Jay L. Caplan and Eva M. Caplan v. United States

877 F.2d 1314, 1989 U.S. App. LEXIS 9428, 1989 WL 70465
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 30, 1989
Docket88-5558
StatusPublished
Cited by24 cases

This text of 877 F.2d 1314 (Jay L. Caplan and Eva M. Caplan v. United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jay L. Caplan and Eva M. Caplan v. United States, 877 F.2d 1314, 1989 U.S. App. LEXIS 9428, 1989 WL 70465 (6th Cir. 1989).

Opinions

[1315]*1315RYAN, Circuit Judge.

The United States appeals the district court’s judgment for plaintiffs entered after trial without a jury in this negligence action brought under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq. The action arose from injuries suffered by plaintiff Jay L. Caplan when he was struck by a falling tree as he worked as a tree cutter in a government-owned forest. We affirm the district court’s judgment for plaintiffs.

In approximately 1975, the U.S. Forest Service decided to institute a mass tree-killing program in several areas of the Daniel Boone National Forest, a federally-owned forest in Kentucky. The goal of the program was to clear out low quality trees to enable reforestation with higher quality trees. The Forest Service instituted the program in 1975 by injecting herbicide into most trees in designated areas of the forest.

In 1982, the Forest Service solicited bids for the cutting down of trees that had survived the 1975 mass herbicide treatment. Plaintiff Jay Caplan was a successful bidder, and in December 1982 he began cutting down live trees in several areas of the forest. Forest Service personnel informed Caplan of the mass herbicide treatment, but not the date of the treatment. Caplan could distinguish dead trees still standing from live trees that he was to cut down: dead trees or “snags” looked like poles with few or no limbs.

On April 11,1983, just as Caplan finished cutting down a live tree in a tract in the forest known as the “Mill Branch area,” a 30-foot long dead tree fell and struck him. The falling tree fractured Caplan’s vertebrae, and as a result he is a paraplegic. The district court found, and the government does not contest, that the dead tree’s fall was caused by a failure of the tree’s support system and the ground shock resulting from the fall of the live tree that Caplan had just cut down. The court found that the instability of the dead tree, which had been injected with herbicide in 1975 as part of the government’s mass herbicide program, resulted from root system decay that had advanced to such an extent that the tree was barely anchored in the ground: “[I]t was as if a telephone pole was supported by being stuck into six (6) inches of sand.” The court further found that the steep slope on which the tree was located and the gravelly, moist soil in which the tree stood enhanced its instability.

Plaintiffs brought this negligence action in April 1985 under the Federal Tort Claims Act, seeking damages of approximately $3.5 million. In October 1987, the case was tried without a jury, and in a memorandum opinion dated November 1987, the district court held that the government was negligent in failing to warn Caplan of an unreasonably dangerous condition in the Mill Branch area created by a large number of unstable dead trees. The court held that this negligent failure to warn was a proximate cause of Caplan’s injuries, and in a separate decision on damages the district court awarded Caplan $2,155,865.52 and his wife $250,000 for loss of consortium. The district court denied defendant’s motion under Fed.R.Civ.P. 59 for a new trial or to alter or amend judgment, and this appeal followed.

I.

The government argues that whether or not it was negligent in failing to warn Caplan of a dangerous condition in the Mill Branch area, it is immune from liability for Caplan’s injuries under the “discretionary function exception” to the Federal Tort Claims Act. The district court rejected this argument in its memorandum and order denying the government’s motion for new trial.

Under the Federal Tort Claims Act, the government’s sovereign immunity is preserved for

[a]ny claim based upon ... the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a). If a case falls within the discretionary function exception to the [1316]*1316Federal Tort Claims Act, this court is without subject matter jurisdiction. Feyers v. United States, 749 F.2d 1222, 1225 (6th Cir.1984), cert. denied, 471 U.S. 1125, 105 S.Ct. 2655, 86 L.Ed.2d 272 (1985).

Although the boundaries of the discretionary function exception are not altogether clear, the Supreme Court has emphasized that the purpose of the exception is to protect governmental conduct involving the exercise of policy judgment:

The basis for the discretionary function exception was Congress’ desire to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort.” The exception, properly construed, therefore protects only governmental actions and decisions based on considerations of public policy. In sum, the discretionary function exception insulates the Government from liability if the action challenged in the case involves the permissible exercise of policy judgment.

Berkovitz v. United States, 486 U.S. 531, 108 S.Ct. 1954, 100 L.Ed.2d 531, 541 (1988) (quoting United States v. Varig Airlines, 467 U.S. 797, 814, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984)).

In the present case, the government’s failure to warn Caplan of a dangerous condition in the Mill Branch area was not conduct involving the exercise of policy judgment. Rather, the relevant policy decision in this case was the government’s decision to deforest parts of the Daniel Boone National Forest in preparation for reforestation. This case is therefore governed by a line of cases holding that once the government makes a policy decision protected by the discretionary function exception, it must proceed with due care in the implementation of that decision. For example, in Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955), the Supreme Court held the government liable for the negligent operation of a lighthouse:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a light on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in working order ... and to repair the light or give warning that it was not functioning.

350 U.S. at 69, 76 S.Ct. at 126-27.

Similarly, in Reminga v. United States, 631 F.2d 449 (6th Cir.1980), this court held that the discretionary function exception did not apply to the government’s negligent preparation of a navigational chart.

The import of our holding in Reminga

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Jay L. Caplan and Eva M. Caplan v. United States
877 F.2d 1314 (Sixth Circuit, 1989)

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Bluebook (online)
877 F.2d 1314, 1989 U.S. App. LEXIS 9428, 1989 WL 70465, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jay-l-caplan-and-eva-m-caplan-v-united-states-ca6-1989.