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The discretionary function exception to the Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 2680(a), provides that the FTCA shall not apply to 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.
As part of his job, Lorrin Whisnant made weekly seafood deliveries to the commissary and oversaw fellow employees who staffed the fish counter in the commissary's meat department. These tasks required him to come to the commissary for a three- to four-hour period at least once every week to two weeks. Defense Commissary Agency (DeCA) regulations required periodic safety inspections, but it was up to DeCA employees to decide how and when to conduct the inspections. Though DeCA personnel were responsible for safety, the base contracted out its maintenance work. The accumulation of mold continued for three years.
Was the action barred by the discretionary function exception to the FTCA?
The court held that Whisnant’s suit was not barred by the discretionary function exception of 28 U.S.C.S. § 2680(a). He did not allege that the government was negligent in designing its safety inspection procedures; rather, he charged that the government was negligent in following through on those procedures. Because removing an obvious health hazard was a matter of safety and not policy, the government's alleged failure to control the accumulation of toxic mold could not be protected under the discretionary function exception.