Eleventh Circuit Negligence Lawsuit to Proceed Against the Federal Government

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SandBar 8:2, July, 2009 Recommended citation: Abe, Joanna C. , New York's Objection to the Broadwater Energy LNG Project Upheld , 8:2 SandBar 14 (2009). Eleventh Circuit Negligence Lawsuit to Proceed Against the Federal Government Downs v. U.S. Army Corps of Eng’rs, 2009 U.S. App. LEXIS 5053 (11th Cir. 2009). *Joanna C. Abe, 2L, University of Mississippi School of Law* The U.S. Court of Appeals for the Eleventh Circuit recently permitted a negligence claim to proceed against the U.S. Army Corps of Engineers after a man broke his neck while diving into the surf at Miami Beach following a beach renourishment project. Background In the 1970s and 1980s, the Corps had entered into a contract, called a Local Cooperation Agreement (LCA), with Dade County to complete a beach renourishment project for Miami Beach. The project was designed to help control erosion of the beach. The LCA set out the duties of each party under the agreement. The renourishment project involved moving fill material to the beach area, including the surf area. The beach was filled with about nine vertical feet of material. Both parties agreed that the material suitable for the project as beach fill was “nonrocky, sandy material similar to that of the existing beach.”1 In 2003, while swimming at Miami Beach, Dwight Downs dove into the surf and struck his head on a “basketball-sized” rock. As a result, he broke his neck and was rendered a quadriplegic. Downs brought a negligence suit against the Corps under the Federal Tort Claims Act (FTCA).2 He claimed that the Corps negligently undertook its duty to use appropriate fill material in the renourishment project and that the agency was negligent in failing to warn of the potential danger from the fill materials used. The U.S. District Court for the Southern District of Florida held that the government was immune from suit under the discretionary function exception of the FTCA, because the contract between the Corps and Dade County left decisions about what rock could remain in the fill material to the discretion of Corps employees. Discretionary Function Exception Generally, under the doctrine of sovereign immunity, the U.S. and its agencies are immune from lawsuits brought by private citizens. However, the FTCA waives this sovereign immunity when injury is caused by the negligence of its employees. Private citizens, therefore, may bring suit against the government for harm resulting from the negligence of federal employees. Government liability is precluded, however, by the discretionary function exception if claims are based on a government employee's performance of a discretionary duty. Courts use a two-part test to determine whether a government employee’s action falls within the discretionary function exception. First, the act must involve an element of judgment or choice. Second, that judgment must be grounded in considerations of public policy. When looking at whether the Corps’ actions in the beach renourishment project fell within the discretionary function exception, the Eleventh Circuit noted that when the government voluntarily enters into a contract, the contract may create a nondiscretionary duty the nonperformance of which may subject the government to a claim under the FTCA. However, a contract that creates a nondiscretionary duty may also leave room for policy-based judgment, thereby preserving the availability of the discretionary function exception. In a case like this, the ultimate question is whether the government expects an employee to consider policy implications in determining how to perform the duty. If there is a fixed or readily ascertainable standard for the performance of the duty that duty is not discretionary even if the employee retains discretion over how to meet the standard. If the employee must perform the duty without relying upon such a standard, then the duty is a discretionary one. Parol Evidence Rule In order to determine whether the duty to use “nonrocky, sandy material” for beach fill was discretionary or not, the Eleventh Circuit examined the language of the LCA, to the contract giving rise to the duty. The court noted that if a term of a contract is subject to more than one meaning the court may examine parol, or extrinsic evidence, in order to define the ambiguous term. The Eleventh Circuit held that the district court properly concluded that the term “nonrocky, sandy material” is ambiguous because it is subject to more than one meaning. But, the Eleventh Circuit found that the district court improperly applied the parol evidence rule, because the court first defined the ambiguous term and then used parol evidence to find that the contractual language did not create a duty. The Eleventh Circuit found that since “nonrocky, sandy material” is subject to different interpretations, external evidence was necessary to define the Corps’ duty under the LCA. The court further noted that an ambiguous contract term does not necessarily mean that there is no duty. The Eleventh Circuit reversed the district court's conclusion that since the language which gave rise to the duty was ambiguous, it did not create a “fixed and ascertainable standard” which would prevent the government employees from exercising discretion in performing the duty. The Eleventh Circuit remanded the case to the district court so that it could properly use parol evidence to define the terms of the LCA and to determine whether the Corps duty was discretionary, thus barring the suit, or nondiscretionary, thus permitting the suit under the FTCA. Endnotes 1. Downs v. United States Army Corps of En gi neers, 2009 U.S. App. LEXIS 5053, at *4 (11th Cir. 2009). 2. 28 U.S.C. A7A7 1346, 2671-80.
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SandBar 8:2, July, 2009
Recommended citation: Abe, Joanna C. , New York's Objection to the Broadwater Energy LNG Project Upheld , 8:2 SandBar 14 (2009).

Downs v. U.S. Army Corps of Eng’rs, 2009 U.S. App. LEXIS 5053 (11th Cir. 2009).

Joanna C. Abe, 2L, University of Mississippi School of Law

The U.S. Court of Appeals for the Eleventh Circuit recently permitted a negligence claim to proceed against the U.S. Army Corps of Engineers after a man broke his neck while diving into the surf at Miami Beach following a beach renourishment project.

Background
In the 1970s and 1980s, the Corps had entered into a contract, called a Local Cooperation Agreement (LCA), with Dade County to complete a beach renourishment project for Miami Beach. The project was designed to help control erosion of the beach. The LCA set out the duties of each party under the agreement. The renourishment project involved moving fill material to the beach area, including the surf area. The beach was filled with about nine vertical feet of material. Both parties agreed that the material suitable for the project as beach fill was “nonrocky, sandy material similar to that of the existing beach.”1
In 2003, while swimming at Miami Beach, Dwight Downs dove into the surf and struck his head on a “basketball-sized” rock. As a result, he broke his neck and was rendered a quadriplegic. Downs brought a negligence suit against the Corps under the Federal Tort Claims Act (FTCA).2 He claimed that the Corps negligently undertook its duty to use appropriate fill material in the renourishment project and that the agency was negligent in failing to warn of the potential danger from the fill materials used. The U.S. District Court for the Southern District of Florida held that the government was immune from suit under the discretionary function exception of the FTCA, because the contract between the Corps and Dade County left decisions about what rock could remain in the fill material to the discretion of Corps employees.

Discretionary Function Exception
Generally, under the doctrine of sovereign immunity, the U.S. and its agencies are immune from lawsuits brought by private citizens. However, the FTCA waives this sovereign immunity when injury is caused by the negligence of its employees. Private citizens, therefore, may bring suit against the government for harm resulting from the negligence of federal employees.
      Government liability is precluded, however, by the discretionary function exception if claims are based on a government employee's performance of a discretionary duty. Courts use a two-part test to determine whether a government employee’s action falls within the discretionary function exception. First, the act must involve an element of judgment or choice. Second, that judgment must be grounded in considerations of public policy.
      When looking at whether the Corps’ actions in the beach renourishment project fell within the discretionary function exception, the Eleventh Circuit noted that when the government voluntarily enters into a contract, the contract may create a nondiscretionary duty the nonperformance of which may subject the government to a claim under the FTCA. However, a contract that creates a nondiscretionary duty may also leave room for policy-based judgment, thereby preserving the availability of the discretionary function exception.
      In a case like this, the ultimate question is whether the government expects an employee to consider policy implications in determining how to perform the duty. If there is a fixed or readily ascertainable standard for the performance of the duty that duty is not discretionary even if the employee retains discretion over how to meet the standard. If the employee must perform the duty without relying upon such a standard, then the duty is a discretionary one.

Parol Evidence Rule
In order to determine whether the duty to use “nonrocky, sandy material” for beach fill was discretionary or not, the Eleventh Circuit examined the language of the LCA, to the contract giving rise to the duty. The court noted that if a term of a contract is subject to more than one meaning the court may examine parol, or extrinsic evidence, in order to define the ambiguous term. The Eleventh Circuit held that the district court properly concluded that the term “nonrocky, sandy material” is ambiguous because it is subject to more than one meaning. But, the Eleventh Circuit found that the district court improperly applied the parol evidence rule, because the court first defined the ambiguous term and then used parol evidence to find that the contractual language did not create a duty. The Eleventh Circuit found that since “nonrocky, sandy material” is subject to different interpretations, external evidence was necessary to define the Corps’ duty under the LCA. The court further noted that an ambiguous contract term does not necessarily mean that there is no duty.
The Eleventh Circuit reversed the district court's conclusion that since the language which gave rise to the duty was ambiguous, it did not create a “fixed and ascertainable standard” which would prevent the government employees from exercising discretion in performing the duty. The Eleventh Circuit remanded the case to the district court so that it could properly use parol evidence to define the terms of the LCA and to determine whether the Corps duty was discretionary, thus barring the suit, or nondiscretionary, thus permitting the suit under the FTCA.

Endnotes
1. Downs v. United States Army Corps of En gi neers, 2009 U.S. App. LEXIS 5053, at *4 (11th Cir. 2009).
2. 28 U.S.C. A7A7 1346, 2671-80.