United States District Court, E.D. Kentucky, Southern Division, London
MATTHEW STANFORD, Plaintiff, AND KENTUCKY ASSOCIATION OF COUNTIES WORKERS' COMPENSATION FUND, Intervenor Plaintiff,
UNITED STATES OF AMERICA, Defendant and Intervenor Defendant. UNITED STATES OF AMERICA, Third-Party Plaintiff,
UNITED STATES ARMY CADET CORPS, INC., et al., Third-Party Defendants.
MEMORANDUM OPINION AND ORDER
AMUL R. THAPAR, District Judge.
Plaintiff Matthew Stanford suffered a grievous injury at a National Guard training facility in eastern Kentucky, and he seeks to hold the United States responsible under the Federal Tort Claims Act ("FTCA"). The government contends that its allegedly negligent conduct concerns the performance of a discretionary function, and is thus not covered by the FTCA's waiver of sovereign immunity. Invoking the FTCA's discretionary function exception ("DFE"), the United States moved to dismiss for lack of jurisdiction, but the Court denied that motion without prejudice to allow for new briefing on some difficult questions. The government then renewed its motion to dismiss. The Court now answers some of those questions, and will hold a hearing to resolve key jurisdictional facts.
The Court recounted the tragic facts of this case in its prior opinion addressing the DFE. See Stanford v. United States, No. 12-93-ART, 2014 WL 222009, at *1 (E.D. Ky. Jan. 21, 2014). For the purposes of this opinion, a brief review suffices.
Matthew Stanford served as an instructor and counselor for the United States Army Cadet Corps, Inc. ("Cadet Corps"), a private military-style youth organization. Stanford helped lead the group on a visit to the Harold L. Disney Training Center ("HLDTC"), a National Guard training ground in Artemus, Kentucky. Id. While at HLDTC, Stanford and the cadets used the Center's obstacle course, including the "Slide for Life" or "zip line." Id. Although the zip line featured no fall protections, several cadets navigated the slide without incident. Id. Stanford sadly did not: After the cable jerked unexpectedly, he lost his grip and fell to the hard ground below, fracturing his hip and spine. Id. As a result of the fall, he is now severely paralyzed. Id.
Stanford sued the United States under the FTCA for negligence, and the Kentucky Association of Counties Workers' Compensation Fund ("KACo") joined the suit as an intervening plaintiff. Id. Among their allegations, the plaintiffs claim that federal employees at HLDTC failed to warn Stanford adequately, failed to take adequate safety precautions, negligently designed the zip line, and violated various regulations. Id. Relying on the DFE, the government moved to dismiss for lack of subject matter jurisdiction. Id. at *2.
The Court addressed many of the parties' arguments but ultimately denied the government's motion without prejudice, requesting new briefing on some stubbornly difficult legal questions. Id. at *12. In its prior opinion, the Court held the following: Most of the regulations the plaintiffs say removed the employees' discretion did not apply at all. Id. at *6-10. In particular, the Army materials governing obstacle courses are geared towards official use by the military rather than by civilian visitors like Stanford. Id. at *6-7. And certain federal National Guard Regulations ("NGR") concerning construction by state Guards did not apply to the zip line at HLDTC, because the officer who built the zip line did so while serving in an exclusively federal capacity. Id. at *9-10. Moreover, because the federal employees' alleged conduct in this case is susceptible to policy analysis, the DFE would preclude liability, were it not for questions surrounding other potentially binding regulations. Id. at *10-11.
Two regulations, the Court found, might overcome the DFE. The first is Kentucky Army National Guard ("KYARNG") Regulation 350-7, a state regulation for Kentucky's own Guard (importantly distinguished from the federal NGRs, which apply to all state Guards). The Court concluded that KYARNG 350-7 § 6-10(a) had been violated because MSG Charles Kenneth Miles, the Guardsman (and federal employee) who built the zip line, failed to get the proper approval for his construction. Id. at *8. He thus lacked discretion. Underlying this conclusion, the Court assumed § 6-10(a) covered internal HLDTC employees like MSG Miles. Some uncertainty remained, however, as to whether KYARNG 350-7, promulgated by Kentucky's Adjutant General, a state officer, was a " federal statute, regulation or policy" relevant to the DFE. Id. (quoting United States v. Gaubert, 499 U.S. 315, 322 (1991)). The plaintiffs also alleged that federal employees at HLDTC violated various unwritten policies regarding the identification and supervision of civilian visitors, and zip line safety. Id. at *10. The Court was similarly unsure whether such unwritten policies could remove discretion under the DFE, and if so, which party bears the burden of proof to show their existence and content. Id. at *10, *12. As a result, the Court ordered new briefing, and the government renewed its motion to dismiss addressing the outstanding issues.
I. Revisiting Some of the Court's Prior Holdings
Although the Court only requested that the parties address three additional questions in their renewed briefing, both the plaintiffs and the government have included arguments questioning the Court's prior holdings. The Court will take up the parties' invitation to revisit its earlier opinion because it has a duty to correct its own errors, and before final judgment, there is no bar to reversing course. See Marconi Wireless Tel. Co. v. United States, 320 U.S. 1, 47-48 (1943); Simmons Co. v. Grier Bros. Co., 258 U.S. 82 (1922). Correcting errors now, rather than on appeal, will also save the parties resources in the long run.
A. KYARNG 350-7
The United States strongly suggests the Court erroneously assumed that KYARNG 350-7 § 6-10(a) applies to internal personnel such as MSG Miles. See R. 166-1 at 11-12 n.3. Section 6-10(a) must be construed in line with its neighboring provisions, the government says, and those regulations are expressly directed at visiting units training at HLDTC. This makes clear, the argument goes, that the procedures described in § 6-10(a) have the same limited scope. Hence, as an HLDTC officer rather than a visiting trainee, MSG Miles did not need approval to build the zip line-KYARNG 350-7 simply did not cover his construction at all. The upshot? It ultimately does not matter whether KYARNG 350-7 is state or federal because it did not remove his discretion.
Upon further consideration, the United States is correct. As discussed in more detail below, much of KYARNG 350-7 regulates military units training at HLDTC. Read not in isolation but in context, section 6-10(a)'s approval requirements for building and modifying "training areas" or "existing facilities" (such as obstacle courses) are no different. R. 127-19 at 66. And as a result, KYARNG 350-7 did not rob MSG Miles of ...