Brotko v. US

• Citation: 727 F. Supp. 78
• Decision Date: 07 December 1989
• Docket Number: Civ. A. No. 89-0006.
• Parties: Gail S. BROTKO and Mark C. Brotko, Individually and as next friends of Jillian M. Brotko, A Minor, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Rhode Island

727 F. Supp. 78

Gail S. BROTKO and Mark C. Brotko, Individually and as next friends of Jillian M. Brotko, A Minor, Plaintiffs, v. UNITED STATES of America, Defendant.

Civ. A. No. 89-0006.

United States District Court, D. Rhode Island.

December 7, 1989.

Marty C. Marran, Pawtucket, R.I., for plaintiffs.

Michael P. Iannotti, Asst. U.S. Atty., Providence, R.I., for defendant.

MEMORANDUM AND ORDER

LAGUEUX, District Judge.

This matter is before the Court on the motion of defendant, United States of America, for summary judgment and the plaintiffs' motion for partial summary judgment.

Gail and Mark Brotko initiated this action individually and as next friends of their daughter, Jillian Brotko, after she received injuries from a dog bite. The Brotkos and the dog's owner, Brian Martinez, resided in housing owned and leased to them by the U.S. Navy. The Brotkos base their claims on the Federal Tort Claims Act (FTCA), charging the government with responsibility for Jillian's injuries. The government contends that as a matter of law it is not liable under the FTCA applying Rhode Island tort law to the undisputed facts of this case. Plaintiffs argue that, as a matter of law, they are entitled to summary judgment on the issue of liability, leaving only damages to be resolved by trial.

BACKGROUND

Brian Martinez and the Brotko family at the time in question lived in Navy housing in Middletown, Rhode Island. Martinez owned a dog named Chester which he often left tied to a stake outside of his residence. The Navy imposes regulations on the residents of Navy housing who own pets. One regulation requires dog owners "to restrain their dogs * * * within their yards or on leashes in public common areas. Dogs * * * will not be permitted to become a menace, nuisance, or sanitary problem within the housing area." NETCNPT/LOCAL AREA RI COORDINST 11101.5A. The Navy regulations also provide that "the maintenance of law and order in housing areas is the responsibility of the ... Security Department, ... and the administration of all other housing matters is the responsibility of the ... Housing Department." Id. On or about September 29, 1989, Chester broke his tether. A neighbor, Mrs. Daly, saw Chester running loose and took him into custody. After tying Chester to a bicycle, Mrs. Daly called the Security and Housing authorities. While Mrs. Daly was placing her call, Chester bit eight-year old Jillian Brotko on the cheek when she suddenly came into the area where Chester was then fettered. Jillian's parents notified the Naval Education and Training Center (NETC) Police and, thereafter, brought Jillian to Newport Hospital. Jillian received stitches for her wounds. Plaintiffs' complaint alleges that the dog bite caused a permanent deformity and emotional trauma to the child.

Plaintiffs filed an administrative claim against the Navy, pursuant to 28 U.S.C. § 2671, on April 29, 1988. After the Navy failed to respond within six months, the Brotkos filed suit in this Court. Basing their complaint on the FTCA, plaintiffs assert three theories for government liability. First, plaintiffs claim that the government is liable for the dog bite injuries under the doctrine of respondeat superior as the employer of Brian Martinez, Chester's owner. Second, they make the claim that the government is liable under the same doctrine as the employer of the Security and Housing personnel. Third, they claim the government is liable as a harborer or keeper of Chester under R.I.Gen.Laws § 4-13-17.

The government argues that under Rhode Island law it cannot be held liable because Martinez, by keeping the dog, was not acting in furtherance of the government's business. The government also denies liability under the doctrine of respondeat superior for the alleged failure of the Security and Housing personnel to control the dog. It asserts that the duty to control pets is only imposed on the pet owner. In the alternative, the government argues that the NETC lacked prior knowledge of Chester's vicious nature and, thus, was not at fault in any event. Finally, the government maintains that its relationship with Martinez and Chester did not place the government in the category of a harborer or keeper of the animal. In addition, the government points out that to hold the government liable under R.I.Gen.Laws § 4-13-17 would impose absolute liability on the government and would, thus, be barred by the FTCA. After oral arguments, the Court took this matter under advisement. It is now in order for decision.

The Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, provides that the United States shall be liable in tort for the wrongful acts of its employees when the employees' acts fall within the scope of their office or employment. The government may be held liable "in the same manner and to the same extent as a private individual under like circumstances." Id. Congress defined "acting within the scope of his or her office or employment" for military personnel as "acting in line of duty." 28 U.S.C. § 2671. The First Circuit, noting that courts must apply the "law of the place where the act or omission occurred," 28 U.S.C. § 1346(b), stated that "it is settled that the phrase `acting in line of duty,' while having a military sound, ... with respect to the Tort Claims Act, merely invokes the state law of respondeat superior." Merritt v. United States, 332 F.2d 397, 398 (1st Cir.1964); see also Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam).

Other federal courts, however, have split on the issue of whether or not the distinctive characteristics of military employment should be considered when fixing the parameters of the government's liability as an employer. The Circuit Courts which have held that the "in line of duty" language contemplates the special military characteristics have found the government liable for injuries due to dog bites, Lutz v. United States, 685 F.2d 1178, 1183 (9th Cir.1982), lawnmowers, Craft v. United States, 542 F.2d 1250, 1255 (5th Cir.1976), reh'g denied en banc, 546 F.2d 906 (1977), and automobiles, Hinson v. United States, 257 F.2d 178, 181 (5th Cir.1958). Other federal courts have noted the FTCA's narrow purpose and analyzed liability by strictly treating the United States government as a private employer. See McSwain v. United States, 422 F.2d 1086, 1088 (3rd Cir.1970); Government Employee Ins. Co. v. United States, 349 F.2d 83, 85 (10th Cir.1965), cert. denied, 382 U.S. 1026, 86 S.Ct. 646, 15 L.Ed.2d 539 reh'g denied, 383 U.S. 939, 86 S.Ct. 1064, 15 L.Ed.2d 857 (1966); Kimball v. United States, 262 F.Supp. 509, 512 (D.N.J.1967) ("line of duty" language should not extend government liability beyond traditional concepts). These courts recognize that to extend the liability of the government irrespective of when and under what circumstances the servicemen acted,

would be tantamount to imposing liability on the Government every time a serviceman committed a negligent act which resulted in an injury. This would, of course, greatly expand the Government's liability under the Federal Tort Claims Act in spite of the long-established proposition that the Act was designed to impose liability only under circumstances where a private person would be liable.

Wilson v. United States, 315 F.Supp. 1197, 1199-2000 (E.D.Pa.1970); see Pruden v. United States, 399 F.Supp. 22, 27 (E.D.N. C.1974), aff'd, 511 F.2d 1398 (4th Cir.1975).

The First Circuit appears to have adopted the narrow view of the FTCA since it ignored the military background of the claim and focused on Massachusetts law in Merritt, supra, 332 F.2d at 398-99. Finding nothing in Massachusetts precedent ordaining that an ordinary employee smoking in bed after hours would be acting within the course of his or her employment, the court upheld the district court's dismissal of the action. Id. The fact that the serviceman resided in property leased to him by the government did not alter the court's finding. Id.

A. Liability as employer of dog owner

To hold a private employer liable for the wrongful or negligent acts of an employee under Rhode Island respondeat superior law requires proof that the employee was acting in furtherance of his or her employer's business at the time that the harm occurred. Haining v. Turner Centre Sys., 50 R.I. 481, 484, 149 A. 376 (1930). Further, the employee must have acted within the express or implied authority of the employer. See id. An earlier case deciding the employer liability issue considered whether the employee's conduct at the time of the injury was necessary to the employer's business. See Rice v. Harrington, 38 R.I. 47, 49, 94 A. 736 (1915). Although the government may have given Martinez the implied or express authority to house Chester on Navy property, Chester's presence on the Navy base did not benefit the government. Martinez did not use Chester in furtherance of his work with the Navy. In fact, Martinez did not reside in Navy housing to further his employer's business at all. Martinez's job performance did not necessitate compliance with the pet control regulation. As discussed infra, the pet regulation only incidentally, if at all, benefitted the government as an employer. Clearly, had Martinez lived elsewhere, the government could not have been held liable under Rhode Island law in this situation.

Since the Federal Tort Claims Act, 28 U.S.C. § 1346(b), precludes state court jurisdiction over claims against the United States, McSwain, supra, 422 F.2d at 1088, the Rhode Island cases do not present any directly analogous circumstances. Cf. Kimball, supra, 262 F.Supp. at 512. Other circuit courts, however, have addressed cases specifically on point.

Three federal courts have reviewed the issue of government liability for injuries caused by military personnels' dogs. Piper v. United States, 887 F.2d 861 (8th Cir.1989); Nelson v. United States, 838 F.2d 1280 (D.C.Cir.1988); Lutz v. United States, ...