Washington Law Review
Federal officials, supervising a high-priority contract to dredge and improve a navigable river, approved a decision to deposit dredged spoil on a vacant lot situated near plaintiff's building. An exhaustive search by a naval officer revealed no other feasible land site immediately available. Wind carried gases emanating from the spoil to plaintiff's buildings, allegedly reacting upon the exterior surfaces to cause severe damage. Plaintiff brought an action under the Federal Tort Claims Act against the United States and its contractor, alleging negligence in the decision to place the spoil on the land, rather than dump it at sea, and in failing to take precautions against the escaping gas. The United States moved for summary judgment, claiming immunity under the "discretionary functions" exception within the act. The court granted the motion. Held: A determination to dump spoil on land, rather than carry it out to sea, and not to take precautions against escaping fumes, was a "planning level" decision which falls within the discretionary function immunity of the Federal Tort Claims Act, and prevents recovery for damage to a nearby building resulting from the escaping fumes. Dolphin Gardens, Inc. v. United States, 243 F. Supp. 824 (D. Conn. 1965).
Discretionary Functions—The Planning-Operational Dichotomy Revisited,
41 Wash. L. Rev.
Available at: https://digitalcommons.law.uw.edu/wlr/vol41/iss2/8