Torts Keyed to Dobbs
Whisnant v. United States
Plaintiff Whisnant worked for a company that provided seafood to the commissary of a Naval base. The commissary is operated by a government agency, DeCA. DeCA regulations require periodic safety inspections, but DeCA employees are allowed to decide how and when to conduct such safety inspections. The base contracts out maintenance work to Johnson Controls, whose inspections showed that mold had accumulated in the meat department of the commissary. Over the next three years, plaintiff among others allegedly became ill due to the toxic molds, resulting in the government closing the meat department. He allegedly contracted pneumonia, headaches, cough, and other health problems and sued the government under the Federal Tort Claims Act (“FTCA”) for negligence in allowing workers to come into contact with the mold despite known health hazards. The government moved to dismiss on the ground that plaintiff’s suit was barred by the discretionary function exception to the FTCA, which provides that the FTCA shall not apply to “any claim based upon the exercise of, or failure to exercise, a discretionary function.” The district court granted the motion to dismiss. The plaintiff appealed and the Ninth Circuit reversed.
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