Bettis v. U.S.
| Decision Date | 27 January 1981 |
| Docket Number | No. 80-7110,80-7110 |
| Citation | 635 F.2d 1144 |
| Parties | James A. BETTIS, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Brenda J. BETTIS, by and through her father and next friend James A. Bettis, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Sharon BETTIS, by and through her father and next friend James A. Bettis, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. Johnny Lee JACKSON and Mary Sheila Jackson, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee. Summary Calendar. . Unit B |
| Court | U.S. Court of Appeals — Fifth Circuit |
Martin, Kilpatrick & Davidson, Paul Kilpatrick, Jr., John M. Tanzine, III, Columbus, Ga., for plaintiff-appellant.
Gregory J. Leonard, Asst. U. S. Atty., Macon, Ga., for defendant-appellee.
Appeal from the United States District Court for the Middle District of Georgia.
Before HILL, FAY and ANDERSON, Circuit Judges.
This is a joint appeal of four cases arising out of a single accident involving a member of the United States Army who was driving an Army vehicle. Each of the four cases was grounded in the Federal Tort Claims Act, 28 U.S.C.A. § 1346(b) (West 1976) and 28 U.S.C.A. § 2671 et seq. (West 1965) and sought monetary awards for personal injuries alleged to have been sustained by the plaintiffs as a result of alleged negligence of the driver of the vehicle as well as the negligence of his officers in entrusting the vehicle to the driver. The plaintiffs appeal the district court's order granting summary judgment to the government. We affirm in part the district court's decision in each case. Because we believe that the plaintiffs have submitted specific evidence creating a material factual issue under the theory of negligent entrustment, we vacate and remand in part with respect to each case.
The affidavits and depositions in support of, and in opposition to, the summary judgment motion reveal the following story.
Specialist 4 Larry D. Richardson was assigned as the driver of an International Scout for a small unit at Fort Benning, Georgia. His commanding officer was Lt. Ernest Lansing. Army regulations, and Richardson's orders, prohibited Richardson from using the Scout in any way for personal business. Richardson did not have authority to take the vehicle off base at any time without permission. After duty hours, usually around 5:00 P.M. each day, Richardson was under orders to log the Scout into a secured motor pool area a short distance from his barracks. Richardson did have authority to use the vehicle as transportation to and from work in the morning and evening.
At the time of the accident, Richardson had been Lt. Lansing's driver for eight months. Lt. Lansing knew of only one incident during this time when Richardson had made unauthorized use of the Scout. This involved taking the Scout to a school on post after duty hours. Lt. Lansing had reprimanded Richardson for this incident on the day just before the accident giving rise to the cases on appeal.
In the afternoon of December 13, 1977, Lt. Lansing's unit and another neighboring unit had a party. The party began after duty hours at 4:30 or 5:00 P.M., and approximately 15 to 20 people attended. Richardson did not come until about a half hour after the party had started because he had run some errands for the colonel. Richardson used the Scout for the errands. There is some indication that these errands may have been in conjunction with the party. Lt. Lansing contributed a keg of beer to the festivities and testified that he knew some attending had brought a bottle. Lt. Lansing deposed that he thought Richardson had four or five drinks of beer at the party, while Richardson swore to having several drinks. At approximately 7:30 P.M., Richardson left the party to return to his barracks. Lt. Lansing deposed that it was not until toward the end of the party that he realized Richardson had the Scout at the party. Lt. Lansing further deposed that because he was concerned that alcoholic beverages had been served and because Richardson had had some drinks, he did not want Richardson driving the vehicle back. As Richardson was leaving the party Lt. Lansing asked if he was "okay." Given assurances by Richardson, whom Lt. Lansing said appeared sober, Lt. Lansing permitted Richardson to take the Scout. Nevertheless, Lt. Lansing asked a Sergeant Davis who was also leaving the party to follow Richardson to make sure that Richardson "made the turn" to the barracks. As Sgt. Davis phrased the request, Lt. Lansing asked him to make sure Richardson got the Scout to the barracks. Lt. Lansing said that if Davis had not been leaving the party at that time, he probably would not have asked Davis to follow Richardson. Davis testified that during the short time he followed Richardson he observed nothing suspect in Richardson's driving.
After leaving the party, Richardson did not take the Scout to its assigned motor pool, but instead, parked it in a parking lot near his barracks. At his barracks, he had another beer and then left at about 9:30 P.M. to go into Columbus, Georgia, to see a girlfriend who owed him money. Richardson swears that this trip was for purely personal reasons and that he knew he did not have permission to have the Scout off base. While on his way, Richardson had second thoughts about being off post with an Army vehicle and turned around to return to the post. Unfortunately, while still off base and while making a left turn, Richardson was involved in the accident giving rise to these suits. He was charged with driving under the influence of alcohol and failure to yield the right-of-way by Georgia authorities. The latter charge has been dismissed because of a technicality, and a guilty plea has been entered on the charge of driving under the influence.
The district court, in granting the government's motions for summary judgment, held that the government had clearly shown that Richardson was using the Scout without authority and for his own personal use. It held that the plaintiffs had presented no specific evidence to rebut the government's showing with respect to this factor. The trial court also held, without elaboration, that the facts as developed showed there was no material factual issue under the theory of negligent entrustment which could establish the government's liability.
Under the Federal Tort Claims Act, the government is liable for personal injury or loss of property
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.A. § 1346(b) (West 1976). Special provision is made for torts arising from the acts of the military. 28 U.S.C.A. § 2671 (West Supp.1980) provides that as used in § 1346(b), the term "employee of the government" includes members of the military or naval forces of the United States. It further provides that "acting within the scope of his office or employment" in the case of a member of the military, means "acting in line of duty." Ibid. 1 This circuit has stated that "acting in line of duty" is generally to be equated with the traditional notions of scope of employment, considering the special factors characteristic of military activity and discipline. Craft v. United States, 542 F.2d 1250 (5th Cir. 1976); Hinson v. United States, 257 F.2d 178 (5th Cir. 1958).
Since the government is liable under circumstances where a private person would be liable, state law where the alleged negligent act or omission occurred is controlling. Marcum v. United States, 621 F.2d 142 (5th Cir. 1980); Pesantes v. United States, 621 F.2d 175 (5th Cir. 1980). Since this accident occurred in Georgia, we look to that state's law defining "scope of employment" as used in respondeat superior, and in ascertaining the criteria of negligent entrustment.
One major thrust of the plaintiffs' theory is that the government may be held liable for Richardson's negligence under the doctrine of respondeat superior. A necessary condition for liability under this theory is that Richardson be within the scope of his employment at the time of the accident.
The plaintiffs concede that the evidence developed thus far indicates that Richardson was acting outside the scope of his employment. They argue, however, from the fact that Lt. Lansing apparently gave Sgt. Davis instructions to see that Richardson safely got the Scout back to the barracks, as opposed to the assigned motor pool, and from the fact that the Scout had been used to run an errand just before the party, that these facts might lead to the development of additional facts at trial indicating Richardson was within the scope of his employment. The quick answer to this argument is that in the face of well-developed facts on summary judgment refuting a necessary element, the opponent of summary judgment must produce significant probative evidence showing there is a genuine issue for trial. United Steelworkers v. University of Alabama, 599 F.2d 56 (5th Cir. 1979). Fed.R.Civ.P. 56(e) requires that an adverse party must respond to a well-supported motion for summary judgment with "specific facts showing that there is a genuine issue for trial." Mere speculation as to what may develop to establish a material issue of fact is not sufficient.
Plaintiffs contend that Atlanta Furniture Co. v. Walker, 51 Ga.App. 781, 181 S.E. 498 (1935), precludes summary judgment on this part of their claim since it establishes that an employee returning a vehicle to a night storage area is within the scope of his employment. In Atlanta Furniture Co., an employee, after making a delivery required by his employer, drove the employer's vehicle home for...
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