Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
2. Exception swallowing the rule? The discretionary function exception sometimes seems to
undo FTCA liability altogether. Is there really a negligence maintenance claim that could survive
the Baum court? Consider the Sixth Circuit case Rosebush v. United States, in which a child fell
into a fire pit at a national park campsite maintained by the Forest Service. The majority in
Rosebush held that the choice of whether to install a grating or railing over the fire pit fell within
the discretionary function exception. Dissenting Judge Gilbert Merritt had this to say about the
exception:
Our Court’s decision in this case means that the discretionary function exception
has swallowed, digested and excreted the liability-creating sections of the Federal
Tort Claims Act. It decimates the Act.
. . .
I do not agree that the Forest Service’s decision regarding whether to place a grating,
a railing, or a warning near a campfire pit is the kind of judgment that the
discretionary function exception was designed to shield. In Gaubert, the Supreme
Court explained that the discretionary function exception protects only
governmental actions and decisions “grounded in the policy of the regulatory
regime.” The reasoning behind the exception was to “prevent judicial ‘second
guessing’ of legislative and administrative decisions grounded in social, economic,
and political policy through the medium of an action in tort.” Although I agree with
the majority that safety precautions involve some judgment, I do not agree that the
decision of the United States Forest Service in this case is grounded in the “policy
of the regulatory regime.” I fail to see a social, economic, or political policy behind
a decision regarding whether to place gratings or railings or signs near a fire pit to
make it safer for the public.
Rosebush v. U.S., 119 F.3d 438 (6th Cir. 1997).
3. Other exceptions to the FTCA. The discretionary function exception is not the only
exception to the FTCA’s waiver of sovereign immunity. 28 U.S.C. § 2680. The FTCA also
excludes, inter alia, certain claims “arising in respect of the assessment or collection of any tax or
customs duty, or the detention of . . . property by any officer of customs or excise or any other law
enforcement officer,” 28 U.S.C. §2680(c); certain intentional tort claims against “law enforcement
officers,” 28 U.S.C. § 2680(h); “[a]ny claim arising out of the combatant activities of the
military . . . during a time of war,” 28 U.S.C. § 2680(j); and “[a]ny claim arising in a foreign
country,” 28 U.S.C. § 2680(k).
Recent Supreme Court decisions clarify the boundaries of these exceptions. In Ali v. Fed.
Bureau of Prisons, 552 U.S. 214 (2008), the Court ruled that the detention of property exception
covers all law enforcement officers, not only those who enforce customs or excise laws.
Similarly, in Millbrook v. United States, 569 U.S. 50 (2013), the Court ruled that the FTCA’s
intentional tort exception extends all acts or omissions that arise within the scope of a law
enforcement officer’s employment, regardless of whether they are engaged in investigative or law
enforcement activity. In Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), the Court denied relief to
a Mexican alien who alleged that he was unlawfully abducted from Mexico and arrested in the
464