Cope v. Scott

310 U.S. App. D.C. 144, 45 F.3d 445 (1995)



The court uses a two-step test to determine whether an action is exempt from suit under the discretionary function exemption. In the first step, the court asks whether any federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. If a specific directive exists, then the discretionary function exception contained in the second clause of 28 U.S.C.S. § 2680(a) is not applicable. In the second step of the test, the basic inquiry is whether the challenged discretionary acts of a government employee are of the nature and quality that Congress intended to shield from tort liability. Decisions that require choice are exempt from suit under the Federal Tort Claims Act only if they are susceptible to policy judgment and involve an exercise of political, social, or economic judgment.


The driver alleged that the government's failure to adequately maintain a roadway or to post adequate warning signs caused another vehicle to slide into the driver's car after rounding a curve on a road that was maintained by the National Park Service. The district court held that the government's actions were discretionary functions immune from suit under the Federal Tort Claims Act (FTCA).


Is the government immune from the suit that arose on a roadway accident?




The court affirmed the dismissal of the claim that was based on the negligent maintenance of the road because the deterioration of the road could have been prevented only by reducing the traffic load or resurfacing the curve entirely and determining the appropriate course of action required exercising the kind of discretion for which 28 U.S.C.S. § 2680(a) provided an exception to the FTCA's waiver of sovereign immunity. The court held that the driver was entitled to persuade a fact finder that the government was liable for failing to post adequate warning signs because such conduct did not involve making political, social, or economic decisions of the sort that the discretionary function exception was designed to protect.

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