The opinion of the court was delivered by: RICHEY
This is a claim of negligence under the Federal Tort Claims Act, 28 U.S.C. § 2671-80 and breach of contract under the Tucker Act, 28 U.S.C. § 1346(a)(2) as the result of the theft of plaintiff's car from a government parking lot sometime during the night of March 12-13, 1983. Plaintiff has already received $2,857.16 from his insurance company. He seeks to recover an additional $3,000 in this action.
Before the Court is the entire record in this case including the defendant's motion to dismiss or in the alternative for summary judgment, plaintiff's opposition thereto, and defendant's reply. For the reasons set forth below the defendant's motion for summary judgment is granted.
The material facts are undisputed. Plaintiff's Opposition, p. 1, n.1.
At the time of the theft plaintiff was employed by the Government Printing Office (GPO) in Washington, D.C. and had a valid parking permit issued by GPO.
As mentioned, plaintiff's insurance company paid him $2,857.16 to compensate for the damages. He then filed a Federal Tort Claims Act administrative claim for $980 in an effort to recover for those losses not paid for by his insurance carrier.
Plaintiff's claim was denied by the GPO on February 15, 1985. He filed this suit on August 14, 1985.
Plaintiff alleges two causes of action. The first, brought under the Federal Tort Claims Act, 28 U.S.C. § 2671-80, alleges the government was negligent in not providing any security for the lot where the plaintiff parked his car. Complaint, para. 7 (emphasis added). Plaintiff also alleges breach of a bailment contract. Complaint, para. 6.
The defendant argues (1) that the negligence claim is barred by the Federal Tort Claims Act (FTCA), (2) no bailment contract ever existed, and (3) the parking space application explicitly disclaimed liability for damage occurring while the car is on the GPO lot.
SECURITY IS A DISCRETIONARY FUNCTION AND THE FEDERAL TORT CLAIMS ACT BARS CAUSES OF ACTION BASED ON FAILURE TO PERFORM DISCRETIONARY FUNCTIONS
The FTCA does not waive the federal government's immunity for claims based on the alleged failure to perform a discretionary function. 28 U.S.C. § 2680(a).
The "discretionary function" exemption "includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations. Where there is room for policy judgment and decision there is discretion." Dalehite v. United States, 346 U.S. 15, 35-36, 97 L. Ed. 1427, 73 S. Ct. 956 (1953); Taxay v. United States, 345 F. Supp. 1284, 1285 (D.D.C. 1972) (The "discretionary function" exemption "shields the government from suit for 'planning' or policy decisions, as opposed to those made on an 'operational' level".)
Applying this test courts have found providing building security a discretionary function. In Turner v. United States, 473 F. Supp. 317 (D.D.C. 1979), plaintiff, a maintenance force supervisor, was raped while working in the South Building of the Department of Agriculture. She filed suit under the FTCA claiming the government was negligent in not providing adequate security for people working in the building. The Court ruled that "given the prevalence of crime in the District of Columbia it is, of course, always 'foreseeable' that harm could come to the occupant of a government building". Even so, "the government's decision to ...