry into the the armrest to been lowered seat) upward to the of a down the other hand. facilitate installation lot’s with specified pin stop spring-loaded held the of a was and installation Because the pin purpose by Moyer, hole. The of the the roll bolt out and because bolt, missing, stop stop, not a was to the did which acted as down was armrest prevent pin, safety position. the a new installed As armrest the horizontal passed armrest, hitting position head- the from the seat buck- the horizontal and po- position, it et the in the the armrest was down ed towards vertical brought if the sition. the same action as about trigger squeezed. had mechanism been locating a Bass made mistake in and one Moyer and the seat were thrown drilling a hole for the bolt end- new and explo- into the air the hundred feet up adjacent ed the with a clearance to charge. Moyer’s death followed. sive newly the installed bolt excess of one-eighth specified He to the of an inch. Three interacted cause factors mechanic, ejection then consulted with his lead mechanism activation ground: Cohen, im- on the and the men made two while the was two aircraft portant, (a) pins, (1) pilot pulled the but incorrect decisions: the initiator component explosive to be that corrected; excessive clearance had which the activated way (b) seat, in the and that the to he was seated the before (2) pilot pilot’s seat; held the the correction to remove the out make was pin, assembly spring-loaded normally armrest from the and seat which ascending grind caught then to or collar in a hole down sleeve have support on have which the bolt rested. Bass and Coh- armrest and which would point only way near stopped en to at some determined that re- the armrest ultimate, (3) assembly horizontal; move the armrest was to disas- and removing pin, was safety stop, the roll it from the semble bottom accident, designed prevent type pin. pin This roll was meant replaced by prevent stop arm- and act as so as had removed been support slipping upward rest Bass. from stop it armrest because failed COMPLAINT THE inadvertently ejec- slipping into an alleged, Moyer’s complaint Mrs. position. complaint Finally, tion Martin, pilot’s respect alleged that as States negli ejection mechanism had been proximate and direct result of the designed gently and manufactured gence pilot’s of the United (1) spring-loaded following aspects: ejected inadvertently seat was while prop pin and lock too weak to catch was pilot preparing plane was for take- (2) erly; removable the roll causing “great Larry Eugene Moyer off safety adequately marked as and not pain suffering mental and ultimate

feature; (3) ejection mechanism death.” right- pilot’s incorporated into the armrest; (4) initiator hand THE ANSWERS pins streamers not identified alleged complaint complaint also otherwise. Martin answered the relationship proximate negligently causal between nials that allegedly design improper manu equipped aircraft B-57A facture, equipment alleged question. selection of Martin as an affirma- negligence Moyer’s for the B-57A Moyer the death aircraft and defense that tive proximate prema- the seat caused the sole ground plane mechnism, while the was on the ture activation of the damages. April alternatively, Moyer’s and resultant *5 allegations negligence causing proximately and Similar the contributed against proximate causation were made de- fatal accident. These affirmative Mechanics, Inc., alleged upon pilot’s Aircraft the manufac fenses were based the ejection flight by turer of the seat mecha and from his manual deviation . pulling pins nism he had the initiator before holding pilot’s the and entered seat recovery Two theories for were assert- raising spring-loaded pin the out while by plaintiff against ed right the armrest. alleged States. The first one that Tech- by denial The United States answered nical Order vague, ambiguous IB-57-876 was drafted charges complaint’s of the negligent manner and asserting gence part, that on its provide adequate in that it failed to in- complaint the to state a claim failed structions for the of the modification granted. upon relief could be right pilot’s armrest of the seat.7 The the district answer also asserted that alleged second that the United States jurisdiction court without because negligently Air- furnished to American complaint forth claim did not set motive, Inc., the aircraft and seat private if a for which the United question knew should have person, would be accordance liable improperly known that the signed seat was place the al- the law of the where with leged negligence (1) in that: manufactured occurred; finally ejection incorporated mechanism was negligence plaintiff’s dece- right-hand into the armrest which proximate cause of dent was sole up to be moved and down each time the accident. aircraft; (2) pilot entered and left denying any pins prevent the initiator meant to inad- Aircraft answered jettisoning ejection negligence design vertent seat of the of the ejection properly Air- were not manufacture of seat. marked so as warn danger alleged prema- of the craft further that between inherent their removal; (3) spring-loaded ture time it manufactured and sold seat accident, mechanism used to right and lower and the time the seat raise inadequately disassembled, armrest was had been serviced and allegation rejected by 6, supra. 7. Tliis the district court on the merits. See note specifications liability. proxi- modified to meet revised craft of Substantial As mate cause the United States Government. issues remain to be decid- co-defendants, alleged by jury.” did its ed Aircraft pilot proxi- of the THE causing DIRECTED mately VERDICTS FOR or contributed to caused THE CORPORATE addition, DEFENDANTS the fatal accident. In Aircraft pin asserted that the roll had been de- trial, jury empaneled Prior to signed integral as an and manufactured corporate accepted defendants was safety system aspect seat advisory jury the United States anas that it and installed in such a manner pursuant 39(c), to Rule Federal Rules of unremovable, pointing virtually out Civil Procedure.8 the trial before a respect required that Bass was visiting judge, Judge Layton, Senior great to re- deal of force order use presentation plaintiff’s case from the move required chief more than two weeks. assembly. plaintiff initially When the rested judge trial directed a for the two verdict corporate defendants, noting, THE FOR MOTIONS SUMMARY set as we supra, JUDGMENT forth note 3 that: question Martin Aircraft moved for sum- “. . .on the of interven- ground judgment mary no on the weighing cause and the facts of respect of fact with law, material issue this case I Florida proximate convergence causation existed issue of am of the view of a Judge District distinctly determination. U.S. unusual number and un- April denied the motions on necessary Eaton related factors as Concerning happening Martin’s motion simply this accident Judge summary judgment, Eaton’s order reasonably could not have fore- been stated: seen Air- either Martin Marietta or happen- craft Mechanics and were not “The factual record in this case *6 ings alleged neg- set in motion proximate presents cause to be issues ligence of the defendants.” Dy- jury. decided See General Adams, Corp. F.2d namics v. 340 271 THE

(1965) County UNITED Tel. STATES’ and Cone v. Inter (Fla., Co., 1949) MOTION TO DISMISS 40 148 & Tel. So.2d ‘foreseeability’.” re: corporate After the two defendants motion, disposing In of Aircraft’s he ob- proceedings by were eliminated from the : served favor, the directed verdicts their trial continued as to the United States. “Aircraft’s answer raises two defenses advisory jury (as The noted found of intervention in the chain of causa- above) design first, original that the United States was tion: gent delivering changed, to Ameri- aircraft since the sold; can Airmotive when it or should was modified after sec- knew ond, sold, have known seat had that when the seat was improperly pin place been manufac- the removal and and preparation em- tured and issu- of the roll ployee Airmotive’s and intervening independent ance of IB-57-876. was an Technical Order No. addition, advisory jury operates In relieve Air- found force which shall, request 1346(a) (1) at the Title States Code section Section United action, provides: party be tried of either to such excep- jury.” “Any against action States by the court with 1346(a) inapplicable, tion is since Sec. under section 1346 shall be tried jury, (1) except for tax deals with suits refund. court without action States under United

591 (“legal relationship proximate THE causal BETWEEN RELATIONSHIP neg- cause”) the United States’ PROXIMATE INTER- between AND Eugene ligence Larry and the death VENING CAUSES . contributory Moyer and an absence perceptive A of the rela- discussion negligence part. as- It on the decedent’s tionship concepts proxi- between the $700,000.- damages plaintiff’s at sessed intervening ap- mate cause and pears Harper treatise James on torts: filed a thereafter The United States “By large external forces will be jurisdic- lack of motion to dismiss regarded intervening ap- they if “discretionary tion, relying upon the pear on the scene after defendant exception Federal Tort function” perhaps pending acted unless their 2680(a) Act, Claims 28 Sec. U.S.C. inevitability at the time of defend- (Note 5, supra). granting mo- negligent ant’s act omission tion, Judge Layton stated: crystal made And a new clear. agree parties to de “The that critical (for force not re- which defendant is ciding particular acts whether sponsible) in this crude ‘intervenes’ employees omissions Government bring sense to about a result that ‘discretionary protected by are fendant’s would not other- exception the acts function’ is whether produced, gen- wise have defendant is planning on a omissions occurred erally held for that result where they at level or occurred whether intervening force was foreseeable. operational v. United level. Dalehite many it, put As a new and un- cases States, U.S. S.Ct. L. foreseeable force breaks causal case, (1953). In the former Ed. regard analysis chain. A better is to included within activities would be intervening force as a risk haz- discretionary purview func ard and to ask whether its foreseeabil- plaintiff’s exception, tion ity defendant’s was such as make However, if claim would be barred. negligent regard it. act It complained the acts of occurred better, words, inquire in other operational level, effect then the full duty whether extends to defendant’s 1346(b) apply the Gov Sec. intervening force, such a risk as the respond as ernment would have question in this form fo- because the private person in a would a similar significant cuses attention on a more Towing Co., v. position. Inc. Indian problem fictitious than that less 61, 76 S.Ct. 350 U.S. (The Torts, Sec. cause.” Law *7 48, 1955; 122, American 100 L.Ed. 1142-3) 2, pages 20.5(5), Vol. Exchange Madison, v.Wis. Bank of Jurisprudence 938, Florida summarizes A.L. 257 F.2d 78 concepts relationship 1958). (7th between two Cir. R.2d 879 following in lan- under Florida law the regards B- “As the selection of guage : particular aircraft, type in 57A the causal connection “The rule that mecha- seat and aircraft, person’s negligence and an employed between nism to be injury intervention reflect broken I find that these decisions new, independent, planning level, and efficient of a intervening on a choices made negli- sense, which, cause so most immediate gence subject to political the na- is not actionable interests of affect the decisions, then, pro- qualification an interven- if are These tion. reasonably ‘discretionary foreseen or cause was function’ tected might 2680(a).” have been foreseen exception defined Sec. may wrongdoer, con- be his F.Supp. at 1237. 302 Ry. Mullin, proximate in- of an Seaboard Air Line v. sidered the Co. liable, 467, L.R.A.1916D, jury, may held not- Fla. and he be So. intervening withstanding Ann.Cas.l918A, cause. 576. ‘Natural probable’ independ- is, consequences are those That the intervention intervening person by prudent which a human ent causes does break foresight expected anticipate can be causal if the connection intervention act, likely probable or as to result from such an of such forces itself was Negligence, they happen frequently because so Fla.Jur. foreseeable.” 23 > from the page commission of such an act Sec. experience that in the field of human they may Court, Supreme on The Florida expected happen again. be occasions, itself addressed least two has consequences ‘Possible’ are those foreseeability prox- element happen infrequently so from Inter In v. imate cause Cone doctrine. act, particular commission Telegraph Co., Telephone County experience that they the field of human plaintiff Fla., 1949, 40 So.2d expected likely hap- are not as brought telephone company re- suit to again pen from the commission payments its em- cover made to one of same act.” 40 So.2d at 149. injured by explod- ployees who had been quoted language ing gasoline. truck had was The defendant’s Cone public Supreme operated clarified negligently the Florida Court’s been highway, on a Pinkerton-Hays causing subsequent opinion thereby an accident Pope, 1961, disrupted Company, a Lumber Inc. v. with another vehicle which nearby telephone pole lines. So.2d There the Court conclud- and attached plaintiff’s appellate ed employee that an intermediate court sent out damage incorrectly repair injured interpreted when the Conetest: and was gasoline ex- from the defendant’s truck “The error into which the District defendant, ploded. finding for the subjective applica- Court fell was the Supreme the lowing the fol- Florida Court made objective tion of the of foresee- test respect observations ability pronounced in the Cone foreseeability proximate aspect of the language question case. The cause doctrine: convey intended to the notion that every negligent “Not act of omission foreseeability depends gives or commission rise to a cause of negligent type whether the act in- injuries action for sustained anoth- particular volved in a case so fre- has injury person er. It is to a quently previously resulted in the contributing who himself is without type injury same ‘in harm that directly fault resulted has ordi- experience’ the field of human nary sequence natural from a type may expected same again. be result gent act without the intervention of to, The test not intended any independent cause, efficient or is does, imply nor do we think it that a ordinarily naturally such as neg- plaintiff, in order to in a recover regarded proba- should have been as a ligence action, prove that must ble, possible, not mere result of the particular frequent- act had causative *8 negligent act, injured person that such ly before, it had occurred and that damages is entitled to recover com- as partic- frequently resulted same pensation Conversely, for his loss. plaintiff.” injury ular to the 127 So. when the is not a direct loss result origi- (Emphasis 2d at 442-443. negligent complained of, act nal) ordinary does not se- follow natural merely quence is a “in from such act but The fact that the so-called negli

possible, distinguished tervening” from natu- itself constitutes as a negli- necessarily probable gence may a de ral and result of the not relieve gence, recovery liability from for his own will not be allowed. fendant gent following conduct. See the state- view of the circumstances of fact Torts, attending Thus, ment in the Restatement of Sec- it. unless minds ond, Two, page Volume Section 478: of reasonable men could not differ as injury, problem the cause of an intervening “The fact that an act of a determining proxi- the existence of negligent person third in itself or is is jury. mate cause is one for the How- negligent done in a does not manner ever, where the susceptible facts are superseding make it a cause of harm inference, question one is negligent to another which the actor’s one of law for the court and the court conduct is a substantial factor question should withdraw the bringing about, if jury.” (23 Negligence, Fla.Jur. (a) the actor at the time of his 358-9) pages Sec. negligent conduct should have realized also, example, Porco, See Weber v. person might act, that a third so Fla.1958, 146; 100 So.2d Grove v. San- (b) knowing man reasonable Park, Inc., Fla.App. ford Mobile existing situation when the act of 212 So.2d 34. person third done re- would not gard Restatement of highly extraordinary Torts discusses it as jury acted, person role of this area in a man- the third had so ner consistent with Florida law: intervening (c) the act normal is a consequence of a situation created undisputed, “If the facts are is the actor’s conduct and the manner usually duty apply court extraordinarily which it is done is not to them rule which determines the negligent. negligent existence or extent of the Torts, If, however, neg- liability. 449 of the Section Restatement of actor’s Second, Two, ligent page 482, person’s Volume makes character of the third following point regard: intervening in this act or the reasonable fore- being seeability (see Sec. done person “If the likelihood that third 448) in determin- 447 and factor may particular act in a manner is the ing intervening re- whether the act hazard or one of the hazards which liability the actor from for his lieves negligent, makes the actor act, such negligence, antecedent and under innocent, negligent, whether in- undisputed facts there is room for tentionally tortious, or does criminal opinion reasonable difference of prevent being the actor from lia- negligent or such act was whether thereby.” ble harm caused foreseeable, question left should be (Comment b, jury.” Sec. THE ROLE OF THE JURY Second, Torts, Volume Restatement IN PROXIMATE CAUSE Two, page 491.) DETERMINATIONS evaluating propriety the dis- principle It is a settled of Flori verdicts for trict court’s direction of proximate da law that the issue of cau case, corporate we defendants in this question sation is a factual ly and ordinari particularly persuasive own find our one for determination. Florida Corpora- Dynamics opinion in General Jurisprudence comments: Adams, Cir., 1965, F.2d tion v. heavy equipment general mechan- There proxi- “The rule is that Adams, employed ic, injury ordinarily the decedent mate cause of an Airways question jury, American in- Pan World for the the court base, Kennedy, Florida, Cape structing missile them on the law re- what assigned in a it, an elevator quires jury apply- to work on constitute defendant, not a tower constructed law the facts. It is Dynamics Corporation. To ac- legal question of science or of knowl- General *9 necessary work, for fact, edge. complish the It is to be determined as repairman get top occurring of the eleva- like that to Adams is exact- Through oversight, ly eventuality tor el- legislature an itself. that the prior evator deactivated to the had in required mind when it in- repairman’s ascension to the roof of the stallation of Thus, these two devices. Although general car. may announcement we conclude that the trial court did personnel submitting have been made to all not err in this issue to the jury.” the area not to use the on which elevator 340 F.2d at 275-276. repairs being made, employee were Under both Florida law and Dynamics absentmindedly General en- Court, test articulated en tered the elevator and caused it to rise. banc, Boeing Company Shipman, v. repairman was knocked the ele- off Cir., 1969, 365, 374-375, 411 F.2d we vator and fell to his death. Suit conclude that the trial court committed brought by repairman’s widow directing error in corpo verdicts for the Dynamics wrongful General rate plain defendants at the close of the theory death on the the elevator tiff’s evidence. There was sufficient ev negligently designed had been and con- jury idence for the to determine whether safety structed in that two features system aircraft and the law, statutory mandated Florida negligently designed had been and man prevented which would have the death of ufactured, there was sufficient evi repairman, incorporat- had not been jury dence also for the to determine ed into the elevator: a door in the roof whether April 22, the fatal accident of through of the elevator the re- which 1964, type reasonably was a of accident pairman go would have been able to foreseeable at the time the aircraft and emergency the event of an and a switch seat were and manu mounted on the roof of the elevator remanding factured. In this case repairman which would have enabled the another trial we do not intimate upward to halt the motion of the car. opinion plaintiff’s as to the chances of holding jury In for this Court that a ultimate success. We hold question proximate causation had been trial court should not have directed ver plaintiff’s evidence, raised applying corporate dicts for the defendants. The law, Judge Florida Chief Tuttle contributory issues of observed: negligence, foreseeability proximate jury ques- “We have no doubt that a jury cause were issues. posed by tion was the evidence presented by appellee. adoption If the THE DISCRETIONARY FUNCTION dealing safety the statute EXCEPTION elevator construction, refer- starting universally point analysis ence to standards under- ev- ery required stood case in installation these which the United States particular safety devices, seeks to defend on was not of the basis of the dis- adequate proof cretionary itself ability exception function foresee- injury similar to the actual Federal Tort Claims Act must be Supreme opinion occurrence which resulted Adams’ Court’s in Dalehite v. death, coupled statute with the United U.S. S. proved trial, surely other facts at the Ct. 97 L.Ed. 1427. Dalehite re- Testimony showing were. liability lieved the inade- all quacies operation leading up during inherent for its actions to and regulations safety City, when these April, had not disaster at Texas complied with, showing Texas, involving been explosions of fertil- persons shipment casual attitude of izers all stored for involved overseas as inadequate safety country’s post-war foreign towards mea- of effect, program. per- defining sures concept aid discretionary function, mit to infer Supreme that an accident

595 by through Court, house speaking Mr. Justice United States Coast Guard. opinion by The Mr. Reed, Frankfurter Justice stated: majority four five to held that the define, apart unnecessary to “It having Guard, pro- Coast undertaken to case, precisely discre- where from this lighthouse service, duty vide had a to use enough hold, we It is to as tion ends. light- due care to make that certain ‘discretionary or function do, that kept good working house was order duty’ for form basis that cannot light’s and repair discover failure and to in- Act the Tort Claims suit under give warning it or it that not pro- of than the initiation more cludes grams operative. duties, The of breach these includes It activities. also damage, if it caused deemed ac- executives determinations made tionable under' the FTCA. The Court plans, establishing administrators specifications note, was careful to however: opera- of or schedules policy “The for Government concedes there is room tions. Where judgment exception relieving of there is discre- Section 2680 and decision liability negligent necessarily from that acts ‘exercise follows tion. It carrying judgment’ (which way of out is the of subordinates government paraphrases operations in accord- Government of ‘discretion- ary 2680(a)) be cannot function’ is not ance official directions Sec. with pro- here, so, deny If not involved does it were and it actionable. 2680(a) at would fail Act tection of Sec. Federal Tort Claims is, needed, provide liability it would be does time some situ- performs ‘operational fails ations on the its when a subordinate level’ of activity.” step, 64, perform each action 350 a causal at 76 at U.S. S.Ct. 124, being directed the su- 100 at L.Ed. nonaetion abusing, perhaps perior, exercising, Hatahley States, 1956, v. United 351 35-36, (346 at discretion.” U.S. 173, 745, U.S. 100 L.Ed. 1065 76 S.Ct. 1440) L.Ed., 968, S.Ct. at brought In- suit under the FTCA damages resulting expansive “discre- This definition of dians for tionary applied appropriation in Dale- function” was of sale or destruction every aspect range hite to the Indians’ horses federal States^ agents purporting Texas under local law Government’s involvement City tragedy. act pursuant From Cabinet-level instructions contained Range ship dis- Court, speak- to the decisions to fertilizer Federal ing through Code. Europe Clark, to the tressed and Asia Mr. areas Justice held that bags of fertilizer manner in which the because the Utah abandoned horse stat- labeled, Supreme required giving found Court ute notice written apparent result of discretion. The exercise owners horses as precedent impound- com- Dalehite received much critical condition to their agents, ongoing ment, has ment.9 An debate the actions the federal intense developed has Dalehite whether which had been undertaken without by subsequent deci- plaintiffs, been undermined written notices to the .were Supreme gave sions of the Court. unlawful and to a of ac- rise tion United States under Towing Company v. United Indian Addressing FTCA. itself to the discre- 1955, 350 76 S.Ct. U.S. tionary exception’s applicabili- function under involved an action 100 L.Ed. ty, the Court stated: damages sustained when FTCA aground tug portion (a) dam- resultant “Nor the second went with can barge liability. age cargo exempt the al- the Government from because light- legedly negligent operation of a here not concerned We are Act., Georgetown Reynolds, Discretionary Func- Law Journal 93- See (1968). Exception of Federal Tort tion Claims *11 596 problem ‘discretionary conception of a function’ the Dalehite scope of the of Act, discretionary exception under the see Dalehite v. United function of supra. 2680(a). 28 States, upon These were U.S.C. acts It relies language

wrongful involving following trespasses dis- in v. Blaber United States, agents, Cir., 1964, 2 cretion on the of 332 F.2d 629: they give compensa- do rise to a claim suggest “Plaintiffs that the Dalehite under the Federal Tort ble Claims by subsequent case has been weakened 181, at at Act.” 351 76 U.S. S.Ct. developments, particularly Indian 752, L.Ed. 100 at 1074. Towing States, Co. v. United 350 U.S. 61, closely by Ray- 122, 48, Hatahley 76 S.Ct. 100 L.Ed. followed Rayonier, onier, States, 1957, States, Inc. v. Inc. United 374, United 352 v. 352 315, 315, 374, U.S. 77 S.Ct. U.S. 77 1 L.Ed.2d 354. 1 L.Ed.2d 354. S.Ct. Rayonier enlarge scope These was an action under the cases did of FTCA alleg- might liability States’ it losses sustained landowners as thought edly negligence have been as the result exist after Dale- hite, they employees permitting scope but did not federal a forest affect the originate discretionary of the ty. fire to failing on federal land and function immuni- Towing concededly putting Indian due in- act with care negligence Supreme Court, opera- volved the fire out. The opinion by in an at an. level, Black, p. 64, tional Mr. held that 350 at Justice U.S. 76 S.Ct. 122, Rayonier under the Tort Dalehite recovery Federal Claims Act overruled allowing to the extent of United States would be liable to negligence plaintiffs fighting where for losses sustained reason fire could be gence, of negligence shown. The kind of the United States Forest Service’s activity pur- fighting fire not the kind a forest if, alleged sued, determining complaint, became the as in the test law liability Washington im- United States.” State liability pose private persons 332 F.2d or cor- porations under similar circumstances. Judge Goldberg, a member of this Although Rayonier the Government in States, Court, in Smith v. United 5 Cir. did not assert the defense of discretion- 1967, 243, 1967, F.2d denied cert. ary rely upon por- function, it did 389 U.S. 88 S.Ct. 19 L.Ed.2d tion of the Dalehite which held decision government’s 106, met the citation in that the Tort Act had not altered Claims quote that case of this from Blaber with alleged the usual rule that an failure following analysis, which carries public firefighting properly forces to convincing weight: perform pri- their duties does not create description discretionary “The of a rights. vate actionable permits function Dalehite pretation the inter- Rayonier the lia- also made clear that federal official bility of the United States in tort is not power decision-making vested with by concepts imported from the restricted thereby invested sufficient dis- municipal corporations of a dis- law government cretion for the to with- negligence perform- tinction ing between go stand suit when those decisions government’s “proprie- acts awry. any per- Most conscious acts of tary” capacity govern- whether he son works for the governmental” capac- “uniquely acts in a not, ment or involve choice. Unless ity, saying, at 352 S.Ct. U.S. government (at no officials matter 376-377, Tow- L.Ed. that Indian echelon) what make their choices necessarily rejected anything flipping coins, their acts involve dis- contrary in Dalehite. making cretion in decisions. expected, takes position Supreme the Tort Act is to have the If Claims that the Court corpuscular vitality anything following did not alter cover cisions Dalehite in THE automobile accidents DISCRETIONARY

more than FUNCTION government driv- EXCEPTION AS APPLIED officials reject ing, courts must TO federal THIS CASE Dalehite, interpretation absolutist seeking reversal of the district interpretation rejected and that court’s dismissal of her suit *12 especially by Ray- Towing Indian United States because of the bar of the case, the the latter Court onier. In discretionary exception, function the government could lia- be held that the plaintiff argues in her brief: firefighting by ble substandard for “It seems clear that this resolution of the facts of the Forest Service. the issue was the incorrect. While it that the case make clear type selection and the choice of of the lay to with- in the decision in general perhaps aircraft and the even fight- major part fire of the draw the design question, may of the in truly ing the force before blaze ‘discretionary have involved a func- extinguished. perhaps a mi- This is reflecting ‘po- tion’ a decision on the compared to some nor decision when country, litical interests’ of the government, it is a in the but made surely cannot be said of the offi- nonetheless, made decision gence permitting involved in the de- exercising Cases some discretion. cial sign in to defects involved this case put courts to therefore under the Act Surely, ‘choice’, exist. the if such question sorts of decisions the of what made, choice was as to whether resulting from as can be classified top should at the be bottom meaning of Sec. within discretion telescoping armrest, of it whether 2680(a). not sufficient It is strength non-removable, should be merely government to for the fense design spring-loaded pin of the or the decision-making point some out that linkage of the between the armrest power by the official exercised ejection system and the in no —can Answering questioned. act was whose ‘discretionary measure be deemed a process, questions, a difficult these (Plain- function’ under the statute.” importation of not aided is 27) tiff-appellant’s brief, p. stage stage-operational planning argues reply argued The United States standard as for Smith. clearly may discretion- specious. in addition to the a distinction It Such Secretary ary authority of the makeweight easy of the where cases be purchase needed, Force and select air- in diffi- Air to not but of course it is military discretionary use, his craft proves ex- cult it to another cases be authority fine-spun extends to decisions involved ample of a distinction ‘so design themselves: incapa- in the of the aircraft capricious to almost as be being of held in mind ade- ble particular procure a “The to decision quate Mr. Justice formulation.’ Secretary’s plane exhaust the does not Indian Frankfurter for the Court discretion, later faced with for he is supra, Towing, at 76 S. U.S. accept to decision whether 126, 100 at 55. Such Ct. at L.Ed. plane produced the manufacturer non-statutory ‘aids’ to construction procurement contract. under obscure, limit, or even tend to Where, here, decision involves meaning replace the standards whose safety of com- of the an evaluation clarify. they supposed It must are weigh- ponent plane, entails it question at be remembered safety compo- the relative quality of hand here is the nature degree nent, involved of risk in the acts com- securing discretion involved utilization, and the cost (Citations omitted.) it plained change component of.” to make course, cost, ‘more safe’. That 375 F.2d Though may only money, our but also decision result measured not eventually the adverse affect this case in the States terms of both United goals may upon compensate delay being required plain- have sought husband, be use of the obtained death of her tiff change plane significantly and the effect which the ex- should not posure increase ability compo- may have un- to suit perform nent to the func- continue der the Federal Tort Claims Act. designed.” (Brief tion for which it is Feres v. United 135, 340 U.S. 19-20) States, page S.Ct. 95 L.Ed. Court held that the Federal Tort Claims goes on to assert The United States remedy Act does extend its to mem- that: bers forces United States’ armed service, sustain, who incident to their ‘appellant’s’ “Acceptance ar- *13 what otherwise up would be actionable gument bring in this case would wrongs. 8116(c), Section justification Title Unit- review, require and Code, provides ed procure- States that the Feder- aspect of, every minute of Employees’ Compensation al the decisions, completely Act is ment thus compensation exclusive judgment— avenue for of ci- stroying freedom of the employees vilian of the United States is vital to the as we have seen which employment-connected inju- directly who suffer effective exercise of functions also, political ries. See inter- Section Title affecting the nation’s Code, respect pro- United States with to em- ests—which must be afforded ployees non-appropriated military of fund instru- curement decisions (Brief States, mentalities of the sphere.” United Ordi- of States. the United narily employees 20) then page of the United military either or civilian ex- difficulty applying have the We posed to hazards caused defective negligence in exer decided cases as to systems of an aircraft such as B-57 the discretionary cise of a function the eligible compensation would not be presented facts here. The facts this plain- under the Tort Claims Act. This bring sepa very case the line close to tiff-appellant’s decedent, Larry Eugene rating and actions covered the FTCA Moyer, pilot employed by as a test Air- governed beyond those by its because reach motive, group was a member of a small discretionary exception. function statistically. gloss Dalehite Without of later cases agree preclude recovery. We UPON REMAND PROCEEDINGS the that the selection of States Secretary B-57 aircraft plaintiff entitled to trial the Air Force constituted the exercise of corporate respect anew with two discretionary Equally function. defendants, trial not result which will determination of the of such number corporate in a for the directed verdict purchased by Depart aircraft to be the conclusion defendants ment of the Air Force also constituted assuming plaintiff’s evidence, that she discretionary of a exercise function. again comparable produces evidence But, coming acceptance of down to the system aircraft, pi dis- trial. Because the such as that at the first mechanism, lot’s seat merits of did not reach the trict court which, negligently if or con plaintiff’s the United claim posed safety structed hazard to an in negligence plain- design as to States operating aircraft, dividual hold we toas a new trial afforded tiff is to be discretionary excep that function issue. immunizing sweep tion’s falls short of remanded. liability. Reversed and from Judge (dissenting CLARK, pins (also safety in The initiator called Circuit concurring pins), part): primary safety which were mechanism, devices were not por- respectfully I dissent pilot Moyer’s identified streamers. opinion Judge Simpson’s tion of following instruction sheet contained for Martin reverses the verdicts print bold notice: majority’s statement Aircraft. governing principles is both law My problem precise. re- accurate and solely application of those

lates principles to the

conventional acknowl- edged, cause. facts uncontested sounding Certainly cases CA7608] rarely ver- themselves to directed lend safety pins Do not remove seat until they privileged to en- dicts—but are after armrest has been raised joy immunity from Rule Be- a total flight position. firing Inadvertent proof failed in this record pilot’s ejection could result show connection whatsoever between raising the armrest. Aircraft of Martin and 1954 actions governed His actions were further years Moyer’s pilot death ten test requirement pins he remove the later, the trial court’s I would affirm setting locking the arm- after parties. dismissal these *14 display pins rest and that he then to grounds were as- Four ground any the petent say crew. To that com- private corporate these serted pilot regarded test could have safety pin parties. (1) spring-loaded A pins insignificant these is either in- proof dem- was The failed to too weak. (4) credible ridiculous or both. A pin weakness onstrate spring pin called a roll was removable and rather, majority assembly, as the adequately safety was not marked as a points out, demonstrated the evidence ground only warranting device. The Moyer deliberately pin out that held the (4) pin.2 discussion roll is —the operating position normal while its heading “Undisputed Under ejection (2) seat The mechanism arm. majority Facts” could have included right-hand placed than was rather following proof additional items This a de- the left-hand armrest. equally which are uneontroverted. sign requirement United States. parties private specifications The had no control over which controlled (3) responsibility design this feature.1 and manufacture of this seat expert position Up position flight Plaintiff’s witness also criti- Down entry ejection integrating firing cal of This into a movable armrest. mechanism wholly by the dictated was also feature by specifications developed the United States. picture hope can be a

2. With stylistic words, repre- a worth thousand seat the armrest sentations of the with up normal down mechanism positions below: are set out Explosive pin Roll charge

(2) (s) Retaining Initiator (safety) pins ring (g) @ to reinstall his omission failed to detect promulgated the United States pin Ironically, had pin. roll plane, roll particular January re- nothing the modification involved, with to do here together with the did it quired by nor the United to the United States was delivered correcting the anything to do with have July the exclusive under and was trying error made Bass initial after of the States control More- carry work. out modification integral part of a anwas date. The seat highly assembly as over, top end of the tube instrumentality de- dangerous designed Martin trained, constructed by uniquely only signed for use retaining easily removable Aircraft qualified personnel. rings used—if have been which should plane when this From 1952 necessary to remove ever became signed date assembly. Reducing precision tube Moyer’s been had never death there work-a-day of aviation mechanics type from this accidental can be lik- tragedy of errors terms, this flight ground plane or in either on the thinking who, he must ened laborer an accident of and there had never been any to do wall the other side brick reach of a removal kind traceable sledge job, hammer his takes a pin. roll of us- wall instead a hole knocks be followed door— enough pin strong If the roll had been building inspector notice who fails to support stopped to have the armrest hole. travel, of its tube the final inch% no prevented stoppage I think it must be conceded such have charges fool firing could ever be made mechanism because it ques- proof. example, jerking For if the tube in kept Moyer would have end tion had been with a flared support entire of its tube out armrest safety However, secondary a welded collar instead socket. pin, mechanic as determined as function of the roll does not create *15 hack any jury could have cut off with a Bass because it issue in case welding any event, the or torch. saw was never or to be re- intended proper crucial and unassailable fact movable in sense of that pin permanently a re- roll was never intended to be term. It installed part. to That was able movable Bass the me- the seat arm. When strong-arm chanic, attempting carry it out doesn't make it so. Bass, in to out government the modification the had de- cast one to issue be Whether participation cided make without the to original negligence determine unbroken approval Aircraft, er- Martin and contributory cause, by intervening roneously to determined remove this proximate cause, negligence, or for- pin (to correct he an earlier mistake had seeability, anything in the find I can’t made) says majority he had to use jury proof developed in this case for “considerable force”. “Considerable” failure-of-proof act on. This kind seems clear understatement to me. rule for the situation the raison d’etre grip Bass of vise utilize set permitting judge direct verdicts pliers and a hammer him to enable appli- cases. I would fault bring pounds pressure 350-400 here. cation to Martin and Aircraft bear in order out of wrench Judge portion in that I concur multiple compound the tube. To Bass’ requires Simpson’s opinion errors, inspection the final called plain- court to reach the merits negligently the modification contract tiff’s claim United States.