Brandes v. United States, C-82-1982 RPA.

• Decision Date: 04 August 1983
• Docket Number: No. C-82-1982 RPA.,C-82-1982 RPA.
• Citation: 569 F. Supp. 538
• Parties: Loren Christian BRANDES, Plaintiff, v. UNITED STATES of America, et al., Defendants.
• Court: U.S. District Court — Northern District of California

569 F. Supp. 538

Loren Christian BRANDES, Plaintiff, v. UNITED STATES of America, et al., Defendants.

No. C-82-1982 RPA.

United States District Court, N.D. California.

August 4, 1983.

Edwin Caldwell, San Francisco, Cal., for plaintiff.

Sandra Willis, Asst. U.S. Atty., G. William Philley, Cesari, Werner & Moriarity, San Francisco, Cal., for defendants.

OPINION AND ORDER

AGUILAR, District Judge.

This case raises questions concerning the government's potential liability under the Federal Tort Claims Act for the acts of an individual who was not technically an employee of the government. Defendant, Ms. Rue W. Dann, was driving a government car when she collided with plaintiff. Plaintiff was injured and brought suit against the government under the Federal Tort Claims Act, (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., and against Dann individually.

In a series of earlier motions, the government sought a ruling that the government is not responsible for any damages because Dann was not a government employee at the time of the accident. Similarly, plaintiff sought a ruling of partial summary judgment arguing that the Court should consider Dann to be a government employee for purposes of the FTCA. On February 24, 1983, the Court granted plaintiff's motion for partial summary judgment, finding that under the facts and circumstances of this case, Dann was a government employee within the meaning of the FTCA. Now, the government seeks reconsideration of the Court's Order granting partial summary judgment.¹

The relevant facts are as follows. Dann's fiance, Dr. John Ziegler, accepted a job with the Veterans Administration in San Francisco. In June 1981, Ziegler and Dann came to San Francisco from Washington D.C. to search for a house. Dr. Ralph Goldsmith, Chief of Staff of the San Francisco Veterans Administration issued a U.S. government car to Ziegler and Dann to facilitate their househunting.

On June 7, 1981, Dann drove to Oakland to pick up her daughter to show the daughter a house Ziegler and Dann were interested in buying. Ziegler and Dann wanted Dann's daughter to live with them in California and therefore saw her approval as important. On the return trip from Oakland, Dann collided with plaintiff's motorcycle. Plaintiff was injured in the accident.

Plaintiff filed an administrative claim with the Veterans Administration on August 26, 1981. The Veterans Administration denied the claim on April 4, 1982. On April 27, 1982, plaintiff filed suit against Ziegler and Dann in Superior Court for Marin County. On May 4, 1982, plaintiff filed the instant action in federal court against both the United States and Dann.

DISCUSSION

To determine whether the government may be held liable under the FTCA for Dann's actions, the Court must first turn to the language of the FTCA set forth at 28 U.S.C. section 1346(b):

district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... 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.

"This provision of the FTCA waives the sovereign immunity of the United States from suits brought to recover for damages caused by `the negligent or wrongful act or omission of any employee of the Government.'" In Re Bomb Disaster at Roseville, Cal. on April 28, 1973, 438 F.Supp. 769, 775 (E.D.Cal.1977).

The FTCA defines an employee of the government as follows:

Employee of the government includes officers or employees of any federal agency, members of the military or naval forces of the United States, and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation.

28 U.S.C. § 2671.

Under Ninth Circuit precedent, whether a person is an "employee of the government" within the meaning of the FTCA is a question of federal law. Brucker v. United States, 338 F.2d 427, 428 n. 2 (9th Cir.1964), cert. denied, 381 U.S. 937, 85 S.Ct. 1769, 14 L.Ed.2d 701 (1965). There is no specific body of federal law that addresses employee-employer relationship. However, federal case law indicates that this question should be resolved with reference to general principles of agency law. United States v. Becker, 378 F.2d 319, 321 (9th Cir.1967); Brucker v. United States; Accord Slagle v. United States, 612 F.2d 1157 (9th Cir.1980). In Brucker, Becker, and Slagle, the Court of Appeals followed the Restatement (Second) of Agency § 220(2) (1958) definition of "servant" to determine whether an individual was a government employee.² These courts held that all of the Restatement's "agency" factors relevant to a particular case should be considered. Ultimately the trier of fact determines whether sufficient factors are present to establish the employer-employee relationship. RESTATEMENT (SECOND) OF AGENCY § 220(1) comment c (1958).

Recently, in Slagle, the Ninth Circuit employed the type of analysis dictated by the Becker and Brucker opinions. In Slagle, the plaintiff voluntarily accompanied Wheeler, an informant, to purchase drugs in Napa, California. During the transaction, an argument ensued and plaintiff was shot and paralyzed. Plaintiff brought suit against the United States under the Federal Tort Claims Act. Plaintiff's theory was that his injuries were caused by the negligence of the Government in the selection and supervision of Wheeler, and by Wheeler's negligence at the site of the incident.

Applying the "agency" factors set forth in the Restatement (Second) of Agency,³ the Court of Appeals ruled that Wheeler was not a government employee for purposes of the FTCA. The Court found that Wheeler's activities were not subject to the actual control or right of control of a federal agent; Wheeler had not contacted the Special Agent to inform him of his trip to Napa, contrary to the general guidelines, nor was he sent to Napa by the Bureau of Narcotics and Dangerous Drugs (BNDD); finally, the place of work, instrumentalities, or tools were not supplied by the BNDD. Slagle, supra, 612 F.2d at 1161.

In the case at bar, three of the factors mentioned in the Restatement are especially significant in determining the existence of an employee-employer relationship. First, whether the employer had "control or the right to control" the employee. RESTATEMENT (SECOND) OF AGENCY § 220(2)(a). Second, whether the employer or employee supplied the instrumentalities. Id. at § 220(2)(e). Third, whether the work was part of the regular business of the employer. Id. at § 220(2)(h).

1. Was There Control or Right to Control Employee?

With respect to control or the right to control, the Restatement (Second) of Agency states;

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;

RESTATEMENT (SECOND) OF AGENCY § 220(2)(a) (1958). In Witt v. United States, the Second Circuit found a tortfeasor to be a "government employee" under the FTCA because his activities were subject to "some degree" of government control. 462 F.2d 1261, 1264 (2d Cir.1972).

In the instant case, there are substantial indicia of the government's right to control Dann and her use of the government car. In loaning the car, the government had the right to establish any restrictions on the use of the vehicle. However, the only limitation that the government imposed was an admonition that the car should not be driven farther than seventy (70) miles from San Francisco. There is no evidence that either Ziegler or Dann were told that Dann was not allowed to drive the car.

In fact, the evidence strongly suggests that the government was aware that both Ziegler and Dann would drive the car. Both Ziegler and Dann were present when Dr. Goldsmith gave Ziegler the keys to the car and informed them of the seventy (70) mile restriction. Further, Dr. Goldsmith has admitted that "it was certainly implicit that Dr. Ziegler and Ms. Dann would utilize the car for house-hunting purposes." (Goldsmith letter dated August 20, 1982.)

It is apparent to the Court that the government had the right to set restrictions or limitations on Dann's use of the car. The government could have specifically instructed that Dann was not permitted to use the car at all. In this way, the government had a complete right to control Dann's activities with respect to the government car. The fact that the government chose not to exercise its right to control does not in any way vitiate the existence of this right. "The word `control' means the right to control, rather than the actual exercise of that right ... a master may not escape liability for acts of his servant simply by failing to exercise his right of control over the servant." Melson v. Allman, 244 A.2d 85, 87-88 (Del.1968).

2. Who Supplied the Instrumentality?

The Restatement (Second) of Agency sets forth another factor to be considered as follows:

(e) whether the employer or the workman supplies the instrumentalities, tools and the place of work for the person doing the work;

RESTATEMENT (SECOND) OF AGENCY § 220(2)(e) (1958).

In the present case, the government owned and controlled the instrumentality that was involved in the alleged tort. Furthermore, a high ranking official of the Veterans Administration voluntarily provided the government car to Ziegler and Dann for househunting purposes. Thus, Ziegler and Dann had possession of the car at the government's behest and were using the vehicle pursuant to an authorized loan.

The government argues ...