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Helicopter crash claim dismissed by the 9th Circuit

In California and elsewhere in the U.S., the federal government enjoys sovereign immunity from liability in most cases. However, the immunity is waived in cases in which torts arise out of the negligent actions of employees while they are working within the course and scope of their employment. If you have suffered a serious injury because of the negligence of a governmental employee, you may be able to recover damages because of the waiver of sovereign immunity in tort claims involving negligence. As was demonstrated by the recently decided case of Morales v. United States, No. 17-15215 (9th Cir. 2018), the waiver of immunity does have some exceptions, however.

Factual and procedural background of the case

A helicopter was being piloted in Prescott, Arizona over the Verde River in June 2012 when it hit a suspended cable that was not marked. The cable was 40 feet up in the air over the river. The United States Geological Survey had installed the cable in 1934 to collect water samples and streamflow measurements. It had been used continuously since 1988 and was nearly invisible from distances of 100 feet away. Despite this, the USGS never marked the cable or added warnings about it because the cable did not meet the agency’s guidelines for marking.

The collision killed the pilot and his three passengers. The pilot’s estate and the helicopter’s owner filed a lawsuit against the USGS, alleging that the government employees were negligent in not marking the cable so that the sovereign immunity under the Federal Torts Claim Act was waived. The federal district court dismissed the case, ruling that it did not have proper subject matter jurisdiction because an exception applied to the waiver of immunity. The trial court found that the USGS’s decision not to mark the cable was a discretionary decision made under a policy. The plaintiffs appealed the ruling to the U.S. Court of Appeals for the 9th Circuit.

Issue: Whether the USGS’s decision not to mark the cable was an exception to the waiver of sovereign immunity under the Federal Torts Claim Act

Since 1980, the USGS had regularly reviewed its policy about marking cables. Many of the reviews have followed aviation accidents involving unmarked cables. The USGS has adopted the FAA’s regulations in all of its marking policies. Under 14 C.F.R. § 77.9, the FAA requires that it is notified about any structure that is 200 feet above the ground. Notice is also required for any structures that are within 5,000 feet of a heliport or 20,000 feet of an airport.

In 1984, the USGS stated in a memorandum that while the FAA didn’t require structures that were below 200 feet to be marked, employees should still consider marking lower structures and cables if they were deemed to be hazards for aircraft that fly at low altitudes. The USGS issued a policy manual in 2008 that required that all cables above 200 feet should be marked and the FAA notified. The USGS also indicated that site-specific data should be considered for lower-hanging cables such as prior accidents, land-management agency requests and the costs of installation among others.

Rule: Claims that are based on the acts or failures to act of government employees during the course and scope of their jobs that are discretionary will not waive the government’s sovereign immunity.

Under 28 U.S.C. § 2680, the exceptions to waiving sovereign immunity under the Federal Torts Claim Act are listed. One of the exceptions is for claims of negligence by employees while they are acting in the scope and course of their jobs if their acts or omissions are discretionary in nature. This means that if there is a policy in place that leaves certain decisions about whether to act to the employees’ discretion after considering all of the factors, the government’s immunity to liability will not be waived, and the courts will not have subject matter jurisdiction to hear the claims.


The Federal Torts Claim Act waives the government’s sovereign immunity for claims involving the negligence actions or omissions of employees while they are working in the scope and course of their jobs in 28 U.S.C. § 1346(b). However, if the discretionary exception applies, the immunity will not be waived. If the government’s immunity is not waived, then it cannot be held to be liable for damages that arise out of the claim. In Berkovitz v. United States, 486 U.S. 531 (1988), the Supreme Court of the United States provided a two-part test that courts are to apply when they are trying to determine whether the discretionary exception applies. Courts are first supposed to determine whether the decision is discretionary or whether there are any mandated requirements to act. If the decision is discretionary, the courts are then to consider whether the action taken was based on considerations of public policy. If the courts determine that the act or omission was based on considerations of public policy, the discretionary exception will apply, and the sovereign immunity of the government will not be waived.

In the Morales case, the cable was less than the 200 feet specified under the FAA rules and the USGS policy. The court also found that the USGS’s inclusion of the ability of employees to consider other site-specific factors pointed to the fact that decisions about whether or not to mark a lower hanging cable were discretionary. The court then considered whether the decision was made in consideration of public policy. It found that the USGS’s decision to defer to the rule-making of the FAA to keep aircraft safe was grounded in matters of public policy.


After finding that the USGS’s failure to mark the low-hanging cable that caused the helicopter crash was discretionary and that it was grounded in considerations of public policy, the 9th Circuit affirmed the ruling of the trial court. It found that since the discretionary exception to the waiver of sovereign immunity applied, there was no subject matter jurisdiction to hear the case. As a result, the case was dismissed.

Contact an experienced Los Angeles personal injury lawyer

If you have suffered a serious personal injury or have lost a loved one because of the negligent actions or failures to act of a government employee while he or she was working, it is important for you to talk to an experienced Los Angeles personal injury attorney as soon as possible. Government claims have much shorter statutes of limitations and have to be filed quickly. Determining whether or not the government will be immune to liability can also be difficult. By getting help from an attorney who is experienced in handling government tort claims quickly, you may be able to learn about your rights and whether or not you might have a valid claim. Contact the Law Offices of Steven M. Sweat today to schedule your consultation so that you can learn more about your own potential claim.  Note: for more information on aircraft accident claims, go to our related page here.


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