Immunity from tort liability does not apply if the action was mandated by law or
regulation. These acts are not discretionary in nature, but ministerial.
Ministerial tasks are those that do not require an official's discretion because
they either follow a predetermined plan and cannot be changed, such as
following a health department checklist regulation, or they do not involve any
special expertise, such as driving a car. If a law or a regulation dictates a
government employee’s course of action, that employee will be subject to
liability for failure to comply. Also, if the government builds and operates
something, then it has a ministerial duty to maintain it, and will be liable for
failing to do so.
Berkovitz v. U.S., 486 U.S. 531 (1988)
is an important case on the discretionary
function applied to the FTCA, and contrasts with
Varig. There, a polio vaccine
taken by plaintiff's infant son resulted in the child contracting the disease and
becoming paralyzed as a result. A unanimous Supreme Court allowed the
plaintiffs to recover under the FTCA when the federal government failed to
follow its own regulations for approving the polio vaccine. The determination of
how to test the polio vaccine was a discretionary function because it involved
an element of choice or judgment on the employee's part. For this, the
government could not be held liable under the FTCA. Once a regulation was
made on how to test the vaccine, employee discretion was taken away and the
function became ministerial. Therefore, immunity did not apply because the
government has a duty to follow its own regulations.
Because the discretionary exception is meant to shield the government from
liability for actions that require judgment according to public policy, the
government was not liable in Varig but liable in
Berkovitz. The regulatory
scheme in Varig gave the agency broad powers to inspect aircraft in a manner
it deemed best with the resources the agency possessed. The employee in
Berkovitz, however, had no discretion to approve a bad batch of polio vaccine.
To further illustrate: A wrongful death suit (tort) was brought against the
federal government arising out of the actions of emergency personnel in a
national park accident. The plaintiff alleged that emergency personnel did not
properly stabilize the victim, did not properly administer CPR, and did not have
the necessary equipment at the rescue site. Properly stabilizing the victim and
administering CPR was not a discretionary function, and those claims were
allowed under the FTCA. The court said the federal government is not immune
from claims which challenge the actual administration of medical care by its
employees, when the claims do not concern actions which are the product of
judgment driven by consideration of competing policy- based choices. The
failure of the emergency workers to have certain equipment on hand was a
decision of which park stations should possess certain equipment. Not every
park station could have the equipment because it was too expensive.
Therefore, it was a discretionary function and the claim was not allowed. The
National Park Service's decision as to the stationing of emergency medical
technicians at various locations in the park is a protected discretionary
function, but the technicians' rendering of medical services is not. Fang v. U.S
.,
140 F.3d 1238 (9th Cir. 1998).
Contrast this holding of immunity with another case involving a lab worker’s
exposure to rabies, which caused severe and permanent brain damage. The
accident occurred in a state run lab, under the supervision of both a state
doctor and a federal (CDC) doctor. The claim against the federal government
for failure to warn of the dangers of the experiment fell under the FTCA, and
was not a discretionary function. Therefore, the federal government was not
immune.[
Andrulonis v. U.S., 952 F.2d 652 (2nd Cir. 1991)
]
