546 US 43 United States v Olson

Case TextSyllabus

UNITED STATES v. OLSON et al.

certiorari to the united states court of appeals for
the ninth circuit

No. 04—759. Argued October 12, 2005–Decided November 8, 2005

Claiming that federal mine inspectors’ negligence helped cause a mine
accident, two injured workers (and a spouse) sued the United States
under the Federal Tort Claims Act (Act), which authorizes private tort
actions against the Government “under circumstances where the United
States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred,” 28 U. S. C.
§ 1346(b)(1). The District Court dismissed in part on the ground that
the allegations did not show that Arizona law would impose liability
upon a private person in similar circumstances. The Ninth Circuit reversed,
reasoning from two premises: (1) Where unique governmental
functions are at issue, the Act waives sovereign immunity if a state or
municipal entity would be held liable under the law where the activity
occurred, and (2) federal mine inspections are such unique governmental
functions since there is no private-sector analogue for mine inspections.
Because Arizona law would make a state or municipal entity liable in
the circumstances alleged, the Circuit concluded that the United States’
sovereign immunity was waived.

Held: Under § 1346(b)(1), the United States waives sovereign immunity
only where local law would make a “private person” liable in tort,
not where local law would make “a state or municipal entity” liable.
Pp. 45—48.

(a) The Ninth Circuit’s first premise is too broad, reading into the
Act something that is not there. Section 1346(b)(1) says that it waives
sovereign immunity “under circumstances where the United States, if a
private person,” not “the United States, if a state or municipal entity,”
would be liable. (Emphasis added.) This Court has consistently adhered
to this “private person” standard, even when uniquely governmental
functions are at issue. Indian Towing Co. v. United States, 350
U. S. 61, 64; Rayonier Inc. v. United States, 352 U. S. 315, 318. Even
though both these cases involved Government efforts to escape liability
by pointing to the absence of municipal entity liability, there is no reason
for treating differently a plaintiff’s effort to base liability solely upon
the fact that a State would impose liability upon a state governmental
entity. Nothing in the Act’s context, history, or objectives or in this
Court’s opinions suggests otherwise. Pp. 45—46.

Opinion of the Court

(b) The Ninth Circuit’s second premise reads the Act too narrowly.
Section 2674 makes the United States liable “in the same manner and
to the same extent as a private individual under like circumstances.”
(Emphasis added.) The words “like circumstances” do not restrict a
court’s inquiry to the same circumstances, but require it to look further
afield. See, e. g., Indian Towing, supra, at 64. The Government in effect
concedes, and other Courts of Appeals’ decisions applying Indian
Towing’s logic suggest, that private person analogies exist for the federal
mine inspectors’ conduct at issue. The Ninth Circuit should have
looked for such an analogy. Pp. 46—47.

(c) The lower courts should decide in the first instance precisely

which Arizona tort law doctrine applies here. P. 48.
362 F. 3d 1236, vacated and remanded.

Breyer, J., delivered the opinion for a unanimous Court.

Deanne E. Maynard argued the cause for the United
States. With her on the briefs were Solicitor General
Clement, Assistant Attorney General Keisler, Deputy Solicitor
General Kneedler, Mark B. Stern, and Dana J. Martin.

Thomas G. Cotter argued the cause and filed a brief for
respondents.

Justice Breyer delivered the opinion of the Court.

The Federal Tort Claims Act (FTCA or Act) authorizes
private tort actions against the United States “under circumstances
where the United States, if a private person, would
be liable to the claimant in accordance with the law of the
place where the act or omission occurred.” 28 U. S. C.
§ 1346(b)(1). We here interpret these words to mean what
they say, namely, that the United States waives sovereign
immunity “under circumstances” where local law would
make a “private person” liable in tort. (Emphasis added.)
And we reverse a line of Ninth Circuit precedent permitting
courts in certain circumstances to base a waiver simply upon
a finding that local law would make a “state or municipal
entit[y]” liable. See, e. g., Hines v. United States, 60 F. 3d
1442, 1448 (1995); Cimo v. INS, 16 F. 3d 1039, 1041 (1994);
Cameron v. Janssen Bros. Nurseries, Ltd., 7 F. 3d 821, 825

Opinion of the Court

(1993); Aguilar v. United States, 920 F. 2d 1475, 1477 (1990);
Doggett v. United States, 875 F. 2d 684, 689 (1989).

I
In this case, two injured mine workers (and a spouse) have
sued the United States claiming that the negligence of federal
mine inspectors helped bring about a serious accident
at an Arizona mine. The Federal District Court dismissed
the lawsuit in part upon the ground that their allegations
were insufficient to show that Arizona law would impose liability
upon a private person in similar circumstances. The
Ninth Circuit, in a brief per curiam opinion, reversed this
determination. It reasoned from two premises. First,
where “ ‘unique governmental functions’ ” are at issue, the
Act waives sovereign immunity if “ ‘a state or municipal entity
would be [subject to liability] under the law [. . .] where
the activity occurred.’ ” 362 F. 3d 1236, 1240 (2004) (citing
Hines, supra, at 1448, and quoting Doggett, supra, at 689,
and Concrete Tie of San Diego, Inc. v. Liberty Constr., Inc.,
107 F. 3d 1368, 1371 (CA9 1997)). Second, federal mine inspections
being regulatory in nature are such “ ‘unique governmental
functions,’” since “there is no private-sector analogue
for mine inspections.” 362 F. 3d, at 1240 (quoting in
part Doggett, supra, at 689). The Circuit then held that Arizona
law would make “state and municipal entities” liable
in the circumstances alleged; hence the FTCA waives the
United States’ sovereign immunity. 362 F. 3d, at 1240.

II

We disagree with both of the Ninth Circuit’s legal
premises.
A

The first premise is too broad, for it reads into the Act
something that is not there. The Act says that it waives
sovereign immunity “under circumstances where the United
States, if a private person,” not “the United States, if a state

Opinion of the Court

or municipal entity,” would be liable. 28 U. S. C. § 1346(b)(1)
(emphasis added). Our cases have consistently adhered to
this “private person” standard. In Indian Towing Co. v.
United States, 350 U. S. 61, 64 (1955), this Court rejected
the Government’s contention that there was “no liability
for negligent performance of ‘uniquely governmental functions.’
” It held that the Act requires a court to look to the
state-law liability of private entities, not to that of public
entities, when assessing the Government’s liability under the
FTCA “in the performance of activities which private persons
do not perform.” Ibid. In Rayonier Inc. v. United
States, 352 U. S. 315, 318—319 (1957), the Court rejected a
claim that the scope of FTCA liability for “ ‘uniquely governmental’
” functions depends on whether state law “imposes
liability on municipal or other local governments for the negligence
of their agents acting in” similar circumstances.
And even though both these cases involved Government efforts
to escape liability by pointing to the absence of municipal
entity liability, we are unaware of any reason for treating
differently a plaintiff’s effort to base liability solely upon the
fact that a State would impose liability upon a municipal (or
other state governmental) entity. Indeed, we have found
nothing in the Act’s context, history, or objectives or in the
opinions of this Court suggesting a waiver of sovereign immunity
solely upon that basis.

B

The Ninth Circuit’s second premise rests upon a reading
of the Act that is too narrow. The Act makes the United
States liable “in the same manner and to the same extent as
a private individual under like circumstances.” 28U.S.C.
§ 2674 (emphasis added). As this Court said in Indian Towing,
the words “ ‘like circumstances’ ” do not restrict a court’s
inquiry to the same circumstances, but require it to look
further afield. 350 U. S., at 64; see also S. Rep. No. 1400,
79th Cong., 2d Sess., 32 (1946) (purpose of FTCA was to

Opinion of the Court

make the tort liability of the United States “the same as that
of a private person under like circumstance, in accordance
with the local law”). The Court there considered a claim
that the Coast Guard, responsible for operating a lighthouse,
had failed “to check” the light’s “battery and sun relay system,”
had failed “to make a proper examination” of outside
“connections,” had “fail[ed] to check the light” on a regular
basis, and had failed to “repair the light or give warning that
the light was not operating.” Indian Towing, 350 U. S.,
at 62. These allegations, the Court held, were analogous to
allegations of negligence by a private person “who undertakes
to warn the public of danger and thereby induces reliance.”
Id., at 64—65. It is “hornbook tort law,” the Court
added, that such a person “must perform his ‘good Samaritan’
task in a careful manner.” Ibid.

The Government in effect concedes that similar “good
Samaritan” analogies exist for the conduct at issue here.
It says that “there are private persons in ‘like circumstances’
” to federal mine inspectors, namely, “private persons
who conduct safety inspections.” Reply Brief for
United States 3. And other Courts of Appeals have found
ready private person analogies for Government tasks of this
kind in FTCA cases. E. g., Dorking Genetics v. United
States, 76 F. 3d 1261 (CA2 1996) (inspection of cattle); Florida
Auto Auction of Orlando, Inc. v. United States, 74 F. 3d
498 (CA4 1996) (inspection of automobile titles); Ayala v.
United States, 49 F. 3d 607 (CA10 1995) (mine inspections);
Myers v. United States, 17 F. 3d 890 (CA6 1994) (same); Howell
v. United States, 932 F. 2d 915 (CA11 1991) (inspection of
airplanes). These cases all properly apply the logic of Indian
Towing. Private individuals, who do not operate lighthouses,
nonetheless may create a relationship with third parties
that is similar to the relationship between a lighthouse
operator and a ship dependent on the lighthouse’s beacon.
Indian Towing, supra, at 64—65, 69. The Ninth Circuit
should have looked for a similar analogy in this case.

Opinion of the Court

III
Despite the Government’s concession that a private person
analogy exists in this case, the parties disagree about precisely
which Arizona tort law doctrine applies here. We remand
the case so that the lower courts can decide this matter
in the first instance. The judgment of the Ninth Circuit is
vacated, and the case is remanded for proceedings consistent
with this opinion.

It is so ordered.

OpenJurist

546 U.S. 43 - United States v Olson

546 US 43 United States v Olson

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