McMellon v. U.S.

338 F.3d 287

Carrie A. McMELLON; Lori Dawn White; Kathy D. Templeton; Cheri Call, Plaintiffs-Appellants, v. UNITED STATES of America; United States Army Corps of Engineers, Defendants-Appellees.

No. 02-1494.

United States Court of Appeals, Fourth Circuit.

Argued: December 5, 2002.

Decided: August 1, 2003.

COPYRIGHT MATERIAL OMITTED

ARGUED:

Jay Douglas Patton, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellants.

Stephen Robert Campbell, Trial Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

ON BRIEF:

Todd M. Powers, Schroeder, Maundrell, Barbiere & Powers, Cincinnati, Ohio, for Appellants. Robert D. McCallum, Jr., Assistant Attorney General, Kasey Warner, United States Attorney, Michael L. Keller, Assistant United States Attorney, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for Appellees.

Before NIEMEYER, WILLIAMS, and TRAXLER, Circuit Judges.

Reversed and remanded by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge WILLIAMS joined. Judge NIEMEYER wrote a dissenting opinion.

OPINION

TRAXLER, Circuit Judge:

Carrie A. McMellon, Lori Dawn White, Kathy D. Templeton, and Cheri Call (collectively, the "plaintiffs") filed an action against the United States under the Suits in Admiralty Act, 46 U.S.C.A.App. §§ 741-52 (West Supp.2002), seeking recovery for injuries they suffered when they rode jet skis over the gates of the Robert C. Byrd Locks and Dam, a facility owned by the United States government and operated by the Army Corps of Engineers. The district court granted summary judgment in favor of the government, concluding that the government had no duty to provide any warnings about the dam. The plaintiffs appeal, and we reverse and remand for further proceedings.

I.

In August 1999, the plaintiffs were staying at a campground on the Ohio River near the Ohio-West Virginia border. Late one afternoon, they took two jet skis for a ride, with two of the plaintiffs riding on each of the jet skis. The plaintiffs rode upstream for a short period and then turned around and headed downstream. The plaintiffs approached what they all believed to be a bridge; when it was too late, the plaintiffs realized they were going over the gates of a dam. They dropped approximately twenty-five feet, hitting the water below and suffering significant injuries. The plaintiffs stated in their depositions that they did not see any warning signs as they approached the dam and that they could not tell until they were perhaps five feet away from the dam that there was a change in the water levels.

At the time of the accident, there were several warning signs on the upstream side of the dam. The plaintiffs' evidence, however, indicated that the signs were difficult to see from the river. The plaintiffs submitted affidavits from several people who regularly camp and boat in the area around the dam. The affiants stated that a warning sign on the right descending bank cannot be seen from the river because it is obscured by trees and other vegetation and that a sign located in the river on a concrete piling is not readable from a distance and is not readable from the center or right side of the river.

Until 1995, there had been buoys in place marking the entrance of the restricted area around the dam. The buoys were removed when extensive repairs were made to the dam and locks, but they were not replaced after the construction work was completed. In the summer of 2000, after the plaintiffs' accident, the Corps of Engineers placed two new warning buoys on the upstream side of the dam.

The plaintiffs' theory of the case was that the government had a duty to warn those on the river of the presence of the dam and that the signs in place were inadequate to carry out that duty. The government moved to dismiss the case, arguing that the district court lacked subject matter jurisdiction because the government's actions with regard to the dam fell within an implied "discretionary function" exception to the Suits in Admiralty Act's waiver of sovereign immunity. In the alternative, the government moved for summary judgment, arguing that it had no duty to warn about the dam, that the warnings it did provide were adequate and that the plaintiffs' negligence was the sole cause of the accident.

The district court rejected the government's discretionary function argument and denied the government's motion to dismiss. However, the court granted summary judgment in favor of the government, concluding that the government had no duty to warn of the dam. The plaintiffs appeal.

II.

The discretionary function issue involves jurisdictional questions of the government's waiver of sovereign immunity. Accordingly, we address that issue first.

The Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. §§ 2671-2680 (West 1994 & Supp.2002), waives sovereign immunity for most tort claims asserted against the government. The FTCA includes a "discretionary function" exception, which specifically provides that the Act's waiver of sovereign immunity does not apply to claims "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.A. § 2680(a). The plaintiffs' claims against the government, however, do not fall within the FTCA, but instead are brought pursuant to the Suits in Admiralty Act (the "SIAA"), through which the government has consented to being sued in admiralty¹ and under which the government is exposed to liability to the same extent as a private person. See 46 U.S.C.A.App. § 742 ("In cases where if ... a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States...."); Lane v. United States, 529 F.2d 175, 179 (4th Cir.1975) (explaining that under the SIAA, "the United States is to be held accountable in admiralty whenever a private person, in similar circumstances, would be"). Unlike the FTCA, the SIAA does not include a discretionary function exception to the waiver of sovereign immunity. The government nonetheless contends that such an exception must be read into the SIAA.

Every other circuit to consider the question has agreed with the government. See Mid-South Holding Co. v. United States, 225 F.3d 1201, 1204 (11th Cir.2000); Good v. Ohio Edison Co., 149 F.3d 413, 418-19 (6th Cir.1998); Tew v. United States, 86 F.3d 1003, 1005 (10th Cir.1996); Baldassaro v. United States, 64 F.3d 206, 208 (5th Cir.1995); Cassens v. St. Louis River Cruise Lines, Inc., 44 F.3d 508, 511 (7th Cir.1995); Earles v. United States, 935 F.2d 1028, 1032 (9th Cir.1991); Sea-Land Serv., Inc. v. United States, 919 F.2d 888, 891-93 (3d Cir.1990); Robinson v. United States (In re Joint E. & S. Dists. Asbestos Litig.), 891 F.2d 31, 34-35 (2d Cir.1989); Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976). These courts have typically concluded that principles of separation of powers require that the discretionary function be read into the SIAA:

Were we not to find a discretionary function exception to the SAA, we would subject all administrative and legislative decisions concerning the public interest in maritime matters to independent judicial review in the not unlikely event that the implementation of those policy judgments were to cause private injuries. Because such an outcome is intolerable under our constitutional system of separation of powers, we hold that a discretionary function exception is implied in the SAA.

Tew, 86 F.3d at 1005 (citation, internal quotation marks, and alterations omitted).

This court, however, has refused to read a discretionary function exception into the SIAA:

[The SIAA] contains no discretionary function exception, and the Tort Claims Act contains a specific exception of claims for which the Suits in Admiralty Act provides a remedy. Thus it is clear that this action could not have been brought under the Tort Claims Act, and it is properly maintainable under the Suits in Admiralty Act, which is an effective waiver of sovereign immunity.

There is no basis upon which we can import the many exceptions in the Tort Claims Act into the Suits in Admiralty Act, where the United States is to be held accountable in admiralty whenever a private person, in similar circumstances, would be.

Lane, 529 F.2d at 179 (footnotes omitted). The district court, therefore, properly rejected the government's discretionary function argument.

The government, however, points us to Faust v. South Carolina State Highway Department, 721 F.2d 934 (4th Cir.1983), which appears to have applied a limited form of a discretionary function exception to cases arising under the SIAA. Because Lane rejected, without qualification, the argument that the SIAA includes an implied discretionary function exception, we must follow Lane. See Mentavlos v. Anderson, 249 F.3d 301, 312 n. 4 (4th Cir.2001) ("[A] panel of this court cannot overrule, explicitly or implicitly, the precedent set by a prior panel of this court. Only the Supreme Court or this court sitting en banc can do that."), cert. denied, 534 U.S. 952, 122 S.Ct. 349, 151 L.Ed.2d 264 (2001). Tiffany v. United States, 931 F.2d 271 (4th Cir.1991), to which the government also points, implicated the operation of our nation's air defenses, a context quite different from that presented here. As the Tiffany court emphasized, the significance of the military setting required the result quite independently of the discretionary function exception. See id. at 277 (explaining that "the discretionary function exception alone does not capture all the important aspects of this case").

The dissent contends that by following Lane rather than Faust and Tiffany, we are effectively overruling Faust and Tiffany...