In most cases involving negligent security, a resident of a building or patron of a business brings suit against a party for negligently failing to provide adequate security under particular circumstances. However, in a recent case, Fagg v. United States, the court addressed a more peculiar situation involving a contracted worker who brought suit alleging that a post office in suburban Atlanta failed to provide sufficient security and, as a result, caused him to be attacked while making a delivery.
Fagg arose from a robbery at a post office in Conley, Georgia that occurred on December 20, 2013. The plaintiff is an employee of Davosa Transport Service Trucking Company, which is contracted by the United States Postal Service (“USPS”) to transport mail. The plaintiff alleged that on December 20, 2013, he arrived at the post office to retrieve mail, and when he exited the truck in order to load it, two assailants confronted him. During the course of the robbery, the plaintiff was shot. The plaintiff alleged that this was not the first robbery at this particular post office and that as a result of prior armed robberies at this site, there was a policy requiring armed guards to accompany mail transporters at this post office. Nevertheless, the plaintiff alleged that the policy was halted shortly before his armed robbery. The plaintiff then brought suit against the government, asserting claims for negligence predicated on the post office’s failure to provide adequate security. The government moved to dismiss, arguing that the plaintiff’s claims were barred by sovereign immunity.
Generally, under the doctrine of sovereign immunity, state governments and the federal government are immune from suits without their consent to be sued. United States v. Mitchell, 445 U.S. 535, 538 (1980) (citation omitted). State governments and the federal government have passed laws providing exceptions to permit certain types of suits. At issue in this case are the provisions of the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2402, 2671-2680, which allows certain types of tort suits to be brought against the federal government. The FTCA, however, has an expressed limitation on this waiver of immunity for acts that arise from the government’s exercise of a discretionary function.
Courts employ a two-part test to determine if the injury at issue in a tort suit arises from the government’s exercise of discretion. Cohen v. United States, 151 F.3d 1338, 1341 (11th Cir. 1998). This exception applies if (1) “a federal statute, regulation, or policy specifically [does not] prescribe a course of action embodying a fixed or readily ascertainable standard” for the conduct at issue and (2) the discretion exercised by the government is of the variety that the exception was designed to protect. Hughes v. United States, 110 F.3d 765, 767 & n.1 (11th Cir. 1997). The district court found that both prongs of the test were satisfied in this case.
First, the plaintiff alleged that this post office did have a policy of providing armed security to mail transporters, given recent problems with armed robberies, and that the policy was not being followed when he was robbed. However, the court found that the plaintiff only alleged that there was a short-term policy for providing security, not a fixed policy. The short-term policy was discontinued because of resource allocation, and the plaintiff did not allege that there was any other established procedure that definitively prescribed the presence of armed security during the pickup at issue here.
Next, with respect to the second prong, the key inquiry is whether the conduct at issue is “susceptible to policy analysis.” Powers v. United States, 996 F.2d 1121, 1125 (11th Cir. 1993). To the plaintiff’s likely chagrin, the Eleventh Circuit had already held that post office security decision-making was conduct of the variety the discretionary function exception was designed to protect. Hughes, 110 F.3d at 768 (noting that “[d]ecisions involving security at post offices are a fundamental part of the economic and social policy analysis required to achieve” the statutory aims of the postal service). Accordingly, the post office’s choice to not provide security, based on the resource allocation considerations, on the night of the robbery was the type of discretion that the FTCA discretionary function exception was intended to protect. Accordingly, the district court found that both prongs of the exception were satisfied and granted the government’s motion to dismiss.
Although this plaintiff failed at the motion to dismiss stage, we should remember that tort suits against the government are always tricky, given the limits imposed by sovereign immunity. Nevertheless, negligent security claims are viable in many contexts beyond suits against the federal government or state governments. Indeed, many parties, including business owners, landlords, and property management companies, may be liable for failing to provide adequate protection under certain circumstances. Although negligence suits may appear simple on the surface, the assistance of legal counsel with experience in a particular legal field can often be efficacious. The Atlanta premises liability attorneys at the Simon Law Firm have represented many Georgians who have been injured as a result of some party’s failure to provide sufficient security. If you believe you have a possible negligent security claim or another type of negligence claim, and are interested in what options for legal redress you may have, feel free to contact us for a free case evaluation.