Hughes

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO DISMISS FOR WANT OF SUBJECT MATTER JURISDICTION

BACKGROUND

In the paragraphs that follow, we address the government’s contention that the court lacks subject mátter jurisdiction over the one remaining claim in this case. In that claim, Lieutenant James J. Hughes of the San Francisco Police Department alleges that the United States Navy breached a duty to warn him about a known hazard (a large depression on Perimeter Road) on the Naval Base at Treasure Island — and that as a result of that breach he suffered severe personal injuries when his motorcycle collided with the hazard. According to the United States, the act or omission out of which plaintiffs claim arises, ie., the decision not to post a warning about the alleged hazard, is immunized by the “discretionary function” exception to the Federal Torts Claims Act. 28 U.S.C. § 2680 (a).

Plaintiffs contend that this motion is not properly before this court because earlier in the pretrial period, when the case was assigned to Chief Judge Patel, she considered and rejected the position advanced here by the government. Unsure that at that earlier juncture the record had been…