Monday, November 11, 2013

Whisnant v. United States case brief

Whisnant v. United States case brief summary
400 F.3d 1177 (2005)

Plaintiff seafood supplier filed a Federal Tort Claims Act suit against defendant United States for negligence in its operation of a commissary on a naval base. The supplier claimed he became ill due to regular exposure to the toxic mold that was negligently allowed to colonize the commissary's meat department. The U.S. District Court for the Western District of Washington dismissed for lack of subject matter jurisdiction. The supplier appealed.


As part of his job, the supplier made weekly seafood deliveries to the commissary and oversaw fellow employees who staffed the fish counter in the commissary's meat department. These tasks required him to come to the commissary for a three- to four-hour period at least once every week to two weeks. Defense Commissary Agency (DeCA) regulations required periodic safety inspections, but it was up to DeCA employees to decide how and when to conduct the inspections. Though DeCA personnel were responsible for safety, the base contracted out its maintenance work. The accumulation of mold continued for three years.


  • The court held that the supplier's suit was not barred by the discretionary function exception of 28 U.S.C.S. § 2680(a). 
  • He did not allege that the government was negligent in designing its safety inspection procedures; rather, he charged that the government was negligent in following through on those procedures. 
  • Because removing an obvious health hazard was a matter of safety and not policy, the government's alleged failure to control the accumulation of toxic mold could not be protected under the discretionary function exception.

The district court's dismissal of the action was reversed and the case was remanded for further proceedings.

Suggested Study Aids For Tort Law

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