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BERGQUIST v. UNITED STATES

February 28, 1994

ROSE BERGQUIST, Personal Representative of the Estate of HENRY BERGQUIST, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, NATIONAL WEATHER SERVICE, Defendant. RICHARD R. HOFFMAN, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. EDWARD FRANCIS JONES, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. JUSTINA HERROD, Special Administrator of the Estate of LETICIA HERROD, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. JUSTINA HERROD, Special Administrator of the Estate of TITANIA HERROD, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. ADELE HUNT, Special Administrator of the Estate of STEPHEN PATRICK HUNT, Deceased, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.


Kocoras


The opinion of the court was delivered by: CHARLES P. KOCORAS

CHARLES P. KOCORAS, District Judge:

 This matter is before the Court on Defendant's Motion to Dismiss pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's motion is granted.

 BACKGROUND1

 This action arises out of a tornado which struck portions of Kendall County and Will County, Illinois from approximately 3:00 to 3:45 p.m. on August 28, 1990 ("the August 1990 tornado"). As alleged in the complaint, the tornado had a devastating impact, allegedly causing 29 deaths, numerous personal injuries, and property damage in excess of $ 160 million dollars.

 Six separate complaints were filed under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. ("FTCA") against Defendant United States of America each seeking recovery for damages and losses allegedly caused by the August 1990 tornado. Each complaint alleges that the National Weather Service ("NWS"), a federal agency of the defendant, was negligent in its forecasting and in its issuance of warnings regarding the August 1990 tornado. The allegations of the complaints implicate five NWS offices, *fn2" which were allegedly involved in "various aspects of the severe weather watch, warning and radar surveillance programs for the storm area on August 28, 1990." (Compl. P 7). *fn3"

 The plaintiffs generally aver *fn4" that the defendant's agents and employees failed to "adequately interpret . . . radar signatures and to convey important information between the Defendant's offices," and that the defendant's agents and employees "failed to issue timely and adequate tornado warnings to local law enforcement and emergency services personnel, which resulted in the failure of local officials to activate the formal warning sirens in Plainfield and Crest Hill, Illinois on August 28, 1990." (Compl. P 34). The plaintiffs claim that as a result of the alleged negligent acts and omissions of the NWS' agents and employees, the defendant breached its duty to use due care in gathering, forecasting and making available for broadcasting up-to-date weather information.

 Pursuant to a court order dated October 27, 1993 the six lawsuits were consolidated on the grounds of relatedness, for pretrial purposes only, as to common legal and factual issues. Subsequently, the defendant moved to dismiss the complaints on the following three grounds: (1) Plaintiffs' action is barred under 28 U.S.C. § 2680(a), the discretionary function exception to the FTCA's limited waiver of sovereign immunity; (2) Plaintiffs' action is barred under 28 U.S.C. § 2680(h), the FTCA's misrepresentation exception; and (3) Plaintiffs' action should be dismissed because the law of Illinois does not impose liability under these circumstances.

 On January 20, 1994 the plaintiffs in the above-captioned matters filed, with leave of this Court, amended complaints for the purpose of bringing the original complaints into substantial conformity with one another. The plaintiffs' amended allegations, however, have no bearing upon the posture of the defendant's motion to dismiss, for the legal theories alleged in the original complaint remain intact. The amended complaints are identical *fn5" to the allegations contained in the complaint filed in Bergquist, et. al. v. United States, Case No. 93C5239, in all respects relevant to the present motion to dismiss. Accordingly, we will confine our discussion of the present motion to the exhibits and memoranda filed in Bergquist, Case No. 93C5239.

 Plaintiffs, in a consolidated response to the defendant's motion to dismiss ("Response Memorandum"), contest the defendant's motion maintaining: (1) that the NWS rules, regulations and directives set forth certain requirements and standards that elevated the actions and duties of the NWS meteorologists to that of "operational tasks" that fall beyond the scope of the discretionary function exception to the FTCA; (2) that the nature of the warnings issued by the NWS on August 28, 1990 are not "misrepresentations" within the meaning of the misrepresentation exception to the FTCA; and (3) that the law of Illinois recognizes a cause of action and imposes liability under the circumstances in the case at bar.

 Before we begin our analysis of the defendant's motion, we first address the appropriate standard by which to judge a 12(b)(6) motion to dismiss.

 LEGAL STANDARD

 The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test the sufficiency of the complaint, not to decide the merits of the case. Defendants must meet a high standard in order to have a complaint dismissed for failure to state a claim upon which relief may be granted since, in ruling on a motion to dismiss, the court must construe the complaint's allegations in the light most favorable to the plaintiff and all well-pleaded facts and allegations in the plaintiff's complaint must be taken as true. Ed Miniat, Inc. v. Globe Life Ins. Group Inc., 805 F.2d 732, 733 (7th Cir. 1986), cert. denied, 482 U.S. 915, 96 L. Ed. 2d 676, 107 S. Ct. 3188 (1987). The allegations of a complaint should not be dismissed for failure to state a claim "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). See also Hishon v. King & Spalding, 467 U.S. 69, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984); Doe on Behalf of Doe v. St. Joseph's Hospital, 788 F.2d 411 (7th Cir. 1986). Nonetheless, in order to withstand a motion to dismiss, a complaint must allege facts sufficiently setting forth the essential elements of the cause of action. Gray v. County of Dane, 854 F.2d 179, 182 (7th Cir. 1988). We turn to the motion before us with these principles in mind.

 DISCUSSION

 A. Whether the plaintiffs' cause of action falls under the FTCA

 The FTCA waives the sovereign immunity of the United States for certain torts committed by its employees. The FTCA authorizes suits against the United States for:

 
injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 1. The Discretionary Function exception to the FTCA

 The defendant maintains that this court lacks subject matter jurisdiction because the plaintiffs claims are barred by the discretionary function exception to the FTCA. Under the discretionary function exception, no liability shall lie for:

 
any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal ...

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