The most recent DC air collision case likely involves the military, given that one of the planes was reported to be a Black Hawk helicopter and the collision occurred in a controlled airspace near the nation’s capital. In these circumstances, the discretionary function exception could indeed apply, but the final determination would depend on the specifics of how air traffic control and military operations were handled during the event.
Here’s an analysis of how the discretionary function exception could come into play in this case:
1. What is the Discretionary Function Exception?
The discretionary function exception under the Federal Tort Claims Act (FTCA) protects the government from liability for acts or omissions involving policy decisions, judgment, or discretion. If a federal agency, like the FAA or military, is making decisions that involve discretion or policy considerations (as opposed to those governed by strict procedural requirements), these actions are typically immune from lawsuits.
2. How Could the Discretionary Function Exception Apply to This Case?
• Air Traffic Control: If the collision involved civilian air traffic controllers, they might be following standard operating procedures, such as managing air traffic in busy airspace. Air traffic controllers exercise discretionary judgment in managing aircraft routes, speeds, and separation to avoid collisions.
• Military Aircraft: If a military aircraft was involved, decisions about its mission, altitude, and path could be governed by military policies or operational discretion. Military operations often involve significant discretion due to their security needs and mission parameters. The military’s command decisions might be considered protected by the discretionary function exception.
3. Key Considerations for the Discretionary Function Exception to Apply:
• Was the Error in Air Traffic Control Discretionary?
• If the controllers’ actions were based on standard operating procedures that allow for judgment calls (e.g., decisions about flight paths, separation of aircraft, or real-time adjustments), the government might claim that the discretionary function exception applies.
• Was the Military’s Actions Part of a Tactical or Operational Decision?
• If the military aircraft was involved in a mission-critical task, such as a training exercise or combat preparation, decisions regarding the aircraft’s route, altitude, and maneuver could be protected under the exception because they are military judgments.
• Negligence vs. Discretion:
The key issue would be whether negligence occurred in a non-discretionary context. If air traffic controllers failed to follow established procedures, and this was not based on a policy decision or discretion, the discretionary function exception may not apply. For example, gross negligence or failure to follow clear rules could override the immunity.
4. Potential Outcome and Legal Defense:
• Government Defense: The government might argue that the actions of both air traffic controllers and the military were governed by discretionary policies and thus fall under the discretionary function exception, shielding it from liability.
• Plaintiff’s Argument: The plaintiffs (victims or families) could argue that the government’s negligence was not a result of policy discretion but rather a failure to follow specific safety procedures or regulations, which could allow them to circumvent the exception.
5. Likelihood of the Discretionary Function Exception Applying:
Given that this case involves military operations and air traffic control in a complex, regulated environment (near Washington, DC), it is likely that the government will invoke the discretionary function exception as a defense. However, the plaintiffs could challenge this by demonstrating that the air traffic controllers or military personnel failed to follow mandatory safety protocols, in which case negligence could be proven.
Conclusion:
Yes, this case likely falls under the discretionary function exception due to the nature of air traffic control and military operations. However, the applicability of the exception will depend on the specific facts of how air traffic was managed, whether procedures were followed, and whether any gross negligence occurred in a way that overrides the immunity.
