Borrego v. U.S., 85-1784

Decision Date01 May 1986
Docket NumberNo. 85-1784,85-1784
Citation790 F.2d 5
PartiesDenise Devore BORREGO, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
CourtU.S. Court of Appeals — First Circuit

Eduardo Castillo Blanco with whom Armando Rivera Carretero, Hato Rey, P.R., was on brief, for plaintiff, appellant.

Eduardo E. Toro Font, Asst. U.S. Atty. with whom Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., was on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, BREYER and TORRUELLA, Circuit Judges.

TORRUELLA, Circuit Judge.

This case is before us on appeal from a decision by the United States District Court for the District of Puerto Rico granting summary judgment to the United States and dismissing plaintiff's cause as not being actionable under the Federal Tort Claims Act (FTCA), 622 F.Supp. 457 (D.P.R.1985). This damage action arose out of an automobile accident which occurred on January 5, 1982 at about 11:45 AM. The appellant suffered injuries when her car was struck from behind by a government-owned vehicle assigned to and driven by Lammar E. Cannon, an area supervisor employed by the Department of Agriculture. At the time of the collision Cannon was driving the vehicle from his home to his office. 1 Cannon's regular working hours were 7:30 AM to 4:00 PM. On the morning of the accident, however, Cannon had taken three hours of annual leave time in order to take care of some personal matters.

Cannon was assigned the car and allowed to keep it at his home because he often had to leave early and return late when making inspections of farms or in the Virgin Islands. Had the car been kept overnight at the government controlled parking facility, he would have been severly restricted in his activities because access to the facilities is easily available only between the hours of 6:00 AM and 6:00 PM.

The district court found that the United States could not be held liable for the acts of appellee because they were not performed within the scope of employment. Our interpretation of the facts before the court leads us to a different conclusion.

The FTCA constitutes a limited waiver of the government's sovereign immunity. Honda v. Clark, 386 U.S. 484, 501, 87 S.Ct. 1188, 1197, 18 L.Ed.2d 244 (1967). It can only be applied to those actions of federal employees that fall within the scope of their employment:

The head of each Federal agency or his designee, in accordance with regulations prescribed by the Attorney General, may consider, ascertain, adjust, determine, compromise, and settle any claim for money damages against the United States for injury or loss of property or personal injury or death of any employee of the agency 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. 2672. Additionally, 28 U.S.C. Sec. 2679(b) provides:

(b) The remedy against the United States provided by sections 1346(b) and 2672 of this title for injury or loss of property or personal injury or death, resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment, shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against the employee or his estate whose act or omission gave rise to the claim.

Whether or not a particular act is within the scope of employment is a matter to be determined in accordance with the law of the place in which the alleged negligent act or omission occurred. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Merritt v. United States, 332 F.2d 397 (1st Cir.1964). The law applicable to the situation at bar can be found in Articles 1802 and 1803 of the Civil Code of Puerto Rico. 2

Article 1802 of the Civil Code, 31 L.P.R.A. Sec. 5141 states:

"A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability, but entails a reduction of the indemnity."

Article 1803 of the Civil Code, 31 L.P.R.A. Sec. 5142 states:

"The obligation imposed by the preceding Section is demandable, not only for personal acts or omissions, but also for those of the persons for whom they should be responsible.... Owners or directors of an establishment or enterprise are likewise liable for any damages caused by their employees in the service of the branches in which the latter are employed or on account of their duties."

The fundamental consideration for determination of an employer's liability is whether or not the employee's acts fall within the scope of his employment in the sense that they furthered a desire to serve and benefit the employer's interest, resulting in an economic benefit to the employer. Martinez v. Comunidad, 90 P.R.R. 451 (1964); Llorens v. Lozada, 73 P.R.R. 260 (1952). In order to impose liability under the doctrine of respondeat superior applicable in the Commonwealth of Puerto Rico, the following elements must be evaluated:

"a) Desire to serve, benefit, or further his employer's business or interest.

b) That the act is reasonably related to the scope of the employment.

c) That the agent has not been prompted by purely personal motives."

Rodriguez v. United States, 328 F.Supp. 1389, 1391 (1971).

The general rule in Puerto Rico is that a trip made by an employee simply in order to get from his home to his work is not one in the course of his employment. Atiles v. Industrial Commission, 72 P.R.R. 390, 392 (1951). 3 We must, therefore, evaluate the undisputed facts in terms of the general criteria for employer-liability.

Cannon uses the government car to visit farms outside the metropolitan San Juan...

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