106 F.3d 844 (9th Cir. 1996), 95-35601, Dreier v. United States

Docket Nº:95-35601.
Citation:106 F.3d 844
Party Name:D.A.R. 1189 Rebecca R. DREIER, individually and as PR of the Estate; Ronald E. Dreier, deceased; and as parent and Guardian; Kaylee E. Dreier, a minor child, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Case Date:September 17, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 844

106 F.3d 844 (9th Cir. 1996)

D.A.R. 1189

Rebecca R. DREIER, individually and as PR of the Estate;

Ronald E. Dreier, deceased; and as parent and

Guardian; Kaylee E. Dreier, a minor

child, Plaintiffs-Appellants,

v.

UNITED STATES of America, Defendant-Appellee.

No. 95-35601.

United States Court of Appeals, Ninth Circuit.

September 17, 1996

Argued and Submitted July 12, 1996.

Amended Feb. 4, 1997.

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William J. Carlson and David B. Richardson, Bellevue, WA, for plaintiffs-appellants.

Philip H. Lynch, Assistant United States Attorney, Seattle, WA, for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CV-93-05618-RJB.

Before: REAVLEY, [*] REINHARDT, and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Specialist Ronald E. Dreier (hereinafter "Ronald"), a soldier in the United States Army, was killed when he fell into a steep wastewater drainage channel located on Fort Lewis, Washington, after an off-duty afternoon of relaxation and beer drinking. The district court dismissed his widow's Federal Tort Claims Act ("FTCA") suit against the United States for wrongful death, concluding that the claim was barred by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed.

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152 (1950), because Ronald's death was incident to his military service. We have jurisdiction pursuant to 28 U.S.C. § 1291 and reverse and remand.

FACTS

Ronald E. Dreier was an Administrative Specialist (Clerk) assigned to the 525th Replacement Detachment, Fort Lewis, Washington. On May 2, 1991, because his unit was scheduled to go into the field the following day, Ronald and his co-workers were released from duty at noon. Sergeant Scott Meir, one of Dreier's co-workers and possibly his office supervisor, 1 informed others in the office that he planned to spend the afternoon at the Solo Point Boat Launch, an area of Fort Lewis adjacent to Puget Sound, to relax, drink some beer, and get some sun. Under base regulations, use of the Solo Point area, consisting of a small beach and boat launch area, is officially limited to members of the military community and civilians who acquire use permits. In practice, the public is often able to gain access to the Solo Point area without acquiring a permit.

Ronald drove to his off-base home in Tacoma, changed out of uniform, went shopping, and drove to Solo Point. He was soon joined by Sergeant Meir between 1:30 p.m. and 2:00 p.m. Specialist Rivera and Sergeant Anderson arrived later in the afternoon. The four soldiers sunbathed, drank beer, and waded in the water of Puget Sound. In total, Ronald drank about six to eight beers. After a few hours, the soldiers began walking westward along Burlington Northern Railroad tracks that ran along the shoreline of Puget Sound. After walking for a distance of approximately one half mile, they came upon the Solo Point Water Treatment Facility's concrete drainage channel passing under the tracks and emptying into Puget Sound.

The water treatment facility itself is located at the top of a hill rising above the shore of Puget Sound. Water that is directed through the facility is redirected into a concrete channel approximately ten feet wide, with steep fifteen foot walls on either side. The channel runs downhill from the treatment facility at a sixty degree angle for approximately 400 feet, and the water in the channel travels at approximately sixty miles an hour. Concrete baffles at the bottom of the channel slow the water before it enters Puget Sound.

On the day of Ronald's death, the immediate area around the drainage channel was overgrown, and there were no signs warning of the danger of the channel or fences immediately around it. 2 At about 5:00 p.m., the group waded in the rocks near where the channel emptied into Puget Sound. The group decided to hike from the mouth of the channel to the top of the hill where the channel began. Ronald lagged behind Anderson, Meir, and Rivera, who all reached the top of the hill. They remained at the top of the hill for approximately twenty minutes before returning to the bottom. There, they found the body of Ronald, who had apparently fallen into or otherwise entered the channel and had been swept into the concrete baffles at the bottom of the channel. Ronald's death was caused by drowning and severe, blunt head and neck injuries. His blood alcohol level at the time of his death was .16 percent.

Ronald's widow, Rebecca Dreier (hereinafter "Dreier") filed two claims for administrative settlement with the Department of the Army, requesting a total of $7,000,000. The claims were denied in May 1993. On November 5, 1993, Dreier brought a claim for wrongful death against the United States under the FTCA, 28 U.S.C. §§ 2671 et seq., in the district court for the Western District of Washington, alleging negligence on the part of the government, claiming that the government knew that the area surrounding the treatment facility "was so highly dangerous and ultra-hazardous as to constitute a life-threatening risk to any person who encountered it, yet failed to institute any safety

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measures intended to prevent injury or death."

On March 28, 1995, the government filed, pursuant to Fed.R.Civ.P. 12(b) and 56 a "Motion to Dismiss, or, in the Alternative, for Summary Judgment." The government requested that the district court dismiss Dreier's complaint for lack of subject matter jurisdiction under the Feres doctrine, or in the alternative, that it grant summary judgment pursuant to two Washington state statutes. On May 16, 1995, the district court dismissed Dreier's claims as barred by the Feres doctrine, and did not reach the state law issues.

DISCUSSION

Dreier argues that the district court erred by treating the government's motion to dismiss pursuant to the Feres doctrine as a motion for summary judgment, and that the court erred by concluding that Ronald's injuries were suffered "incident to service" and that the Feres doctrine bars Dreier's claim. The government argues that even if the Feres doctrine does not apply, Dreier's claim is barred by a Washington statute that immunizes from wrongful death suits landowners who allow the public to use their land for recreational purposes, or by a Washington statute that bars wrongful death recovery where the victim was intoxicated at the time of his death and was more than fifty percent at fault for his death.

A motion to dismiss pursuant to the Feres doctrine is properly treated as a Fed.R.Civ.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, rather than as a motion for summary judgment. See, e.g., Atkinson v. United States, 825 F.2d 202, 204 n. 2 (9th Cir.1987), cert. denied, 485 U.S. 987, 108 S.Ct. 1288, 99 L.Ed.2d 499 (1988). Thus, the district court erred insofar as it purported to grant the government's motion pursuant to Fed.R.Civ.P. 56.

"We review de novo whether 'the Feres doctrine is applicable to the facts reflected in the record.' " Green v. Hall, 8 F.3d 695, 700 (9th Cir.1993) (quoting McGowan v. Scoggins, 890 F.2d 128, 129 (9th Cir.1989)), cert. denied, 513 U.S. 809, 115 S.Ct. 58, 130 L.Ed.2d 16 (1994). We have stated on several occasions in Feres cases that "[i]n reviewing an order dismissing an action for lack of subject matter jurisdiction, we must accept all of the plaintiff's factual allegations as true." McGowan, 890 F.2d at 136; see also Estate of McAllister v. United States, 942 F.2d 1473, 1474 n. 1 (9th Cir.1991), cert. denied, 502 U.S. 1092, 112 S.Ct. 1164, 117 L.Ed.2d 411 (1992). However, we have also held in other contexts that "unlike a Rule 12(b)(6) motion, a Rule 12(b)(1) motion can attack the substance of a complaint's jurisdictional allegations despite their formal sufficiency, and in so doing rely on affidavits or any other evidence properly before the court." St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989), cert. denied, 493 U.S. 993, 110 S.Ct. 541, 107 L.Ed.2d 539 (1989); see also Land v. Dollar, 330 U.S. 731, 735 n. 4, 67 S.Ct. 1009, 1011 n. 4, 91 L.Ed. 1209 (1947) ("[W]hen a question of the District Court's jurisdiction is raised, either by a party or by the court on its own motion, ... the court may inquire, by affidavits or otherwise, into the facts as they exist."). This reliance by the district court on facts outside the complaint would be futile if on review we merely looked at the factual allegations in the complaint. To best reconcile these two views of 12(b)(1) motions, we will consider items outside the pleading that were considered by the district court in ruling on the 12(b)(1) motion, but resolve all disputes of fact in favor of the non-movant. Thus, although dismissal pursuant to the Feres doctrine properly should be labeled a dismissal for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1), where the district court has properly considered items outside the complaint in considering a motion to dismiss, the standard we apply upon de novo review of the record is similar to the summary judgment standard that the district court purported to apply.

Dreier argues that the district court erred by dismissing her FTCA claim pursuant to the Feres doctrine because her husband's injuries were not suffered incident to his service in the military. Though this is a close case, we believe that the Feres doctrine does not bar Dreier's claim, and reverse the

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district court's judgment in favor of the United States.

The FTCA provides: "The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674 (1994). In...

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