Longino v. U.S. Dep't of Agric.

912 F.Supp.2d 424

Julie LONGINO, et al.

v.UNITED STATES DEPARTMENT OF AGRICULTURE, et al.

Civil Action No. 10–1680.

United States District Court,

W.D. Louisiana,

Alexandria Division.

Dec. 7, 2012.

George A. Flournoy, Flournoy & Doggett, Alexandria, LA, for Julie Longino, et al.

Jennifer B. Frederick, U.S. Attorneys Office, Lafayette, LA, for United States Department of Agriculture, et al.

RULING

DEE D. DRELL, Chief Judge.

Before the Court is the Motion to Dismiss or in the Alternative, for Summary Judgment filed by the United States on behalf of the U.S. Forest Service and the Department of Agriculture (Doc. 25).¹ All responses have been filed, and the matter is ready for disposition. For the following reasons, the motion will be DENIED.

I. Background

On November 4, 2010, Plaintiffs, surviving family members of Billy Ray Longino, III, (“Mr. Longino”) filed a Complaint alleging the United States ² violated the Federal Tort Claims Act, 28 U.S.C. § 1346 (“FTCA”), by failing to take remedial action, warn the public, or take reasonable and necessary precautions to prevent harm from a low-hanging distribution line (“power line”). (Doc. 1).³

Plaintiffs allege on April 4, 2009 Mr. Longino was horseback riding with a group in Camp Livingston under a highline.(Doc. 25–4, at Ex. F, Ex. G). At the top of a steep incline, Mr. Longino's group came upon a low-hanging power line which could not be seen until the riders reached the peak of the hill. (Doc. 25–4, at Ex. G). Mr. Longino was ahead of most of the group, and turned around to inform them of the low-hanging power line. (Docs. 25–4, at Ex. F, Ex. G; 31–2, at Ex. N). His horse began “acting crazy” and “spinning and side-stepping towards the line.” Id. Mr. Longino tried to control or dismount the horse, but was unable to do so before the horse lunged at the power line and electrocuted itself and Mr. Longino. Id. There were multiple witnesses to these events.

Plaintiffs further contend that firefighters and federal employees had earlier, on March 22, 2009, responded to a grass fire near Camp Livingston caused by the same low-hanging power line. (Docs. 25–1; 25–3, at ¶¶ 5, 6; 31). The United States did not place warnings, barricades, guards, or any other safeguards near or around the low-hanging power line after extinguishing the fire. (Doc. 31, at ¶ 4). Louisiana Department of Agriculture and Forestry Service Dispatcher Joni Edwards informed CLECO of the lowhanging power line. (Docs. 25–3, at ¶ 17; 23–4. at Ex. A). Approximately one week later, a CLECO representative called Ms. Edwards, and incorrectly told her the power line did not belong to CLECO. (Docs. 25–3, at ¶ 12; 23–4, at Ex. C).

Plaintiffs seek damages for mental anguish, loss of love and affection, loss of companionship, and funeral and burial expenses. (Doc. 1).⁴ They also claim damages for decedent's pre-death mental and physical pain and fright. (Doc. 1). In addition, Julie Longino, decedent's grandmother, Austin Longino, his brother, and Britney Roy, his sister, came upon the accident scene shortly after the electrocution, and claim past and future compensatorydamages for mental anguish and Lejeune⁵ damages. (Doc. 1).

Defendant has denied liability and has asserted affirmative defenses. (Doc. 4). Defendant alleges it is not liable pursuant to the Louisiana Recreational Use Immunity Statute, La. R.S. 9:2795, and it is not liable based on the performance or omission of any discretionary function or duty. (Doc. 4).

In the current motion, Defendant argues this case should be dismissed because of four defenses: (1) the discretionary function exception to the FTCA deprives us of jurisdiction; (2) the Recreational Use Immunity Statute likewise does so; (3) decedent's death was not within the scope of Defendant's duty; and (4) the power line was in the care, custody, and control of CLECO. (Doc. 25–1).

II. Law and AnalysisA. Subject Matter Jurisdiction

As a preliminary matter, we must address general subject matter jurisdiction over this case. “[F]ederal courts are duty-bound to examine the basis of subject matter jurisdiction sua sponte.” Union Planters Bank Nat. Ass'n v. Salih, 369 F.3d 457, 460 (5th Cir.2004). Although this issue was not briefed by the parties, based on the present facts, we must first determine whether we have subject matter jurisdiction over a claim for general premises liability under the FTCA.

The Fifth Circuit Court of Appeals has yet to rule on this issue, but District Courts in this Circuit are split.

In Cupit v. United States, 964 F.Supp. 1104 (W.D.La.1997), Judge Little held a party cannot bring claims under the FTCA “against the United States to the extent that they are founded on general state law premises liability.” Id. at 1112. Several district courts in the Fifth Circuit have relied on Cupit. and dismissed all claims of premises liability brought under the FTCA. Janice v. United States, 2008 WL 269530, at *6 (W.D.La. Jan. 29, 2008).

By contrast, in Jamison v. United States, 491 F.Supp.2d 608, 619 (W.D.La.2007), Judge Melançon held “an action for negligence for general premises liability where the negligence of a specific [federal] employee has not been alleged is [not] absolutely barred under the Federal Tort Claims Act.” Id. at 619. The court did not dismiss the general premises liability claim under the FTCA because it was persuaded by rulings in other circuit courts of appeals recognizing recovery for general premises liability under the FTCA. Id. at 620 (citing authority from the Second, Sixth, Tenth, and Eleventh Circuit Courts of Appeal).

The most recent case in this split is Janice v. United States, 2008 WL 269530 (W.D.La. Jan. 29, 2008). In Janice, Judge Doherty concluded “a claim for negligence arising out of action taken or not taken in conjunction with a premises exists somewhere ‘in between’ the holdings of Cupit and Jamison.” Id. at *6. The court created the following test to determine if a claim under the FTCA for general injury in conjunction with a premises could be asserted:

The unreasonable risk or unreasonably dangerous condition must be either:

(1) caused by the negligent or wrongful act or omission of a federal employee, or

(2) the unreasonably dangerous condition was known to a government employee,yet he or she failed to act (i.e. a failure to warn of or correct the unreasonably dangerous condition).

Id.

We agree that Janice is correct. In this case, we find nothing in the Fifth Circuit to contradict what we adopt as the correct test to determine our subject matter jurisdiction.

Applying the Janice test, we find this Court does have subject matter jurisdiction because there are allegations the “unreasonable risk of harm or unreasonably dangerous condition,” the low-hanging power line, “was known to a government employee, yet he or she failed to act.” Janice, 2008 WL 269530, at *6. As noted above, Plaintiffs contend United States employees had actual knowledge of the low-hanging power line on March 22, 2009, when the grass fire occurred at Camp Livingston, and failed to take any remedial action. (Docs. 25–1; 25–3, at ¶¶ 5–7; 23–4; 31, at ¶ 4).

B. Motion for Summary Judgment

A court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Although Rule 56 was amended effective December 1, 2010, “the amended rule contains no substantive change to the standard.” Seacor Holdings, Inc. v. Commonwealth Ins. Co., 635 F.3d 675, 680, n. 8 (5th Cir.2011). An issue as to a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We consider all “evidence in the light most favorable to the party resisting the motion.” Trevino v. Celanese Corp., 701 F.2d 397, 407 (5th Cir.1983). It is important to note that the standard for a summary judgment is two-fold: (1) there is no genuine dispute as to any material fact, and (2) the movant is entitled to judgment as a matter of law.

C. Federal Tort Claims Act

“Under the FTCA, Congress has ... granted consent for the government to be sued for acts committed by any ‘employee of the Government while acting within the scope of his office or employment.’ ” Linkous v. United States, 142 F.3d 271, 275 (5th Cir.1998) (quoting 28 U.S.C. § 1346(b)). Put another way, under the FTCA, the Government may be liable “if a private person [ ] would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” United States v. Olson, 546 U.S. 43, 44, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005).

D. Substantive Law

As mentioned above, Defendant seeks dismissal based on four theories, which we will address in turn.

1. Discretionary Function Exception

Defendant alleges there is no mandatory statute, regulation, or formal policy requiring it to act beyond notifying CLECO of the low-hanging power line. (Doc. 25–1, at 23). The discretionary function exception to the FTCA provides liability shall not apply to:

Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or 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).

Discretionary functions include those based on judgment or choice. United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991); Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536, 108 S.Ct. 1954, 100 L.Ed.2d 531 (1988). “[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action...