Judge notes 'unfair' aspect of law in dismissing wrongful death suit in fatal road washout - INFORUM

BISMARCK — A federal judge has dismissed a lawsuit filed against the Bureau of Indian Affairs and the Standing Rock Sioux Tribe by the families of two people who were killed and two others who were severely injured when heavy rains caused a massive washout of a highway culvert in July 2019.

The lawsuit, which began as administrative claims, alleged that the BIA had known since 2010 that the culvert was unsafe and needed replacing.

The suit also claimed the BIA allowed the culvert beneath BIA Road 3 in the Standing Rock Indian Reservation to deteriorate for years prior to July 9, 2019, when flash flooding washed out the culvert and created a chasm 70 feet deep.

Four drivers, two from Mobridge, S.D., and two from the Standing Rock Indian Reservation, drove vehicles into the chasm, with two of the drivers ultimately dying and two others suffering serious injury.

In a ruling filed this past week, U.S. District Court Judge Daniel Hovland dismissed the wrongful death lawsuit, stating that the BIA and tribal officials had no mandatory directives to follow in deciding whether to replace a culvert on BIA Road 3, known as the Kenel Road.

In his ruling, Hovland said the discretionary exemption function of the Federal Tort Claims Act shields the U.S. government from liability in such suits. He added that the BIA and tribe had the discretion to determine when and how to conduct road maintenance and therefore were shielded from legal action.

Nonetheless, Hovland said he was troubled by the situation.

"The application of the discretionary function exception in this case is extremely unfair," Hovland wrote in his ruling.

"This exception to federal tort liability is a concept that needs to be eroded and is in dire need of a correction," he added.

Tim Purdon, an attorney representing the families of the motorists injured and killed in washout, said the judge's decision was being reviewed to determine whether an appeal will be filed, though he noted he agreed with the judge's criticism of the law covering the matter.

"As the (judge's) order states, notions of common sense, fairness, and justice are absent from the dismissal of this case on discretionary immunity grounds," Purdon said.

"Under this ruling, there may be no remedy for our clients — not for the two families who had loved ones die in the washout nor for the severely injured who survived. We are heartbroken for these families who, as the court notes, may see no justice here," Purdon added.

source: https://www.inforum.com/news/north-dakota/judge-notes-unfair-aspect-of-law-in-dismissing-wrongful-death-suit-in-fatal-road-washout

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