ELR Citation: 41 ELR 20237
No(s). 09-56092 (9th Cir. Jul 15, 2011)

The Ninth Circuit reversed a lower court decision dismissing parents' suit against the United States under the Federal Tort Claims Act (FTCA) for injuries their child allegedly suffered due to exposure to thallium—a toxic heavy metal—from soil dumped into a landfill adjacent to the child's home and school. The U.S. Navy dumped the soil into the landfill as part of a remediation project. The lower court erred in holding that the discretionary function exception barred the FTCA claim. The Navy's safety manual imposes mandatory and specific requirements for environmental cleanup operations and leaves no room for discretion. And while a federal agreement outlining the Navy's cleanup responsibilities did allow for some discretion, the Navy's actions in carrying out its responsibilities were not protected policy judgments. The exception, therefore, does not apply. The lower court also erred in finding that the Navy acted reasonably and not in breach of its duty in conducting the remediation project. The lower court found that the risk that the child or anyone else would be exposed to thallium from the landfill project was not foreseeable, but the court applied the wrong legal standard in its determination of "foreseeability." The proper question in the "foreseeability" inquiry for purposes of determining whether the Navy breached its duty was not whether the child was exposed to thallium from the landfill—a "causation" question that was reserved for a later phase of the trial—but whether it was foreseeable that a person exposed to thallium would suffer the kinds of injury that the child suffered. In addition, the lower court's conclusion that the Navy's conduct was reasonable is clearly erroneous in light of evidence of glaring omissions in the Navy's safety oversight for the project, which the lower court simply ignored. The case was therefore reversed and remanded.