Cestonaro v. United States - 211 F.3d 749 (3d Cir. 2000)

Rule:

On a question of "discretionary function," as used in 28 U.S.C.S. § 2680(a), the first issue is whether a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. If so, the discretionary function exception cannot apply. If not, the question is whether the governmental action or inaction is of the kind that the discretionary function exception was designed to shield. If it is, the action constitutes the exercise of protected discretion, and the United States is immune from suit. 

Facts:

In December 1993, Daniele Cestonaro, his wife Giovanna, and their daughter, all Italian citizens and residents, were vacationing in St. Croix, Virgin Islands. On the evening of December 28, the Cestonaros parked their rental car in a lot on Hospital Street in Christiansted. Upon returning to their car after dinner, the Cestonaros were confronted by two armed gun men. Daniele Cestonaro was shot and died almost immediately. Giovanna brought suit under the Federal Tort Claim Act's, 28 U.S.C.S. §§ 1346(b), 2671, against the defendant United States, alleging failure to adequately light a parking lot in a national park or warn of danger of crime. After dismissal by the district court under the discretionary function exception of 28 U.S.C.S. § 2680(a), Giovanna appealed.

Issue:

Were lighting and warning decisions concerning parking lot on national park property protected under the discretionary function exception to the Federal Tort Claims Act?

Answer:

No

Conclusion:

The court held an agreement requiring defendant to remove the lot did not mandate a specific course of conduct, and was not dispositive. Lighting and warning decisions remained discretionary, however, decisions subsequent to the initial decision to maintain the lot were not necessarily protected. As to defendant's preservation of historicity argument, the court found defendant had not eliminated all indicia of parking, and had not acted to restore the property to original grade or surface. There was no rational nexus between the decisions (or non-decisions) and social, economic, and political concerns. The judgment was reversed.