The opinion of the court was delivered by: MCILVAINE
This is a suit under the Federal Tort Claims Act seeking damages for personal injuries and property damage sustained by the plaintiffs in a car accident that occurred on September 21, 1958. On that evening plaintiff Leopold W. Mahler was operating an automobile in a westerly direction on the Penn Lincoln Parkway on the extreme right-hand lane. Plaintiffs Helen E. Mahler and Bertha Ebertsheim were passengers in his automobile. The weather was clear and the road was dry. Plaintiff Leopold Mahler was operating his vehicle at a speed of approximately 35 MPH upon the parkway, which is at this point a six-lane concrete highway, three lanes in each direction. When he had reached a point approximately 500 feet west of the Bates Street Exit, and proceeding toward the ramp leading toward the Boulevard of the Allies, a large rock, together with other smaller rocks, earth, and debris, it is alleged, suddenly and without warning fell or rolled down from the hillside immediately on the right side of the Parkway directly in front and onto the front end of plaintiffs' automobile. There was a collision causing serious injuries to the plaintiffs.
The plaintiffs propose to offer evidence that this hillside was dangerous, and that it was of such a nature that it had a tendency to form fissures resulting in rock falls and slides, that knowing this there should have been precautions taken that were not taken.
The Government has filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C. asserting that the complaint does not state a cause of action against the United States, for the reason that the claim is based on the discretionary function exception of the Tort Claims Act, 28 U.S.C. 2680(a), and that Section 7 of the Federal Road Act, 23 U.S.C. § 48,
excepts the United States from liability. There have been extensive arguments and voluminous briefs filed in this case. The question before the Court is very clear and rather simple. Its answer, however, is neither clear nor is it simple. The issue is whether under the facts, as we have attempted to set them forth, the United States may be held liable for this accident. The Government seems to assert that it is exempt from liability in this case due to the discretionary function exception to the Federal Tort Claims Act. However, it appears to this Court that the most logical way to approach this is to review this rather complex total relationship alleged here in its simplest terms. For in order to hold anyone liable in any type of tort relationship there first must be a duty owed to a person who is injured. There must be a breach of that duty, the breach must come about as a result of negligent activities, and that negligence should be the proximate cause of the accident and injury on which the complainant seeks redress. This is, of course, subject to the age-old theory of contributory negligence, and then all of those are subject to those exceptions that would immune someone from liability that would otherwise be imposed. Many of these are familiar to us, such as, the charitable institutions, and the immunity of the sovereign. Here the immunity of the sovereign -- the United States -- has been waived, except in certain situations, but before we can decide whether there has been a waiver of the Government's immunity or whether the act is an exception to the waiver, we should first determine whether there is a duty owed by the United States to this plaintiff. Therefore, we must determine what is the duty that the United States owes to this plaintiff, and how has it breached that duty?
In order to determine whether there is any duty owed to this plaintiff, the Tort Claims Act directs that liability be imposed on the government where there is a negligent or a wrongful act or omission of any employee of the government while acting within the scope of his office or employment, 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). This means that there must be liability under the law of the state in which the wrongful act allegedly took place.
The plaintiffs assert that the duty owed by the United States to them arises under the provisions of the statutes dealing with the federal aid to highways.
At 23 U.S.C. § 13, the Act provides that all
'The construction * * * and all contracts, plans, specifications, and estimates relating thereto, shall be undertaken by the State Highway Departments subject to the approval of the Secretary of Agriculture. The construction and reconstruction work and labor in each State shall be done in accordance with its laws and under the direct supervision of the State Highway Department, subject to the inspection and approval of the Secretary of Agriculture and in accordance with the rules and regulations pursuant to this chapter.'
The plaintiffs take the position that this section requires inspection approval of contracts, plans, specifications and estimates relating to the construction. They urge that this is a mandatory requirement of the law. Then they urge that under § 114(a) of Title 23 U.S.C.A. it is a mandatory duty on the part of the Secretary of Agriculture to inspect and approve the work of the State highway departments.
The act further provides that if at any time the Secretary of Agriculture shall find that any road in any state is not being properly maintained, he shall give notice of such fact to the highway department of such state, and if within four months the road has not been put in a proper condition of maintenance, he shall thereafter refuse to approve any project for road construction in this state. See 23 U.S.C. § 48.
In attempting to determine this motion, we have been met immediately by the assertion of the Government that they are immune from liability under the Federal Tort Claims Act because of the so-called discretionary function. And, on the other hand, we are met by the assertion of the plaintiffs that the Federal Highway Act imposes a liability that is mandatory. We cannot agree with either side as to the approach to this problem.
Assuming as we must for the purposes of this motion that employees of the federal government were negligent in carrying out their duties imposed under the federal highway program, is such negligence the basis for liability under the Tort Claims Act?
The Restatement of the Law of Torts has been followed by the Supreme Court of Pennsylvania, and would appear to contain the principles of law which the Supreme Court in enunciating the tort law in the Commonwealth of Pennsylvania would follow. Section ...