b. The burial of the munitions, the 1986 investigation, and the failure to remove the munitions prior to 1993 are types of conduct that implicate "social, economic, or political judgment" and, therefore, beyond the reach of the FTCA.
Decisions regarding the disposal of munitions by the Army are of the type that require a balancing of objectives sought to be obtained against such considerations as staffing, funding, national security, and safety. Cf. Boyle v. United Technologies Corp., 487 U.S. 500, 511, 101 L. Ed. 2d 442, 108 S. Ct. 2510 (1988) ("selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function [since it] often involves . . . judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness."); Varig Airlines, 467 U.S. at 820 (government agents necessarily take calculated risks in order to make policy judgments regarding safety and in the advancement of a governmental purpose). Accordingly, numerous courts have applied the discretionary function exception in the context of military activities and the Government's handling and disposal of hazardous materials. See Dalehite v. United States, 346 U.S. 15, 97 L. Ed. 1427, 73 S. Ct. 956 (1953) (claims arising from distribution of fertilizer for export to devastated areas after World War II barred by discretionary function exception); Kirchmann v. United States, 8 F.3d 1273, 1278 (8th Cir. 1993) (discretionary function exception applied to action based on groundwater contamination during construction of missile site); Industria Panificadora, S.A. v. United States, 294 U.S. App. D.C. 137, 957 F.2d 886, 887 (D.C. Cir.) (decisions concerning the "allocation of military and law enforcement resources [are] sheltered by the [discretionary function] exception"), cert. denied, 506 U.S. 908, 121 L. Ed. 2d 227, 113 S. Ct. 304 (1992); Allen v. United States, 816 F.2d 1417 (10th Cir. 1987) (Atomic Energy Commission's decision involved in carrying out programs relating to open-air atomic bomb test were within discretionary function exception), cert. denied, 484 U.S. 1004, 98 L. Ed. 2d 647, 108 S. Ct. 694 (1988); Laurence v. United States, 851 F. Supp. 1445, 1450-52 (N.D. Cal. 1994) (discretionary function applied to action based upon alleged contaminated soil used in construction of housing complex to support World War II emergency need), aff'd, 59 F.3d 112 (9th Cir. 1995) (affirming on independent contractor exception); Bowman v. United States, 848 F. Supp. 979, 985 (M.D. Fla. 1994) (Navy's judgment on the method for disposing of pyridine protected under discretionary function exception to FTCA); see also David S. Fishback and Gail Killefer, The Discretionary Function Exception to the Federal Tort Claims Act, 25 Idaho L. Rev. 291 (1988-89).
Whether or not the Army exercised the best judgment in disposing of its munitions -- including its decision to bury munitions on private land, to leave the munitions buried until 1993, and to respond to its 1986 investigation as it did -- are actions not properly subject to the. Court's inquiry in a FTCA suit. Congress has provided that the Court may not "second guess" those types of judgments by way of a tort action.
c. The failure to mark or warn of the buried munitions does not fall within the discretionary function exception to the FTCA.
In Cope v. Scott, 310 U.S. App. D.C. 144, 45 F.3d 445 (D.C. Cir. 1995), the District of Columbia Circuit determined that, although the Park Service's failure to maintain an adequate skid resistance on a road surface fell within the discretionary function exception, its failure to post adequate warning signs about the nature of the surface did not. Cope, 45 F.3d at 450-51. Cope explained that the failure to warn of known dangers falls within the discretionary function exception only when it is part of an overall discretionary policy or program. Id. Consistent with this approach, Court's have recognized that the government's decision whether or not to issue warnings is protected by the discretionary function exception only when that decision involves policy considerations. See Dalehite, 346 U.S. at 15 (discretionary function exception barred allegations that the government failed to warn of the dangers of the fertilizer it selected for use in a post-war program); Wells v. United States, 271 U.S. App. D.C. 244, 851 F.2d 1471 (D.C. Cir. 1988) (discretionary function applied to claim that EPA negligently regulated and communicated knowledge of public health risks and lead pollution dangers in plaintiffs' neighborhoods), cert. denied, 488 U.S. 1029, 102 L. Ed. 2d 969, 109 S. Ct. 836 (1989); Allen, 816 F.2d at 1423 (discretionary function barred failure to warn and negligence allegations associated with open-air atomic bomb testing); Smith v. Johns-Manville, 795 F.2d 301 (3d Cir. 1986) (discretionary function barred claim based on the GSA's disposition of asbestos and alleged failure to warn); Begay v. United States, 768 F.2d 1059, 1065 (9th Cir. 1985) (decision of US public health service not to disclose to miners the possible health hazards of working in uranium mines protected by discretionary function exception); Cisco v. United States, 768 F.2d 788, 789 (7th Cir. 1985) (failure of EPA to warn neighborhood residents that dirt used in local landfill had been contaminated with toxic chemicals and failure to require that dirt be removed was protected by discretionary function); Wainwright v. Washington Metro. Area Transit Auth., 903 F. Supp. 133, 138 (D.D.C. 1995) (duty to warn a discretionary function for which government retains immunity); Western Greenhouses v. United States, 878 F. Supp. 917, 927-29 (N.D. Tex. 1995) (Air Force decisions concerning investigation, monitoring, and public notification of potential contamination protected by discretionary function); Lewis v. United States Navy, 865 F. Supp. 294, 299-300 (D.S.C. 1994) (veteran's claim for failure to warn of long-term health effects of mustard gas exposure barred); Bowman, 848 F. Supp. at 979 (allegations associated with navy's failure to warn of buried pyridine barred by discretionary function exception); see also David S. Fishback and Gail Killefer, The Discretionary Function Exception to the Federal Tort Claims Act, 25 Idaho L. Rev. 291 (1988-89).
Here, the Army's decision not to warn that it had buried munitions on private land is not the type of decision that involves social, economic, or policy considerations. Accord Faber v. United States, 56 F.3d 1122, 1125 (9th Cir. 1995) (Forest Service's failure to warn of specific, known dangers in a national forest involved considerations of safety, not public policy, and did not fall within exception); Sutton v. Earles, 26 F.3d 903, 910 (9th Cir. 1994) (Navy's decision not to warn of a known water hazard was not the kind of social, economic, or policy decision the exception was intended to protect); Andrulonis v. United States, 952 F.2d 652, 655 (3d Cir. 1991) (government scientist's failure to warn of obvious dangerous conditions in state laboratory studying government supplied rabies virus could not implicate any policy considerations and was not protected), cert. denied, 505 U.S. 1204, 120 L. Ed. 2d 869, 112 S. Ct. 2992 (1992); Summers v. United States, 905 F.2d 1212 (9th Cir. 1990) (Forest Service's failure to provide adequate warnings about fire rings on a beach in a national park not protected by the discretionary function exception); Boyd v. United States, 881 F.2d 895, 898 (10th Cir. 1989) (alleged failure to warn swimmers of dangerous conditions in swimming area does not implicate social, economic, or political policy judgments); Kennewick Irrigation District v. United States, 880 F.2d 1018, 1031-32 (9th Cir. 1989) (decisions by contracting officer during construction of irrigation canal concerning whether to remove unsuitable ground material were based not on policy judgments but on technical, scientific, engineering considerations and therefore did not fall within exception); ARA Leisure Servs. v. United States, 831 F.2d 193 (9th Cir. 1987) (Park Service's failure to maintain portion of road in safe condition not protected by exception); Smith v. United States, 546 F.2d 872 (10th Cir. 1976) (Park Service's failure to post signs warning of danger of collapsing thermal pool crusts not protected); Noel v. United States, 893 F. Supp. 1410, 1420-22 (N.D. Cal. 1995) (Navy's decision not to put barriers around holes in tarmac during air base open house was motivated solely by safety considerations, so not protected by the exception; Navy's failure to execute its self-imposed crowd control plan did not involve a balancing of social, economic, or political policy considerations). Although the Army states that its failure to warn of buried munitions involved economic and social considerations, there is evidence that the Army did mark and fence off some hazards left on the formerly leased properties. See Martin K. Gordon, Barry R. Sude, Ruth Ann Overbeck & Charles Hendricks, A Brief History of the American University Experiment Station and U.S. Navy Bomb Disposal School, American University (Office of History Headquarters, U.S. Army Corps of Engineers, June 1994) at 36. Thus, the Army had already made a decision to warn. Its failure to effectuate that decision properly was not itself the product of a policy decision. See Cope, 45 F.3d at 452 (when Park Service already posted signs in an effort to warn, the placement of additional or different signs does not implicate economic, social, or political concerns); cf. Indian Towing Co. v. United States, 350 U.S. 61, 100 L. Ed. 48, 76 S. Ct. 122 (1955) (Coast Guard, having undertaken to provide lighthouse service, had a duty to use due care to make certain that the lighthouse was kept in good working order and to repair light or give warning that it was not functioning).
II. THE PLAINTIFF'S CLAIMS ARE NOT BARRED BY THE FTCA'S STATUTE OF LIMITATIONS.
The defendant asserts that the plaintiff's claims are barred by the FTCA's two-year statute of limitations. The FTCA's statute of limitations, like its effective date provision, runs from the date the claim accrues. 28 U.S.C. § 2401(b). The defendant asserts that the plaintiff's claims accrued when Miller's founders purchased the property in question because, according to the defendant, the plaintiff's founders should have been aware of the Army's activities when they purchased the property, based on evidence that some reports appeared in the local press.
The Court rejects this notion. Even if the founders knew that the property was a testing site, there is no evidence to suggest that they knew or had reason to know that the Army had buried munitions beneath the surface of property. The defendant's own document review reported that there was no official documentation of the large-scale burial of munitions and that those munitions reportedly were moved to Edgewood Arsenal. In the present case, the discovery of all of the essential elements of the plaintiff's possible causes of action did not occur until after the munitions were discovered in 1993.
III. THE PLAINTIFF HAS STATED A CAUSE OF ACTION FOR NEGLIGENCE UNDER DISTRICT OF COLUMBIA LAW; THE DEFENDANT HAD A DUTY TO WARN OF BURIED MUNITIONS.
Pursuant to the FTCA, the United States is subject to suit only "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). The applicable law here is the District of Columbia Law. Based on the Court's rulings above, the Court need only consider whether the plaintiff has stated a cause of action under District of Columbia law in negligence with respect to the plaintiff's failure to warn of buried munitions.
To prevail in a cause of action for negligence, a plaintiff must prove duty, a breach of that duty, causation, and damages. See Art Metal - U.S.A., Inc. v. United States, 233 U.S. App. D.C. 1, 753 F.2d 1151, 1157 (D.C. Cir. 1985). The defendant asserts that it did not owe a duty to the plaintiff to warn of buried munitions.
The District of Columbia Court of Appeals has not addressed the question whether a subsequent occupier of property has a cause of action in negligence for damages against a former occupant-whose activities during its occupance allegedly caused the property to become contaminated by chemicals. See 325-343 E. 56th Street Corp. v. Mobil Oil Corp., 906 F. Supp. 669, 676 (D.D.C. 1995) (Urbina, J.). To decide this question, this Court must predict what the District of Columbia would hold under these circumstances. Id. (citing Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938)). The Mobil decision of this court, addressing this very issue, adopted the legal principles established by the Maryland Court of Appeals in Rosenblatt v. Exxon Co., 335 Md. 58, 642 A.2d 180 (Md. 1994). See Mobil, 906 F. Supp. at 676 (citing Gerace v. Liberty Mutual Ins. Co., 264 F. Supp. 95, 97 (D.D.C. 1966) ("Since the District of Columbia derives its common law from Maryland, decisions of Maryland courts on points not determined by the court of Appeals of the District of Columbia or by the Supreme Court of the United states are, if not completely controlling, nevertheless, of great weight, of greater weight than the decisions of other states.")). After careful consideration, the court adopts those sound principles in the present case.
The question whether a duty is owed is a question of law to be determined by the court. See Rosenblatt, 355 Md. at 75 (citing Prosser & Keeton, Law of Torts, § 45 at 320 (5th ed. 1984)).
In determining the existence of a duty owed to a plaintiff, [courts] have applied a "foreseeability of harm" test, which is based on the recognition that duty must be limited to avoid liability for unreasonably remote consequences. . . . Inherent also in the concept of duty is the concept of a relationship between the parties out of which the duty arises. . . . Ultimately, the determination of whether a duty should be imposed is made by weighing the various policy considerations and reaching a conclusion that the plaintiff's interest are, or are not, entitled to legal protection against the conduct of the defendant. . . . The imposition of a duty upon one to another serves to balance the burdens between the parties in avoiding the harm.
Id. at 77. Applying these principles to the present case, the Court concludes that, as a matter of law, the defendant owed a duty to warn the plaintiff, a subsequent occupant of the land, of the buried munitions.
When it buried live munitions, the Army had in effect "booby-trapped" the land. The live munitions were buried so close to the surface that subsequent preparation of the land for development by the plaintiffs resulted in unearthing of the munitions. It had to be obvious to the Army when it embarked on its disposal project that any subsequent user of the land may. well need to excavate below the surface for subsequent construction. It should have been recognized that such a reasonable use of the land obviously would have exposed the subsequent user to serious bodily harm or possibly even death if one of the unexploded munitions was discharged inadvertently.
Moreover, the Army was in the best position to warn future occupants. Indeed, there is no basis to conclude that anyone but the Army even knew of the buried munitions; nor is there basis to conclude that the munitions could have been discovered by a future occupant, even if that occupant exercised reasonable diligence with inquiry and inspection. The Army itself concluded that there were no buried munitions after its 1986 investigation.
Clearly, the duty to warn under these circumstances is an absolute necessity. No department of government can so callously conduct itself, placing segments of the public in serous jeopardy, without appropriate warning of the hazards that exist. The land in this case was contaminated and the Army had a duty to clearly warn of that fact. To now attempt to shield itself from its obligations and transfer substantial costs to the plaintiff is unacceptable. Where there is a dispute between two parties as to which party must pay for a loss incurred, it is hornbook law that the party causing the loss is the one that must pay. Cf. Vincent v. Lake Erie Transp. Co., 109 Minn. 456, 124 N.W. 221 (1910) ("Public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made."); Rylands v. Fletcher, L.R. 3 H.L. 330 (1868) ("When one person, . . . causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer.")
The Army in this case created the hazard and literally "covered it up." At the least, it had the duty to warn potential users of the property of the high risks to life and property to which subsequent innocent users would be exposed. The Army clearly has responsibility in this case. To transfer its burden to an innocent party can under no circumstances be rationalized. Why the Army has resisted discharging its obligations demanded by the law and the public interest is inexplicable. The risk of these buried munitions simply is not one the public should assume.
The Army had a duty to warn Miller, as a subsequent occupant of the property, that the Army had buried munitions on the property. Accord T&E Industries, Inc. v. Safety Light Corp., 123 N.J. 371, 587 A.2d 1249 (N.J. 1991) (defendant who contaminated land with radioactive tailings was liable to a subsequent owner of the land); Mangini v. Aerojet-General Corp., 230 Cal. App. 3d 1125, 281 Cal. Rptr. 827 (1991) (current landowner has action against prior lessee for damages caused by failure to remove wast rocket fuel from property); State, Dept. of Environmental Protection v. Ventron Corp., 94 N.J. 473, 468 A.2d 150 (N.J. 1983) (summary judgment in favor of current owner in action against prior owner for dumping abnormally dangerous mercury); Prospect Indus. Corp. v. Singer Co., 238 N.J. Super. 394, 569 A.2d 908 (N.J. 1989) (prior owner who caused release of PCBs into environment liable to subsequent property owner for costs of cleanup). The Army will be held liable for the breach of its duty to warn.
The defendant breached its duty of care to the plaintiff to warn of buried munitions. The Court will set a status conference to establish a schedule for the resolution of the remaining question of damages. The Court will issue an Order of even date herewith, consistent with the foregoing Memorandum Opinion.
UNITED STATES DISTRICT JUDGE
Based on the Court's Memorandum Opinion of even date herewith, it is, by the Court, this 21 day of March, 1997,
ORDERED that the plaintiff's Motion to file a Surreply will be, and hereby is, GRANTED; and it is
FURTHER ORDERED that the defendant's Motion to Dismiss or, in the alternative, for Summary Judgment will be, and hereby is, DENIED; and it is
FURTHER ORDERED that the parties will appear before the Honorable Stanley Sporkin of this Court for a status conference on April 3, 1997 at 2:00 p.m.
UNITED STATES DISTRICT JUDGE