I first read this case in law school. It shows the difficulty of successfully suing the US government for tort liability, including wrongful death.
Brown v. US is a 1986 US Court of Appeals, 1st Circuit, case . The facts are compelling: on Friday, November 21, 1980, at noon, the fishing vessels Sea Fever and Fairwind, left their home port of Hyannis, MA, bound for Georges Bank to lobster. Before leaving port, and on their day's journey to the fishing ground, as was their custom, they listened to their radio receivers which broadcast the National Weather Service marine weather predictions. Friday's 11 am, 5 pm and 11 pm broadcasts all predicted good weather. The boats arrived at Georges Bank early Saturday morning, where, starting with the 5:00 a.m. broadcast, the weather report carried a gale warning.
The fishermen out on the water already knew that the weather was worsening. The northwest winds and seas were running at heights far above those mentioned on the broadcasts of good weather. Because of the wind's direction, the boats could not turn back to port. The winds and seas continued to rise.
The Fairwind "pitchpoled" and sank, carrying three sailors to their deaths. One crewman onboard the Sea Fever was swept overboard.
The families of the dead fishermen sued the US, citing negligence in not earlier predicting the storm's path. Their specific claim was that the National Meteorological Center failed to repair or replace a sporadically malfunctioning weather-reporting buoy located on Georges Bank. Plaintiff's expert testified that an important component in predicting the future weather on Georges Bank would be an accurate report of the current conditions. Had the NMC received the current conditions, it would have predicted the path of the storm in time to warn the fishing vessels to return to home port.
A US judge, hearing the case without a jury, pursuant to the Suits in Admiralty Act, awarded the fishermen's families damages. The US appealed the decision.
In its decision, the Court of Appeals reviewed some of the legal history of the FTCA, and stated that "the area of government acceptance of liability on account of government functions has presented difficult questions".
The appellate court found the logic of the lower court's decision as straightforward: the US government established the service of weather reports for the benefit of fishermen, among others; the fishermen relied on the reports when they decided to leave port to go to Georges Bank; the US knew that fishermen relied on the reports, the US induced the fisherman's reliance; having induced reliance, the US owed an obligation to the fishermen to use due care.
The Court of Appeals then overturned the award, finding that the government "did not make an affirmative misstatement of fact, that an operating buoy was currently providing wind data from that location". Furthermore, the government did not create the weather, it merely failed, to render adequate performance on a "discretionary undertaking".
Clearly, on reading the decision, the Appeals Court was very conscious that an affirmance of this case, could vastly expand governmental tort liability. "Every service that the government offers is presumably intended to benefit some class or classes of persons; ergo, they use it; ergo they relied on it; ergo the government induced reliance; ergo the government owed a duty of due care. On this basis, the only parties to whom the discretionary exception would apply would be who? Non-users?"
The facts of this case would test the empathy of the most hardened jurist. To me, the fishermans reliance on the government's "good weather" broadcast was justified, and ultimately fatal.