On April 4, 2009, Billy Ray Longino came across a low-hanging power line while horseback riding in Camp Livingston. As Mr. Longino turned to inform the other riders of the power line, his horse lost control, launched towards the power line, and electrocuted itself and Mr. Longino. Two weeks prior, firefighters and federal employees responded to a grass fire caused by the same low-hanging power line, but failed to place any safeguards near the wire after extinguishing the fire.
Mr. Longino’s survivors filed suit in the Western District Court of Louisiana alleging that the United States violated the Federal Tort Claims Act (“FTCA”), because the government failed to take reasonable and necessary precautions to prevent harm from the power line. Under the FTCA, the federal government may be liable for an act or omission of its employees acting within the course and scope of their employment, if a private person would be liable under state law for that same act or omission.
In response, the United States moved to dismiss for a lack of subject matter jurisdiction under the FTCA. In the alternative, the United States moved for summary judgment, alleging an absence of evidence supporting Plaintiffs’ claim.
In considering whether it had jurisdiction to hear a claim for Louisiana general premises liability under the FTCA, the court acknowledged that the United States Court of Appeal for the Fifth Circuit has not ruled on the exact issue and that there is a split among divisional courts within its own district. The court, after reviewing other district court rulings within the Western District, adopted the “Janice test” enunciated in the case Janice v. United States. Under the Janice test, jurisdiction for general premises liability claims brought under the FTCA will exist if claimant alleges that an unreasonable risk or unreasonably dangerous condition was either: (1) caused by the negligent or wrongful act or omission of a federal employee, or (2) that the unreasonably dangerous condition was known to a government employee, yet the employee failed to act by warning of or correcting the condition. Because Plaintiff alleged that a government employee had knowledge of the low-hanging power line but failed to act, the court held that it had jurisdiction to hear the general premises liability claim under the FTCA.
Turning to the government’s motion for summary judgment, the court found a genuine issue of material fact as to each argument and denied the motion. Initially, the government argued that it was not liable under the FTCA because of the statute’s discretionary function exception, which insulates the government from liability if the action challenged involves the permissible exercise of policy judgment. The exception does not apply, however, when a federal statute, regulation, or formal policy prescribes a course of action for an employee to follow. Looking to the Incidental Response Pocket Guide published by the National Wildfire Coordinating Group, the court found a genuine factual dispute over the existence of a policy requiring governmental action for low-hanging power lines.
The federal government also argued that it was immune from liability under La. R.S. 9:2795 (pdf), which grants limited immunity from liability to the owner of land that is dedicated for recreational use. To determine whether this immunity existed, the court recognized that it had to consider whether: (1) the land upon which the injury occurred was undeveloped, nonresidential, and rural or semi-rural; (2) the injury itself was the result of recreation that could be pursued in the “true outdoors”; and (3) the injury-causing instrumentality was of the type normally encountered in the “true outdoors.” The court, however, found a genuine factual dispute as to whether a power line is normally encountered in the “true outdoors.”
Additionally, the federal government argued that it did not have a duty to warn or protect against Mr. Longino’s injury, because the low-hanging power line was an “open and obvious” danger. The court, however, found a genuine issue of material fact as to whether the danger from the power line was, in fact, open and obvious because, until Mr. Longino came in contact with the line, there was no way to know whether it was energized.
Finally, the court found a genuine issue of material fact as to whether the low-hanging line was in the care, custody and control of the United States or of CLECO, the power provider and lessee of the land.
Take-Away: Whether Louisiana federal courts have jurisdiction to hear general premises liability claims under the Federal Tort Claims Act or whether jurisdiction rests on the factual allegations of negligence of a federal employee remains unclear.
This article was co-authored by Gretchen Fritchie, a 2013 summer associate at Irwin Fritchie Urquhart & Moore LLC.