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Smith v. United States

United States District Court, W.D. Kentucky, Bowling Green Division

December 3, 2018

KELSIE SMITH, Individually, as Court Appointed Guardian of Minors JS and KS, and as Co-Administratrix of the Estate of Cody Smith, deceased PLAINTIFF



         This 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 is GRANTED.

         I. BACKGROUND

         On May 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.[1] (Compl. ¶¶ 27-28).

         Plaintiff 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.]).

         On the 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).

         Plaintiff 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).

         In the 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.[2] (Def.'s Mot. Dismiss Part. Summ. J. 1, DN 56 [hereinafter Def.'s Mot. Dismiss]).


         A. 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.” Fed.R.Civ.P. 12(h)(3).

         Sovereign 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).

         The 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).

         Conduct 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 ...

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