Ministerial Tasks
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) ]