Bennett v. U.S.

• Citation: 102 F.3d 486
• Decision Date: 30 December 1996
• Docket Number: No. 95-9262,95-9262
• Parties: , 10 Fla. L. Weekly Fed. C 597 Sharon BENNETT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)

Page 486

102 F.3d 486

97 FCDR 335, 10 Fla. L. Weekly Fed. C 597

Sharon BENNETT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 95-9262.

United States Court of Appeals, Eleventh Circuit.

Dec. 30, 1996.

G. Larry Bonner, Timothy J. Jones, Bonner & Jones, Augusta, GA, for Plaintiff-Appellant.

Kenneth C. Etheridge, Asst. U.S. Atty., Augusta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before DUBINA and BLACK, Circuit Judges, and MARCUS ^*, District Judge.

MARCUS, District Judge:

Plaintiff-Appellant Sharon Bennett appeals the district court's grant of summary judgment in favor of the Defendant-Appellee United States of America. Bennett brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b) and 2671, et seq., alleging that she suffered permanent injuries due to the negligent conduct of a United States Army soldier stationed at Fort Gordon in Augusta, Georgia. Bennett's injuries resulted from the soldier's discharge of a handgun that, in violation of base regulations concerning privately-owned weapons, had not been registered with the base Provost Marshal's office. The United States moved for summary judgment, arguing, among other things, that the soldier was not acting within the scope of his employment at the time of the incident, and therefore no liability could be imposed under the FTCA. The district court agreed that the soldier had not acted within the scope of his employment. Bennett insists that the district court erred in reaching this and other conclusions concerning her negligence claim. For the reasons detailed below, we affirm.

I. Background

This case arises out of an accidental shooting on the night of January 14, 1993. Early in the evening, David Williams, a soldier assigned to Company A of the 551st Signal Battalion at Fort Gordon and residing on the base, attended the rehearsal of a band of which he was a member. During the rehearsal, Williams told a fellow soldier and band member, Adrian Risby, that he planned to visit a local dance club later that night. Risby indicated that he would like to go, and the two servicemen arranged to meet at Risby's barracks room. Shortly after 11:00 p.m., Williams, off-duty at the time, left his residence to meet Risby. When he arrived at Risby's quarters, Williams was carrying a black nylon bag that concealed a personal .380 caliber semi-automatic pistol. Bennett, an acquaintance of both soldiers and a guest of Risby's, was in the room along with Risby when Williams arrived. The trio discussed which night club to visit and other plans for the evening. At some point during the conversation, Williams removed the pistol from his bag and inadvertently fired it. The bullet struck Bennett in the back and severed her spinal cord, causing permanent paralysis below her upper waist. Williams subsequently pled guilty at a court martial in June, 1993 to charges of assault with a dangerous weapon, negligent discharge of a loaded firearm and carrying a concealed weapon.

Seeking to recover money damages for her injuries, Bennett submitted an administrative claim to the Department of the Army. After the Army denied her claim, she filed the instant FTCA lawsuit against the United States on May 18, 1994. In her complaint, Bennett alleges that the negligent acts of Williams may be attributed to the United States on a theory of vicarious liability, since Williams acted within the scope of his employment as a United States Army soldier. Bennett also alleges that the Government was liable for failing to adequately supervise the dormitory where she suffered her injuries, and that Williams and other Government employees exacerbated her injuries by moving her immediately after the accident. The United States answered the complaint, and thereafter moved to dismiss or in the alternative for summary judgment. In an Order dated September 29, 1995, the district court assumed that Williams' negligence caused Bennett's injuries, but accepted the Government's argument that Williams had not been acting within the scope of his employment at the time of the shooting. The district court also concluded that the Army did not willfully or wantonly fail to supervise the barracks. In a subsequent Order, the court rejected as a matter of law Bennett's claim that Army employees aggravated her condition, since neither Williams nor Risby acted within the scope of their employment and no evidence had been produced to show that any other employees improperly moved her after the shooting. Bennett appeals the district court's findings on these issues.

II. Standard of Review

The district court construed the Government's motion as an application for summary judgment. ¹ We review the district court's grant of summary judgment de novo. Forbus v. Sears Roebuck & Co., 30 F.3d 1402, 1404 (11th Cir.1994), cert. denied, 513 U.S. 1113, 115 S.Ct. 906, 130 L.Ed.2d 788 (1995). A summary judgment motion should be granted when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). An issue of fact is "genuine" if the record as a whole could lead a rational trier of fact to find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is "material" if it might affect the outcome of the case under the governing law. Id. Like the district court, we review the evidence in a light most favorable to the non-moving party. Griesel v. Hamlin, 963 F.2d 338, 341 (11th Cir.1992).

III. Discussion

The principal question presented in this appeal concerns language in the FTCA that makes the United States' vicarious liability for the negligence of its employees contingent on whether the employee acted in the "line of duty." The FTCA waives the Government's sovereign immunity for civil damages lawsuits against the United States 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. § 1346(b). The statute defines "employee of the government" as including "members of the military or naval forces of the United States." For military personnel, "[a]cting within the scope of ... employment" means acting in "line of duty." Id. "Line of duty," in turn, draws its meaning from the applicable state law of respondeat superior, Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), taking into account the special factors and characteristics of military activity and discipline. See, e.g., Bettis v. United States, 635 F.2d 1144, 1147 (5th Cir. Unit B 1981); Hinson v. United States, 257 F.2d 178, 181 (5th Cir.1958). ²

Since Williams' alleged negligence occurred in Georgia, we look to Georgia's law of respondeat superior. While respondeat superior is a slippery concept that eludes precise, universal definition, Georgia courts will hold an employer responsible for the conduct of its employee if the employee acted in the course of the employer's business and with a desire to benefit the employer. See Green, 954 F.2d at 698 (noting that, under Georgia law, "[t]he tort of an employee is within the scope of his employment if it is done in furtherance of his employer's business"); Wallace v. ARA Servs., Inc., 365 S.E.2d 461, 463 (Ga.Ct.App.1988); Wittig v. Spa Lady, Inc., 356 S.E.2d 665, 666 (Ga.Ct.App.1987); Southern Bell Tel & Tel Co. v. Sharara, 167 Ga.App. 665, 307 S.E.2d 129, 131 (1983). By contrast, when an employee undertakes an act purely personal in nature, no respondeat superior liability may be imposed. Green, 954 F.2d at 698; see Worstell Parking, Inc. v. Aisida, 212 Ga.App. 605, 442 S.E.2d 469, 470-71 (1994) (refusing to hold employer liable for acts of a parking attendant who struck a customer with a stick, and concluding that the employee's "altercation with plaintiff and her boyfriend appears to have been purely personal and not for any purpose beneficial to defendant"); Wallace, 365 S.E.2d at 463 (refusing to hold employer liable for injuries resulting from an employee's unauthorized use of a company van for personal errands); Wittig, 356 S.E.2d at 666 (finding that employee who forged a purported customer's signature on a company contract acted outside the scope of her employment). The question of whether a given act falls within the scope of employment is highly fact-specific, and turns on the unique circumstances of the case at bar. See, e.g., Wallace, 365 S.E.2d at 463.

At the outset, Bennett seems to suggest that each and every act by a military employee in or around military housing necessarily falls within the scope of a soldier's employment. She describes a military base as a "special type of business locale" that is "open for business" at all times. She further maintains that since soldiers may be called to duty on a moment's notice, all of their activities relate to or are limited by their employer's purpose. These arguments are unpersuasive.

We are aware of no case law from this Circuit or elsewhere to support so sweeping an application of respondeat superior under the FTCA. To begin with, a great many acts by military personnel who reside on base may be sufficiently outside the scope of their employment to preclude vicarious liability on the part of the Government. In Bettis v. United States, for example, the...