Strand v. United States of America
MEMORANDUM OPINION. Signed by Judge Peter J. Messitte on 2/7/2017. (jf3s, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
TOYA STRAND, individually and as
legal guardian of JT, a minor
UNITED STATES OF AMERICA,
Department of the Army
Civil No. PJM 14-3521
Toya Strand, individually and on behalf of her son JT (a minor), has sued the United
States (the Government) under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et. seq.,
in connection with injuries her son sustained while attending a summer camp run by the United
States Army at Fort Meade, Maryland. In her Complaint, Strand alleges that the Government, its
camp counselors, and camp directors owed duties to her and JT, which they breached due to
negligence. She also asserts an agency/vicarious liability claim against the Government as the
employer of the counselors, camp directors, and other individuals who purportedly breached
those duties. She seeks judgment against the Government in the amount of $750,000.
The Government argues that the Court lacks jurisdiction over the dispute because the
discretionary function exception to the FTCA applies.1
As elaborated infra, the discretionary function exception provides that the Government is not liable for
any claim “based upon the exercise or performance or 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.” 28 U.S.C. § 2680(a).
This is not the first time in this case that the Government has raised the discretionary
function exception. The Court previously denied without prejudice the Government’s Motion to
Dismiss for Lack of Jurisdiction (ECF No. 14), which asserted that the discretionary function
exception barred the suit. The Court then allowed discovery to go forward, following which, the
Government has again asked for dismissal of the suit based on the discretionary function
exception, this time in the form of a Motion to Dismiss for Lack of Jurisdiction or, Alternatively,
for Summary Judgment (ECF No. 46).
On November 15, 2016, the Court held a motions hearing on the Government’s Motion.
At the hearing, the Court, sua sponte, inquired as to the potential application of the voluntary
undertaking theory of liability to the case.2 Because the parties had not briefed this issue, the
Court granted the Government leave to submit supplemental briefing and Strand an opportunity
to respond. The parties did so, and the Court has now reviewed those filings. For the following
reasons, the Court will GRANT the Government’s Motion to Dismiss (ECF No. 46) and
therefore, need not address its alternative Motion for Summary Judgment (ECF No. 46).
Consistent with this, Strand’s Complaint (ECF No. 1) will be DISMISSED WITH
I. FACTUAL AND PROCEDURAL HISTORY
A. The Camp
During the summer of 2011, Strand’s minor son, JT, who was then 12-years-old, attended
a summer camp program (the Camp) run by the U.S. Army Child, Youth and School Services at
Fort George G. Meade (Fort Meade) at Fort Meade, Maryland. Compl. ¶ 5, ECF No. 1. The
As elaborated infra, the voluntary undertaking theory holds that one who undertakes, gratuitously or for
consideration, to render services to another which he should recognize as necessary for the protection of
the other’s person or things, may be subject to liability to the other for physical harm resulting from his
failure to exercise reasonable care to perform his undertaking. See Restatement Second of Torts § 323
Camp was operated by the Army’s Youth Program during the summer months to care for
children of military and Department of Defense personnel. See Def’s. Mot. to Dismiss or
Summary Judgment, Exhibit A, ECF No. 46-3 (Youth Program Handbook), 3. The campers
rotated through various activities at different facilities at the Youth Center, including a computer
lab, dance studio, and music room. See Def’s. Mot. to Dismiss, Exhibit B, ECF No. 14-4 (Decl.
of F. Jamison), ¶ 11. The campers also took on-post field trips to the Camp’s swimming pool and
bowling alley as well as off-post field trips to the zoo and a movie theater. Id. ¶ 12. When taking
a field trip to the on-post pool, campers, accompanied by counselors, were transported on a
school bus. Id. ¶ 13.
B. The Incident
The incident at issue occurred during one of these on-post field trips to the pool. On
August 9, 2011, JT and between 19 and 34 other campers were transported from the Youth
Center to the Camp’s pool. See Def’s. Mot. to Dismiss or Summary Judgment, Exhibit H, ECF
No. 46-10 (Attendance Form); Def’s. Mot. to Dismiss or Summary Judgment, Exhibit F, ECF
No. 46-8 (Dep. of JT), 10; Def’s. Mot. to Dismiss or Summary Judgment, Exhibit G, ECF No.
46-8 (Dep. of K. Wade), 30-31. They were accompanied by three counselors—Kimberly Wade,
Mike King, and Terrance Trotman—as well as two to four lifeguards. See Dep. of K. Wade, 3133; Def’s. Mot. to Dismiss or Summary Judgment, Exhibit O, ECF No. 46-17 (Dep. of M. Wise),
15-16; Def’s. Mot. to Dismiss or Summary Judgment, Exhibit B, ECF No. 46-4 (Dep. of F.
After swimming, JT went into the locker room to change clothes. See Def’s. Mot. to
Dismiss or Summary Judgment, Exhibit E, ECF No. 46-7 (Dep. of JB), 11. There were
approximately eight or nine children in the boys’ locker room, including JB who, at the time,
was 14 years old. See id. at 11, 20-21; Plf’s. Resp, Exhibit I, ECF No. 52-8 (Dep. of J. Beasley),
6. While in the locker room, JB and JT exchanged words, seemingly disagreeing about whether
JT had insulted JB’s mother. Dep. of JT, 12-14. After exchanging words, JB struck JT one time
in the face. Id. at 16-17.
There were no counselors inside the locker room when the incident occurred. See Plf’s.
Resp., Exhibit M, ECF No. 52-11, (Dep. of K. Wade (2)), 48-49. Kimberly Wade, the counselor
closest to the locker room at the time, was standing outside the boys’ locker room in order to
simultaneously monitor both the boys’ and girls’ locker rooms. Id. See also Mot. to Dismiss or
Summary Judgment, Exhibit K, ECF No. 52-10 (K. Wade Incident Report). In the minutes
preceding the incident, Wade entered the girls’ locker room in an attempt to get the girls to finish
changing more quickly. Id. After leaving the girls’ locker room, Wade heard the sound of “body
movements” coming from the boys’ locker room. Id. at 51. She yelled into the boys’ locker room
in an attempt to get the boys to hurry up. Id. at 52. While she could tell that there was an
argument in progress, she could not hear what words were being said. Id. at 52-53. She then
walked to the doorway of the boys’ locker room, intending to go inside in order to see what was
going on and stop whatever conflict was taking place. Id. at 53-54; K. Wade Incident Report.
However, upon hearing a shower running, Wade decided that she should not enter the boys’
locker room out of fear that a boy might be indecent. Dep. of K. Wade, 54; K. Wade Incident
Report. At that point, Wade began to walk to the entrance of the pool to ask a male counselor to
enter the boys’ locker room and check on things. Dep. of K. Wade, 55; K. Wade Incident Report.
However, before Wade could reach a male counselor, she heard several high pitched voices as
well as the sound of crying. Dep. of K. Wade, 57; K. Wade Incident Report. A number of boys
then ran out of the locker room saying that there was a fight. Dep. of K. Wade, 57-58; K. Wade
Incident Report. Shortly after, JT emerged from the locker room crying with blood dripping from
his mouth. Dep. of K. Wade, 58; K. Wade Incident Report. J.B., as indicated, had allegedly
struck him. Id.
C. Camp Governance
The Camp’s operations were governed by Army Regulation 608-10 and Department of
Defense Instructions 6060.2 and 6060.4 as well as a series of handbooks, guides, and standard
operating procedures. Dep. of F. Jamison, 17.3 The Youth Program Handbook stated that the
Youth Programs “are designed to enhance soldier readiness by reducing the conflict between
mission and parental responsibilities, to facilitate Family well-being, and to reinforce Army
values.” Youth Program Handbook, 2. Youth Programs utilize a framework focusing on four
areas of development: (1) sports, fitness, and health; (2) life skills, citizenship, and leadership;
(3) arts, recreation, and leisure; and (4) academic support, mentoring, and intervention. Id. at 4.
The Youth Program Handbook provided instruction for child supervision, staffing, and employee
training. It states,
Accountability of youth must be maintained at all times. No youth are left
unsupervised at any time, indoors or outdoors, asleep or awake (e.g., an
overnight field trip). Supervision of youth must be defined based on the
participants’ ages and stages, developmentally-appropriate practices, parental
permission, and situational risk. A system of accountability must be ensured.
Supervision of middle school and teen youth does not necessarily require that
direct Line-O-Sight Supervision (LOSS) is maintained at all times (e.g., see
The handbooks and other relevant materials included:
Army Youth Program Director’s Handbook (Youth Program Handbook)
U.S. Army Child, Youth & School Services Parent Handbook
Policy Memorandum #43, Parental Responsibilities and Supervision of Children and Youth
Standard Operating Procedure – Guidance, Discipline, Touching, and Accountability of Children
Standard Operating Procedure, Child, Youth and School Services – Field Trips
Standard Operating Procedure, Child, Youth and School Services – Supervision of Children
Anne Arundel County Public Schools Code of Student Conduct
U.S. Army Child, Youth and School Services, Staffing Business Rules
Child and Youth Services Organizational Structure
field trips). . . . YP management personnel will ensure extra vigilance in
supervision of youth during times of greater confusion (e.g., during dances, field
trips, special events, or during personnel turnover).
Id. at 15.4 With regard to child safety, the Youth Program Handbook stated that the Youth
Program Director should “encourage participants and staff to be independent decision-makers
promoting their own safety.” Id. at 71.
The Youth Program Handbook required a general staffing ratio of 1 supervisor to 15
children, and in the case of an on-site field trip to the pool, the ratio was reduced to 1:8 when
lifeguards were present. Id. at 18. The Youth Program Handbook stated that “[s]upervision of
youth during field trips does not always require direct [Line-O-Sight Supervision].” Id. at 16.
There was no general requirement that staff be present in a bathroom or locker room. There was,
however, one circumstance in which the Youth Program Handbook mandated staff presence in a
locker room—if there had been an allegation of institutional child sexual abuse.5 Id. at 15. In her
deposition, Wade stated that there was a policy that female counselors could not go into the
boys’ locker room. Depo. Of K. Wade, 55. She did, however, indicate that there was an
exception to that policy if someone was in danger and it was unsafe not to enter. Id.
Strand cites various parts of Army Regulation 608-10 to the effect that, “Visual supervision of all
children must be maintained at all times. No child will be left unattended at any time indoors or outdoors,
asleep or awake. . . . Provision for adult supervision of child toilets, separate from adult/child ratios
within the child activity rooms, is required when child toilets are not within the child activity room. . . . At
least two caregivers must be present with each group of children at all times. . . . Children must be
supervised through close observation measures to ensure oversight by more than one adult. . . . All
indoor and outdoor child activity spaces must be visually and physically accessible to multiple adults for
supervision purposes.” See Response in Opp., 4. As clarified by the Government, Army Regulation 60810 addresses oversight of children at Child Development Centers, but it has also been adopted by the
Youth Programs for certain issues. See Mot. to Dismiss and Summary Judgment, 5 (citing Decl. of F.
Jamison ¶ 8). Accordingly, the requirements regarding “child toilets” only apply to Child Development
Centers, which provide child care to younger children and infants. Id.
There was no such pending allegation at the time of the incident. See Def’s. Mot. to Dismiss or
Summary Judgment, 5.
D. Procedural History
On November 10, 2014, Strand filed suit against the Government pursuant to the FTCA,
alleging negligence and vicarious liability. Compl. The Government filed a Motion to Dismiss,
arguing that the Court lacked subject matter jurisdiction pursuant to the discretionary function
exception. ECF No. 14. Following a hearing on June 15, 2015, the Court denied the motion
without prejudice. ECF No. 23. The Government then answered (ECF No. 26), and the parties
engaged in extensive discovery, which included a number of depositions of key actors in the
incident such as JB, JT, Wade, and JB’s mother. The Government then filed the pending Motion
to Dismiss or, Alternatively, for Summary Judgment (ECF No. 46), once again seeking dismissal
pursuant to the discretionary function exception. Strand responded (ECF No. 52), and the
Government replied (ECF No. 54). The Court held a hearing on November 15, 2016. At the
conclusion of the hearing, the Court raised the potential application of the voluntary undertaking
doctrine and provided the parties with an opportunity to submit supplemental briefing on the
issue. The parties filed supplemental briefs (ECF Nos. 57, 62), and the Government has since
submitted correspondence regarding United States v. Wood, 845 F.3d 123, (4th Cir. 2017), a
recent Fourth Circuit opinion addressing the discretionary function exception (ECF No. 60).
As an initial matter, the Court addresses Strand’s Motion for Spoliation Sanctions.6 Put
simply, Strand asserts that the Government has admittedly lost some of the most relevant
evidence in the case, i.e. (1) the “trip information form” (2) the Camp file related to the field trip
to the pool on August 8, 2011, and (3) the Camp’s “weekly file” containing relevant information
such as the sign-in sheet that showed precisely which campers and counselors went to the pool
Although not styled as a Motion for Spoliation Sanctions, the Court interprets Strand’s allegations of
spoliation in her Response in Opposition (ECF No. 52) as such.
on that day. Strand contends that as a result of the Government’s failure to preserve this
evidence, the parties have not been able to identify with certainty which, if any, male staff
members were present on the field trip, the precise number of campers on the field trip, and the
identity of the campers on the field trip. She seeks to have an adverse inference drawn against the
Government in the form of a presumption that the lost evidence would have been helpful to her
and harmful to the Government.
Strand’s Motion for Spoliation Sanctions is DENIED. She has not shown that the
Government was obligated to preserve this evidence or that it acted with culpable intention. See
Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 509 (D. Md. 2009) (“A party seeking
sanctions for spoliation must prove . . . the party having control over the evidence had an
obligation to preserve it when it was destroyed or altered [and] the destruction or loss was
accompanied by a ‘culpable state of mind.’”) (quoting Thompson v. U.S. Dep't of Hous. & Urban
Dev., 219 F.R.D. 93, 101 (D. Md. 2003)). Further, Strand has failed to prove the relevance of the
documents. Id. It is by no means clear that the allegedly “despoiled” documents would have
provided information not otherwise available from the attendance sheet, which was produced, or
other discovery revealing the identity of the counselors on the trip. In any event, as the Court
now explains, Strand’s case is infirm, whatever the missing documents might show.
II. MOTION TO DISMISS
Strand alleges that the Government is liable pursuant to the FTCA for the injuries
sustained by JT based on theories of negligence and vicarious liability. The Government argues
that the actions taken and decisions made by the Camp, its directors, and its counselors were
discretionary, and therefore not actionable under the FTCA. If the discretionary function
exception to the FTCA applies, the Court without question lacks subject matter jurisdiction over
Strand’s claims. Strand counters, arguing that the discretionary function exception cannot apply
because: (1) the Government violated its own policy with respect to the supervision of children
(2) the failure to adequately supervise the boys’ locker room was not based on considerations of
public policy; and (3) the voluntary undertaking doctrine defeats the discretionary function
A. Standard of Review
A party may move for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1)
where the court lacks subject matter jurisdiction over the claims alleged in the complaint. Fed.
R. Civ. P. 12(b)(1).
Federal courts are courts of limited subject matter jurisdiction: they
“possess only the jurisdiction authorized them by the United States Constitution and by federal
statute.” See United States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th Cir. 2009) (citing
Bowles v. Russell, 551 U.S. 205, 127 S. Ct. 2360, 2365, 168 L.Ed.2d 96 (2007)). As the party
asserting jurisdiction, the plaintiff bears the burden of proving that the district court has subject
matter jurisdiction. See Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945
F.2d 765, 768 (4th Cir. 1991). When a governmental entity is sued and Congress has not waived
sovereign immunity as to the claim, sovereign immunity deprives the court of jurisdiction to hear
the case. See Global Mail Ltd. v. United States Postal Serv., 142 F.3d 208, 210 (4th Cir.1998).
When a district court determines that it lacks subject matter jurisdiction over an action, it must
dismiss the action. Vuyyuru, 555 F.3d at 347 (citing Arbaugh v. Y & H Corp., 546 U.S. 500,
506-07, 126 S. Ct. 1235, 163 L.Ed.2d 1097 (2006)). In considering whether to dismiss for lack of
jurisdiction, the court may consider “evidence outside of the pleadings without converting the
proceeding into one for summary judgment.” White Tail Park, Inc. v. Stroube, 413 F.3d 451, 459
(4th Cir. 2005) (quoting Richmond, Fredericksburg & Potomac R.R. Co., 945 F.2d at 768); see
also Williams v. United States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he court may consider the
evidence beyond the scope of the pleadings to resolve factual disputes concerning [subject
B. The FTCA and Discretionary Function Exception
“[N]o action lies against the United States unless the legislature has authorized it.”
Dalehite v. United States, 346 U.S. 15, 30 (1953). However, by virtue of the FTCA, Congress
created a limited waiver of sovereign immunity for claims brought against the United States
based on the negligence or wrongful acts or omissions of its employees committed within the
scope of employment. 28 U.S.C. §§ 1346(b)(1), 2671-2680. In those circumstances, the
Government will accept liability in the same manner and to the same extent as a private
individual would have under like circumstances. Id. See Wood v. United States, 845 F.3d 123, *7
(4th Cir. 2017). The waiver is limited and circumscribed by numerous exceptions. See Wood,
845 F.3d at *7.
Pursuant to the discretionary function exception to the FTCA, the Government is not
liable for any claim “based upon the exercise or performance or 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.” 28 U.S.C. § 2680(a) (emphasis
supplied). “Plaintiffs bear the burden of proving that the discretionary function exemption does
not apply.” Indemnity Ins. Co. of North America v. U.S., 569 F.3d 175, 180 (4th Cir. 2009).
Furthermore, the FTCA is strictly construed and any ambiguities are resolved in favor of the
United States. See U.S. v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).
Determining whether the discretionary function exception applies involves two steps.
First, the Court must determine whether the challenged conduct “involves an element of
judgment or choice.” Suter v. U.S., 441 F.3d 306, 310 (4th Cir. 2006). No discretion has been
found when “a federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow.” Indemnity Ins. Co., 569 F.3d at 180. Second, the Court must determine
“whether [the] judgment [in question] is of the kind that the discretionary function exception was
designed to shield, i.e., whether the challenged action is ‘based on considerations of public
policy.’” Suter, 441 F.3d at 311. “This second step of the analysis is designed to prohibit courts
from ‘second guessing’ decisions ‘grounded in social, economic, and political policy through the
medium of an action in tort.’” Wood, 845 F.3d at *10 (quoting United States v. Gaubert, 499
U.S. 315, 323 (1991)). Furthermore, “when established government policy, as expressed or
implied by statute, regulation, or agency guidelines, allows a Government agent to exercise
discretion, it must be presumed that the agent’s acts are grounded in policy when exercising that
discretion.” Gaubert, 499 U.S. at 324. “Determining whether the discretionary function
exception applies is not a fact-intensive exercise, as the court will only ‘look to the nature of the
challenged decision in an objective, or general sense, and ask whether that decision is one which
we would expect inherently to be grounded in considerations of policy.’” Chang-Williams v.
Dep't of the Navy, 766 F. Supp. 2d 604, 617 (D. Md. 2011) (quoting Baum v. United States, 986
F.2d 716, 721 (4th Cir.1993)).
In analyzing whether the discretionary function exception applies, courts need not
consider whether the Government employee in fact had subjective knowledge of her discretion
or indeed that she subjectively intended to exercise it. Id. at 325. Rather, the analysis focuses
objectively on “the nature of the actions taken and on whether they are susceptible to policy
Similarly, application of the discretionary function exception does not depend on the
seniority of the government employee—it applies equally to high-level agency officials setting
policy as well as low-level employees implementing policy. See Wood, 845 F.3d at *11-12. The
analysis focuses solely on whether the Government’s conduct involved choice implicating policy
Strand seeks to hold the Government liable for negligence. In order to prove negligence,
a plaintiff must show “a duty owed to him (or to a class of which he is a part), a breach of that
duty, a legally cognizable causal relationship between the breach of duty and the harm suffered,
and damages.” Jacques v. First Nat’l Bank, 307 Md. 527, 531 (1986). According to Strand, there
are two bases that establish the duties the Government owed to her and JT. One set of duties
arises from the need for the Government, as a facilitator of a summer camp, to adequately
supervise its campers. This basis of liability involves the failure to station a counselor inside the
boys’ locker room and the decision to place a female counselor outside of the boys’ locker room,
who might be loath to enter the locker room. The other set of duties stems from Wade’s decision
to voluntarily undertake the protection of JT. Since the application of the discretionary function
exception varies based on these two bases, they will be considered separately.
1. The Duty to Supervise Campers
Strand asserts that the Government, camp counselors, and camp directors owed duties to
her and JT to properly supervise the campers, to abide by the standard of care for camps
generally as well as during pool field trips, to follow guidelines for running a camp, to train and
supervise counselors, and to ensure that campers were not exposed to dangerous situations. She
claims that the Government breached these duties by failing to provide adequate supervision of
the campers in the locker room.7 The Government argues that the counselors’ decisions
regarding supervision were discretionary. Given the Government’s contention that the
discretionary function bars her suit, Strand has the burden of demonstrating that the exception
does not apply.
Applying the two-step framework, the Court considers first whether the Government’s
conduct involved an element of choice. In other words, the Court must determine whether any
federal statute, regulation, or policy prescribed necessary conduct in this circumstance. See
Berkovitz v. United States, 486 U.S. 531, 536 (1988).
Here, the rules and documents governing the administration of the Camp did not require
any specific, mandatory supervisory course of conduct. Instead, they demanded that the
counselors use discretion. To be sure, the Youth Program Handbook stated, “[a]ccountability of
youth must be maintained at all times,” but clarified that “[s]upervision of middle school and
teen youth does not necessarily require that direct Line-O-Sight Supervision is maintained at all
times.” Furthermore, it said, “Supervision of youth must be defined based on participants’ ages
and stages, developmentally appropriate practices, parental permission, and situational risk.” As
Initially, Strand also asserted that the Government breached its duties by failing to hire enough
personnel to adequately supervise the pool field trip and failing to properly train its counselors. While it
seems that Strand may have abandoned both of these theories, even if she has not, they are barred by the
discretionary function exception. Staffing decisions are indisputably discretionary functions. See S.A.
Empresa de Viacao Aerea Rio Grandense, 467 U.S. at 820 (holding that FAA implementation of safety
regulations was discretionary because, in part, “such decisions require[d] the agency to establish priorities
for the accomplishment of its policy objectives by balancing the objectives sought against such practical
considerations as staffing and funding”). With regard to the first step of discretionary function exception
analysis, in this case, not only was there was no mandatory requirement that the Camp have a determined
number of counselors to staff the pool locker room; the Camp’s provision of three counselors and two to
four lifeguards clearly satisfied the 1:8 adult-to-youth ratio required under the Youth Program Handbook.
As to the second step of the analysis, staffing decisions have policy implications related to child safety,
health, and privacy, as well as budgetary implications. See id. Training decisions are similarly
discretionary. See LeRose v. U.S., 285 Fed. Appx. 93, 97 (4th Cir. 2008) (concluding that a federal
agency’s “decisions regarding the hiring, supervision, and retention . . . are precisely the type of decisions
that are protected under the discretionary function exemption”). The Camp was not required by regulation
or guideline to train its counselors in locker room safety, and the decision not to train them was
unquestionably based on considerations of budget, safety, health, and development.
such, while some of the applicable regulations spoke to the need to supervise the campers, they
also allowed for the exercise of some amount of discretion and choice and acknowledged that
individual circumstances could impact these decisions.
The Youth Program Handbook required a staff to camper ratio of 1:8, but did not detail
particular rules pertaining to the gender of those staff members, nor indicate where those staff
members needed to be while supervising the campers, nor how close they needed to be to the
children in the locker rooms. More particularly, no statute, regulation, or policy mandated that
counselors, much less male counselors, be present in the locker room while the boys were
changing clothes.8 Similarly, the regulations did not require constant accompaniment on field
trips or outings.
In the final analysis, the regulations governing supervision of campers on a field trip to a
pool were at best vague, a strong suggestion that the discretionary function exception should
apply. C.f. Lafayette Federal Credit Union v. United States, 76 F.Supp. 2d 645, 653 (D. Md.
1999). There remained a range of choices that the Camp could make in exercising reasonable
care under the circumstances. See Calderon v. U.S., 123 F.3d 947, 950 (7th Cir. 1997) (“While it
is true that this statute sets forth a mandatory duty of care, it does not, however, direct the
manner by which the BOP must fill their duty to protect inmates.”). There was no mandate
contained in any statute, regulation, or policy regarding the supervision of campers at the camp
or in the locker room. Ineluctably therefore, the counselors’ decisions regarding supervision
Strand cites Army Regulation 608-10, arguing that the Camp was subject to various requirements that, if
applicable, would have mandated that the Camp supervise “child toilets” and that it supply at least two
caregivers with each group of children at all times. However, Army Regulation 608-10 applies to Child
Development Centers, which provide child care to younger children and infants. While some of the
related regulations were adopted by Youth Programs, the “child toilets” regulations, like many other
infant specific regulations, were not expressly applicable to the Camp. See Mot. to Dismiss and Summary
Judgment, 5 (citing Decl. of F. Jamison ¶ 8).
involved an element of judgment or choice. This satisfies the first part of two-step discretionary
function exception framework.
Next, the Court considers whether those choices and judgments were “based on
considerations of public policy,” and thus were “of the kind that the discretionary function
exception was designed to shield.” Berkovitz, 486 U.S. at 537. The Court finds that they were.
The counselors’ judgment regarding supervision of the locker room was precisely the
type of discretion that the exception was designed to shield and was based on considerations of
policy. As stated in the Youth Program Handbook, the Camp was seeking to promote the policies
of leadership and independence on the part of the campers. The counselors’ decisions about how
closely to monitor campers implicated these goals. Furthermore, there were obviously budgetary,
safety, and privacy concerns associated with the extent to which the campers should be
supervised, whether at Fort Meade, the pool, or in the locker room. C.f. United States v. S.A.
Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 819–20 (1984) (“When
an agency determines the extent to which it will supervise the safety procedures of private
individuals, it is exercising discretionary regulatory authority of the most basic kind.”).
Each of the counselors’ supervision-related choices reflected a balancing of these various
policy considerations. The decision to station Wade outside of, but not necessarily within, both
the girls’ and boys’ locker rooms reflected an active choice to recognize the campers’ need for
privacy and opportunities to develop their independence. Those considerations could fairly have
been weighed against considerations of safety and health. C.f. Chrisley v. United States, 620 F.
Supp. 285, 289 (D.S.C. 1985), aff'd, 791 F.2d 165 (4th Cir. 1986) (“[T]he authority delegated to
and utilized by the [employee] which caused him to weigh often competing interests and to make
a decision according to his best judgment would be a discretionary function which would not be
subject to review by this court.”). See also Waverley View Inv'rs, LLC v. United States, 79 F.
Supp. 3d 563, 577 (D. Md. 2015) (highlighting the Army’s need to balance varying competing
Privacy concerns involving the children are especially significant, given the
embarrassment that could result from having an adult in the locker room of children while they
showered and changed out of bathing suits. In fact, Strand’s own expert testified on deposition
that there are serious privacy concerns associated with supervising children in bathrooms. See
Mot. to Dismiss, Exhibit M, ECF No. 46-15 (Dep. of J. Whichard), 24. The expert even testified
that to avert such concerns, the Camp could have stationed multiple staff members in the locker
room. Id. But implementing this recommendation at the pool would have required stationing two
adults inside the boys’ locker room and two adults inside the girls’ locker room, leaving fewer
adults to supervise those campers who remained outside of the locker rooms. Deciding whether
to place adults inside the locker rooms remained a discretionary decision made by the counselors
in light of their prioritization of the various policy considerations, the specific circumstances
before them, and their understanding of where supervision would best ensure the safety of the
campers. “Judicial intervention in such decisionmaking through private tort suits would require
the courts to ‘second-guess’ the political, social, and economic judgments of an agency
exercising its regulatory function. It was precisely this sort of judicial intervention in
policymaking that the discretionary function exception was designed to prevent.” Varig Airlines,
467 U.S. at 820.
It is true that the discretionary function does not apply to preclude liability with respect to
all instances of negligence involving federal employees, such as those in which actors abandon
their duties out of “laziness,” “haste,” or “carelessness.” C.f. Keller v. United States, 771 F.3d
1021, 1024 (7th Cir. 2014). See Coulthurst v. United States, 214 F.3d 106, 109-110 (2d Cir.
2000). However, the supervisory decisions made in the present case reflect none of these
characteristics. Rather, they reflect an attempt to accomplish varying policy goals of the Camp,
and thus “[fell] within the overarching policies of a regulatory scheme that [gave counselors]
discretion in how to implement that policy.” Wood, 845 F.3d at *18.
When the counselors decided to place Wade, a female counselor, outside both the boys’
and girls’ locker rooms, they were exercising precisely the sort of discretion afforded to them in
order to ensure that they could accommodate the objectives of each situation. To repeat,
choosing how to best supervise the campers in their care was discretionary. C.f. Carlyle v. U.S.,
Dep't of the Army, 674 F.2d 554, 557 (6th Cir. 1982) (“[T]he district court had no jurisdiction
over any claim that the Army’s decision to house the recruits in the Hotel without supervision
created an unreasonable risk and was tortious.”).9
The discretionary function exception
continues to block Strand from asserting a negligence claim based upon the Government’s duty
to supervise the campers.
2. Wade’s Voluntary Undertaking
Strand’s second theory of liability flows from the notion that the Government
gratuitously undertook to provide supervision outside of the boys’ locker room. The Voluntary
Undertaking Doctrine (a.k.a. Gratuitous Undertaking Doctrine or Good Samaritan Rule) states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the
other’s person or things, is subject to liability to the other for physical harm
resulting from his failure to exercise reasonable care to perform his
undertaking, if (a) his failure to exercise such care increases the risk of such
The Court also recognizes the overwhelming consistency with which courts have found that the
discretionary function exception bars FTCA claims that federal officials negligently failed to protect
prison inmates from assault by other inmates. See McGhee v. United States, 2011 WL 474413, at *5
(E.D.N.C. Feb. 4, 2011) (collecting cases).
harm, or (b) the harm is suffered because of the other's reliance upon the
Restatement Second of Torts § 323 (1965). According to Strand, by placing Wade outside the
boys’ locker room, the Government voluntarily undertook supervision as a service to JT and the
other boys in the locker room. Therefore, she submits, the Government should be held liable for
the decisions Wade made once she heard signs of an argument in the boys’ locker room.
According to Wade, she heard the sound of body movements and yelled into the boys’
locker room in an attempt to get the boys to hurry up. When she heard the noise continue, she
walked to the doorway of the boys’ locker room—planning to go inside in order to see what was
going on and stop whatever conflict was happening—but, upon hearing that a shower was still
running, she decided she could not enter the boys’ locker room because a boy might be indecent.
This is the point at which Wade and the Government supposedly breached their duty. Strand
alleges that Wade’s decision to monitor the boys’ locker room, to yell inside, and to begin to
enter, but then out of considerations of prudishness decide not to enter, constituted a voluntary
undertaking which she negligently compounded when she decided to walk—not hasten—to get a
male counselor, so he could enter.
Even so, the voluntary undertaking theory of liability still depends on the FTCA’s limited
waiver of sovereign immunity. Courts have consistently held that application of the voluntary
undertaking doctrine does not prevent the application of the discretionary function exception. See
Merklin v. United States, 788 F.2d 172, 174 (3d Cir. 1986) (“The district court determined that
this [good samaritan] theory was barred by the discretionary function exception. We agree.”);
Barnson v. United States, 816 F.2d 549, 554 (10th Cir. 1987) (“The district court also correctly
ruled that the discretionary function exception applies to appellants’ ‘good samaritan’ claim.”).
The discretionary function exception applies equally to the Government’s highest-level
supervision decisions as well as the specific acts of supervision conducted by its employees. See
Wood v. United States, 845 F.3d 123, *11-12 (4th Cir. 2017). See also United States v. Gaubert,
499 U.S. 315, 325 (1991). Therefore, it remains entirely plausible that the discretionary function
could immunize the Government from liability for the in-the-moment decisions that Wade made,
once she heard the commotion in the locker room.
Strand identifies multiple cases in which courts have applied the voluntary undertaking
doctrine to defeat the discretionary function exception. See, e.g., Chang-Williams v. Dep't of the
Navy, 766 F. Supp. 2d 604, 618 (D. Md. 2011). According to Strand, even if the Government’s
initial decision to assume a duty may have been discretionary, its subsequent negligent
performance or dereliction in respect of that voluntary undertaken duty was not. Still, in
considering the effect of the voluntary undertaking doctrine on the discretionary function
exception, the Court must recur to the two-step discretionary function exception framework
The Court’s analysis of the first element remains unchanged. Strand has identified no
rule, statute, or policy that would have required Wade to enter the locker room when she heard
sounds of an argument. The Youth Program Handbook did not mandate how staff members
should react in emergency situations, and no other applicable regulation discussed supervision of
middle school students.10 Thus, Wade’s decision to walk to get another counselor rather than
enter the locker room, unfortunate as it may seem when viewed with 20-20 hindsight,
nevertheless involved an element of judgment, which satisfies the first part of the discretionary
function exception calculus.
While Wade mentions an informal policy to come to the aid of campers in emergencies, Strand does not
identify a formal statement of such a policy.
The second element of the discretionary function exception calculus requires
consideration of issues not discussed under Strand’s first basis of liability. She alleges that
Wade’s failure to enter the locker room or otherwise prevent the injury to JT “did not involve
any permissible exercise of policy judgment” and was not justified by any “apparent social,
economic, or political considerations.” She highlights a number of cases in which courts have
concluded that the Government’s negligent performance or dereliction of a voluntarily
undertaken duty was not “based on considerations of public policy.” In these cases, the
discretionary function exception was not applied in favor of the governmental entity, suggesting
the possibility of liability under the FTCA here.
Strand’s cases, however, fail to persuade.
One of the cases she cites is Chang-Williams v. Dep't of the Navy, 766 F. Supp. 2d 604,
617 (D. Md. 2011). On November 1, 2002, U.S. Marine Corps Sergeant Estabon Eugene was
arrested and charged with assault in the second degree as well as refusal to follow lawful police
order after police found him at the home of his estranged wife, Nakeisha Rhea. Chang-Williams,
766 F. Supp. 2d at 608. Eugene was released on bail the next day when a Marine Corps Sergeant
acted as his indemnitor and paid the $510 bail bondsman’s fee. Id. According to the complaint, a
Marine Corps Captain and Gunnery Sergeant visited Rhea and her family on November 4, 2002
and “assured the family that they would protect ‘all of [them].’” Id. at 610. In particular, the
visitors allegedly told the family that Eugene would be confined to the base and would not be
free to leave the base without an escort. Id. On November 5, 2002, Marine Corps command
issued a “Military Protection Order,” instructing Eugene to stay at least 100 feet away from
Rhea, her residence, or her work place, and barred him from having any unauthorized contact
with her. Id. at 609. Despite this, on November 12, 2002, Eugene attacked Rhea’s family
members, killing Chang-Williams’ husband and son, and shooting her in the face. Id. at 608.
Chang-Williams filed suit pursuant to the FTCA, alleging negligent failure to protect, negligent
supervision, and respondeat superior liability on the part of the Government. Id. at 610-11.
The Government based its defense, in part, on the discretionary function exception,
arguing that the determination of whether to detain and supervise Eugene was left to the
discretion of his commanding officers. Id. at 616. The court stated, however, that “while the
initial decision to assume a duty may be discretionary, that decision is not what Chang-Williams
challenge[d].” Id. at 618. Rather, Chang-Williams was understood to have challenged the
Government’s actions taken after the Marine Corps allegedly promised to protect the family. Id.
Thus, she “contend[ed] that the Government injured her because its agents negligently breached
their initial promise and allowed Eugene to roam free.” Id. The court categorized this as “a claim
based on the dereliction (rather than assumption) of a promise to protect.” Id. The court then
proceeded to analyze “whether the agents of the United States performed a discretionary function
when they disregarded their own specific assurances to Chang-Williams and her family.” Id.
The court answered that question in the negative, concluding that if the facts were as
Chang-Williams alleged, the discretionary function exception would not apply. Id. at 619. It
noted that “case law has coalesced around a simple notion: ‘once federal government officials
affirmatively decide to undertake to carry out a duty, the discretionary function exception of
section 2680(a) may not be applicable if those officials perform that duty negligently, even
though their decision whether or not initially to undertake that duty was itself discretionary.’” Id.
at 618. In analyzing the second element of the two-step framework, the court held, “it is hard to
see how the actions of the United States would involve ‘judgment’ or ‘choice’ if it assumed a
duty to take certain particular actions and wholly failed to do so. . . . For a choice to be truly
discretionary there must be some necessary consideration of two or more real alternatives that
fundamentally relate to policy choices. There must be ‘room for choice.’ There is no apparent
room here.” Id. at 619.
The Chang-Williams court quoted the Supreme Court’s holding in Indian Towing Co. v.
United States, 350 U.S. 61 (1951): “once [an agency] exercised its discretion . . . and engendered
reliance . . . , it was obligated to use due care [in the exercise of that discretion].” In Indian
Towing, a barge company sued the United States for damages after the company’s vessel ran
aground. The company alleged that the Coast Guard was negligent when it built a lighthouse but
failed to ensure that it was operating as intended. Id. at 66. The Supreme Court found that, even
though the Coast Guard was under no obligation to construct a lighthouse:
[O]nce it exercised its discretion to operate a [lighthouse] and engendered
reliance on the guidance afforded by the light, it was obligated to use due care
to make certain that the light was kept in good working order; and, if the light
did become extinguished, then the Coast Guard was further obligated to use
due care to discover this fact and to repair the light or give warning that it was
not functioning. If the Coast Guard failed in its duty and damage was thereby
caused to petitioners, the United States is liable under the Tort Claims Act.
Id. at 69.11
These decisions definitely give pause in the present case, if only to suggest that this case
is a “hard” one. However, the fact remains that Wade’s decision to refrain from entering the
boys’ locker room and walk to get a male counselor may be distinguished from the
Government’s actions in Chang-Williams and Indian Towing. Wade’s actions involved her
judgment as to how to best supervise the campers and reflected the same policy considerations
Strand concedes that the Government did not claim protection of the discretionary function exception in
Indian Towing. However, the Supreme Court later held that its holding in Indian Towing “illuminate[d]
the appropriate scope of the discretionary function exception” by explaining that while “the initial
decision to undertake and maintain lighthouse service was a discretionary judgment,” failure to maintain
the lighthouse “did not involve any permissible exercise of policy judgment.” Berkovitz v. United States,
486 U.S. 531, 538 n.3 (1988).
that underlay all of the Camp’s decisions regarding supervision of the campers (i.e., respecting
their independence, privacy, as well as their security). On hearing sounds of an argument in the
boys’ locker room, Wade made a series of quick decisions, each of which required her to
consider, balance, and prioritize varying policy goals. When she began to enter the boys’ locker
room and heard the shower running, she instinctively balanced the need to protect the campers’
safety and independence against the need to safeguard their privacy. When she walked to get a
male counselor, she continued to prioritize one stated Camp policy—privacy—over another
stated Camp policy—safety. The split-second decisions Wade made in those moments were
precisely of the type the Court would expect to be grounded in considerations of policy.12
In contrast, in Chang-Williams, the court held that “there [were] no apparent ‘social,
economic, [or] political’ considerations that [c]ould underlie the United States’ decision to
ignore its own promise” to protect the family from Eugene. Chang-Williams, 766 F. Supp. at 619
(“For a choice to be truly discretionary there must be some necessary consideration of two or
more real alternatives that fundamentally relate to policy choices.”). Unlike the Navy’s total
breach of its promise to protect the family in Chang-Williams or the Coast Guard’s decision to
allow a lighthouse to go completely unrepaired in Indian Towing, Wade’s choices reflected
alternative policy concerns. There were, as the courts involved recognized, no meaningful
competing choices accounting for the failure of the Government to act in Chang-Williams and
Indian Towing. C.f. Barnson v. United States, 816 F.2d 549, 554 (10th Cir. 1987) (holding that
the discretionary function exception applies to plaintiff’s good samaritan claim because the
As the court in Chang-Williams recognized, “[d]etermining whether the discretionary function
exception applies is not a fact-intensive exercise.” Chang-Williams 766 F. Supp. 2d at 617. Rather, “the
court will only ‘look to the nature of the challenged decision in an objective, or general sense, and ask
whether that decision is one which we would expect inherently to be grounded in considerations of
policy.’” Id. (quoting Baum v. United States, 986 F.2d 716, 721 (4th Cir.1993)).
record reflects that the decision not to advise the miners of the health risks was based on political
policy rather than on medical considerations”).
The Court does take notice of the fact that a private summer camp might well be held
liable in a situation parallel to the present case. Nevertheless, the Court is faced with an extensive
body of case law outlining the clear two-part test for discretionary function exception analysis in
claims against the Federal Government which, even when applied vis a vis the voluntary
undertaking doctrine, still leads to the conclusion that the exception applies here. See Barnson v.
United States, 630 F. Supp. 418, 421 (D. Utah 1985), aff'd, 816 F.2d 549 (10th Cir. 1987);
Merklin v. United States, 788 F.2d 172, 174 (3d Cir. 1986).
The discretionary function exception requires courts to draw lines, dividing those cases
involving negligent choices guided by policy from those involving negligent decisions so far
removed from the policies underlying them that the discretionary function exception should not
apply. When drawing the line between actionable and nonactionable negligence, courts are
obliged to consider that, without the discretionary function exception, the Government could face
potential tort liability for most if not all the decisions it makes. See Wood, 845 F.3d 123 at *19
(“Were we to hold, for example, that Wood could challenge the Navy's decision not to place a
warning sign near the mock-ship, it would open the Navy to tort liability for every similar
decision made when allowing civilian law enforcement agencies to use its facilities. The threat of
tort liability would become a tool to shape Navy policy, which is exactly what the discretionary
function exception seeks to avoid.”). In drawing this line today, the Court holds that where a
Government employee perceives that a course of action is appropriate, and arguably rejects that
course of action, and as a result of that decision harm is inflicted on a person under the
Government employee’s supervision, the discretionary function exception applies so long as that
decision was plausibly made based on competing policy considerations.
Here, the Court is convinced that each of the supervisory decisions made at the Camp that
Strand assails were guided by competing policy considerations. The discretionary function
exception applies and stands as a bar to her suit against the Government.
For the foregoing reasons, the Government’s Motion for Partial Dismissal for Lack of
Subject Matter Jurisdiction will be GRANTED, as set forth in the accompanying Order.
PETER J. MESSITTE
UNITED STATES DISTRICT JUDGE
February 7, 2017
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