Alvin H. WRIGHT et al., Plaintiffs-Appellees, v. UNITED STATES of America et al., Defendants-Appellants, 568 F.2d 153

BARRETT, Circuit Judge. Appellant, United States, seeks review of an adverse judgment following trial to the court in a wrongful death action brought under the Federal Tort Claims Act (28 U.S. C.A. § 1346).

Such actions may be maintained against the United States “for injury or loss of property, or personal injury or death caused by the negligent or 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.” In the early 1960’s the State of Utah Highway Department initiated plans for the construction of a bridge on Highway 262 over McElmo Creek in San Juan County, Utah.

Thereafter, due to a lack of funds on the part of the State, the Bureau of Indian Affairs (BIA) of the Department of the Interior was asked to help with the construction of the bridge. In 1964, utilizing Utah’s designs for the bridge, and its own designs for the approach roads, the BIA built the bridge, with the State of Utah controlling and deciding upon its location and placement. Upon completion of the bridge and the approaches, and the final paving by the State of Utah, the bridge and approaches were accepted into the highway system for the State of Utah in 1965.

Utah, at that time, assumed full and sole responsibility for maintaining the bridge and approach roads. Five years later commencing September 4, 1970, and continuing through September 5, 1970, a rainfall of record proportion in the area of the bridge precipitated flooding, which caused portions of the approach roads to the bridge to be washed away. On September 5, 1970, Richard and Nancy Fellars were killed when, apparently unable to traverse the washed out approach road, their car went out of control and into McElmo Creek.

Plaintiffs, guardians of the Fellars’ children and executor of their estates, brought this action alleging, inter alia, that the defendant, United States, by and through its agents, had “negligently designed, placed, located, constructed, inspected and managed the McElmo Creek Bridge and its approaches and that as a result of the aforesaid negligence the Fellars were wrongfully killed.

United States denied negligence and argued that the accident was caused by the Fellars’ own negligence, that the Fellars assumed the risk of the accident in question, that the accident resulted from unforeseen extraordinary natural forces, and that the accident was unavoidable. At trial each side presented numerous witnesses relative to the design, construction, and location of the bridge and the approach roads, a diversionary works placed upstream from the bridge and approaches, and the size and nature of the storm which precipitated the Fellars’ accident.

The testimony alone encompasses over 1,000 pages of the record on appeal. After all the evidence was submitted, the trial court found the United States negligent and awarded plaintiffs damages totaling $230,400.

In so doing, the trial court found, inter alia, that the bridge and approaches thereto were negligently designed and constructed without adequate or reasonable concern for hazards that would be created during floods, that the approaches were improperly constructed of finely grained material inadequate to prevent erosion by flood materials, that the diversionary works were poorly designed and constructed and not adequately maintained, that a reasonably prudent engineer would not have placed the bridge over the low flow channel but would have located the bridge so as to cross over the flood channel, that the defendants’ negligence was the proximate cause of the flood breaking through the approach road, that there was no credible evidence to indicate that the Fellars were negligent, that having opted to construct the bridge and approach roads the defendants were chargeable with performing same in a non-negligent manner, and that the State of Utah’s acceptance and maintenance of the bridge and the approaches “did not constitute independent, intervening causes which would break the chain of causation between the negligent acts of defendants’ agents and the deaths of the Fellars.” On appeal United States contends that: (1) the trial court was clearly erroneous in finding it negligent; (2) the September 4-5, 1970, flood was

an act of God which relieved it of any liability; (3) the subsequent acceptance and maintenance of the bridge and approaches by the State of Utah relieved it of any liability; (4) the liability of the United States is barred by the “discretionary function” exception to the Federal Tort Claims Act; and (5) 33 U.S.C. § 702c immunizes it from any liability caused by floods. Because of their dispositive nature, only issues (1), (3) and (4) will be discussed. I. United States contends that the trial court was clearly erroneous in finding it negligent.

Under Fed.R.Civ.Proc. rule 52(a), 28 U.S.C.A., findings of a trial court will not be disturbed on appeal unless they are held to be clearly erroneous. Volis v. Puritan Life Insurance Company, 548 F.2d 895 (10th Cir. 1977); Joyce v. Davis, 539 F.2d 1262 (10th Cir. 1976). Courts of appeals must view evidence and all reasonable inferences therefrom in the light most favorable to the prevailing party. Joyce v. Davis, supra; Hart v. Western Investment and Development Company, 417 F.2d 1296 (10th Cir. 1969).

Findings of a trial court are, necessarily, presumed correct and will not be reversed unless they are clearly erroneous. Quarles v. Fuqua Industries, Inc., 504 F.2d 1358 (10th Cir. 1974). Applying these standards to the facts of the case at bar, and ever mindful that appellate courts cannot try cases de novo, Ahern v. Veterans Administration, 537 F.2d 1098 (10th Cir. 1976), we hold that the trial court was clearly erroneous in finding the United States negligent. David Sargent, Chief Structural Engineer for the State of Utah Highway Department at the time of the accident, testified that: Q.

Did you have ultimate responsibility for the design of the bridge. A. I had ultimate responsibility. [R., Vol. IV, p. 617.] Sargent further testified that Utah not only designed the bridge but it also controlled the location and placement of the bridge: Q. Now, you’re familiar with what we’ve been referring to as a high flow channel? A. Yes. Q. Was there any discussion of placing the bridge over that channel? A. There very likely was. I do not recall any specific discussion. Q. Who had the ultimate decision in determining the placement of the McElmo Creek bridge? A.

As a chief structural engineer, I would have to assume that responsibility. [R., Vol. IV, p. 629.] The bridge was designed by the State of Utah to withstand a flood of a calculated magnitude that would occur only once every 25 years. Ward Morby, hydraulic engineer for the State of Utah at the time of the accident, testified that: Q. Did you perform a hydraulic design with respect to the McElmo Creek bridge? A. Yes. Q. Was that design prepared under your direction? A. Yes, it was. Q. What hydraulic information did you consider necessary for examination? A.

First of all, we would, of course, work out the hydrologic data. This is the place you would normally start this type of an investigation. Q. What hydrologic data did you work up? A. We were to arrive at a design for this particular crossing that was selected for a 25-year design frequency. Q. Why was a 25-year design frequency selected? A. This was the design frequency that the Highway Department felt that they could justify expending their funds on for a road with the amount of traffic that the road would be subject to. % % * 4$ * * A.

Well, normally they felt — and I guess this is — you have to do based on experience you have — that they would not be justified or could not economically justify spending those additional funds for a higher design frequency than 25 years. [R., Vol. V., pp. 772-773.] The bridge was accordingly designed for a 25-year design frequency. The evidence presented at trial was that the storm in question generated a flow of 13,100 c.f.s. Such a flow would normally occur only once every 42 or 55 years. Plaintiff’s own expert also acknowledged that the bridge, as designed, would withstand a 10-20,000 c.f.s. flow.

Under these circumstances, and in view of the utilization of the available expert hydrological and geographical data, we cannot hold that the State of Utah was negligent in designing the bridge in the manner it did, or that the United States was negligent in utilizing such a design and placing it in the location directed by the State of Utah.

Further, in consideration of these circumstances we also hold that the BIA was not negligent in designing and constructing the approach roads for the bridge, since the design of the bridge over the low flow channel required that the approach roads be placed in the flood channel. Sargent testified: Q. Mr. Sargent, you were actually aware of the location of the high channel when you designed the bridge, were you not? A. Yes. Q. And yet the bridge was not placed over that high channel, was it? A. No. Q. Did you not make that ultimate determination not to place it over the high channel? A.

Well, I’ve answered earlier that I’ll assume that responsibility, yes, sir. Q. Now, if the bridge were not placed there, did you know that the approaches would have to go in that high water channel? A. Yes. [R., Vol. IV, pp. 649-650.] The design and location of the bridge dictated the location of the approach roads. Accordingly, we hold that the United States was not negligent in designing and constructing the approach roads when, (

a) the plans for the approaches were approved by the district engineer for the State of Utah Highway Department, and (

b) the design and construction of the approach roads were in accordance with the applicable federal specification requirements as delineated in “FP-61 — Standard Specifications for Construction of Roads and Bridges on Federal Highway Projects, January, 1961”, U.S. Department of Commerce, Bureau of Public Roads. It is particularly significant, we believe, that the State of Utah undertook all of the final paving for the bridge and the approaches and thereafter assumed full and sole responsibility for maintenance of the bridge and its approaches after accepting them into the state highway system. II.

United States contends that the subsequent acceptance and maintenance of the bridge and its approaches by the State of Utah relieved it of any liability. In Federal Tort Claims Act suits the law of the place where the alleged negligent conduct or omission occurred must be applied. Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); 1 Barron & Holtzoff (Wright Ed.), § 54, pp. 294-297; Ahern v. Veterans Administration, supra. The United States here may be likened, for purposes of liability, to the independent contractor in Leininger v.

Stearns-Roger Manufacturing Company, 17 Utah 2d 37, 404 P.2d 33 (1965). The court there opined that a contractor is not liable for-resultant injuries if he has merely carried out plans, specifications and directions given to him by an employer, at least when the plans are not so obviously dangerous that no reasonable man would follow them. The court said: This court is familiar with the general rule as to the non-liability of an independent contractor after the acceptance of the work by the owner, as well as with the exceptions to this rule and the so-called “modern view.” 13 A.L.R.2d 195, 58 A.L.R.2d 869.

However, each case must be decided on the basis of its own facts and seldom are two cases identical. The so-called “modern view” has the effect of applying to construction contractors the landmark standard promulgated in MacPherson v. Buick Motor Company, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696, but does not have the effect of making the contractor absolutely liable to third persons if the contralor was free of negligence.

An important limitation on the rule placing building contractors on the same footing as sellers of goods is that the contractor is not liable if he has merely carried out the plans, specifications and directions given him, since in that case the responsibility is assumed by the employer, at least when the plans are not so obviously dangerous that no reasonable man would follow them. The rule, as stated in Ryan v. Feeney & Sheehan Bldg. Co., 239 N.Y. 43, 145 N.E. 321, 41 A.L.R. 1 (1924), which is the same court which earlier had decided MacPherson v.

Buick, supra, is as follows: * * * A builder or contractor is justified in relying upon the plans and specifications which he has contracted to follow, unless they are so apparently defective that an ordinary builder of ordinary prudence would be put upon notice that the work was dangerous and likely to cause injury. And this rule was followed and cited approvingly by Judge Learned Hand in Person v. Cauldwell-Wingate Co., 2 Cir., 187 F.2d 832, cert. den. 341 U.S. 936, 71 S.Ct. 855, 95 L.Ed. 1364 (1951). See also: Russell v. Arthur Whitcomb, Inc., 100 N.H. 171, 121 A.2d 781; Tipton v.

Clower, 67 N.M. 388, 356 P.2d 46; Trustees of the First Baptist Church of Corinth v. McElroy, 223 Miss. 327, 78 So.2d 138; Davis v. Henderlong Lumber Company, D.C., 221 F.Supp. 129 (1963). (Emphasis supplied.) 404 P.2d at p. 36. We hold that under Leininger, supra, the United States cannot be held liable, considering all of the facts and circumstances in this record, for any accident which resulted from the design and construction of the approach roads since Utah designed and located the bridge and Utah subsequently accepted and agreed to maintain the bridge and approach roads. III.

United States further contends that its liability is also barred by the “discretionary function” exception to the Federal Tort Claims Act under § 2680(a). We agree. 28 U.S.C.A., § 2680(

a) provides: The provisions of this

chapter and

section 1346(

b) of this title shall not apply to— (

a) Any claim based upon

an act or omission of an employee of the Government, exercising due care in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. The actions of the Bureau of Indian Affairs of the Department of the Interior in aiding Utah in the construction of the bridge and approach roads were clearly actions “in the execution of a statute.” 23 U.S.C.A., § 208 provides inter alia: (

a) Funds available for Indian reservation roads and bridges shall be used to pay for the cost of construction and improvement thereof. * # sfc * * * (

d) Cooperation of States, counties, or other local subdivisions may be accepted in such construction and improvement Actions performed under statutory authorizations such as § 208, supra, were intended to fall within the “discretionary exemption” of the Tort Claims Act. In Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), the Supreme Court significantly opined: . On the other hand the Committee’s reports explain the boundaries of the sovereign immunity waived, as defined by this § 2680 exception, with one paragraph which appears time and again after 1942, and in the House Report of the Congress that adopted in § 2680(

a) the limitation in the language proposed for the 77th Congress. It was adopted by the Committee in almost the language of the Assistant Attorney General’s explanation.

This paragraph characterizes the general exemption as “a highly important exception, intended to preclude any possibility that the bill might be construed to authorize suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any Government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious .

The bill is not intended to authorize a suit for damages to test the validity of or provide a remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion. (Emphasis supplied.) 346 U.S. at pp. 28-30, 73 S.Ct. at p. 964. The court in Dalehite, supra, further expounded on the breadth of the “discretionary exception”: It is unnecessary to define, apart from this case, precisely where discretion ends.

It is enough to hold, as we do, that the “discretionary function or duty” that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also 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. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable. If it were not so, the protection of § 2680(

a) would fail at the time it would be needed, that is, when a subordinate performs or fails to perform a causal step, each action or nonaction being directed by the superi- or, exercising, perhaps abusing, discretion. (Emphasis supplied.) 346 U.S. at pp. 35, 36, 73 S.Ct. at p. 968. See also: First National Bank In Albuquerque v. United States, 552 F.2d 370 (10th Cir. 1977).

Thus, § 2680, supra, as interpreted in Dalehite, supra, and recognized by this court in First National Bank In Albuquerque, supra, broadly applies the “discretionary exemption” to liability under the Tort Claims Act to include not only the “initiation of programs and activities,” but also “determinations made by executives or administrators in establishing plans, specifications or schedules of operations.” Applying these standards to the facts herein, we hold that the Bureau of Indian Affairs was engaged in a “discretionary function” when it determined to aid and assist the State of Utah in the construction of the bridge and approach roads as authorized under 23 U.S.

C.A., § 208. In Tort Claims actions we must be mindful that the United States is liable as an individual only in the manner and to the degree to which it has consented. United States v. Gregory, 300 F.2d 11 (10th Cir. 1962); Powell v. United States, 233 F.2d 851 (10th Cir. 1956). The “discretionary function” exemption to tort liability is auxiliary to the government’s ability to formulate and implement policy.

It is within this frame of reference that we have previously held that the United States cannot be held liable for damages to a marina owner for the drawdown of water from a flood control reservoir, Spillway Marina, Inc. v. United States, 445 F.2d 876 (10th Cir. 1971), or for damages for following its contract specifications (density to which earth backfills must be compacted) where subsequent flooding damaged property. Irzyk v. United States, 412 F.2d 749 (10th Cir. 1969).

We thus hold that the Bureau’s decision to aid and assist the State of Utah in constructing the bridge and approach ways in this case comes within the discretionary exemption of the Tort Claims Act. Accordingly, neither its adoption or implementation of “plans, specifications, or schedules of operations” for the project gave rise to a viable cause of action under the Act. REVERSED. .

One of the plaintiff’s expert witnesses did testify that in his opinion a storm of the September 4-5, 1970, size would reoccur every 15 to 17 years but that also, in his opinion, there was not much hydrological data available when the bridge was designed and that a significantly larger record “would be necessary to adequately design such a project.” . The record fails to disclose that compliance with these standards gives rise to negligent construction or design.