Damage from sonic boom caused by military planes, where no
negligence was shown either in the planning or operation of the
flight, is not actionable under the Federal Tort Claims Act, which
does not authorize suit against the Government on claims based on
strict or absolute liability for ultrahazardous activity.
Dalehite v. United States, 346 U. S.
15. Pp.
406 U. S.
798-803.
442 F.2d 1163, reversed.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and WHITE, MARSHALL, BLACKMUN, and POWELL, JJ.,
joined. STEWART, J., filed a dissenting opinion, in which BRENNAN,
J., joined,
post, p.
406 U. S. 803.
DOUGLAS, J., took no part in the consideration or decision of the
case.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents brought this action in the United States District
Court under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-2680. They sought recovery for property damage allegedly
resulting from a sonic boom caused by California-based United
States military planes flying over North Carolina on a training
mission. The District Court entered summary judgment for
petitioners, but, on respondents' appeal, the United States Court
of
Page 406 U. S. 798
Appeals for the Fourth Circuit reversed. That court held that,
although respondents had been unable to show negligence "either in
the planning or operation of the flight," they were nonetheless
entitled to proceed on a theory of strict or absolute liability for
ultrahazardous activities conducted by petitioners in their
official capacities. That court relied on its earlier opinion in
United States v. Praylou, 208 F.2d 291 (1953), which, in
turn, had distinguished this Court's holding in
Dalehite v.
United States, 346 U. S. 15,
346 U. S. 45
(1953). We granted certiorari. 404 U.S. 1037.
Dalehite held that the Government was not liable for
the extensive damage resulting from the explosion of two cargo
vessels in the harbor of Texas City, Texas, in 1947. The Court's
opinion rejected various specifications of negligence on the part
of Government employees that had been found by the District Court
in that case, and then went on to treat petitioners' claim that the
Government was absolutely or strictly liable because of its having
engaged in a dangerous activity. The Court said with respect to
this aspect of the plaintiffs' claim:
"[T]he Act does not extend to such situations, though of course
well known in tort law generally. It is to be invoked only on a
'negligent or wrongful act or omission' of an employee. Absolute
liability, of course, arises irrespective of how the tortfeasor
conducts himself; it is imposed automatically when any damages are
sustained as a result of the decision to engage in the dangerous
activity."
346 U.S. at
346 U. S.
44.
This Court's resolution of the strict liability issue in
Dalehite did not turn on the question of whether the law
of Texas or of some other State did or did not recognize strict
liability for the conduct of ultrahazardous activities. It turned
instead on the question of whether the language of the Federal Tort
Claims Act permitted,
Page 406 U. S. 799
under any circumstances, the imposition of liability upon the
Government where there had been neither negligence nor wrongful
act. The necessary consequence of the Court's holding in
Dalehite is that the statutory language "negligent or
wrongful act or omission of any employee of the Government," is a
uniform federal limitation on the types of acts committed by its
employees for which the United States has consented to be sued.
Regardless of state law characterization, the Federal Tort Claims
Act itself precludes the imposition of liability if there has been
no negligence or other form of "misfeasance or nonfeasance," 346
U.S. at
346 U. S. 45, on
the part of the Government.
It is at least theoretically possible to argue that, since
Dalehite, in discussing the legislative history of the
Act, said that "wrongful" acts could include some kind of trespass,
and since courts imposed liability in some of the early blasting
cases on the theory that the plaintiff's action sounded in
trespass, liability could be imposed on the Government in this case
on a theory of trespass which would be within the Act's waiver of
immunity. We believe, however, that there is more than one reason
for rejecting such an alternate basis of governmental liability
here.
The notion that a military plane on a high-altitude training
flight itself intrudes upon any property interest of an owner of
the land over which it flies was rejected in
United States v.
Causby, 328 U. S. 256
(1946). There, this Court, construing the Air Commerce Act of 1926,
44 Stat. 568, as amended by the Civil Aeronautics Act of 1938, 52
Stat. 973, 49 U.S.C. § 401, said:
"It is ancient doctrine that, at common law, ownership of the
land extended to the periphery of the universe --
Cujus est
solum ejus est usque and coelum. But that doctrine has no
place in the modern world. The air is a public highway, as Congress
has declared.
Page 406 U. S. 800
Were that not true, every transcontinental flight would subject
the operator to countless trespass suits. Common sense revolts at
the idea. To recognize such private claims to the airspace would
clog these highways, seriously interfere with their control and
development in the public interest, and transfer into private
ownership that to which only the public has a just claim."
328 U.S. at
328 U. S.
260-261.
Thus, quite apart from what would very likely be insuperable
problems of proof in connecting the passage of the plane over the
owner's air space with any ensuing damage from a sonic boom, this
version of the trespass theory is ruled out by established federal
law. Perhaps the precise holding of
United States v. Causby,
supra, could be skirted by analogizing the pressure wave of
air characterizing a sonic boom to the concussion that, on occasion
accompanies blasting, and treating the air wave striking the actual
land of the property owner as a direct intrusion caused by the
pilot of the plane in the mold of the classical common law theory
of trespass.
It is quite clear, however, that the presently prevailing view
as to the theory of liability for blasting damage is frankly
conceded to be strict liability for undertaking an ultrahazardous
activity, rather than any attenuated notion of common law trespass.
See Restatement of Torts §§ 519, 520(e); W. Prosser, Law
of Torts § 75 (4th ed.1971). While a leading North Carolina case on
the subject of strict liability discusses the distinction between
actions on the case and actions sounding in trespass that the
earlier decisions made, it, too, actually grounds liability on the
basis that he who engages in ultrahazardous activity must pay his
way regardless of what precautions he may have taken.
Guilford
Realty Ins. Co. v. Blythe Bros. Co., 260 N.C. 69,
131 S.E.2d
900 (1963).
More importantly, however, Congress, in considering the Federal
Tort Claims Act, cannot realistically be said
Page 406 U. S. 801
to have dealt in terms of either the jurisprudential
distinctions peculiar to the forms of action at common law or the
metaphysical subtleties that crop up in even contemporary
discussions of tort theory.
See Prosser,
supra at
492-496. The legislative history discussed in
Dalehite
indicates that Congress intended to permit liability essentially
based on the intentionally wrongful or careless conduct of
Government employees, for which the Government was to be made
liable according to state law under the doctrine of
respondeat
superior, but to exclude liability based solely on the
ultrahazardous nature of an activity undertaken by the
Government.
A House Judiciary Committee memorandum explaining the
"discretionary function" exemption from the bill when that
exemption first appeared in the draft legislation in 1942 made the
comment that "the cases covered by that subsection would probably
have been exempted . . . by judicial construction" in any event,
but that the exemption was intended to preclude any possibility
"that the act would be construed to authorize suit for damages
against the Government growing out of a legally authorized
activity, such as a flood control or irrigation project, where no
wrongful act or omission 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. . . ."
Hearings on H.R. 5373 and H.R. 6463 before the House Committee
on the Judiciary, 77th Cong., 2d Sess., ser. 13, pp. 65-66
(1942).
The same memorandum, after noting the erosion of the doctrine of
sovereign immunity over the years, observed with respect to the
bill generally:
"Yet a large and highly important area remains in which no
satisfactory remedy has been provided
Page 406 U. S. 802
for the wrongs of Government officers or employees, the ordinary
'common law' type of tort, such as personal injury or property
damage caused by the negligent operation of an automobile."
Id. at 39.
The type of trespass subsumed under the Act's language making
the Government liable for "wrongful" acts of its employees is
exemplified by the conduct of the Government agents in
Hatahley
v. United States, 351 U. S. 173,
351 U. S. 181.
Liability of this type under the Act is not to be broadened beyond
the intent of Congress by dressing up the substance of strict
liability for ultrahazardous activities in the garments of common
law trespass. To permit respondent to proceed on a trespass theory
here would be to judicially admit at the back door that which has
been legislatively turned away at the front door. We do not believe
the Act permits such a result.
Shortly after the decision of this Court in
Dalehite,
the facts of the Texas City catastrophe were presented to Congress
in an effort to obtain legislative relief from that body. Congress,
after conducting hearings and receiving reports, ultimately enacted
a bill granting compensation to the victims in question. 69 Stat.
707; H.R.Rep. No. 2024, 83d Cong., 2d Sess. (1954); S.Rep. No.
2363, 83d Cong., 2d Sess. (1954); H.R.Rep. No. 1305, 84th Cong.,
1st Sess. (1955); H.R.Rep. No. 1623, 84th Cong., 1st Sess. (1955);
S.Rep. No. 684, 84th Cong., 1st Sess. (1955). At no time during
these hearings was there any effort made to modify this Court's
construction of the Tort Claims Act in
Dalehite. Both by
reason of
stare decisis and by reason of Congress' failure
to make any statutory change upon again reviewing the subject, we
regard the principle enunciated in
Dalehite as controlling
here.
Since
Dalehite held that the Federal Tort Claims Act
did not authorize suit against the Government on claims
Page 406 U. S. 803
based on strict liability for ultrahazardous activity, the Court
of Appeals in the instant case erred in reaching a contrary
conclusion. While, as a matter of practice within the Circuit, it
may have been proper to rely upon
United States v.
Praylou, 208 F.2d 291, it is clear that the holding of the
latter case permitting imposition of strict liability on the
Government where state law permits it is likewise inconsistent with
Dalehite. Dalehite did not depend on the factual
question of whether the Government was handling dangerous property,
as opposed to operating a dangerous instrument but, rather, on the
Court's determination that the Act did not authorize the imposition
of strict liability of any sort upon the Government. Indeed, even
the dissenting opinion in
Dalehite did not disagree with
the conclusion of the majority on that point.
Our reaffirmation of the construction put on the Federal Tort
Claims Act in
Dalehite makes it unnecessary to treat the
scope of the discretionary function exemption contained in the Act,
or the other matters dealt with by the Court of Appeals.
Reversed.
MR. JUSTICE DOUGLAS, having heard the argument, withdrew from
participation in the consideration or decision of this case.
MR. JUSTICE STEWART, with whom MR. JUSTICE BRENNAN joins,
dissenting.
Under the Federal Tort Claims Act, the United States is liable
for injuries to persons or property
"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
Page 406 U. S. 804
accordance with the law of the place where the act or omission
occurred."
28 U.S.C. § 1346(b). The Court of Appeals in this case found
that the law of North Carolina renders a person who creates a sonic
boom absolutely liable for any injuries caused thereby, and that
finding is not challenged here. [
Footnote 1] And while the petitioners argue that the
conduct involved falls within one of the numerous express
exceptions to the coverage of the Act contained in § 2680,
[
Footnote 2] the Court today
does not reach that issue. Rather, the Court holds that the words
"negligent or wrongful act or omission" preclude the application to
the United States of any state law under which persons may be held
absolutely liable for injuries caused by certain kinds of conduct.
In my view, this conclusion is not justified by the language or the
history of the Act, and is plainly contrary to the statutory
purpose. I therefore dissent.
In the vast majority of cases in the law of torts, liability is
predicated on a breach of some legal duty owed by the defendant to
the plaintiff, whether that duty involves exercising reasonable
care in one's activities or refraining from certain activities
altogether. The law of most jurisdictions, however, imposes
liability for harm caused by certain narrowly limited kinds of
activities, even though those activities are not prohibited and
even though the actor may have exercised the utmost care. Such
conduct is "tortious" not because the actor is necessarily
blameworthy, but because society has made
Page 406 U. S. 805
a judgment that, while the conduct is so socially valuable that
it should not be prohibited, it nevertheless carries such a high
risk of harm to others, even in the absence of negligence, that one
who engages in it should make good any harm caused to others
thereby.
See generally 2 F. Harper & F. James, Law of
Torts 785-795, 815-816 (1956); W. Prosser, Law of Torts 44296 (4th
ed.1971).
While the doctrine of absolute liability is not encountered in
many situations even under modern tort law, it was nevertheless
well established at the time the Tort Claims Act was enacted, and
there is nothing in the language or the history of the Act to
support the notion that this doctrine alone, among all the rules
governing tort liability in the various States, was considered
inapplicable in cases arising under the Act. The legislative
history quoted by the Court relates solely to the "discretionary
function" exception contained in § 2680, an exception upon which
the Court specifically declines to rely. [
Footnote 3] As I read the Act and the legislative
Page 406 U. S. 806
history, the phrase "negligent or wrongful act or omission" was
intended to include the entire range of conduct classified as
tortious under state law. [
Footnote
4] The only intended exceptions to this sweeping waiver of
governmental immunity were those expressly set forth and now
collected in § 2680. [
Footnote
5] This interpretation was put upon
Page 406 U. S. 807
the Act by the legislative committee that recommended its
passage in 1946:
"The present bill would establish a uniform system . . .
permitting suit to be brought on
any tort claim . . . with
the exception of certain classes of torts
expressly
exempted from the operation of the act."
(Emphasis supplied.) H.R.Rep. No. 1287, 79th Cong., 1st Sess.,
3; S.Rep. No. 1400, 79th Cong., 2d Sess., 31.
See Peck,
Absolute Liability and the Federal Tort Claims Act, 9 Stan.L.Rev.
433, 441-450 (1957).
The Court rests its conclusion on language from
Dalehite v.
United States, 346 U. S. 15, where
a four-man majority of the Court, in an opinion dealing primarily
with the "discretionary function" exception, held the doctrine of
absolute liability inapplicable in that extremely unusual case
arising under the Federal Tort Claims Act. That language has been
severely criticized; [
Footnote
6]
Page 406 U. S. 808
it has not since been relied upon in any decision of this Court;
and it was rejected as a general principle by at least one Court of
Appeals less than a year after
Dalehite was decided.
United States v. Praylou, 208 F.2d 291, 295. Moreover,
Dalehite represented an approach to interpretation of the
Act that was abruptly changed only two years later in
Indian
Towing Co. v. United States, 350 U. S. 61. That
decision rejected the proposition that the United States was immune
from liability where the activity involved was "governmental,"
rather than "proprietary" -- a proposition that seemingly had been
established in
Dalehite. [
Footnote 7] And while the
Dalehite opinion
explicitly created a presumption in favor of sovereign immunity, to
be overcome only where relinquishment by Congress was "clear," 346
U.S. at
346 U. S. 331,
the Court in
Indian Towing recognized that the Tort Claim
Act "cuts the ground from under" the doctrine of sovereign
immunity, and cautioned that a court should not, "as a
self-constituted guardian of the Treasury, import immunity back
into a statute designed to limit it." 350 U.S. at
350 U. S. 65,
69.
See also Rayonier, Inc. v. United States, 352 U.
S. 315,
352 U. S.
319-320. These developments, together with an approving
citation of the
Praylou case in
Rayonier, supra,
at
352 U. S. 319
n. 2, have until today been generally understood to mean that the
language in
Dalehite rejecting the absolute liability
doctrine had been implicitly abandoned. [
Footnote 8]
Page 406 U. S. 809
The rule announced by the Court today seems to me contrary to
the whole policy of the Tort Claims Act. For the doctrine of
absolute liability is applicable not only to sonic booms, but to
other activities that the Government carries on in common with many
private citizens. Absolute liability for injury caused by the
concussion or debris from dynamite blasting, for example, is
recognized by an overwhelming majority of state courts. [
Footnote 9] A private person who
detonates an explosion in the process of building a road is liable
for injuries to others caused thereby under the law of most States,
even though he took all practicable precautions to prevent such
injuries, on the sound principle that he who creates such a hazard
should make good the harm that results. Yet if employees of the
United States engage in exactly the same conduct with an identical
result, the United States will not, under the principle announced
by the Court today, be liable to the injured party. Nothing in the
language or the legislative history of the Act compels such a
result, and we should not lightly conclude that Congress intended
to create a situation so much at odds with common sense and the
basic rationale of the Act. We recognized that rationale in
Rayonier, supra, a case involving negligence by employees
of the United States in controlling a forest fire:
"Congress was aware that, when losses caused by such negligence
are charged against the public treasury, they are, in effect,
spread among all those who contribute financially to the support of
the Government, and the resulting burden on each taxpayer
Page 406 U. S. 810
is relatively slight. But when the entire burden falls on the
injured party, it may leave him destitute or grievously harmed.
Congress could, and apparently did, decide that this would be
unfair when the public as a whole benefits from the services
performed by Government employees."
352 U.S. at
352 U. S.
320.
For the reasons stated, I would hold that the doctrine of
absolute liability is applicable to conduct of employees of the
United States under the same circumstances as those in which it is
applied to the conduct of private persons under the law of the
State where the conduct occurs. That holding would not, by itself,
be dispositive of this case, however, for the petitioners argue
that liability is precluded by the "discretionary function"
exception in the Act. While the Court does not reach this issue, I
shall state briefly the reasons for my conclusion that the
exception is inapplicable in this case.
No right of action lies under the Tort Claims Act for 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."
28 U.S.C. § 2680(a). The Assistant Attorney General who
testified on the bill before the House committee indicated that
this provision was intended to create no exceptions beyond those
that courts would probably create without it:
"[I]t is likely that the cases embraced within that subsection
would have been exempted from [a bill
Page 406 U. S. 811
that did not include the exception] by judicial construction. It
is not probable that the courts would extend a Tort Claims Act into
the realm of the validity of legislation or discretionary
administrative action, but [the recommended bill] males this
specific."
Hearings on H.R. 5373 and H.R. 6463 before the House Committee
on the Judiciary, 77th Cong., 2d Sess., ser. 13, p. 29.
The
Dalehite opinion seemed to say that no action of a
Government employee could be made the basis for liability under the
Act if the action involved "policy judgment and decision." 346 U.S.
at
346 U. S. 36.
Decisions in the courts of appeals following
Dalehite have
interpreted this language as drawing a distinction between "policy"
and "operational" decisions, with the latter falling outside the
exception. [
Footnote 10]
That distinction has bedeviled the courts that have attempted to
apply it to torts outside routine categories such as automobile
accidents, but there is no need in the present case to explore the
limits of the discretionary function exception.
The legislative history indicates that the purpose of this
statutory exception was to avoid any possibility that policy
decisions of Congress, of the Executive, or of administrative
agencies would be second-guessed by courts in the context of tort
actions. [
Footnote 11] There
is no such danger
Page 406 U. S. 812
in this case, for liability does not depend upon a judgment as
to whether Government officials acted irresponsibly or illegally.
Rather, once the creation of sonic booms is determined to be an
activity as to which the doctrine of absolute liability applies,
the only questions for the court relate to causation and damages.
Whether or not the decision to fly a military aircraft over the
respondents' property, at a given altitude and at a speed three
times the speed of sound, was a decision at the "policy" or the
"operational" level, the propriety of that decision is irrelevant
to the question of liability in this case, and thus the
discretionary function exception does not apply.
[
Footnote 1]
The question whether damage caused by sonic booms is recoverable
on a theory of absolute liability has received considerable
attention from commentators, most of whom have concluded that there
should be such recovery, at least under certain conditions.
See, e.g., Note, 32 J.Air Law & Commerce 596, 602-605
(1966); Note, 39 Tulane L.Rev. 145 (1964); Comment, 31
So.Cal.L.Rev. 259, 266-274 (1958); W. Prosser, Law of Torts 516
(4th ed.1971).
[
Footnote 2]
See n 5,
infra.
[
Footnote 3]
The Court's opinion refers to language in
Dalehite v. United
States, 346 U. S. 15,
which, in turn, relied on a fragment of legislative history, for
the proposition that the words "wrongful act" as used in § 1346(b)
refer only to trespasses. The legislative history cited by the
Court in
Dalehite, consisting of a statement by a Special
Assistant to the Attorney General at a committee hearing, merely
suggested trespass as one example of the kinds of conduct that
would not be embraced by the word "negligence," but which the Act
was intended to reach. As the Court today observes, many of the
state cases applying what is essentially the doctrine of absolute
liability for ultrahazardous activities speak in terms of
"trespass."
See, e.g., Guilford Realty & Inc. Co. v. Blythe
Bros. Co., 260 N.C. 69,
131 S.E.2d
900 (1963);
Enos Coal Mining Co. v. Schuchart, 243
Ind. 692,
188 N.E.2d
406 (1963);
Whitney v. Ralph Myers Contracting Corp.,
146 W.Va. 130,
118 S.E.2d
622 (1961). The similarity between the theories of trespass and
absolute liability in the blasting cases leads the Court to
conclude that the Act does not permit recovery on a "trespass"
theory in this case because the Act does not permit recovery on an
absolute liability theory. But if Congress intended, as the Court
assumes, that "trespasses" be covered by the Act, I should think
the similarity between the two theories would more logically lead
to a conclusion that absolute liability situations are likewise
covered.
[
Footnote 4]
A bill passed by the Senate in 1942 covered only actions based
on the "negligence" of Government employees. S. 2221, 77th Cong.,
2d Sess. The House committee substituted the phrase "negligent or
wrongful act or omission," saying that the "committee prefers its
language as it would afford relief for certain acts or omissions
which may be wrongful, but not necessarily negligent." H.R.Rep. No.
2245, 77th Cong., 2d Sess., 11. The language used by the House
committee was carried over into the bill finally enacted in 1946,
without further mention in the committee reports of the intended
scope of the words "wrongful act."
[
Footnote 5]
"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."
"(b) Any claim arising out of the loss, miscarriage, or
negligent transmission of letters or postal matter."
"(c) Any claim arising in respect of the assessment or
collection of any tax or customs duty, or the detention of any
goods or merchandise by any officer of customs or excise or any
other law enforcement officer."
"(d) Any claim for which a remedy is provided by sections
741-752, 781-790 of Title 46, relating to claims or suits in
admiralty against the United States."
"(e) Any claim arising out of an act or omission of any employee
of the Government in administering the provisions of sections 1-31
of Title 50, Appendix."
"(f) Any claim for damages caused by the imposition or
establishment of a quarantine by the United States."
"(g) Repealed."
"(h) Any claim arising out of assault, battery, false
imprisonment, false arrest, malicious prosecution, abuse of
process, libel, slander, misrepresentation, deceit, or interference
with contract rights."
"(i) Any claim for damages caused by the fiscal operations of
the Treasury or by the regulation of the monetary system."
"(j) Any claim arising out of the combatant activities of the
military or naval forces, or the Coast Guard, during time of
war."
"(k) Any claim arising in a foreign country."
"(l) Any claim arising from the activities of the Tennessee
Valley Authority."
"(m) Any claim arising from the activities of the Panama Canal
Company."
"(n) Any claim arising from the activities of a Federal land
bank, a Federal intermediate credit bank, or a bank for
cooperatives."
[
Footnote 6]
See, e.g., Peck, Absolute Liability and the Federal
Tort Claim Act, 9 Stan.L.Rev. 433 (1957); Jacoby, Absolute
Liability under the Federal Tort Claims Act, 24 Fed.Bar J. 139
(1964); 2 F. Harper & F. James, Law of Torts 860 (1956).
[
Footnote 7]
Four members of the Court dissented, saying that the failure of
Congress to amend the Act after
Dalehite should have been
taken as indicating approval by Congress of the interpretation
given to the Act in that case. 350 U.S. at
350 U. S.
74.
[
Footnote 8]
See Peck,
supra, n 6, at 435; Jacoby,
supra, n 6, at 140; Comment, 31 So.Cal.L.Rev. 259, 266 n.
56; Dostal, Aviation Law under the Federal Tort Claims Act, 24
Fed.Bar J. 165, 177 (1964).
[
Footnote 9]
See, e.g., Whitman Hotel Corp. v. Elliott & Watrous Eng.
Co., 137 Conn. 562, 79 A.2d 591 (1951);
Louden v. City of
Cincinnati, 90 Ohio St. 144, 106 N.E. 970 (1914);
Thigpen
v. Skousen & Hise, 64 N.M. 290,
327 P.2d
802 (1958);
Wallace v. A. H. Guion & Co., 237 S.C.
349,
117 S.E.2d
359 (1960); and cases cited in
n 3,
supra. See generally W. Prosser,
Law of Torts 514 (4th ed.1971).
[
Footnote 10]
See, e.g., Eastern Air Line v. Union Trust Co., 221
F.2d 62,
aff'd, 350 U.S. 907;
Fair v. United
States, 234 F.2d 288;
Hendry v. United States, 418
F.2d 774. For a thorough discussion of the "policy/operational"
distinction that has developed,
see Reynolds, The
Discretionary Function Exception of the Federal Tort Claims Act, 57
Geo.L.J. 81 (1968).
[
Footnote 11]
The policy behind the exception is explained by one leading
commentator as follows:
"[A]lmost no one contends that there should be compensation for
all the ills that result from governmental operations. No one, for
instance, suggests that there should be liability for the injurious
consequence of political blunders such as the unwise imposition of
tariff duties or the premature lifting of OPA controls. . . . The
separation of powers in our form of government and a decent regard
by the judiciary for its coordinate branches should make courts
reluctant to sit in judgment on the wisdom or reasonableness of
legislative or executive political action. Moreover, courts are not
particularly well suited to pursue the examinations that would be
necessary to make this kind of judgment."
James, The Federal Tort Claims Act and the "Discretionary
Function" Exception: The Sluggish Retreat of an Ancient Immunity,
10 U.Fla.L.Rev. 184 (1957).