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CROSS BROS. MEAT PACKERS v. UNITED STATES

March 29, 1982

CROSS BROTHERS MEAT PACKERS
v.
UNITED STATES



The opinion of the court was delivered by: GILES

MEMORANDUM

Plaintiff moves for reconsideration of my memorandum and order of March 12, 1982 dismissing this action for lack of subject-matter jurisdiction. I have considered the new arguments advanced by plaintiff, and for the reasons which follow, I decline to modify the dismissal.

 Plaintiff seems to rely on Blessing for two propositions: first, that plaintiff here can advance the identical federal tort claim as the Blessing plaintiff; and second, that like the Blessing claims, the claims here are within federal jurisdiction. Plaintiff's reliance is unavailing.

 The first contention is both wrong and irrelevant. It is wrong because the Blessing claim is not "exactly the type of claim that Cross Brothers is making at the case at bar." *fn3" The good-Samaritan rule (which formed the legal basis for the Blessing claim) creates liability for "physical harm." Restatement, supra, §§ 323 & 324 A; see id. § 324 ("bodily harm"). Plaintiff here alleges that negligently incorrect meat grading resulted in economic harm. Plaintiff does not contend that the USDA meat inspectors failed to discover diseased meat, or that they damaged the meat by indelicately applying grading stamps, or by other negligence. *fn4"

 Moreover, whether plaintiff states a claim is irrelevant to the ground for dismissal-that the misrepresentation exception deprives this court of jurisdiction. It is difficult, if not impossible, to articulate a universal test distinguishing negligence actionable under the FTCA from misrepresentation, over which this court has no jurisdiction. The reason for the difficulty is that negligence and misrepresentation are often overlapping, rather than distinct, torts. See, e.g., Restatement, supra, § 525 (negligent misrepresentation). The best tests I can devise are those asking: (1) whether the underlying wrongful or dangerous condition existed without the misrepresentation; (2) whether the harm could have resulted without a government representation; or (3) whether plaintiff was harmed through reliance on a misrepresentation. *fn5"

 Regardless how the test is phrased, this complaint fails. First, the only wrongful condition created by government agents was misrepresentation, i.e., allegedly incorrect grades. Second, plaintiff could not have been harmed without some representation of the quality of the meat. Third, plaintiff was harmed through reliance on the misrepresentation.

 Blessing does not offer a conflicting test. Indeed, it is inapposite; the misrepresentation exception was neither briefed by the parties nor raised by Judge Becker. Thus Blessing offers no test of misrepresentation. Neither does plaintiff. The decisive (and difficult) legal problem in this case is to devise a test allowing the court to pierce the pleadings and separate cases of true negligence from those which are merely misrepresentation in negligence's clothing. Plaintiff has failed to come to grips with this issue. I have reviewed plaintiff's other new arguments why this action is not one for misrepresentation, and find them unconvincing. Thus, there is no substantive ground for reversing my earlier decision.

 The motion for reconsideration is ...


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