Aguilar v. U.S.

• Decision Date: 11 December 1990
• Docket Number: No. 89-16018,89-16018
• Citation: 920 F.2d 1475
• Parties: John A. AGUILAR; Karen M. Aguilar, husband and wife, Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of the Interior, Bureau of Reclamation, a subdivision thereof, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1475

920 F.2d 1475

John A. AGUILAR; Karen M. Aguilar, husband and wife Plaintiffs-Appellants, v. UNITED STATES of America; United States Department of the Interior, Bureau of Reclamation, a subdivision thereof, Defendants-Appellees.

No. 89-16018.

United States Court of Appeals Ninth Circuit.

Argued and Submitted July 18, 1990.

Decided Dec. 11, 1990.

Richard Crenshaw, Vermeire & Turley, Phoenix, Ariz., for plaintiffs-appellants.

Mark B. Stern, U.S. Dept. of Justice, Washington, D.C., for defendants-appellees.

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

Before TANG, NOONAN, and RYMER, Circuit Judges.

TANG, Circuit Judge:

John Aguilar sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2674, for personal injuries he suffered from the alleged negligence of a federal employee. The district court granted partial summary judgment for the government, holding that the FTCA incorporates a Nevada state law cap on damages, limiting the government's potential liability. Aguilar appealed upon certification and the grant of an interlocutory appeal. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 31, 1986, the tractor-trailer rig Aguilar was driving broke down on the Nevada side of the road crossing Hoover Dam, within federal jurisdiction. A defect in the brake air line caused the brakes on the truck to lockup. A federal dam police officer, Donald Babcock, was then in charge of directing traffic across the dam. Babcock allegedly required Aguilar to repair the air hose with tape. Babcock also allegedly refused to allow Aguilar to chock the wheels of the truck during the repair procedure. Complying with Babcock's alleged orders, Aguilar was severely injured when his arm was pinned between the two trailers of the truck. Aguilar sued the United States under the FTCA for damages resulting from his injuries, alleging that Babcock acted negligently and caused Aguilar's injuries.

The government moved for partial summary judgment, arguing that the FTCA required imposition of Nevada's $50,000 limit on liability for state employees' torts. Nev.Rev.Stat. Sec. 41.035(1). The district court agreed, and granted partial summary judgment limiting the government's potential liability to $50,000. The district court certified the judgment for interlocutory appeal.

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Kruso v. International Tel. & Tel., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, --- U.S. ----, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). This appeal presents no disputed facts. Therefore, we review whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989).

III. DISCUSSION

The issue confronting us is whether Nevada's limitation of damages recoverable against its officers and employees applies under the FTCA such that liability of a federal police officer is capped at $50,000. Aguilar contends that the cap should not be imposed because: 1) state law immunities do not shield the United States from liability under the FTCA; 2) Nevada's statute is an exception to Nevada's waiver of sovereign immunity and not a limitation on damages; and 3) enforcement of Nevada's statutory limitation is inconsistent with the purposes of the FTCA. We disagree.

A. Background

The FTCA establishes federal government tort liability by express analogy to a private individual's liability under the law of the state where the tort occurred:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances ....

28 U.S.C. Sec. 2674 (emphasis added). Under the FTCA, "[l]iability is to be determined 'in accordance with the law of the place where the [negligent] act or omission occurred.' " Taylor v. United States, 821 F.2d 1428, 1430 (9th Cir.1987) cert. denied, 485 U.S. 992, 108 S.Ct. 1300, 99 L.Ed.2d 510 (1988) (quoting 28 U.S.C. Sec. 1346). In this case, the alleged negligence took place in Nevada. Therefore, Nevada law determines the government's liability for Aguilar's injury. See Taylor, 821 F.2d at 1430.

In Nevada, of course, private individuals do not direct traffic on public highways. Nor does Nevada empower private individuals to mandate compliance with orders regarding conduct on public roads. Therefore, no Nevada state law governs the liability of private parties for the actions giving rise to Aguilar's suit.

However, "[u]nder the FTCA the United States may 'be liable for the performance of activities private persons do not perform.' " Doggett v. United States, 875 F.2d 684, 689 (9th Cir.1989) (quoting Wright v. United States, 719 F.2d 1032, 1034 (9th Cir.1983)). Because private persons do not wield the powers giving rise to Aguilar's suit, "the inquiry into the government's liability in this situation must include an examination of the liability of state and municipal entities 'under like circumstances.' " Louie v. United States, 776 F.2d 819, 825 (9th Cir.1985). In Doggett, we explained:

It is difficult to analyze the United States' liability for actions involving unique governmental functions by simply considering the potential liability of private citizens under state law. In such cases this court has sought to determine what liability state law attaches to similar activities undertaken by analogous entities subject to its jurisdiction.

To determine the liability of the United States in Aguilar's case, therefore, we examine the liability that Nevada law attaches to similar activities undertaken by Nevada police officers.

B. Application of Nevada's Cap on Damages

Our precedent thus mandates that in the special circumstance where the federal actor is a police officer without a private analogue, liability is determined by reference to state liability for government employees. That liability may, for those particular actors, be limited just like liability may be limited, under state law, for federal actors who do have private analogues. Where state law has limited the damages recoverable in tort, this court has imposed that limit on FTCA claims. Taylor, 821 F.2d at 1430; Richards v. United States, 369 U.S. 1, 16, 82 S.Ct. 585, 594, 7 L.Ed.2d 492 (1962).

Nevada's potential liability for the negligent actions of its police officers is limited to $50,000. Nev.Rev.Code Sec. 41.035(1); State v. Eaton, 101 Nev. 705, 708-09, 710 P.2d 1370, 1373 (1985). Aguilar contends that this limit on the amount of damages should not apply to his FTCA cause of action. We disagree. Just as Nevada law establishes Aguilar's FTCA cause of action, it also limits his FTCA cause of action.

The FTCA incorporates limitations on damages contained in state law. In Richards, the Supreme Court held that the FTCA incorporates the limitation on wrongful death damages contained in the Missouri Wrongful Death Act. Richards, 369 U.S. at 16, 82 S.Ct. at 594. Moreover, we have held that California's $250,000 cap on noneconomic injuries in professional negligence cases applies to FTCA claims. Taylor, 821 F.2d at 1432.

Because Nevada's liability is limited to $50,000, the United States' potential liability must be limited to $50,000 also. We hold that the potential liability of the United States is limited to $50,000 in damages Aguilar can recover for the acts of federal police officers in Nevada.

Aguilar points to United States v. Muniz, 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963), for the proposition that the immunity granted by individual states to their public officials in positions similar to federal officials does not limit the liability of the United States under the FTCA. Aguilar's reliance on Muniz is misplaced.

In Muniz, the Supreme Court held that federal prisoners could sue their jailors under the FTCA even though, in some states, jailors are immune from suit. Muniz, 374 U.S. at 164-65, 83 S.Ct. at 1858-59. The Court did not base its decision on the inability of the federal government to assert state caps on liability. Rather, in declining to limit suits by federal prisoners because of restrictive state rules of immunity, the Court held that the "duty of care owed by the Bureau of Prisons to federal prisoners is fixed by 18 U.S.C. Sec. 4042, independent of an inconsistent state rule." Id. (emphasis added). No analogous independent uniform policy of the federal government mandates the duty of care owed by federal police officers directing traffic. Aguilar's case is thus unlike Muniz, and the United States can assert the limits on Nevada's liability in Aguilar's case.

Aguilar also contends that Wright v. United States establishes that the government cannot assert Nevada's cap on damages in a FTCA claim. We held in Wright that the United States could be held liable for malicious prosecution because of the actions of the Internal Revenue Service, even though state revenue agents in the state where the tort occurred were immune from suit. Wright, 719 F.2d at 1034-35.

We distinguish Wright from Aguilar's case. We note that any private person can be held liable for malicious prosecution. In Wright, because private persons were liable for malicious prosecution, so was the United States, as dictated by the FTCA. In Aguilar's case, private persons are not liable for negligently directing traffic. In Wright, this court had no call to look to the potential liability of state employees and their state immunity. In Aguilar's case, we must look to Nevada employees liability for Aguilar's cause of action. When we incorporate Nevada law to establish Aguilar's cause of action, we also must incorporate the statutory limit on damages. Such a result is consistent with our holding in Taylor. Because Nevada liability under state law is limited to $50,000, it follows that the liability of the United States for the actions of its federal police...