Mary Ann Metter, as Personal Representative of the Estate of Edward O. Metter, Deceased, Plaintiff - Appellant
United States of America, Defendant - Appellee; Justin Erickson and Jennifer Erickson, Husband and Wife, Plaintiffs - Appellants
United States of America, Defendant - Appellee
Submitted February 13, 2015.
Appeal from United States District Court for the District of Nebraska.
For Mary Ann Metter, as Personal Representative of the Estate of Edward O. Metter., Plaintiff - Appellant: Andrew D. Sibbernsen, SIBBERNSEN & STRIGENZ, Omaha, NE.
For United States of America, Defendant - Appellee: Robert Homan, Assistant U.S. Attorney, U.S. ATTORNEY'S OFFICE, District of Nebraska, Omaha, NE; Thomas Pulham, Mark B. Stern, U.S. DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, Washington, DC.
Before RILEY, Chief Judge, LOKEN and SMITH, Circuit Judges.
RILEY, Chief Judge.
On October 9, 2011, while fishing with his son-in-law and grandson near Gavins Point Dam on the Missouri River in Cedar County, Nebraska, Edward Metter was tragically struck and killed when a parked pickup truck came out of gear and rolled down an unprotected river bank. Mary Ann Metter, Metter's widow and personal representative of his estate, brought survival and wrongful death actions under the Federal Tort Claims Act (FTCA), 28 U.S.C. § § 1346, 2671-2680, against the U.S. Army Corps of Engineers (Corps), asserting the Corps negligently maintained the site. The grandson, Justin Erickson, and his wife, Jennifer Erickson, brought a separate suit against the Corps raising the same theories of liability for the mental and physical harms to Justin caused by witnessing his grandfather's death and any losses suffered by Jennifer. The Corps filed a motion to dismiss, or in the alternative, for summary judgment. The district court granted the Corps' motion to dismiss the claims under Federal Rules of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction, finding (1) the claims were barred by the FTCA's discretionary function exception, and (2) the United States did not waive sovereign immunity. Mary Ann and the Ericksons (collectively, appellants) appeal. We affirm.
A popular spot for fishing, Gavins Point Dam, lake, and associated facilities are operated and managed by the Omaha District of the Corps. Guardrails line most of the parking areas along Training Dike Road where Metter was killed. Due to
historic flooding beginning in May 2011, the Corps removed two sections of guardrail in June 2011 to allow heavy equipment access to the river shoreline and to facilitate ongoing flood-related repairs, closing these areas for public use. David Becker, the Corps' Operations Project Manager, inspected the remaining wooden guardrail posts and determined they needed to be replaced. On August 30, 2011, the Corps hired C.B.M.C., a Tennessee contractor, to install new guardrail posts by September 30, 2011.
On September 19, C.B.M.C. assured the Corps it would complete the project the following week. In an attempt to reduce contract costs and meet the planned September 30 deadline, Corps personnel removed the remaining guardrails and posts on September 28. Becker testified the Corps reopened the area along the river to the public, but did not post parking restrictions or public advisories because he believed removal of the guardrails did not endanger the public. Despite the Corps' repeated attempts to contact C.B.M.C. between September 26 and October 7, C.B.M.C. did not perform as promised. The fatal accident occurred on October ...