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Bryant n.6738 (FTCA)

Original Creator: Jonathan Zittrain Current Version: emasters
1

The Government contends that the decision not to station supervisory personnel on the playgrounds was an exercise of a discretionary function, thus barring recovery under the Federal Tort Claims Act exception In 28 U.S.C. 6 2680fa). The United States on this point presented evidence at trial that BIA boarding schools of this type had once been run in a highly militaristic fashion with the children marched in groups between the various points of the campus. Such rigid practices had been relaxed at the Chuska school as part of a deliberate effort to make the atmosphere of the school open and encourage Individual responsibility in the students. As mentioned earlier, the school instituted Instead a system of periodic head checks to ensure that the children's whereabouts were regularly checked. The Government argues that the decision to make these changes was a discretionary judgment made by the BIA officials which comes under the rule In Dalehlte v. United States. 346 U.S. 15. 97 L. Ed. 1427. 73 S. Ct. 956.

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It appears from the record that Indeed the after-school [**8] supervisory system was changed at the Chuska school. This may or may not have constituted an exercise of the discretionary function. However, the negligence found was a result of a failure under the new system of the dormitory personnel to properly carry out their duties to supervise outside. The doctrine or exemption of a dscretlonary function thus does not come Into play at all as the new system Itself was not the cause as It acknowledged the need for outside supervision.

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November 20, 2014

Bryant n.6738 (FTCA)

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