704 F.2d 1431 (9th Cir. 1983), 81-3467, Johnson v. United States

Docket Nº:81-3467, 81-3493.
Citation:704 F.2d 1431
Party Name:Freddie L. JOHNSON and Clara Johnson, Husband and Wife, Appellees and Cross- Appellants, v. UNITED STATES of America, Appellant and Cross-Appellee, v. Timothy B. HAY, Third Party Defendant.
Case Date:May 03, 1983
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1431

704 F.2d 1431 (9th Cir. 1983)

Freddie L. JOHNSON and Clara Johnson, Husband and Wife,

Appellees and Cross- Appellants,


UNITED STATES of America, Appellant and Cross-Appellee,


Timothy B. HAY, Third Party Defendant.

Nos. 81-3467, 81-3493.

United States Court of Appeals, Ninth Circuit

May 3, 1983

Argued and Submitted Sept. 9, 1982.

As Amended on Denial of Rehearing and Rehearing En Banc Aug. 2, 1983.

Page 1432

Tom L. Lewis, Regnier & Lewis, Great Falls, Mont., for Freddie L. and Clara Johnson.

Marilyn S.G. Urwitz, Dept. of Justice, Washington, D.C., for the U.S.

Appeal from the United States District Court for the District of Montana.

Page 1433

Before BROWNING, TUTTLE, [*] and REINHARDT, Circuit Judges.

TUTTLE, Circuit Judge:


Sergeant Freddie Johnson, a noncommissioned Air Force officer, is a quadraplegic as the result of injuries sustained in an automobile accident that occurred in the early morning hours of December 13, 1975. The automobile was owned and driven at the time of the accident by Air Force Sergeant Timothy Hay.

Hay and Johnson were on active duty in December 1975 and assigned to Malmstrom Air Force Base in Montana. During their off-duty hours, they were employed as bartenders at the Noncommissioned Officers Club ("NCO Club") located on the base.

After completing their normal eight hour tour of duty during the day, Hay and Johnson reported to work at approximately 6:00 p.m. on the evening of December 12, 1975. Air Force Sergeant William Provencher, Jr., night manager of the NCO Club, came on duty at approximately 9:00 p.m.

During the evening, the employees--including Hay, Johnson and Provencher--agreed to pool their tips and have an after-hours party at the NCO Club. One of the employees drove to an off-base liquor store to buy liquor for the party.

Under Montana law and military regulations, the NCO Club was required to close by 2:00 a.m. On December 13, 1975, Hay and Johnson clocked out shortly before 2:00 a.m., but remained at the Club. Provencher closed the NCO Club at 2:00 a.m., but did not clock out until 3:30 or 3:45 a.m. Hay remained at the Club until after all other employees had left the party. The party began shortly after 2:00 a.m. and lasted until about 4:30 a.m. Liquor consumed at the party came from the off-base store, but the employees used the Club's cups, ice and mixers.

Johnson and Hay left the NCO Club at 4:30 a.m. It was an extremely cold night. Johnson lived off-base, and Hay offered to drive him home. About one mile outside the entrance to the base Hay's car left the road and collided with a tree. Johnson sustained a severe injury to his neck that left him permanently and totally disabled.

Hay submitted to a blood alcohol test approximately two hours after the accident. Based on laboratory analysis of this test, the district court found that Hay was legally intoxicated at the time of the accident.

Johnson filed a Standard Form-95 ("SF-95") claim against the United States approximately eight months after the accident. The claim was in the amount of $3,500,000 and the injury alleged was quadraplegia. Johnson's wife Clara is identified on the claim as his spouse. Only Johnson signed the claim, however.

Johnson's claim was denied by the United States on February 22, 1977. Freddie and Clara Johnson then filed a complaint against the United States under the Federal Tort Claims Act ("FTCA" or "the Act"), Pub.L. No. 79-601, tit. IV, Sec. 401, 60 Stat. 812 (1946) (codified in scattered sections of 28 U.S.C.) in Montana federal district court on April 13, 1977. Freddie Johnson prayed for $3,000,000 in damages for his injury, and Clara Johnson prayed for $500,000 damages for loss of consortium.

The United States joined Sergeant Hay as a third party defendant, but later moved to dismiss him with prejudice. The district court granted the government's motion.

The United States filed a motion for summary judgment on September 14, 1979. The government argued that it was not liable because Sergeant Hay had exceeded the scope of his employment, or, in the alternative, that the district court lacked jurisdiction under the Feres doctrine. The district court denied the motion, finding that there were triable issues of fact. The district court did not specifically address the Feres issue.

Page 1434

Johnson's case was bifurcated for trial on the issues of liability and damages. At the liability trial, 496 F.Supp. 597 (D.Mont.1980), the district court found that the negligence of Air Force personnel in violating Montana statutes and military regulations with respect to the legal closing time for a retail liquor establishment was the proximate cause of Johnson's injuries, and that the negligence of the driver Hay in operating an automobile under the influence of alcohol was a foreseeable intervening cause. The court further found that Johnson had assumed the risk of injuries when he agreed to ride in the automobile driven by Sergeant Hay. The court assigned fault under Montana's comparative negligence statute as follows: Johnson 25%, Hay 40%, the United States 35%. Because Hay had been dismissed with prejudice, damages could not be apportioned against him; consequently, the United States was liable for 75% of the damages. The court dismissed Clara Johnson's loss of consortium claim for lack of subject matter jurisdiction because she failed to satisfy the prerequisite to suit under the FTCA by either joining in her husband's SF-95 claim or filing a separate claim against the United States.

At the trial on the issue of damages, 510 F.Supp. 1039 (D.Mont.1981), the district court found that Freddie Johnson was entitled to recover damages totalling $3,766,695.69. That figure was reduced by Veterans Administration benefits, past and future, in the amount of $1,466,368. The court then applied the 25% reduction attributable to Johnson's comparative negligence and entered judgment in favor of Johnson in the amount of $1,725,245.76. Although the court found that Johnson required 24-hour home nursing care, it determined that 12-hour care was reasonable, and calculated damages for nursing care based on 12 hours per day.

At the close of trial, Johnson's counsel moved to amend the prayer for damages to $10,000,000 pursuant to Rule 15(b). Because the damage award was less than the $3,500,000 set forth on Johnson's administrative claim, the court found it unnecessary to rule on plaintiff's motion.

The government makes two arguments on this appeal. First, the government contends that the district court had no jurisdiction to hear plaintiff's claim because his injury was incident to military service. Second, the government argues that the district court improperly computed damages by deducting Veterans Administration benefits from the total damage award before the 25 percent comparative negligence reduction was calculated. Johnson cross-appealed and argues that the district court made four errors. First, the court should not have dismissed Clara Johnson's claim for loss of consortium. Second, the district court should have awarded full-time nursing care instead of 12-hour care. Third, Johnson contends that the court erred in refusing to allow the prayer for damages to be amended after trial. Finally, Johnson claims that the district court's damage awards for pain and suffering and for loss of capacity to pursue an established course of life are so low as to be clearly erroneous.


A. Development of the Feres Doctrine

Through the passage of the Federal Tort Claims Act in 1946, the United States waived its sovereign immunity and agreed to be subject to suit

for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b) (1976). The FTCA provides that members of the armed forces are deemed to be employees of the federal government. Id. Sec. 2671. Of the FTCA's 12 exceptions, none bars suits by service members against the federal government. 1

Page 1435

Nonetheless, the question of the liability of the United States to members of its armed forces has vexed courts ever since the FTCA's enactment. The government initially maintained that the FTCA did not permit any suits whatsoever by service members. In Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), however, the Supreme Court squarely rejected this argument and held that two servicemen could recover under the Act for injuries resulting from the negligent operation of a motor vehicle by an employee of the United States when the accident did not occur incident to the plaintiffs' military service. As the Court held,

we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks' service, a wholly different case would be presented.

Id. at 52, 69 S.Ct. at 920.

Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), presented the Supreme Court with such a "wholly different" case. Feres involved three separate causes of action: two for medical malpractice by military doctors and one for maintenance of unsafe barracks. The Supreme Court found that none of these claims was sufficient to establish a cause of action under the FTCA. The Court held that...

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