Can Wrongful Death Lawsuits Be Brought Against the Government For Discretionary Actions?

on-the-bus-1475048-1280x960Within the world of personal injury and wrongful death, claims against the federal government are treated differently from claims against private individuals or corporations.  This is because the federal government is generally entitled to sovereign immunity, meaning that it is immune from lawsuits by United States citizens.  In limited circumstances, the federal government has waived this immunity to allow claims for personal injury or wrongful death.  The precise contours of this waiver of immunity are set forth in the Federal Tort Claims Act.  While the Federal Tort Claims Act allows for personal injury lawsuits when the government acts in a manner that hurts individuals, not all actions by the government are covered by the Act.  A recent case in the Fourth Circuit considers whether the federal government can be held responsible for “discretionary” decisions that result in harm or death to others.

The federal government is responsible for the monitoring and safety of interstate passenger motor carriers, such as buses and trains.  These types of vehicles are reviewed by the Federal Motor Carrier Safety Administration (FMCSA). The FMCSA regularly reviews different carriers for safety compliance and provides safety ratings of satisfactory, conditional, or unsatisfactory.  If a carrier is rated unsatisfactory, federal law provides that the carrier does not have to immediately cease operations but instead has a 45-day period to present evidence to the government that it has taken corrective actions and made changes that should result in an upgrade of its safety rating.  During this 45-day period, the carrier may continue to operate.  Additionally, when a carrier has submitted evidence of corrective actions, but that evidence is still being reviewed, the 45-day deadline may be extended an additional 10 days by the FMCSA.

Here, in Pornomo v. United States, Sky Express was a commercial motor carrier that operated buses traveling from North Carolina to other states.  During a safety review by the FMCSA, Sky Express was given an unsatisfactory rating. It subsequently submitted a request for change in rating in which it detailed the corrective actions it had taken and improvements made.  The FMCSA decided to conduct a follow-up compliance review with Sky Express and granted the company the 10-day extension in the interim. During that 10-day extension, a driver operating a Sky Express bus fell asleep at the wheel, and a passenger was killed.  A family member brought a wrongful death lawsuit against the United States shortly thereafter, alleging that the FMCSA was negligent in granting Sky Express the 10-day extension.  Shortly thereafter, the United States moved to dismiss, arguing that the United States was immune from the wrongful death claim because the application of the 10-day extension was a discretionary action that fell outside of the United States’ liability under the Federal Tort Claims Act.

Specifically, the Federal Tort Claims Act provides that the government does not waive immunity to claims “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . . .”  The district court determined that the decision to apply the 10-day deadline was discretionary and granted the United States’ motion. On Appeal, the Fourth Circuit affirmed.

The application of the discretionary function exception requires a two-part test in court. First, the court must decide whether the conduct being evaluated involves “an element of judgment or choice.”  Second, the court must consider whether that element of judgment is based on considerations of public policy.  Here, the court determined that the decision whether to apply the 10-day extension was clearly one of choice and not mandated by the government. The FMCSA was not required to provide such extensions, but it was allowed to do so when it would help the government in reviewing safety information. Even though such extensions might become necessary when reviews become delayed, the court held that “where there is room for policy judgment and decision there is discretion.”  Accordingly, the court determined that the FMCSA was exercising its discretion and that the action fell within the discretionary function exception, insulating the United States from wrongful death claims.  Accordingly, the decision to dismiss the plaintiff’s claim was affirmed.

The Pornomo case is a good reminder that bringing personal injury or wrongful death claims against the federal government can be very complicated, since the United States is afforded privileges and protections not available to private individuals or companies. If you or a loved one has been injured as a result of an accident involving the federal government, government employees, or government property, it is important to contact a personal injury attorney experienced in federal court disputes. The West Virginia personal injury lawyers at the Wolfe Law Firm can help. Located in Elkins, West Virginia, we represent clients in a wide range of personal injury and wrongful death matters.  Call us at 1-877-637-5756 or contact us online for a free consultation.

Related blog posts:

Forum Non Conveniens in West Virginia – What Factors Should Be Considered When Determining Where to Bring a Lawsuit?

West Virginia Contract Claims Concealed as Personal Injury – Severn Peanut Co v. Industrial Fumigant Co

Punitive Damages in Wrongful Death and Negligence Cases – Shulin v. Werner Enterprises