Kenneth Richardson Norman J. Trapp v. United States

This case involves a suit against the United States under the Federal Tort Claims Act for injuries caused when lightning simultaneously struck a power line and the plaintiffs who were carrying a metal irrigation pipe underneath the power line. In two prior appeals before this court we found the district court applied an incorrect standard of care to determine negligence and remanded for a new trial. See Richardson v. United States, 645 F.2d 731, 735 (9th Cir.1981) (“Richardson I”); Richardson v. United States, 841 F.2d 993, 995 (9th Cir.1988) (“Richardson II”). The previous appeals did not address the question of the applicability of the discretionary function exception to the Federal Tort Claims Act. After this court’s second remand, the district court found the discretionary function exception applied and dis missed the case for lack of subject matter jurisdiction. We affirm.

1. Facts and Proceedings Below.

The relevant facts are not disputed. The following is taken from Richardson II:

841 F.2d at 995 . After the second trial in this case, the district court made findings of fact including: “Had the power line been equipped with an overhead ground system a lightning strike…