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Reed v. United States

United States District Court, E.D. Tennessee, Knoxville Division

December 9, 2019

MICHAEL B. REED, et al ., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant. BRITTANY N. HYRE ANCULLE, et al ., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant. BRITTANY ADKINS, et al ., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          THOMAS W. PHILLIPS SENIOR UNITED STATES DISTRICT JUDGE

         This civil action is before the Court for consideration of Defendant's motion to dismiss for lack of jurisdiction [Case No. 3:18-cv-201 (“Reed case”), doc. 23; Case No. 3:18-cv-308 (“Anculle case”), doc. 19; Case No. 3:18-cv-310 (“Adkins case”), doc. 19]. Plaintiffs have responded [Reed case, doc. 29; Anculle case, doc. 21; Adkins case, doc. 21], and Defendant has replied [Reed case, doc. 34; Anculle case, doc. 28; Adkins case, doc. 28]. On July 22, 2019, the Court heard oral argument on this motion. This matter is now ripe for the Court's determination. For the reasons that follow, Defendant's motion to dismiss for lack of jurisdiction [Reed case, doc. 23; Anculle case, doc. 19; Adkins case, doc. 19] will be denied.

         I. BACKGROUND

         This case stems from the Chimney Tops 2 fire that began in the Great Smoky Mountains National Park, and ravaged the City of Gatlinburg, in November 2016. Plaintiffs have now sued the United States under the Federal Tort Claims Act (“FTCA”), seeking redress for their losses, which include property losses and losses of life. [Doc. 1 at 7, 20-21].[1] Plaintiffs allege that the National Park Service (“NPS”) was negligent in several respects relating to their response to the wildfire, which burned within the Park for several days before spreading to Gatlinburg. Specifically, Plaintiffs allege that the NPS was negligent in failing to monitor the wildfire overnight, failing to comply with command structure requirements, failing to adhere to mandatory fire management policies and requirements, and failing to warn Park neighbors. [Id. at 114-146]. Plaintiff Reed has also raised claims of wrongful death and loss of society and consortium relating to the deaths of his wife, Constance Reed, and two young daughters, Chloe and Lily Reed. [Id. at 145-146].

         The government has filed a motion to dismiss for lack of subject matter jurisdiction, asserting that the claims all fall within the discretionary function exception to the government's waiver of sovereign immunity under the FTCA. [Doc. 23]. Plaintiffs respond, contesting the applicability of the discretionary function exception as to each claim. The government replies, reiterating many of its original arguments. [Doc. 34].

         II. STANDARD OF REVIEW

         “Federal courts are courts of limited jurisdiction.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). In other words, federal courts “have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto.” Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). As such, subject matter jurisdiction is a threshold issue that the Court must address and resolve prior to reaching the merits of the case. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998); see also Fed. R. Civ. P. 12(h)(3) (providing that, “[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action”). Unlike a motion to dismiss for failure to state a claim under Rule 12(b)(6), “where subject matter jurisdiction is challenged under Rule 12(b)(1)[, ] . . . the plaintiff has the burden of proving jurisdiction in order to survive the motion.” RMI Titanium Co. v. Westinghouse Elec. Corp., 78 F.3d 1125, 1134 (6th Cir. 1996) (quoting Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986)).

         Rule 12(b)(1) motions fall into two categories: “facial attacks and factual attacks.” United States v. Ritchie, 15 F.3d 592, 598 (6th Cir. 1994). “A facial attack is a challenge to the sufficiency of the pleading itself.” Id. In considering whether jurisdiction has been established on the face of the pleading, “the court must take the material allegations of the [pleading] as true and construed in the light most favorable to the nonmoving party.” Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 235-37 (1974)). “A factual attack, on the other hand, is not a challenge to the sufficiency of the pleading's allegations, but a challenge to the factual existence of subject matter jurisdiction.” Id. In considering whether jurisdiction has been proved as a matter of fact, “a trial court has wide discretion to allow affidavits, documents, and even a limited evidentiary hearing to resolve disputed jurisdictional facts.” Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “Moreover, on the question of subject matter jurisdiction the court is not limited to jurisdictional allegations of the complaint but may properly consider whatever evidence is submitted for the limited purpose of ascertaining whether subject matter jurisdiction exists.” Pryor Oil Co., Inc. v. United States, 299 F.Supp.2d 804, 807-08 (E.D. Tenn. 2003) (citing Rogers, 798 F.2d at 915-16 (other citations omitted)).

         III. DISCUSSION

         A. Abandoned Claims

         As an initial matter, although the parties briefed the issue of the application of the discretionary function exception to each of the claims raised in the complaint, at a hearing on this matter, Plaintiffs limited their arguments to the failure to warn claim. Specifically, Plaintiffs stated “make no mistake, we're not challenging how they fought the fire. We are challenging the warning decision, not how they fought the fire. They have the right to decide to let it burn. They have the right to decide to put it out.” [Doc. 40 at 15]. Defendant responded that this statement carved out 90 percent of the case. [Id. at 35]. The Court then specifically asked counsel for Plaintiffs to respond to this assertion, that the only claim left in this case is the failure to warn claim. [Id. at 41]. Counsel for Plaintiffs stated unequivocally, “I agree.” The Court again asked whether the failure to warn was the only issue that it needed to address, and counsel responded:

I think you could find under the first part of the Gaubert test that the safety policy that we set out was mandatory. I think you could find that, because the language, it says, it will be done. Now, with that said, I will admit that 90 percent of the cases are not won by the plaintiff on the first part of the Gaubert test. So - but the real - the real crux of this case is the failure to warn case.

[Id.].

         In light of counsel's statements, the Court must conclude that Plaintiffs have abandoned their claims of negligence that are not premised on the failure to warn. In their complaint, Plaintiffs faulted the NPS for the following acts of negligence: (1) failing to monitor the wildfire overnight; (2) failing to comply with command structure requirements, by allowing Fire Management Officer Greg Salansky to serve in multiple overlapping roles; (3) failing to utilize a “Step-Up Plan” to determine when the fire danger had increased; (4) failing to perform a required complexity analysis of the fire danger; (5) negligently implementing a 410-acre containment box; (6) failing to adopt contingency plans in case the fire escaped the containment box; (7) disregarding fire-behavior modeling and weather forecast; (8) failing to utilize available air operations to suppress the fire; (9) failing to implement a universal communications system to permit inter-agency communications; (10) failing to use the Wildland Fire Decision Support System; and (11) failing to provide timely and accurate notice and warning to park neighbors, local government officials, and others about the status and imminent danger of the fire. [Doc. 1 at 114-146]. The vast majority of these claims directly attack how the NPS decided to fight the fire-including the decision to “let it burn”-which Plaintiffs now state is not at issue. Moreover, the “safety policy” referenced by Plaintiffs' counsel, when asked whether failure to warn was the only remaining issue in this case, appears to be a reference to part of counsel's argument relating to the directives that Plaintiffs assert mandate that the NPS warn of wildfire danger. Accordingly, based on counsel's statements at the hearing on this matter, the Court concludes that Plaintiffs have abandoned all claims of negligence except their allegation that the NPS negligently failed to warn of the danger posed by the Chimney Tops 2 fire. In light of this, Defendant's motion to dismiss [doc. 23] will be denied as moot as to Plaintiffs' abandoned claims.

         B. Failure to Warn

         In the Sixth Circuit, a plaintiff can invoke jurisdiction under the FTCA “only if the complaint is facially outside the exceptions [set forth in the FTCA].” Carlyle v. Dept. of the Army, 674 F.2d 554, 556 (6th Cir. 1982). The burden is on Plaintiff to plead sufficiently to demonstrate that the discretionary function exception does not apply. Hatcher v. United States, 855 F.Supp.2d 728, 731-32 (E.D. Tenn. 2012).

         It is well established that the United States, as a sovereign, may not be sued without its specific consent. United States v. Sherwood, 312 U.S. 584, 586 (1941); Lundstrum v. Lyng, 954 F.2d 1142, 1145 (6th Cir. 1991); Garrett v. United States, 640 F.2d 24, 26 (6th Cir. 1981). Plaintiffs allege jurisdiction over the United States pursuant to the FTCA. The FTCA provides a limited waiver of sovereign immunity, that is, a waiver that only applies to certain tort claims for:

injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1). This limited waiver of the government's sovereign immunity is further narrowed by certain enumerated exceptions. See 28 U.S.C. 2680. Among these is the discretionary function exception, which excludes from the waiver of sovereign immunity the following:

[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 ...

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