Thacker vs. Tennessee Valley Authority is a case about a fisherman who got hurt out
on the water. He blames the Tennessee Valley Authority which has supervision
over the waterway for causing his accident. The Tennessee Valley Authority
was replacing some conductor power lines that stretch over and across the river.
One of those lines fell into the water. That obviously creates a hazard for
boaters. The TVA knew that. They contact the Coast Guard, which is their emergency
protocol. The TVA also has a couple of patrol
boats that come in the area. Thacker and Szozda come in at about sixty miles
an hour, hit this conductor line that's now just
been lifted above the water line. The line strikes the console, whips up, takes
off Thacker's hat and sunglasses, and spins him with a torque the he alleges
caused a spinal injury. The line nearly decapitates Szozda, kills him instantly
from blunt-force trauma to the neck. The TVA Act says broadly that the TVA is an
entity that can sue and be sued. Thacker wants to engage that interpretation.
Be sued. It means be sued. The TVA says no, in fact that we have discretionary function
immunity against lawsuit liability and that's where we get into the issues that
lead us to the United States Supreme Court.
Discretionary function immunity was a big exception built into the statute of
the Federal Tort Claims Act in 1946. Discretionary function immunity says
more or less that the government has to be able to have the latitude to be able
to make a choice between different viable options. So, when government makes
policy, someone is not allowed to bring a private lawsuit and say I don't like
your decision. I disagree with your decision.
The TVA is excluded from the FTCA. However, discretionary function immunity
was read into the earlier 1933 sue-and-be-sued language, not just for
the TVA but for all kinds of entities that were created during the New Deal.
So Thacker's best argument in this case is to say essentially that the text of
the statute controls and that is that the 1933 TVA act says simply that this
creature can sue and be sued doesn't qualify that in any way. And then you
come to the FTCA in 1946 and that statute on its text says the TVA is
excluded from this statute. So Thacker says this is a straight-up simple
question of statutory interpretation. The broad immunity of discretionary function
under the FTCA was never given to entities like the TVA and so I should be
allowed to go forward with my lawsuit. Advocates on Thacker's side would say that
the use of discretionary function immunity insulates the TVA from
liability for responsibility for its decisions.
I mean Thacker says look if something as mundane if something as ordinary on the
ground nuts and bolts as how do we get this wire out of the water and back into
the air if that can be discretionary policymaking at the highest level, how do
we hold an entity like the TVA accountability? Now the TVA says no no no. We
have all kinds of accountability. It just happens not to be the kind you
want. You want civil litigation to have the courts second-guessing the decisions
we make, looking over our shoulders in those decisions and that's
so burdensome to what we do for the people that you're gonna interfere with
the functioning of government in an excessive and inappropriate way. The
Tennessee Valley Authority is arguing in essence that it needs a broad range of
discretionary immunity in order to do what it does. Although it is excluded
from the Federal Tort Claims Act of 1946, the Federal Tort Claims Act nonetheless
describes what Congress wants that discretionary function and immunity to
look like today.
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