Creek Nation Indian Housing Authority v. United States
Opinion of the Court
Explosive Transports, Inc. (ETI), appeals the order of the district court granting summary judgment against its Federal Tort Claims Act action against the United States. 677 F.Supp. 1120. ETI contends the district court erred in determining that the government’s conduct falls within the discretionary function exception to the FTCA, 28 U.S.C. § 2680(a).
This case arose out of the explosion of three 2000 pound bombs. A truck operated by ETI was transporting ten 2000 pound bombs under contract with the government when it was rear-ended by a car. The car’s fuel tank ruptured on impact, causing both the car and the truck to catch fire. The heat from the fire caused three of the ten bombs to explode, resulting in extensive property damage.
ETI suggests that the government was negligent in designing the bombs, which it contends is a non-discretionary function not shielded by section 2680(a). We disagree. In Boyle v. United Technologies Corp., 487 U.S. 500, 108 S.Ct. 2510, 101 L.Ed.2d 442 (1988), the Supreme Court held:
We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of [section 2680(a) ]. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness.
Id. at 510-13, 108 S.Ct. at 2517-18. The government’s choice of design for the 2000 pound bombs clearly falls within the “selection of the appropriate design for military equipment” aspect of the discretionary function exception.
ETI also contends that the district court’s order erred by foreclosing discovery before ETI could ascertain the violation of a nondiscretionary duty. ETI’s contention is not well taken. Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988), stands for the proposition that the government must follow
The judgment of the district court is AFFIRMED.
. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R. App.P. 34(a); 10th Cir.R. 34.1.9. The case is therefore ordered submitted without oral argument.
Reference
- Full Case Name
- CREEK NATION INDIAN HOUSING AUTHORITY v. UNITED STATES of America, Explosive Transports, Inc., Empire Insurance Company, Dolly Madjenovich, and Leslie Okerstrom, Defendants EXPLOSIVE TRANSPORTS, INC. and Empire Insurance Company, Third Party v. UNITED STATES of America, Third Party and Ford Motor Company, Third Party
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- Published