Mildred Martin v. United States

649 F.2d 701 Mildred MARTIN, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant. No. 78-2789. United States Court of Appeals, Ninth Circuit. Argued and Submitted July 2, 1980. Decided May 11, 1981. John F. Cordes, Asst. U. S. Atty., Los Angeles, Cal., for defendant-appellant. David Silverton, Los Angeles, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before HUG and FERGUSON, Circuit Judges, and EAST, * District Judge. HUG, Circuit Judge: 1 Plaintiff Mildred Martin brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (b), for injuries she sustained when a bath tub downspout broke in the house her mother had recently purchased from a government agency. The Government appeals on evidentiary grounds, and on the ground that the FTCA is inapplicable to a cause of action founded in a breach of contract. We affirm. 2 * Mrs. Martin's mother purchased a house which had been repossessed by the Veterans Administration (VA). The VA, before putting the house on the market, hired a property manager to prepare it for sale. He inspected it and recommended certain repairs be made.…

Plaintiff Mildred Martin brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346 (b), for injuries she sustained when a bath tub downspout broke in the house her mother had recently purchased from a government agency. The Government appeals on evidentiary grounds, and on the ground that the FTCA is inapplicable to a cause of action founded in a breach of contract. We affirm.

I

Mrs. Martin’s mother purchased a house which had been repossessed by the Veterans Administration (VA). The VA, before putting the house on the market, hired a property manager to prepare it for sale. He inspected it and recommended certain repairs be made. The VA approved those repairs, but because of fear of vandalism, required that the purchaser occupy the house before the repair work would begin. The house was occupied on April 28, 1975, and the repairs agreed upon were underway and nearly completed before April 30, 1975. Additional repairs recommended by the plumbing contractor were underway during early May, 1975.

On May 7, 1975, Mrs. Martin tripped and fell while entering the bathtub. As she fell, she grabbed at the tub’s porcelain downspout; it shattered, causing serious…

dissenting:

With respect and regret, I am compelled to dissent from part III A of the opinion and the result reached by the majority. The district courts do not have jurisdiction over contract claims against the United States when the amount of the claim exceeds $10,000. Because Ninth Circuit precedent requires that plaintiff’s claim be characterized as contractual, and because that claim is in excess of $10,000, I would remand this case to the district court so that it could be dismissed for lack of jurisdiction.

*706 Contract claims against the United States are controlled by the Tucker Act, 28 U.S.C. § 1491 . The district courts and the Court of Claims have concurrent jurisdiction over Tucker Act claims. 28 U.S.C. § 1346 (a)(2). Where a claim is for an amount in excess of $10,000, however, the Court of Claims has exclusive jurisdiction. See id.; 28 U.S.C. § 1491 . Tort claims against the United States are controlled by the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq. District courts have exclusive jurisdiction over FTCA suits. 28 U.S.C. § 1346 (b). Because plaintiff alleges damages in excess of $10,000, if her claim is contractual, only the Court of Claims has…