Warning! Barracudas May Bite: Third Circuit Puts "Teeth" in the FTCA's Discretionary Function Exception Analysis

Volume 58 | Issue 5 Article 1 10-1-2014 Warning! Barracudas May Bite: Third Circuit Puts "Teeth" in the FTCA's Discretionary Function Exception Analysis Lauren P. DeLuca Follow this and additional works at: http://digitalcommons.law.villanova.edu/vlr Part of the Torts Commons Recommended Citation Lauren P. DeLuca, Warning! Barracudas May Bite: Third Circuit Puts "Teeth" in the FTCA's Discretionary Function Exception Analysis, 58 Vill. L. Rev. 773 (2014). Available at: http://digitalcommons.law.villanova.edu/vlr/vol58/iss5/1 This Issues in the Third Circuit is brought to you for free and open access by Villanova University Charles Widger School of Law Digital Repository. It has been accepted for inclusion in Villanova Law Review by an authorized editor of Villanova University Charles Widger School of Law Digital Repository. For more information, please contact . \\jciprod01\productn\V\VLR\58-5\VLR501.txt unknown Seq: 1 15-OCT-13 12:23 DeLuca: Warning! Barracudas May Bite: Third Circuit Puts "Teeth" in the F VILLANOVA LAW REVIEW VOLUME 58 2013 NUMBER 5 Third Circuit Review WARNING! BARRACUDAS MAY BITE: THIRD CIRCUIT PUTS “TEETH” IN THE FTCA’S DISCRETIONARY FUNCTION EXCEPTION ANALYSIS LAUREN P. DELUCA* I. INTRODUCTION Imagine sitting on the sands of the beautiful Buck Island in St. Croix, Virgin Islands, your feet in the warm sea, when suddenly you feel a stunning blow to your foot—you look down to see blood spewing from your severed toes and a flash of barracuda tail swimming away from you.1 How were you supposed to know that you were at risk for a shoreline barracuda attack? In S.R.P. v. United States,2 twelve-year-old Sergio Perez (Perez) must have wondered the same thing when a barracuda attacked him while visiting Buck Island, a National Monument operated by the National Park Service (NPS).3 After undergoing surgery to reattach his nearly severed toes, Perez unsuccessfully tried to recover damages from the United States under the Federal Tort Claims Act (FTCA).4 Through his mother, Perez sued the NPS for failing to warn him of the possibility that a barracuda * J.D. Candidate, 2014, Villanova University School of Law. Many thanks to the current and former editors of the Villanova Law Review for their advice and feedback throughout the writing and editing processes. Without the unwavering support of my friends and family, especially my husband, Eric Johnson, this Casebrief would not have been possible. 1. See S.R.P. v. United States, 676 F.3d 329, 330 (3d Cir. 2012) (recounting facts of case); Thomas Goreau, Barracuda Attack, UNDERCURRENT (Jan. 4, 2011), http://www.undercurrent.org/blog/2011/01/04/barracuda-attack/ (retelling stories of barracuda attacks and describing one attack as “[a] stunning blow” and another as “a flash”). 2. 676 F.3d 329 (3d Cir. 2012). 3. See id. at 330 (detailing how barracuda attack occurred on Buck Island, “a unit of the National Park System under the control and management of the National Park Service”). 4. See id. (discussing facts and procedural history, including district court’s dismissal for lack of subject-matter jurisdiction due to application of discretionary function exception); see also Pat Murphy, Is Park Service Liable for Barracuda Attack?, BENCHMARKS (Apr. 11, 2012), http://lawyersusaonline.com/benchmarks/2012/ 04/11/is-park-service-liable-for-barracuda-attack/ (discussing Third Circuit opin- (773) Published by Villanova University Charles Widger School of Law Digital Repository, 2014 1 \\jciprod01\productn\V\VLR\58-5\VLR501.txt unknown Seq: 2 15-OCT-13 12:23 Villanova Law Review, Vol. 58, Iss. 5 [2014], Art. 1 774 VILLANOVA LAW REVIEW [Vol. 58: p. 773 could attack him while he was on the shore.5 The Third Circuit Court of Appeals affirmed the United States District Court for the Virgin Islands’ dismissal of the case, finding that the NPS’s failure to warn of a shoreline barracuda attack fell within the ambit of the discretionary function exception to the FTCA.6 Though the government generally waives its sovereign immunity for tort claims under the FTCA, certain discretionary decisions made by state actors remain immune pursuant to the discretionary function exception of the FTCA.7 The Third Circuit in S.R.P. broadly construed the discretionary function exception but recognized two additional criteria in analyzing whether a government action involved a discretionary decision.8 These two criteria are: whether the government knew about the specific risk of injury, and whether the remedial steps necessary to warn about that risk are “garden-variety.”9 Concurring in the decision, Judge Roth wrote separately to express the fear that evaluating FTCA claims under these two additional criteria will “eviscerate” the discretionary function exception altogether.10 This casebrief, however, argues that the majority appropriately ion dealing with liability issue for National Park Service regarding barracuda attack at Buck Island in 2004). 5. See S.R.P., 676 F.3d at 330–31 (discussing facts of case including how accident occurred, and lack of warning specifically addressing shoreline barracuda attacks on signage and in brochure given to visitors). 6. See id. at 330 (affirming district court’s dismissal for lack of subject-matter jurisdiction because of discretionary function exception to FTCA). 7. See 28 U.S.C. § 1346 (2006) (granting federal courts original jurisdiction over civil suits against United States for negligence of state actors); Id. § 2680(a) (providing exception to Section 1346 waiver of immunity for claims based upon state actor’s “exercise or performance or the failure to exercise or perform a discretionary function or duty”). 8. See S.R.P., 676 F.3d at 338 (recognizing risk of “overly broad construction” in that “it could easily swallow the FTCA’s general waiver of sovereign immunity and frustrate the purpose of the statute”). In further discussion, the court reasoned that “where the Government is aware of a specific risk and responding to that risk would only require the Government to take garden-variety remedial steps, the discretionary function exception does not apply.” Id.; see also Murphy, supra note 4 (discussing how Third Circuit Judge D. Michael Fisher “thr[e]w the plaintiffs’ bar a bone, recognizing that” government’s knowledge of specific risk of injury and garden-variety type of remedy for that risk will render discretionary function exception inapplicable). For a further discussion of the court’s analysis, see infra notes 109–37 and accompanying text. 9. S.R.P., 676 F.3d at 338 (acknowledging that knowledge of risk and gardenvariety type of remedy bar application of discretionary function exception according to Third Circuit jurisprudence). 10. Id. at 345 (Roth, J., concurring) (“[M]y concern [is] that the majority’s opinion will eviscerate the discretionary function exception by inserting an improper element into the analysis of whether sovereign immunity has been waived under th (...truncated)