At page 670 Distinguishing planning from operational negligence under tort claims act33 citing cases“where ... the facts ... are solely in the possession of the moving party ... a continuance of a motion for summary judgment for purposes of discovery should ... be granted almost as a matter of course”
- Petrus v. United States, No. 1:16-cv-00053 (D.V.I. Mar. 29, 2022).F.D.I.C. v. Meyer, 510 U.S. 13 Id. at ¶ 26. 14 Id. at ¶ 27. 15 Feb. 26, 2020 Memo. at 1 (citing Ward v. United States, 471 F.2d 667, 670 (3d Cir. 1973)) (ECF No. 28). 16 See generally Am. Compl. 17 Mot. to Dismiss Pl.’s First Am. Compl.
- USA ex rel. Brady Folliard v. Gov't Acquisitions, 764 F.3d 19 (D.C. Cir. 2014).publishedIndeed, in tracing the genesis of the phrase “granted almost as a matter of course” to the Third Circuit’s decision in Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973), it is clear that the court made this statement based on the spec…
- Solis v. A-1 Mortg. Corp., 934 F. Supp. 2d 778 (W.D. Pa. 2013).published(deeming affidavits that could not have been based on affiants’ personal knowledge “clearly insufficient” to rule out operational negligence)
- Rivera-Mercado v. Gen. Motors Corp., 51 V.I. 307 (2009).publishedAppellee is mistaken. “[Wjhere the facts are solely in the possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course . . . .” Colafella, 885 F.2d…
- Hudert v. Alion Sci. & Tech. Corp., 429 F. Supp. 2d 99 (D.D.C. 2006).published(granting additional discovery of facts relevant to the alleged negligence as a matter of course under Rule 56(f))
- ITT Indus., Inc. v. Wastecorp. Inc., 87 F. App'x 287 (3d Cir. 2004).unpublishedWe have explained that “where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course.” Costlow v. United States, 552 F.2d 560,…
- Siss v. Cnty. of Passaic, 75 F. Supp. 2d 325 (D.N.J. 1999).publishedThe United States Court of Appeals for the Third Circuit explained in Contractors Assoc. of Eastern Pennsylvania v. City of Philadelphia, 945 F.2d 1260 (3d Cir.1991): If information concerning the facts to be discovered is solely in the po…
- Glad-A-Way Gardens, Inc. v. Lynn Mayer's Great Lakes Glads, Inc., 52 F.3d 333 (9th Cir. 1995).unpublishedPa. v. City of Philadelphia, 945 F.2d 1260, 1263 (3d Cir.1991) ("If information concerning the facts to be discovered is solely in the possession of the movant ... 'a motion for a continuance of a motion for summary judgment for purposes o…
- Contractors Ass'n Of E. Pennsylvania v. City Of Philadelphia, 945 F.2d 1260 (3d Cir. 1991).published If information concerning the facts to be discovered is solely in the possession of the movant, however, "a motion for continuance of a motion for summary judgment for purposes of discovery should [then] ordinarily be granted almost as a m…
- Contractors Ass'n of E. Pennsylvania v. City of Philadelphia, 945 F.2d 1260 (3d Cir. 1991).published If information concerning the facts to be discovered is solely in the possession of the movant, however, “a motion for continuance of a motion for summary judgment for purposes of discovery should [then] ordinarily be granted almost as a m…
Show 19 more citing cases
- Int'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946 (3d Cir. 1990).published Applt's Br. at 14. 11 This court has said, in another private antitrust suit, that "where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as…
- Lunderstadt v. Colafella, 885 F.2d 66 (3d Cir. 1989).published Moreover, although we stated in Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973), that "[w]here ... the facts ... are solely in the possession [of the moving party] ... a continuance of a motion for summary judgment for purposes of d…
- Gregory Lumber Co. v. United States, 9 Cl. Ct. 503 (Ct. Cl. 1986).publishedSee, e.g., 10A Wright, Miller & Kane, Practice and Procedure § 2741 (2d ed. 1983); Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973); Costlow v. United States, 552 F.2d 560 (3d Cir.1977); Walters, 626 F.2d at 1317 .
- Am. Broad. Companies, Inc. v. United States Info. Agency, 599 F. Supp. 765 (D.D.C. 1984).publishedPlaintiffs cite substantial authority supporting the proposition that “Rule 56(f) motions should be liberally granted ... especially where all of the allegedly material facts are within the exclusive knowledge of the opposing party.” Ward…
- Linda L. Hebert v. Cordelia Wicklund, 744 F.2d 218 (1st Cir. 1984).publishedMany cases state that continuances should be routinely granted under Rule 56(f) where the moving party has sole possession of the relevant facts that the non-moving party needs to oppose the summary judgment motion, e.g., Ward v. United St…
- Sames, Roger Troccola, Dennis v. Gable, Carson S. Daddona, Joseph S. City of Allentown, 732 F.2d 49 (3d Cir. 1984).publishedWard v. United States, 471 F.2d 667, 670-71 (3d Cir.1973)____ [B]y acting on the motion for summary judgment without argument, and without reference to what might be developed in discovery, which was being diligently pursued, the court err…
- Cardio-Med. Assocs., Ltd v. Crozer-Chester Med. Ctr., 536 F. Supp. 1065 (E.D. Pa. 1982).publishedSee Bogosian v. Gulf Oil Corp., 561 F.2d 434, 444 (3d Cir. 1977) (reverses district court’s grant of summary judgment on ground that plaintiffs should be granted opportunity to develop evidence of actionable antitrust conspiracy in discove…
- Bernitsky v. United States, 620 F.2d 948 (3d Cir. 1980).published In an earlier case, the panel had succinctly expressed the distinction by noting that “ordering an army maneuver is a discretionary function, but the negligent operation of an army vehicle during such a maneuver is not.” Ward v. United Sta…
- British Airways Bd., 1 v. Boeing Co., 585 F.2d 946 (9th Cir. 1978).published(Rule 56(f) motion should have been granted where there had been no discovery at all on critical negligence issue)
- Bogosian v. Gulf Oil Corp., 561 F.2d 434 (3d Cir. 1977).publishedThe memorandum in support of plaintiffs’ Rule 56(f) motion indicated that the evidence which would support its theory of a combination or conspiracy was, as it usually is in such cases, in the hands of defendants and that summary judgment…
- Paul J. Bogosian, on Behalf of Himself & All Those Similarly Situated v. Gulf Oil Corp., Am. Oil Co., Humble Oil & Refining Co., Mobil Oil Co., Phillips Petroleum Co., Shell Oil Co., Sun Oil Co., Texaco, Inc., Cities Serv. Oil Co., Atl. Richfield Co., Union Oil Co. of California, Union 76 Div., Amerada Hess Corp., Hess Oil & Petroleum Div., Getty Oil Co., Stand. Oil Co. of Ohio, Stand. Oil Co. of California. Louis J. Parisi, on Behalf of Himself & All Others Similarly Situated v. Gulf Oil Corp., Am. Oil Co., Exxon Corp., Mobil Oil Co., Phillips Petroleum Co., Shell Oil Co., Sun Oil Co., Texaco, Inc., Cities Serv. Oil Co., Atl. Richfield Co., Union Oil Co. of California, Union 76 Div., Amerada Hess Corp., Hess Oil & Petroleum Div., Getty Oil Co., Stand. Oil Co. of Ohio, Stand. Oil Co. of California, Chevron Oil Co, 561 F.2d 434 (3d Cir. 1977).publishedThe memorandum in support of plaintiffs' Rule 56(f) motion indicated that the evidence which would support its theory of a combination or conspiracy was, as it usually is in such cases, in the hands of defendants and that summary judgment…
- Gary L. Costlow v. United States, 552 F.2d 560 (3d Cir. 1977).publishedWard v. United States, 471 F.2d 667, 670-71 (3d Cir. 1972).
- In re Art Van Furniture, LLC, No. 1:22-cv-00450 (D. Del. Dec. 13, 2022).(where moving party controls evidence, motions to continue summary judgment “should, we think, ordinarily be granted almost as a matter of course)
- Doe v. Abington Friends Sch., 480 F.3d 252 (3d Cir. 2007).published See Ward v. United States, 471 F.2d 667, 670 (3d Cir.1973); see also Sames, 732 F.2d at 51-52 ; Costlow v. United States, 552 F.2d 560, 562-64 (3d Cir.1977).
- Lanning v. Se. Pennsylvania Transp. Auth., 176 F.R.D. 132 (E.D.N.Y. 1997).publishedSee Costlow v. United States, 552 F.2d 560 (3d Cir. 1977) (“where the facts are in the possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a mat ter of course”…
- Temple Univ. v. Salla Bros., 656 F. Supp. 97 (E.D. Pa. 1986).publishedSee Ward v. United States, 471 F.2d 667, 670-71 (3d Cir.1973).
- McVan v. Bolco Athletic Co., 600 F. Supp. 375 (E.D. Pa. 1984).published See Ward v. United States, 471 F.2d 667, 670-71 (3d Cir.1973); C.
- Steinberg v. Shearson Hayden Stone, Inc., 546 F. Supp. 699 (D. Del. 1982).publishedSee Ward v. United States, 471 F.2d 667, 670-71 (3d Cir. 1973); Penn Galvanizing Co. v. Lukens Steel Co., 59 F.R.D. 74, 80-83 (E.D.
- Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840 (3d Cir. 1974).publishedSee, e. g., Ward v. United States, 471 F.2d 667, 670 (3d Cir. 1973). 19 .
At page 672 cited at this page1 citing case
- Mid-South Grizzlies v. Nat'l Football League, 720 F.2d 772 (3d Cir. 1983).published Costlow v. United States, 552 F.2d 560, 564 (3d Cir.1977); Ward v. United States, 471 F.2d 667, 672 (3d Cir.1973).
Other citing cases
- Bryson v. United States, 463 F. Supp. 908 (E.D. Pa. 1978).published
- Reed v. SmithKline Beckman Corp., 569 F. Supp. 672 (E.D. Pa. 1983).published
- Richard J. Griffin v. United States, 500 F.2d 1059 (3d Cir. 1974).published
v.
UNITED STATES of America; Kenneth v. MONTAG and Alice L. Montag, His Wife, Appellants, v. UNITED STATES of America
OPINION OF THE COURT
GIBBONS, Circuit Judge.Both appeals are from orders of the district court granting summary judgment in favor of the United States in actions brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for injuries allegedly suffered as a result of sonic booms caused by a United States Air Force aircraft. Appellant Ward alleges that he was injured when an automobile under which he was working fell on him as a result of a sonic boom. Appellants Montag claim that a sonic boom caused extensive damage to their home and garage.
The complaints asserted a number of alternative theories of liability including strict liability and negligence. In both actions the Government moved for summary judgment on the ground that the activities in question fell within the discretionary function exception to the Fed[*669] eral Tort Claims Act. 28 U.S.C. § 2680 (a). [1]
In support of that motion the Government filed three affidavits. The affidavit of General John P. McConnell, Chief of Staff, United States Air Force, stated that the highest civilian and military authorities, he included, had determined that the security of the Nation depended on having supersonic bombers, and that the combat crews for such aircraft had to be trained in flights over populated areas of the United States so that actual combat conditions could be simulated. General Joseph J. Nazzaro, Commander-in-Chief, Strategic Air Command, averred that he had issued regulations requiring supersonic training of B-58 air crews and that an air corridor over the Pittsburgh area was used for this purpose. Colonel Hugh B. Robertson, Jr., Deputy Commander for Operations, 305th Bombardment Wing, Strategic Air Command, averred that on the dates on which the plaintiffs’ personal injuries and property damage are said to have occurred, some 37 flights took place, pursuant to the regulations referred to by General Nazzaro, in the Pittsburgh area air corridor.
Both appellants, based upon the admissions set forth in the Government’s affidavits, filed cross motions for partial summary judgment of liability based on strict liability. Both appellants also filed alternative motions, pursuant to Fed.R.Civ.P. 56(f) for a continuance of the Government’s motions for summary judgment for the reason that the plaintiffs could not at that time present by affidavits facts essential to justify their opposition to the motions, and that they desired, for that purpose, time for additional discovery.
The district court granted the Government’s motion for summary judgment in the Ward case, [2] and on the authority of Ward, shortly thereafter in the Mon-tag case. These appeals followed. We reverse.
The district court based its decision on the discretionay function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), and on the Supreme Court’s decision in Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). It also rejected the appellants’ contention that they could recover for sonic boom damage on a strict liability theory.
The Supreme Court has never held that military supersonic flights fall within the discretionary function exception. Two courts of appeals have held that they do. [3] See Abraham v. United States, 465 F.2d 881 (5th Cir. 1972); Maynard v. United States, 430 F.2d 1264 (9th Cir. 1970) (per curiam). In view of the interpretation given § 2680(a) in Dalehite v. United States, supra, and the legislative history therein discussed, we conclude that the uneontradicted affidavits of Generals McConnell and Nazzaro and of Colonel Robertson were sufficient to establish that the flights over the Pittsburgh corridor during the critical period fell within the discretionary funtion exception. See 346 U.S. at 27-30, 73 S.Ct. 956.
The plaintiffs’ strict liability contention is foreclosed by a decision of the Supreme Court announced after the district court’s opinion. In Laird v. Nelms, 406 U.S. 797, 92 S.Ct. 1899, 32[*670] L.Ed.2d 499 (1972), the Court, in a sonic boom case, held that the Federal Tort Claims Act does not permit the imposition of liability upon the Government in the absence of negligence or other form of misfeasance or nonfeasance. State laws permitting recovery on a strict liability theory for extrahazardous activities are not a ibasis for recovery, under the Act, against the United States.
But neither Dalehite v. United States, supra, nor Laird v. Nelms, supra, end the inquiry. The plaintiffs here asserted negligence as well as strict liability. In Dalehite the Court distinguished negligence at the planning level, as to which 28 U.S.C. § 2680(a) applied, from negligence at the operational level. 346 U.S. at 42, 73 S.Ct. 956. For example, ordering an army maneuver is a discretionary function, but the negligent operation of an army vehicle during such a maneuver is not. The same distinction is applicable to the operation of aircraft. The district court disregarded this distinction, holding that the discretionary function exception barred recovery for negligence of individuals involved both in the planning and in the execution of discretionary flights. [4] 331 F.Supp. at 375. This gives too broad a scope to § 2680(a).
While the government affidavits here were sufficient to show that the decision to send supersonic flights through the Pittsburgh air corridor at the critical time was made in the exercise of a discretionary function, they were clearly insufficient to rule out the possibility of operational negligence. Indeed the affiants, not being present, could have had no personal knowledge as to the manner in which the flights actually were conducted. See Fed.R.Civ.P. 56(e). There were no affidavits by the pilots of the flights.
In Abraham v. United States, supra, the Fifth Circuit, recognizing the distinction between planning negligence and operational negligence, affirmed the grant of summary judgment for the Government because the uncontradicted affidavits of the pilots eliminated the possibility of operational negligence. There was not, as here, so far as Judge Wisdom’s opinion discloses, a motion pursuant to rule 56(f) for a continuance to permit further development of the facts. Since in this case there were no pilot affidavits and there was a motion pursuant to rule 56(f) for such a continuance, we must reverse the grant of summary judgment. Where, as here, the facts respecting possible operational negligence are solely in the possession of those in actual control of the aircraft, [5] a motion for a continuance of a motion for summary judgment for purposes of discovery should, we think, ordinarily be granted almost as a matter of course. See., e. g., Robin Construction Co. v. United States, 345 F.2d 610, 613-614 (3d Cir. 1965); United States v. Halpern, 260 F.2d 590, 591 (3d Cir. 1958); Toebelman[*671] v. Missouri-Kansas Pipe Line Co., 130 F.2d 1016 (3d Cir. 1942).
The judgments of the district court will be reversed and the cases remanded for further proceedings consistent with this opinion.
. 28 U.S.C. § 2680(a) provides in pertinent part:
“The provisions of this chapter and section 1346(b) of this title shall not apply to—
(a) Any claim based upon the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the ' discretion involved be abused.”
. Ward v. United States, 331 F.Supp. 369 (W.D.Pa.1971).
. In addition to the decision appealed from, three other district courts have held that sonic boom flights fall within 28 U.S.O. § 2680(a). McMurray v. United States, 286 F.Supp. 701 (W.D.Mo. 1968) ; Schwartz v. United States, 38 F.R.D. 164 (D.N.D.1965); Huslander v. United States, 234 F.Supp. 1004 (W.D.N.Y.1964).
. The district court noted:
“We hold that the individuals involved in the planning and execution of such flights were performing -discretionary functions or duties and therefore the consequences of their performance are not actionable under the Federal Tort Claims Act.” 331 F.Supp. at 375 (emphasis added).
Compare the above with Wenninger v. United States, 234 F.Supp. 499 (D.Del. 1964), aff’d per curiam, 352 F.2d 523 (3d Cir. 1965), where the court remarked :
“The Government has properly conceded that § 2680(a) affords it no protection against plaintiffs’ claim that the pilot of the C-124 was negligent. The discretion exercised by a pilot in flying an airplane is clearly at the operational level and an abuse thereof or its negligent exercise is outside of the § 2680(a) jurisdictional exception. See Wildwood Mink Ranch v. United States, 218 F.Supp. 67 (D.Minn.1963) ; Dahlstrom v. United States, 228 F.2d 819 (8th Cir. 1956).”
. The district court opinion observes:
“The plaintiff has not however had an opportunity to conduct such investigation as might enable him to attack the accuracy of the records which purport to show that applicable regulations were observed.” 331 F.Supp. at 374.