Johnson v. United States

Citation496 F. Supp. 597
Decision Date01 August 1980
Docket NumberNo. CV-77-20-GF.,CV-77-20-GF.
PartiesFreddie L. JOHNSON and Clara Johnson, husband and wife, Plaintiff, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. Timothy B. HAY, Third Party Defendant.
CourtU.S. District Court — District of Montana

Tom L. Lewis, James M. Regnier, Regnier & Lewis, Ralph T. Randono, Randono & Donovan, Great Falls, Mont., for plaintiffs.

Robert T. O'Leary, U. S. Atty., George Darragh, Asst. U. S. Atty., Butte, Mont., for defendant and third party plaintiff.

FINDINGS OF FACT and CONCLUSIONS OF LAW

HATFIELD, District Judge.

This action was tried to the court sitting without a jury. Trial commenced on December 11, 1979 and concluded on December 17, 1979. Each of the parties introduced oral and documentary evidence. At the close of the evidence the parties rested, and the cause as to liability only of defendant United States was submitted to the court. The parties thereafter filed briefs on all issues. The court enters the following findings of fact and conclusions of law, pursuant to Rule 52(a) F.R.Civ.P., on the issue of the liability of defendant United States.

FINDINGS OF FACT

1. Plaintiffs Freddie Johnson and Clara Johnson, husband and wife, seek damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for injuries sustained by plaintiff Freddie Johnson on December 13, 1975, when an automobile owned and being driven by Timothy Hay, in which plaintiff Freddie L. Johnson was riding as a guest passenger, left the road on Second Avenue North in Great Falls, Montana, approximately one mile from Malmstrom Air Force Base, Montana.

2. As a result of the automobile accident, plaintiff Freddie L. Johnson suffered a severe injury to his neck which has left him a quadraplegic and totally permanently disabled.

3. On December 12-13, 1975, plaintiff Freddie L. Johnson, Timothy B. Hay, and William R. Provencher, Jr., were all members of the United States Air Force, assigned to Malmstrom Air Force Base, Cascade County, Montana.

4. On December 12, 1975, Johnson, Hay and Provencher worked their usual eight hour military duty assignments until late that afternoon. All three men were also employed on a part-time basis at the Noncommissioned Officers Club (hereinafter "NCO Club") at Malmstrom Air Force Base.

5. On December 12, 1975, Johnson and Hay went to work as part-time bartenders at the NCO Club at approximately 6 p. m. and continued to work in that capacity until shortly before 2 a. m. on December 13, 1975.

6. William R. Provencher came on duty as night manager at the NCO Club at approximately 9 o'clock p. m. on December 12, 1975, and remained on duty until approximately 4:30 or 4:45 a. m. on December 13, 1975. During this period of time, Provencher, as the NCO Club manager, was responsible to insure that all state laws and all applicable Air Force directives, regulations, operating instructions, policies and procedures were followed.

7. Closing time at the NCO Club on the night in question was 2 o'clock a. m., which was established by both operating instructions of the NCO Club and Montana state law.

8. While on duty and sometime before the NCO Club closed, Provencher, Hay, Johnson and other Club employees pooled their tips and sent one employee out to purchase liquor to be consumed at an after-hours party at the NCO Club.

9. Prior to the 2 a. m. closing time, Johnson and Hay clocked out as employees of the Club and, because they were members of the Club as Air Force noncommissioned officers, became customers of the Club. It was Provencher's responsibility, as NCO Club night manager, to see that all customers left the Club premises at 2 a. m., because off-duty employees are treated as all other customers in the Club.

10. An after-hours party was held by 15-20 off-duty employees on the NCO Club premises at Malmstrom Air Force Base on December 13, 1975 with the full knowledge and permission of William Provencher. Intoxicating beverages were served at the after-hours party.

11. The liquor consumed at the after-hours party on the NCO Club premises was not purchased from the Club. The off-duty employees did use the Club's paper cups, mix and ice. Liquor was consumed freely by the off-duty employees until the party broke up around 4:30 a. m.

12. On December 12 and 13, 1975 there was in full force and effect an operating instruction (OI) duly adopted by NCO Club management, which provided that William R. Provencher, as the night manager on duty, was responsible for and spoke for Club management. The operating instruction required the night manager "to supervise the functional operation of the Club activity" and "be knowledgeable of, and enforce all Club OIs and Policy Letters".

13. There was in full force and effect on December 12 and 13, 1975 the following operating instruction:

b. On Friday and Saturday and days preceding a holiday, last call will be given at 0145 hours and entertainers notified to close down. Under NO circumstances will Bars be open after 0200 hours or entertainers permitted to continue to play after that time. After Bars have closed and entertainers have departed, patrons will NOT be permitted to remain in the Club beyond a short reasonable time to finish drinks served prior to closing. The juke box will NOT be played after 0200 hours. All patrons should be clear of the Club by 0230 hours.

14. There was in full force and effect on December 12 and 13, 1975 Air Force Regulation 215-1, Volume 11, dated September 23, 1974, which provides as follows:

e. The "Dram Shop" theory is a legal theory of liability, created either by statute or court decision, which imposes upon the owner/operator of an establishment serving alcoholic beverages the duty to refuse to serve additional alcoholic beverages to a customer who reaches or appears to be reaching the point of intoxication. . . . Open messes are NAFIs of the United States Government. As such, they should establish procedural safeguards to prevent over-indulgence by their patrons. The following guidance is provided to protect the assets and interests of the open mess against liability claims that could result from the support of this theory:
(1) Bylaws of the open mess will include a rule prohibiting the serving of alcoholic beverages to any member, dependent, or guest that appears to be intoxicated and not in complete control of his/her faculties.

15. William R. Provencher was reprimanded by the senior officer at Malmstrom Air Force Base for failing to comply with the operating instructions and regulations which prohibited off-duty employees from staying in the Club after closing time.

16. At the after-hours party held on the NCO Club premises, Timothy Hay consumed an excessive amount of liquor and became intoxicated. Hay had consumed two or three drinks while on duty as a party bartender. Hay went to the main bar after he got off duty as a bartender and purchased two or three more drinks from the head bartender prior to the 2 a. m. closing time. Hay admits to "feeling pretty good" at the time he punched out and went off duty. Hay testified to having four or five doubles during the after-hours party and also admits that he could have had more than five doubles at the after-hours party.

17. The Air Force personnel in charge of the NCO Club at the time of the after-hours party, William Provencher, knew or should have known that Hay was drinking to excess, but permitted him to remain on the Club premises after 2 a. m. and permitted him to continue to consume intoxicants on the premises after 2 a. m. on December 13, 1975.

18. Provencher knew that he was violating Montana law and military regulations and operating instructions regarding closing time for commercial retail liquor establishments, when he permitted the after-hours party on the NCO Club premises.

19. The NCO Club had remained open for parties involving the consumption of intoxicating beverages on numerous occasions prior to December 12 and 13, 1975 at the request of high ranking military officers and for other after-hours off-duty parties. The after-hours party in question was not an isolated incident, but rather an event of a kind that occurred several times at the NCO Club in violation of express written Club rules.

20. Hay and Johnson left the after-hours party at the NCO Club at approximately 4:30 a. m. on December 13, 1975. At the time they departed the Club, Johnson had no automobile with which to travel to his home. Hay volunteered to give Johnson a ride home in Hay's automobile.

21. At the time Hay and Johnson left the NCO Club it was very cold and not an ideal night for a person to be walking along the road several miles to go home.

22. Plaintiff Freddie Johnson believed Sergeant Hay to have been intoxicated and an unsafe driver when the two left the NCO Club.

23. Sergeant Provencher had not closed the NCO Club at the time Freddie Johnson and Sergeant Hay left, and thus represented a possible alternative ride home for Freddie Johnson.

24. Shortly after Hay and Johnson left the NCO Club, at a point less than one mile from the front gates of the Malmstrom Air Force Base, Hay lost control of his vehicle, spun the vehicle several times, went off the roadway, and collided with a tree, causing the serious injuries to the plaintiff.

25. The most credible evidence was that the cause of the accident was that Hay was under the influence of alcohol at the time of the accident. Hay's judgment and reaction capabilities were hampered due to the alcoholic content in his blood at the time he left the roadway.

26. At the time Hay and Johnson left the NCO Club, they were both groggy or fatigued. Johnson had been up for 22 hours consecutively by the time he left the Club. Hay had been awake and without sleep continuously since 6 a. m. on December 12th, 22½ consecutive hours prior to the time he left the NCO Club.

27. Sergeant Hay was intoxicated at the time of the accident. Two hours after...

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