Corrigan v. U.S.

• Decision Date: 10 June 1987
• Docket Number: 85-1872,Nos. 85-1868,s. 85-1868
• Citation: 815 F.2d 954
• Parties: John T. CORRIGAN, Guardian of Daughter, Maura L. Corrigan, Appellee, v. UNITED STATES of America, Appellant. John T. CORRIGAN, Guardian of Daughter, Maura L. Corrigan, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 954

815 F.2d 954

John T. CORRIGAN, Guardian of Daughter, Maura L. Corrigan, Appellee, v. UNITED STATES of America, Appellant.

John T. CORRIGAN, Guardian of Daughter, Maura L. Corrigan, Appellant, v. UNITED STATES of America, Appellee.

Nos. 85-1868, 85-1872.

United States Court of Appeals,

Fourth Circuit.

Argued March 6, 1986.

Decided April 2, 1987.

Rehearing and Rehearing En Banc Denied June 10, 1987.

Paula M. Potoczak, Asst. U.S. Atty. (Elsie L. Munsell, U.S. Atty., Alexandria, Va., on brief), for appellant/cross-appellee.

Richard C. Alkire (John J. McCarthy, Nurenberg, Plevin, Heller & McCarthy Co., L.P.A., Cleveland, Ohio, John L. McGann, Arlington, Va., on brief), for appellee/cross-appellant.

Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.

PER CURIAM:

The Federal Tort Claims Act ¹ (FTCA) prescribes liability, with certain exceptions not here pertinent, ² for cases where, had the government defendant been a private individual, the acts complained of would have resulted in liability under the law of the jurisdiction in which the acts took place. The doctrine of sovereign immunity otherwise precludes suit against the United States Government. ³ The instant case was instituted by John T. Corrigan seeking compensation from the United States under the FTCA. It is the law of Virginia which governs.

On December 19, 1981, plaintiff's daughter, Maura Corrigan, was permanently brain-damaged in an automobile accident. She will spend the rest of her life, estimated to be fifteen years, in a comatose, vegetative state. The accident occurred when Patrick Patterson, a Private First Class in the United States Army, while proceeding on a private, non-Army trip, drove through a stop sign and collided with the car in which Maura Corrigan was a passenger. The driver of Corrigan's car was killed. Patterson was severely intoxicated at the time of the accident. ⁴ Shortly before the accident Patterson had struck a motor vehicle while approaching a stop light a few miles from Arlington Hall NCO (Non-Commissioned Officers) Club. While attempting to leave the scene of that accident, Patterson hit a second vehicle and then drove off. Finally, the accident involving the car in which Maura Corrigan was a passenger occurred.

Patterson's intoxication resulted from extensive drinking during the course of the evening at taverns operated by the Army for the pleasure of its members and their guests. Early on the evening of December 19, Patterson went to the Army Snack Bar located next to his barracks at Fort Myer at Arlington, Virginia, where he drank several beers. Patterson then drove two or three miles to the NCO Club at the Arlington Hall military base, arriving there at approximately 10:15 p.m. The bartenders at Arlington Hall served him mixed drinks containing bourbon until approximately midnight, even though Patterson was only 19 years old at the time and thus below Virginia's legal drinking age of 21, as well as intoxicated. ⁵ Federal regulations were also violated by the sale of alcoholic beverages to Patterson when he was only 19 and was inebriated. ⁶ During the course of the evening, Patterson became loud and boisterous, and by the time he left he was extremely intoxicated, and at least one bartender had noticed his intoxication. ⁷ However, no employee of the NCO Club refused to serve Patterson a drink or made any effort to persuade him not to drive away. Many of the service personnel frequenting the Arlington Hall NCO Club drove automobiles to arrive at and depart from it. The district court determined that it was reasonably foreseeable that any patron on the evening of December 19, 1981 who was at the NCO at Arlington Hall would drive after leaving the tavern. ⁸ Patterson, of course, did so. It is apparently not questioned that the plaintiff produced sufficient evidence to show negligence on the part of the Government's employees. It is not contested that, as the district judge found, Patterson did all of his drinking on December 19, 1981 at either the Fort Myer Snack Bar or the Arlington Hall NCO Club.

In connection with the December 19, 1981 accident, Patterson pled guilty to manslaughter and was sentenced to one year in prison. After serving three months of that sentence, he was paroled. ⁹

The district court denied the United States' motion for summary judgment, rejecting the United States' argument that Corrigan had failed to state an actionable claim under Virginia law. Corrigan v. United States, 595 F.Supp. 1047 (E.D.Va.1984). After a two-day bench trial on the issue of liability, held in March 1985, the district court found the United States liable for negligence on a dram shop liability principle, a legal theory which had not yet been ruled on by the Virginia Supreme Court. The issue of damages was tried on May 16, 1985. The district court awarded Corrigan $944,496.75. Corrigan v. United States, 609 F.Supp. 720 (E.D.Va.1985). The resulting cross-appeals in this case were stayed pending the decision of the Virginia Supreme Court in Hutson v. Marshall Enterprises, Inc., No. 850858 (Va. petition filed Oct. 29, 1985). The Virginia Supreme Court has in the meantime considered one issue which is the same (whether dram shop owner liability exists under a Virginia statute or the common law of Virginia) in Williamson v. The Old Brogue, Inc., 232 Va. 350, 350 S.E.2d 621 (1986).

I.

In Williamson the Virginia Supreme Court held that Virginia does not recognize dram shop liability. The Virginia court found no statutory source of liability and no common law liability, applying the theory that the perpetrator's imbibing of the alcohol, not the tavernkeeper's supplying of it is the proximate cause of the perpetrator's accidents. That has led us summarily to affirm Webb v. Blackie's House of Beef, Inc., 624 F.Supp. 471 (E.D.Va.1985), 811 F.2d 840 (4 Cir.1987), a case involving a defendant restaurant selling liquor and a driver imbiber not in the defendant's employ.

We conclude that Williamson also disposes of the instant case. Because the decision in the district court rested primarily on the premise that Virginia would accept dram shop liability, which Williamson proved wrong, the decision must be reversed to the extent that it rests on that ground. Moreover, we think that Williamson and other Virginia precedents make it clear that plaintiff's other theories of liability are not meritorious.

II.

Plaintiff argues that Virginia "has long recognized a cause of action sounding in negligence based upon the breach of an assumed duty ... [and that] [t]his theory of liability has been applied to agencies of the United States undertaking tasks which must be performed with due care." Plaintiff's Opening Brief, p. 25. He asserts that this principle should be applied here to find liability on the part of the United States for its failure to comply with its regulations regarding the sale of intoxicants to underage and inebriated customers. ¹⁰

It is of course the view of Virginia with regard to the effect of the regulations to which we must look, and we think that the view of Virginia as to this type of regulation is spelled out in Williamson irrespective of the view Virginia would take as to the effect of other types of regulations in other contexts. In Williamson it was argued that breach of the Virginia statute prohibiting sales of intoxicants to intoxicated purchasers gives rise to actionable negligence on the part of the seller. The argument was flatly rejected. It was said that "[w]hile improved public safety and prevention of personal injury were incidental benefits flowing from the Act, public sobriety and individual moderation were its plain goals." 232 Va. at 356, 350 S.E.2d at 625. As a consequence, the Virginia court reasoned that "because the Act was not public safety legislation, it necessarily follows that a person injured by an intoxicated customer of a seller of intoxicants is not a member of the class for whose benefit the statutory provision in question was enacted. Thus, violation of the statute does not constitute negligence per se and does not furnish the basis for a civil action in damages." 232 Va. at 356, 350 S.E.2d at 625.

We do not think that the Virginia Supreme Court predictably would take a different view of the legal effect of the regulations breached in this case. Their breach therefore provides no basis for liability.

In the district court, although only inferentially before us, plaintiff argued that the special relationship, the "quasi-parental" relationship, between the army and one of its members placed a special obligation on the army to deal with Patterson's alcoholism, the breach of which could give rise to liability on the part of the army. The district court rejected the argument and, we think, correctly so. The positiveness of the Virginia Supreme Court's rejection and the basis it offered for rejection of the dram shop theory of liability persuades us that it would not recognize the special relationship between Patterson and the army to give rise to an exception to dram shop nonliability in Virginia. In Williamson, the court said, with respect to asserted dram shop liability, "the act of selling the intoxicating beverage [is] too remote to be a proximate cause of an injury resulting from the negligent conduct of the purchaser of the drink." 232 Va. at 353, 350 S.E.2d at 623. The court also added "we will apply the law as it now exists, because we believe that a decision whether to abrogate such a fundamental rule ... is the function of the legislative, not judicial branch of government." 232 Va. at 354, 350 S.E.2d at 624. Lest this not be a clear indication of how the Virginia Supreme Court would treat the argument, we point to Bell v. Hudgins, 232 Va. 491, 352 S.E.2d 332 (1987), in which the court declined to hold a parent liable for the tort of a child in injuring another, in the absence of master-servant or principal-agent relationship, even though the...