Whisnant v. United States
400 F.3d 1177 (2005)
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Rule of Law:
The discretionary function exception to the Federal Tort Claims Act (FTCA) does not shield the government from liability for negligence in implementing safety procedures or failing to correct known hazards. While the design of a safety policy is a protected discretionary act, the subsequent failure to maintain safe premises is an operational matter of professional judgment, not a decision grounded in social, economic, or political policy.
Facts:
- Lorrin Whisnant worked for a seafood supplier and regularly made deliveries to a commissary on the United States Navy's Bangor Submarine Base.
- The commissary was operated and maintained by the Defense Commissary Agency (DeCA), a government agency.
- Beginning in June 1997, safety inspection reports showed the accumulation of mold in the commissary's meat department.
- Over the next three years, several customers and employees became ill with various symptoms.
- In October 2000, tests confirmed the presence of toxic, carcinogenic molds colonizing the meat department.
- The government closed the meat department in November 2000 for remediation.
- As a result of his regular exposure to the mold prior to the closure, Whisnant contracted pneumonia and suffered other significant health problems.
Procedural Posture:
- In March 2003, Lorrin Whisnant filed suit against the United States in federal district court under the Federal Tort Claims Act (FTCA).
- The government filed a motion to dismiss for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1).
- The government argued that the suit was barred by the discretionary function exception to the FTCA.
- The district court granted the government's motion to dismiss.
- Whisnant, as appellant, appealed the dismissal to the U.S. Court of Appeals for the Ninth Circuit.
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Issue:
Does the discretionary function exception to the Federal Tort Claims Act bar a negligence claim against the government for its failure to remediate a known toxic mold hazard in its facility?
Opinions:
Majority - Fletcher, J.
No, the discretionary function exception does not bar the claim. The government's failure to maintain its grocery store in a safe and healthy environment for employees and customers is not a policy choice of the type the discretionary function exception shields. Applying the two-part Gaubert/Berkovitz test, the court found that while the first prong was met because no specific regulation dictated how to handle mold, the second prong was not. The decision to ignore a known health hazard like toxic mold involves matters of scientific and professional judgment regarding safety, not a choice susceptible to social, economic, or political policy analysis. The court distinguished between the design of a safety policy, which is protected, and the implementation of that policy, which is not. Citing ARA Leisure Servs. v. United States, the court rejected the government's argument that budgetary constraints transformed this into a protected policy decision, stating that such a view would allow the exception to 'swallow' the FTCA. The government's duty to maintain its property safely, once undertaken, is not discretionary in a policy sense.
Analysis:
This decision reinforces the critical distinction between policy design and operational implementation under the FTCA's discretionary function exception. It significantly limits the government's ability to shield itself from liability for ordinary negligence in property maintenance by claiming such decisions are policy-based due to budgetary constraints. The ruling clarifies that when the government acts as a property owner, its duty to address known safety hazards is not a protected policy judgment but an operational obligation. This strengthens the position of plaintiffs injured by the government's failure to maintain its premises safely, ensuring that the FTCA's remedial purpose is not undermined by an overly broad interpretation of the exception.
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