Ayres v. Mayor of the District of Columbia

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1826
AMBER L. AYRES, individually and as wife and guardian of
the person and property of; RICHARD C. AYRES, a Disabled
Adult,
Plaintiffs – Appellants,
v.
MAYOR AND CITY COUNCIL OF THE DISTRICT OF COLUMBIA; UNITED
STATES OF AMERICA,
Defendants – Appellees,
and
DAN TANGHERLINI, Director, District of Columbia Department
of Transportation; NORMAN Y. MINETA, Secretary, United
States Department of Transportation; DARRELL LAMONT
SELLERS; ESTATE OF JOHN W. HARLEY,
Defendants.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. William D. Quarles, Jr., District
Judge. (1:04-cv-04068-WDQ)
Argued: May 16, 2008 Decided: August 8, 2008
Before NIEMEYER, KING, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Francis A. Pommett, III, Baltimore, Maryland, for
Appellants. Todd Sunhwae Kim, OFFICE OF THE ATTORNEY GENERAL
FOR THE DISTRICT OF COLUMBIA, Washington, D.C., for Appellees.
ON BRIEF: Linda Singer, Attorney General for the District of
Columbia, Edward E. Schwab, Deputy Solicitor General,
Karen A. Weiss, Assistant Attorney General, OFFICE OF THE
ATTORNEY GENERAL FOR THE DISTRICT OF COLUMBIA, Washington, D.C.,
for Appellee Mayor and City Council of the District of Columbia.
Peter D. Keisler, Assistant Attorney General, Mark B. Stern,
Eric J. Feigin, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C.; Rod J. Rosenstein, United States Attorney, Baltimore,
Maryland, for Appellee United States.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Amber L. Ayres filed a suit against the Mayor and City
Council of the District of Columbia (collectively Athe District@)
and the United States on behalf of herself and her husband,
Richard C. Ayres (collectively AAyres@), who was severely injured
while traveling on an interstate highway in the District. The
district court dismissed all claims against the District and the
United States. On appeal, Ayres contends that the district
court erred. After thoroughly reviewing Ayres=s assignments of
error, we affirm the district court=s dismissal.
I.
On January 3, 2002, at approximately 2:51 p.m.,
Richard C. Ayres was driving his 1998 Ford Ranger northbound on
I-295 at Blue Plains, S.W. in Washington, D.C., in the right-
hand lane. At the same time, Darrell L. Sellers was traveling
southbound on I-295 when he lost control of his vehicle and
crossed the grass median strip, striking John W. Harley=s Ford
Escort, instantly killing him. Harley=s car collided with
Mr. Ayres=s car, severely injuring him.
Amber Ayres, on behalf of her husband and herself, filed a
seven-count complaint in the United States District Court for
the District of Maryland. The United States filed a motion to
dismiss under Rule 12(b)(1) and (6) of the Federal Rules of
3
Civil Procedure, alleging, inter alia, that it was immune from
this type of action under the discretionary function exception
to the Federal Tort Claims Act (AFTCA@) and that the court lacked
subject matter jurisdiction. The District filed a motion to
dismiss and/or for summary judgment, arguing, inter alia, that
under the District=s law it was immune from such suits.
In response to the United States=s arguments, Ayres conceded
that her claims for negligent design and construction were
barred; however, she contended that the remaining claims
regarding failure to place warning signs and/or guardrails were
not barred because they were not susceptible to a policy
judgment nor did they involve the exercise of political, social,
or economic judgment. And in response to the District=s
argument, Ayres contended that, even though the District=s law
barring most of her claims would be applicable under the
doctrine of lex loci delicti, Maryland=s public policy exception
applied and therefore the district court was required to use
Maryland law which allows such suits against local governments.
The district court granted the District=s and United States=s
motions, and Ayres timely appealed to this court.
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II.
A.
On appeal, Ayres contends that the district court erred by
determining that the District=s law prohibiting suit against it
for negligent design and construction of its roadways did not
violate Maryland=s public policy exception to the doctrine of
lex loci delicti. If we agree, then the district court should
have applied Maryland=s law. We review a trial court=s
determination of state law de novo. Roe v. Doe, 28 F.3d 404,
407 (4th Cir. 1994) (citing Salve Regina College v. Russell, 499
U.S. 225, 231-232 (1991)).
Under the District=s law, the District may not be sued for
discretionary functions such as highway planning and design
decisions. Pace v. D.C., 498 A.2d 226, 228-229 (D.C. 1985). In
contrast, Maryland courts have held that counties and
municipalities may be found liable for construction, maintenance
and control of their roads. Montgomery County v. Vorhees, 86
Md. App. 294 (Md. Ct. Spec. App. 1991). Therefore, there is a
conflict between Maryland law and the District=s law; under
Maryland law, Ayres would be permitted to sue whereas under the
District=s own law, she would not.
Maryland follows the traditional rule of lex loci delicti
in deciding conflict of law questions, Motor Club of America
Ins. Co. v. Hanifi, 145 F.3d 170 (4th Cir. 1998), and will
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therefore apply the substantive tort law of the jurisdiction
where the wrong occurred. Maryland courts may refuse to enforce
the law of a foreign jurisdiction when that law violates
Maryland public policy. Haunch v. Connor, 295 Md. 120 (1983).
Maryland public policy is Ano more and no less than what is
believed by the courts and the legislature to be in the best
interest of the citizens of [Maryland].@ Linton v. Linton, 46
Md. App. 660, 663 (1980). Maryland courts have found that
public policy determinations are normally within the province of
the legislative branch. Hanifi, 145 F.3d at 180.
Maryland public policy is not violated when the foreign law
is merely different from Maryland law. Id. Instead, the party
seeking to overrule the principle of lex loci delicti on public
policy grounds must carry the Aheavy burden@ of showing that the
foreign law violates a powerful public policy interest. Hanifi,
145 F.3d 170. Maryland courts generally will not overrule the
principle of lex loci delicti unless there is a contrary
Maryland statute. Id. Ayres sets forth no Maryland case or
statute that supports her position that honoring the District=s
governmental immunity against suits for highway-related
negligence would violate Maryland public policy at all, let
alone a public policy of such stature that it should override
another jurisdiction=s view of the law regarding events in that
jurisdiction. Because the injury to Mr. Ayres and the alleged
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tortious act occurred in the District, we conclude the district
court=s decision to apply the District=s law was correct.
B.
Next, Ayres contends that by dismissing all of her claims
the district court erred because even when applying the
District=s law it provides for a waiver of immunity to alleged
negligent maintenance of a roadway. Again, we review a trial
court=s determination of state law de novo. Roe, 28 F.3d at 407.
While we agree that the District waived its immunity
against claims for negligent maintenance of a roadway, see Pace,
498 A.2d at 226, we affirm the district court=s decision to
dismiss because Ayres failed to put the District on notice of a
potential claim as is required pursuant to D.C. Code ' 12-309*.
Ayres argues that the police report from the scene of the
accident served as constructive notice of a potential claim.
However, this is unpersuasive because the police report
indicated that the police officers saw possible driver error and
that they would investigate that possible cause. The police
*
D.C. Code § 12-309 states: AAn action may not be
maintained against the District of Columbia for unliquidated
damages to person or property unless, within six months after
the injury or damage was sustained, the claimant, his agent, or
attorney has given notice in writing to the Mayor of the
District of Columbia of the approximate time, place, cause, and
circumstances of the injury or damage. A report in writing by
the Metropolitan Police Department, in regular course of duty,
is a sufficient notice under this section.@
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officers never evinced intent to investigate any potential cause
relating to maintenance of I-295. The police report did not
reasonably suggest a basis for the District=s liability, and thus
under the District law, was insufficient to satisfy ' 12-309=s
notice requirement. See Washington v. D.C., 429 A.2d 1362, 1366
(D.C. 1981) (A...the written notice or police report must
disclose both the factual cause of the injury and a reasonable
basis for anticipating legal action as a consequence. Such
notice would suffice, therefore, if it either characterized the
injury and asserted the right to recovery, or without asserting
a claim described the injuring event with sufficient detail to
reveal, in itself, a basis for the District=s potential
liability.@).
C.
Finally, Ayres argues the district court erred in holding
that the United States was immune from suit under the
discretionary function exception to the FTCA because the federal
regulations for safety are proprietary rather than
discretionary. We agree with the district court that a decision
by the Secretary of Transportation to provide federal funds for
the construction of I-295 is a discretionary act that cannot
give rise to liability under FTCA.
The Federal Aid Highway Act directs the Secretary to
Apromulgate guidelines designed to assure *** that the final
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decisions on [whether to fund a highway] project are made in the
best overall public interest, taking into consideration the need
for fast, safe and efficient transportation, public services,
and the costs of eliminating or minimizing,@ inter alia, the
project=s possible Aadverse economic, social, and environmental
effects.@ 23 U.S.C. ' 109(h) (emphasis added). The Secretary
has taken these (and other) factors into account in issuing
Aminimum criteria@ that a state or District highway project must
meet to receive federal funds, while retaining the agency=s
authority to create ad hoc exceptions to those criteria Awhere
conditions warrant.@ 23 C.F.R. ' 625.3(f).
Funding decisions under this scheme fall within the heart
of the discretionary function exception. As the Supreme Court
has explained, when ACongress has delegated the authority *** to
the Executive Branch to implement the general provisions of a
regulatory statute and to issue regulations to that end, there
is no doubt that planning-level decisions establishing programs
are protected by the discretionary function exception.@ United
States v. Gaubert, 499 U.S. 315, 323 (1991). This Court has
recognized that Athis idea [is] equally applicable to the actions
of an agency charged with administering a public works project.@
Baum v. United States, 986 F.2d 716, 722 (4th Cir. 1993).
Congress=s delegation of authority here leaves Ano doubt@ that the
Department of Transportation=s funding decisions are shielded
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from tort liability. As this Circuit=s precedent provides,
funding decisions meet the two principal criteria of
discretionary function analysis, because they both involve A>an
element of judgment or choice=@ and are A>based on considerations
of public policy.=@ Suter v. United States, 441 F.3d 306, 310-11
(4th Cir. 2006) (quoting Berkovitz v. United States, 486 U.S.
531, 536-37 (1988)).
Ayres does not identify Aany mandatory federal statute,
regulation, or policy prescribing a specific course of action@
that the government should have followed in this case. Baum,
986 F.2d at 720. Indeed, no mechanistic function could evaluate
and balance the various criteria that inform a highway-funding
decision; A[t]he sheer number of factors involved@ alone Asuggests
that Congress intended these decisions to be made as an exercise
of judgment and choice.@ Rothrock v. United States, 62 F.3d 196,
199 (4th Cir. 1995); see 23 U.S.C. '' 109(a), (h); 23 C.F.R.
'' 625.2(a), 625.3(a) (discussing factors). Safety is but one of
those many factors, and where federal officials Ahave more than
safety in mind@ in making a particular decision, the
discretionary function exception bars a tort suit, such as this
one, in which plaintiffs suggest that the government should have
Aplace[d] greater emphasis upon safety.@ Bowman v. United
States, 823 F.2d at 1393, 1395 (4th Cir. 1987).
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Furthermore, in expressly requiring that funding decisions
consider the Aeconomic, social, and environmental effects@ of a
particular project, see 23 U.S.C. ' 109(h), never could Congress
have more explicitly conveyed that such decisions are Agrounded
in social, economic, and political policy,@ Gaubert, 499 U.S. at
323 (internal quotation marks omitted). Ayres mistakenly
suggests that the Government must show that policy
considerations informed the specific decision to fund I-295
(Pl. Br. 21). The proper focus in the discretionary function
inquiry is not on a particular act, but instead Aon the nature of
the actions taken and on whether they are susceptible to policy
analysis.@ Suter, 441 F.3d at 311 (quoting Gaubert, 499 U.S. at
325). The Anature@ of the decision here--evaluating whether or
not the funding is Ain the best overall public interest,@ 23
U.S.C. ' 109(h)--plainly implicates substantial policy concerns
and cannot be challenged under the FTCA.
Lastly, Ayres requests that this Court certify questions of
law to the Maryland Court of Appeals. We deny that request
because we conclude that Maryland law is clear and supports the
district court=s decision.
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III.
For the foregoing reasons, we affirm the district court=s
decisions.
AFFIRMED
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