TORTS-THE DISCRETIONARY FUNCTION EXCEPTION IN THE FEDERAL TORT CLAIMS ACT

The doctrine of the immunity of the sovereign in tort has long been the subject of attack by statesmen and legal writers. In response to these attacks and with a view to eliminating the unjust, expensive, and time-consuming method of settling tort claims against the federal government by the private bill method, Congress passed the Federal Tort Claims Act in 1946. The act contained a number of exceptions, the most important of which preserved the immunity doctrine as to any claim arising out of a discretionary function of government. A recent decision of the United States Supreme Court illustrates the problems presented to the tort claimant by the exception as well as the confusion which has characterized judicial attempts to define it. Dalehite v. United States was a test case representing some three hundred separate claims arising out of the disastrous explosions in the harbor of Texas City, Texas in April 1947. The substance giving rise to the explosions was a government-manufactured fertilizer, FGAN, cargoes of which had been loaded on French vessels preparatory for shipment abroad. The decision to manufacture FGAN for overseas use was made at the cabinet level and was designed to implement the government policy of increasing food production in war-devastated countries. Responsibility for carrying out the program was delegated to the Army\u27s Chief of Ordnance, and he in turn appointed the Field Director of Ammunition Plants as general administrator of the program. The office of the latter official drafted specifications for manufacture. The petitioner alleged negligence on the part of government employees in the original formulation of the program, in the manufacture of the FGAN, in the shipment of the product to a congested area without adequate warning of its explosive potentialities, in the failure to police the loading operations, and in the failure to fight the fire that resulted from the explosion. The district court\u27s judgment for the petitioner was reversed by the Court of Appeals for the Fifth Circuit, and the Supreme Court granted certiorari. In a four-to-three decision the Court found the alleged negligent acts and omissions to be discretionary functions and therefore within the exception to the waiver of sovereign immunity. While finding the acts and omissions involved in the case before it to be matters undertaken at the planning rather than the operational level, the majority did not suggest a clear test for so classifying other activities of government. It was simply held that the exception included not only the initiation of programs but also the establishing of plans, schedules, and operations