67 F.3d 1029 (2nd Cir. 1995), 264, Taber v. Maine

Docket Nº:264, Docket 94-6079.
Citation:67 F.3d 1029
Party Name:Scott A. TABER, Plaintiff-Appellant, v. Robert S. MAINE, Defendant, and United States of America, Defendant-Appellee.
Case Date:January 05, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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67 F.3d 1029 (2nd Cir. 1995)

Scott A. TABER, Plaintiff-Appellant,


Robert S. MAINE, Defendant,


United States of America, Defendant-Appellee.

No. 264, Docket 94-6079.

United States Court of Appeals, Second Circuit

January 5, 1995

Argued Sept. 21, 1994.

Amended Oct. 5, 1995.

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[Copyrighted Material Omitted]

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Frederick J. DeFilippo, Elmira, NY, for appellant.

Anne VanGraafeiland, Asst. U.S. Atty., Rochester, NY (Patrick H. NeMoyer, U.S. Atty., Rochester, NY, on the brief), for appellee.

Before: LEVAL, and CALABRESI, Circuit Judges. [*]

CALABRESI, Circuit Judge:

Twenty-six years ago, in Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir.1968), this court held that the United States Government was vicariously liable for damage to a drydock caused by a drunken sailor who was returning to ship from a night's liberty. In his celebrated opinion, Judge Henry Friendly described the basis of respondeat superior as the "deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities." Id. at 171. Even though the sailor had become drunk while on liberty and far off base, we noted that drinking on leave was so common a part of naval life that the sailor's drunken return to ship could fairly be deemed to be characteristic of the military enterprise and, hence, that the government should be held liable for the damage that he caused. See id. at 172.

In Bushey, we applied admiralty law. Today--in a case that again involves a seaman who had too much to drink--we must apply the law of Guam. This, in turn, points us to California decisions for guidance. As it happens, California has taken the lead in developing the modern law of respondeat superior even before Bushey. And, so, rounding out the circle, we now reach the same conclusion as did Judge Friendly, twenty-six years ago.

Although in Bushey the decision that the government was liable under respondeat superior pretty well disposed of all the issues in

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the case, a similar conclusion here offers no such closure. Instead, it forces us into that singular tangle of seemingly inconsistent rulings and rationales known as the Feres doctrine. In the end, we conclude that the most sensible reading of Feres and its progeny does not bar this suit. But we would be less than candid if we did not admit that the Feres doctrine has gone off in so many different directions that it is difficult to know precisely what the doctrine means today.


The facts are simple enough and not disputed. On the morning of April 13, 1985, Robert S. Maine, ("Maine") a Navy serviceman on active duty at the U.S. Naval Ship Repair Facility on the island of Guam, went on liberty after having completed a grueling 24 hour duty shift. While on liberty he was free to leave the base as he pleased and travel up to 50 miles away. He could also be recalled for duty at any time.

Maine decided to have a good time. By noon, he was relaxing at an on-base beach party and drinking beer with Navy friends. Later that afternoon, he purchased two six-packs of beer at the base PX with his Navy comrade, Karin Conville ("Conville"), and returned with her to his barracks to drink several more cans. At dinnertime, Maine accompanied friends to the enlisted men's club, where he consumed two cocktails with his meal. After dinner, he attended a barracks party in the room of a superior officer, with several other superior officers present. There, Maine drank three or four more beers and--when he left to return to his own barracks at about 11:00 p.m.--Conville and another Navy comrade named Jean Buquet noticed that he seemed to be drunk. At around 11:30 p.m., Maine had difficulty sleeping and decided to drive off base to get something to eat. Feeling tired, he aborted his snack mission and tried to return to base. On the way back, he caused the accident that injured Scott A. Taber ("Taber").

Taber was an enlisted Seabee--a construction worker in the United States Navy--and was stationed at Camp Covington, Guam. At 6:00 p.m. on Friday, April 12th, he too went on liberty. Accordingly, he was free to go off base at any time, to travel anywhere within 50 miles of his base and, unless he was recalled for duty, to do as he pleased until his liberty ended at 6:00 a.m. on the following Monday.

Around 2:00 p.m. on Saturday April 13, Taber's civilian friend, Estelita Stills ("Stills"), met Taber at his base in her car. They planned to spend the weekend together at her house, which was located off the base. Before going there, however, the two drove to her cousins' home for dinner at the nearby U.S. Naval Station. There, Taber enjoyed a meal and, as a friendly gesture in return, helped fix the cousins' car. Shortly before midnight, Stills and Taber left for Stills's house and their weekend of rest and recreation. As fate would have it, they never got there. While they were driving on the public roadway toward Stills's house, Maine crashed into them, injuring Taber severely.

Two years later, Taber started this action for damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671, in the United States District Court for the Western District of New York, (David G. Larimer, Judge ). Naming both Maine and the United States Government as defendants, Taber complained that he was injured as a result of Maine's negligent driving and that, because Maine was acting within the scope of his Naval employment when he caused the accident, the government was liable on a theory of respondeat superior. The government moved for summary judgment on the grounds that, as a matter of law, Maine's conduct fell outside the scope of his military service and that, therefore, the government was not liable for Taber's injuries.

Taber opposed the government's motion and cross-moved to amend his complaint. The proposed amended complaint claimed that the government was vicariously liable for the actions of the Navy personnel who allegedly had negligently allowed Maine to get drunk and to drive off base. In response, the government argued that the doctrine established by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which held that "the Government is not liable under the Federal Tort Claims Act

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for injuries to servicemen where the injuries arise out of or in the course of activity incident to service," id. at 146, 71 S.Ct. at 159, barred Taber's new claims.

The district court agreed with the government in all respects. In his Decision and Order dated December 7, 1993, Judge Larimer granted summary judgment to the government because "Maine's drunk driving incident on April 13, 1985, was not in the line of duty and therefore the United States is not liable under the doctrine of respondeat superior." He also denied Taber's motion to amend his complaint holding that these claims would be barred by the Feres doctrine.

The action proceeded against Maine, however. After a bench trial in which Maine appeared pro se, the district court found Maine liable for negligence and assessed Taber's damages at $300,000. A final judgment was entered and Taber appealed.

In his appeal, Taber presses only his original claim that the government is vicariously liable for Maine's negligence, and abandons his motion to amend his complaint. He argues that: (1) the district court erred in failing to apply the doctrine of respondeat superior to Maine's drunk driving; and (2) the Feres doctrine does not bar this claim. We agree with both of Taber's contentions. Accordingly, we reverse the district court's judgment and remand the case for further proceedings.


I. Respondeat Superior

The FTCA allows civil actions against the government based on the negligent acts or omissions of its employees, see 28 U.S.C. Sec. 1346(b), including those of members of the Armed Services who are acting "in the line of duty." 28 U.S.C. Sec. 2671. The courts have uniformly equated the FTCA's "line of duty" language with the phrase "scope of employment," as that concept is defined by the respondeat superior law of the jurisdiction in which the accident occurred. See McHugh v. University of Vermont, 966 F.2d 67, 75 n. 9 (2d Cir.1992) (citing McCall v. United States, 338 F.2d 589 (9th Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d 269 (1965)); Merritt v. United States, 332 F.2d 397, 398 (1st Cir.1964). Because the accident in this case happened in Guam, we must follow Guam's law of respondeat superior. Since the law of Guam is anything but certain, however, that is easier said than done.

Where the law of Guam is unclear, the Ninth Circuit, serving as Guam's highest appellate court, see 48 U.S.C. Sec. 1424-2 (investing the Ninth circuit with certiorari jurisdiction to review "all final decisions of the highest court of Guam"), has instructed courts to look to California law for guidance. Cf. People of the Territory of Guam v. Muna, 999 F.2d 397, 399 n. 1 (9th Cir.1993) ("As a general rule, we refer to California law in resolving unsettled questions of Guam law"). This is particularly true in cases, like this one, where the relevant Guam statute is identical to, and indeed derives from, the California Civil Code. See Concepcion v. United States, 374 F.Supp. 1391, 1395 (D.Guam 1974) (noting that the respondeat superior section of the Civil Code of Guam was "taken verbatim" from the California Civil Code and that "[t]he California cases construing the doctrine ... are persuasive in the construction of similar Guam laws"); cf. People of the Territory of Guam v. Iglesias, 839 F.2d 628, 629 (9th Cir.1988) ("We should [be guided by California law] when...

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