On August 22, 2017, the United States Court of Appeals for the Eleventh Circuit issued an opinion in the case of Gary Thacker and Venida Thacker v. Tennessee Valley Authority. The case involved a tragic accident when Mr. Thacker and a friend, Anthony Szozda were participating in a local fishing tournament. On the date in question, TVA was attempting to raise a downed power line that was partially submerged in the river. At the moment when TVA was lifting the conductor out of the water, Thacker’s boat passed through the area and the conductor struck both men. Mr. Thacker suffered serious physical injuries and Mr. Szozda was caused to be killed.

The district court dismissed Thacker’s complaint for lack of subject matter jurisdiction and the Eleventh Circuit Court of Appeals affirmed this decision. In its opinion, the Court recognized that the United States enjoys sovereign immunity from suit unless it is waived in statutory text. The Court also recognized that the doctrine of sovereign immunity does not entirely bar suit against TVA.

However, the Court held that TVA cannot be subject to liability when engaged in governmental functions that are discretionary in nature. Specifically, the Court found that it had applied the discretionary-function exception in cases arising out of TVA’s commercial power-generating activities. The Court also held because the construction of power lines is a government activity, that TVA could not be sued for actions arising out of that activity if those actions fell within the discretionary-function exception.

This case is a prime example of a horrible set of facts and circumstances causing death and serious injury yet there was simply no legal remedy available for these losses.  While there are legitimate legal and public policy considerations behind immunity for corporate agencies of the United States government, in this case, it makes one wonder just how far the Court’s will stretch the discretionary-function immunity defense.  From reading the opinion, it appears that TVA and its employees were negligent because they failed to warn the public of an imminent safety hazard that could result in the loss of life and property. A simple warning or the even the presence of TVA vessels in the area where these repairs were being made could potentially have saved a life and prevented serious injuries.  Common sense goes a long way.