Bunting v. U.S.
| Decision Date | 22 September 1989 |
| Docket Number | No. 88-3672,88-3672 |
| Citation | 884 F.2d 1143 |
| Parties | Jacque BUNTING, as Personal Representative of the Estate of Harold Dierich, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Lewis Gordon, Baily & Mason, Anchorage, Alaska, for plaintiff-appellant.
Michael R. Spaan, U.S. Atty., Lt. Cmdr. Ronald L. Nelson, Sp. Asst. U.S. Atty., and Mark A. Rosenbaum, Asst. U.S. Atty., Anchorage, Alaska, for defendant-appellee.
Appeal from the United States District Court for the District of Alaska.
Before NELSON, BOOCHEVER and BRUNETTI, Circuit Judges.
Jacque Bunting, as personal representative of the Estate of Harold Dierich, appeals from a judgment for the defendant, United States of America, in a wrongful death and medical malpractice action filed under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671, et seq. (the "FTCA"). The estate makes three arguments: (1) that the district court erred in concluding that Alaska's Good Samaritan statute, A.S. 09.65.090, shields the United States from liability due to negligence; (2) that the district court erred in concluding that the care provided by Dr. Garrett Duckworth, the Coast Guard physician who treated Harold Dierich, was not grossly negligent; (3) that the district court erred in failing to conclude that Dr. Garrett Duckworth's acts and omissions were a proximate cause of the death of Harold Dierich. We affirm the judgment of the district court.
On July 21, 1984, Harold Dierich was piloting an airplane on a commercial flight. He departed Kodiak State Airport at approximately 9:00 a.m. and crashed in the waters of the Ouzinski Narrows a few minutes later. He was spotted in the 40? waters by a private fishing craft. At about 10:30 a.m., the fishing craft's radio messages were intercepted by a Coast Guard helicopter on a training exercise under the command of Lieutenant Commander John Harper. Under extremely poor conditions Commander Harper, with the assistance of the fishing vessel crew, completed a rescue of Dierich within fifteen minutes.
Having been pulled from the narrows, Dierich was brought to the Coast Guard dispensary on Kodiak Island and was placed under the care of Dr. Garrett Duckworth. The crash and the more than one hour of exposure to the frigid air and water had taken their toll on Dierich. Upon arrival at the clinic, Dierich was in an unstable condition. He was profoundly hypothermic (low body temperature). He also had hypotension (low blood pressure), a probable pneumothorax (a punctured lung), and chest injuries.
Duckworth judged that the hypothermia was the major life-threatening problem for Dierich and focused his treatment on that problem rather than on the others. Dierich was under Duckworth's care for about ninety minutes. Then Dierich was transferred to the Kodiak Island Hospital (KIH) at 12:42 p.m. The staff at KIH performed a chest x-ray, discovered a pneumothorax, and inserted a chest tube. At 4:30 p.m., he was declared dead after life-support measures were discontinued upon instructions from a member of his family.
Dierich's estate brought an action against the United States under the FTCA. 1 The statute reads in relevant part:
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, but shall not be liable for interest prior to judgment or for punitive damages.
28 U.S.C. Sec. 2674.
The United States moved for summary judgment on the ground that under Alaska's Good Samaritan statute, A.S. 09.65.090, the Coast Guard, which must be viewed as a private person under the FTCA, was entitled to immunity for alleged negligence. In Bunting v. United States, 662 F.Supp. 971 (1987), the United States District Court for the District of Alaska held that the Coast Guard was under no pre-existing duty to undertake the rescue at issue in this case. Therefore, the Coast Guard could not be held liable for negligence under Alaska law but only for gross negligence, recklessness, or intentional misconduct. On January 9, 1987, the plaintiff amended the complaint and added allegations of gross negligence. The case proceeded to trial on the allegations of gross negligence. The district court entered judgment that plaintiff take nothing by the action and that defendant was to recover its costs. This appeal followed. This court has jurisdiction under 28 U.S.C. Sec. 1291.
The interpretation of a statute is a question of law subject to de novo review. Southeast Alaska Conservation Council, Inc. v. Watson, 697 F.2d 1305, 1309 (9th Cir.1983). The determination of the standard of care to be utilized in evaluating a negligence claim is a legal question which also is reviewed de novo. Miller v. United States, 587 F.2d 991, 994-95 (9th Cir.1978). The determination of negligence, however, is generally recognized as a mixed question of law and fact governed by the clearly erroneous standard. Hollinger v. United States, 651 F.2d 636, 639 (9th Cir.1981). A finding of proximate causation also is subject to the clearly erroneous standard of review. Felder v. United States, 543 F.2d 657, 664 (9th Cir.1976).
The United States is liable for claims brought under the FTCA to the extent that a private individual would be under the circumstances. 28 U.S.C. Sec. 2674 (1982). The alleged wrongdoing of Dr. Garrett Duckworth, a Coast Guard physician, took place in Alaska in conjunction with his rendering of medical services at the Coast Guard Clinic at Kodiak. Assuming for the moment that the Coast Guard was not under a pre-existing duty to rescue, Duckworth's liability is the same as that of a private physician who rendered the same emergency services in any clinic in Alaska. The Coast Guard is responsible for Duckworth's liability under the doctrine of respondeat superior. Therefore we examine Alaska law to learn the rights, duties, and liabilities associated with Duckworth's behavior. See Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.), cert. denied, 473 U.S. 934, 106 S.Ct. 30, 87 L.Ed.2d 706 (1985) ().
The Alaska Good Samaritan statute eliminates civil liability for emergency aid unless damages are the result of gross negligence, recklessness, or intentional misconduct. Appellant disagrees with the district court's conclusion that Duckworth's actions fall within the protection afforded by the statute. Appellant's argument rests heavily upon the Alaska Supreme Court's decision in Lee v. State, 490 P.2d 1206 (Alaska 1971), rev'd on other grounds, Munroe v. City Council, 545 P.2d 165, 170 n. 11 (Alaska 1976).
In Lee, an Alaska state trooper, Officer Frank Johnson, rescued a twelve-year-old girl who had been grabbed by a lioness at an amusement park. The trooper shot the animal in order to secure the quick release of the child. Subsequently the trooper's gun discharged again and wounded the twelve-year-old in the leg. The court held that the trooper did not have the protection of the Good Samaritan statute because he was under a duty to rescue the child.
The appellant argues that the Coast Guard is analogous to the Alaska State Police because both are under a duty to rescue individuals in emergency situations. This argument implies that Duckworth's actions are analogous to the state trooper's. Therefore, Duckworth and the Coast Guard do not have the protection of the statute. The appellant's reliance upon Lee is misplaced.
Lee does not control the case now before us because Lee does not interpret the statute now before us. Neither appellee's nor appellant's brief recognizes that A.S. 09.65.090 has been amended since 1971 when Lee was decided. As the Lee court stated,
"A.S. 09.65.090" reads as follows:
(a) A person, who, without expecting compensation, renders care to an injured or sick person, who appears to be in immediate need of aid is not liable for civil damages as a result of an act to or omission in rendering emergency care, or as a result of an act or failure to act to provide or arrange for further medical treatment or care for the injured person.
(b) This section shall not preclude liability for civil damages as a result of gross negligence or intentional misconduct. Gross negligence means reckless, willful, or wanton misconduct.
The amended A.S. 09.65.090 in effect when this cause of action arose reads:
Civil Liability For Emergency Aid
(a) A person at a hospital or any other location who renders emergency care or emergency counseling to an injured, ill, or emotionally distraught person who reasonably appears to the person rendering the aid to be in immediate need of emergency aid in order to avoid serious harm or death is not liable for civil damages as a result of an act or omission in rendering emergency aid.
(b) This section does not preclude liability for civil damages as a result of gross negligence or reckless or intentional misconduct.
The amended statute's principal difference is the description of the actor who qualifies for reduced civil liability. The former statute identifies the qualifying actor as "a person who, without expecting compensation, renders care." The present statute identifies the qualifying actor as "a person at a hospital or any other location, who renders emergency care." This change demonstrates that the legislature intended to broaden the former statute to include those who received compensation for emergency care rendered at hospitals. Duckworth is clearly within that class.
The statute's broader protection from civil liability not only encourages individual rescues but also...
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