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Conrad v. United States

United States District Court, D. South Carolina, Charleston Division

March 22, 2017

Franklin Delano Conrad, II, Plaintiff,
United States of America, Defendant. v.


          Richard Mark Gergel United States District Court Judge

         This matter is before the Court on Defendant's renewed motion to dismiss for lack of subject matter jurisdiction based on the discretionary function exception to the Federal Tort Claims Act ("FTCA"). (Dkt No. 61.) For the reasons set forth below, the Court denies Defendant's renewed motion to dismiss.

         I. Facts

         Plaintiff, an agent with the South Carolina Law Enforcement Division, participated in a maritime tactical operations training program ("MTOTP") conducted at the Federal Law Enforcement Training Center ("FLETC") in North Charleston, South Carolina in August 2012. The purpose of the MTOTP was to train students on tactical boarding procedures for "High Interest/High Threat Vessels." (Dkt. No, 21 at 2.)

         On August 22, 2012, the third day of the four and one half day program, the program called for students to climb the exterior of a 29-foot high structure[1] using a lightweight flexible ladder used to board ships. (Id.) Participants were to complete three climbs, the first solo[2] without tactical gear, the second solo in full tactical gear, and the third in full tactical gear with multiple students on the ladder. (Dkt. No. 21-3 at 9.) Plaintiff was attempting his second climb in full tactical gear when, at about 22 feet high, he struggled, lost his grip, and fell.

         The safety strap used in the program did not have an automatic fall arrest mechanism; participants had to manually clip the safety strap to the ladder when they needed to rest. Plaintiff had clipped his safety strap to the ladder twice during the climb when he became fatigued but did not clip in prior to losing his grip and falling. (Dkt. No. 21 at 2-3.) Although the program designers had positioned a high jump mat at the base of the building to catch participants who might fall, when Plaintiff fell, his body landed on only a portion of the mat and rolled off and onto the ground. Plaintiff was initially unconscious for 3-5 minutes following the fall and was tended to by emergency medical personnel. He was then transferred to MUSC Hospital for treatment. (Dkt. No. 21-3 at 8, 13, 18, 19, 20).

         Following this incident, the Site Director of the FLETC facility requested a Training Accident Investigation Team ("TAIT") initiate a formal investigation into the circumstances leading to Plaintiff s fall and the effectiveness of the safety methods that had been utilized in the MTOTP. The report found that the program's hazard avoidance procedures and measures were deficient for their failure to include "an automatic fall arrest mechanism . . . that required no student deployment" and a high jump mat system that was "suitable to handle a fall." The report concluded that "[t]here was limited and inadequate testing and evaluation done when determining the ... safety mitigation for this area of training." (Dkt. No. 21-3 at 4, 5, 17, 18, 20, 23).

         II. Legal Standard

         A. Subject Matter Jurisdiction

         A Defendant may challenge subject matter jurisdiction by contending 1) that the complaint fails to allege facts sufficient to establish subject matter jurisdiction or 2) "that the jurisdictional allegations of the complaint [are] not true." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). If the Defendant challenges the sufficiency of the jurisdictional allegations on the face of the complaint, Plaintiff receives the same procedural protections afforded under Rule 12(b)(6): "the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction." Kerns v. United States, 585 F.3d 187, 192 (2009). If, however "the defendant challenges the factual predicate of subject matter jurisdiction, " a district court may hold an evidentiary hearing to consider the relevant facts. Id. In that case, Plaintiffs allegations are not presumed to be truthful, and the district court may "decide disputed issues of fact with respect to subject matter jurisdiction." Id.

         When, upon considering a motion to dismiss, a Court finds that "the jurisdictional facts and the facts central to a tort claim are inextricably intertwined, " Defendant has indirectly challenged Plaintiffs claims on the merits. Id. at 193. When that is the case, "the trial court should ordinarily assume jurisdiction and proceed to the intertwined merits issues." Id. This procedure promotes judicial economy, ensures that Plaintiffs allegations benefit from the presumption of truthfulness, and grants Plaintiff the "procedural safeguards - such as discovery -that would apply" if Plaintiff faced a direct challenge on the merits. Id.

         B. Discretionary Function Exception to the Federal Tort Claims Act

         The FTCA authorizes lawsuits against the United States for wrongful acts or omissions of federal employees acting within the scope of their office in circumstances where a private person would be liable for similar claims in the jurisdiction where the claim arose. 28 U.S.C. § 1346(b). Under the FTCA, the Government cannot be held liable for actions that fall within its discretionary function, an exception based on the premise that the judiciary should not "second guess" policy choices of the ...

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