United States District Court, W.D. Kentucky, Bowling Green Division
KELSIE SMITH, Individually, as Court Appointed Guardian of Minors JS and KS, and as Co-Administratrix of the Estate of Cody Smith, deceased PLAINTIFF
UNITED STATES OF AMERICA DEFENDANT
MEMORANDUM OPINION AND ORDER
N. STIVERS, CHIEF JUDGE UNITED STATES DISTRICT COURT.
matter is before the Court on Defendant's Motion to
Dismiss and for Partial Summary Judgment (DN 56). The motion
is ripe for adjudication. For the reasons below, the motion
6, 2016, Cody Smith (“Decedent”) was involved in
a fatal motor vehicle accident with an United States Postal
Service (“USPS”) mail carrier at the intersection
of Brownsville and Willis Roads in Butler County, Kentucky.
(Compl. ¶¶ 7-10, DN 1). Plaintiff Kelsie Smith is
the Co-Administratrix of Decedent's estate and brought
this action under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 2671-2680, to
recover damages from the mail carrier and the United States
for wrongful death and loss of consortium. (Compl.
asserts that the mail carrier, after delivering mail to
mailboxes on the right side of Brownsville Road, was required
by the design of her postal route to turn directly onto
Willis Road in violation of KRS 189.380-a Kentucky statute
instructing motorists to activate turn signals 100 feet in
advance of making any left or right turn. (Pl.'s Resp.
Def.'s Mot. Dismiss & Partial Summ. J. 3-4, DN 60
[hereinafter Pl.'s Resp.]).
date of the accident, the Decedent and a second motorist
approached the mail carrier from behind on their motorcycles.
(Pl.'s Resp. 1). Plaintiff contends that the two
approaching motorcyclists each began to pass the mail carrier
on the left side of the road in a lawful passing zone just as
the mail carrier executed the turn onto Willis Road,
resulting in the fatal collision. (Pl.'s Resp. 1-2).
alleges the United States negligently failed to inspect and
maintain the delivery vehicle for safe operation. (Compl.
¶ 23). She also claims that the United States
negligently entrusted the delivery vehicle to the mail
carrier involved in the accident. (Compl. ¶ 24).
Finally, Plaintiff contends the United States was negligent
in “hiring, training, supervising, dispatching, route
management, route planning and/or retaining” the mail
carrier. (Compl. ¶ 25).
present motion, the United States moves to dismiss
Plaintiff's negligent hiring, training, supervision,
dispatch, route planning, route management and retention
claims under Fed.R.Civ.P. 12(b)(1) due to the discretionary
function exception to the FTCA's waiver of sovereign
immunity set forth in 28 U.S.C. § 2680(a). The United
States also moves for summary judgment on the negligent
entrustment claim under Fed.R.Civ.P. 56. (Def.'s Mot.
Dismiss Part. Summ. J. 1, DN 56 [hereinafter Def.'s Mot.
Motion to Dismiss The United States seeks dismissal of
Plaintiff's claims on the basis of lack of subject matter
jurisdiction. “Subject matter jurisdiction is always a
threshold determination.” Am. Telecom Co., L.L.C.
v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir.
2007) (citation omitted).
A Rule 12(b)(1) motion can either attack the claim of
jurisdiction on its face, in which case all allegations of
the plaintiff must be considered as true, or it can attack
the factual basis for jurisdiction, in which case the trial
court must weigh the evidence and the plaintiff bears the
burden of proving that jurisdiction exists.
DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir.
2004) (citing RMI Titanium Co. Westinghouse Elec.
Corp., 78 F.3d 1125, 1133-35(6th Cir. 1996)). In most
circumstances, the plaintiff bears the burden to survive
Fed.R.Civ.P. 12(b)(1) motions to dismiss. See Bell v.
Hood, 327 U.S. 678, 681-82 (1946). “If the court
determines at any time that it lacks subject-matter
jurisdiction, the court must dismiss the action.”
immunity may serve as a basis for a Fed.R.Civ.P. 12(b)(1)
motion to dismiss for lack of subject matter jurisdiction.
Muniz-Muniz v. U.S. Border Patrol, 741 F.3d 668, 671
(6th Cir. 2013). The United States can be sued only to the
extent to which it has expressly waived its sovereign
immunity. United States v. Orleans, 425 U.S. 807,
814 (1976). The FTCA “waives sovereign immunity to the
extent that state-law would impose liability on a private
individual in similar circumstances.” Young v.
United States, 71 F.3d 1238, 1241 (6th Cir. 1995)
(internal quotation marks omitted) (citation omitted). At the
same time, “[t]he FTCA excludes several types of claims
from its waiver of sovereign immunity [and] [i]f a case falls
within one of these statutory exceptions, the court lacks
subject matter jurisdiction over it.” Wilburn v.
United States, 616 Fed.Appx. 848, 852-53 (6th Cir. 2015)
(internal citation omitted) (citing Feyers v. United
States, 749 F.2d 1222, 1225 (6th Cir. 1994)). The FTCA
is the exclusive remedy for suits against the United States
or its agencies sounding in tort, and its waiver of sovereign
immunity must be strictly construed in favor of the United
States. 28 U.S.C. § 2679(a); Ruckelshaus v. Sierra
Club, 463 U.S. 680, 685 (1983) (citation omitted).
United States contends that the discretionary function
exception found at 28 U.S.C. § 2680(a) bars
Plaintiff's claims and requires the Court to dismiss for
lack of subject matter jurisdiction. (Def.'s Mot. Dismiss
1). The discretionary function exception provides that the
United States is not liable for any 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 Government, whether or
not the discretion involved be abused.” 28 U.S.C.
§ 2680(a). Conduct falls within the discretionary
function exception if it satisfies a two-pronged test: (1)
the conduct at issue must be discretionary,
“involv[ing] an element of judgment or choice;”
and (2) the conduct must involve a “judgment of the
kind that the discretionary function exception was designed
to shield.” Berkovitz by Berkovitz v. United
States, 486 U.S. 531, 536 (1988).
involves an element of judgment or choice for purposes of the
first prong of the discretionary function exception when no
“federal statute, regulation, or policy specifically
prescribes a course of action for an employee to
follow.” Id.; see also Shrieve v. United
States,16 F.Supp.2d 853, 856 (N.D. Ohio 1998). The
first prong is satisfied when a government official
negligently fails to follow mandates. Berkovitz, 486
U.S. at 536. For the second prong, a judgment is the kind
Congress intended to shield with the discretionary function
exception when review involves “judicial ‘second
guessing' of legislative and administrative decisions
grounded in social, economic, and political policy through
the medium of an action in tort.” Id. at ...