Alice P. Broudy v. United States

The Appellant, Alice P. Broudy, appeals from an order of the district court granting the motion of the United States to dismiss, for failure to state a claim upon which relief can be granted (Fed.R.Civ.P. 12(b)(6)), claims brought against it under the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346 , 2671-2680 (1976 & Supp.1979). The district court concluded that an exception to the FTCA for claims incident to military service barred Broudy’s claims and dismissed her claims for failure to state a claim for which relief can be granted. We affirm in part, reverse in part, and remand.

FACTS

Appellant’s husband, Major Charles A. Broudy [Major Broudy], served as an officer in the United States Marine Corps from 1944 to 1960. During the summer of 1957, Major Broudy was ordered by his commanding officers to participate in military exercises in the immediate vicinity of at least two atmospheric nuclear tests conducted in Nevada. The Appellant alleges that Major Broudy was neither told that the maneuvers involved any potential health danger, nor given a chance to decline participation. Further, the Appellant alleges that prior to Major Broudy’s exposure, the Government knew that…