Camassar v. United States, Civ. A. No. 15845.

• Decision Date: 03 September 1975
• Docket Number: Civ. A. No. 15845.
• Citation: 400 F. Supp. 894
• Court: U.S. District Court — District of Connecticut
• Parties: Garon CAMASSAR, Administrator, C. T. A., D. B. N. of the Estate of Carvel P. Gramlich v. UNITED STATES of America.

400 F. Supp. 894

Garon CAMASSAR, Administrator, C. T. A., D. B. N. of the Estate of Carvel P. Gramlich v. UNITED STATES of America.

Civ. A. No. 15845.

United States District Court, D. Connecticut.

September 3, 1975.

Dale P. Faulkner, New London, Conn., James F. Brennan, Jr., Thomas B. Wilson, Groton, Conn., for plaintiff.

Henry S. Cohn, Asst. U. S. Atty., Hartford, Conn., for defendant.

NEWMAN, District Judge.

In his customarily thoughtful and thorough fashion, Magistrate Latimer has endeavored mightily to construct a rationale that will explain the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), harmonize its progeny, and thereby indicate on which side of the Feres line this case falls. The resulting test of remoteness between injury and the injured person's military status unhappily leaves uncertain the criteria by which remoteness is to be measured. Specifically, it is not clear whether the Feres obstacle to suit if the claim does "arise out of . . . activity incident to service" or "arise out of . . . military duty," Feres v. United States, supra, at 146, 71 S.Ct. 153, depends on what the claimant is doing or where he is doing it. The decided cases seem to indicate that if the injury occurred on a base, the claim is barred, whereas an injury off the base might or might not be barred depending on what the claimant was doing. If that is the correct approach, it at least makes decisions more certain for injuries either on a base or within the confines of a functional equivalent. The roadway alleged to be defective in this case is located on a loading pier that is part of a depot owned and controlled by the Navy. That location is sufficiently the equivalent of a military base to invoke whatever considerations underlie the Feres decision.

The defendant's motion for summary judgment is therefore granted for these reasons and for the reasons more fully developed in the Magistrate's proposed ruling attached as Appendix A, which is adopted as the Court's ruling.

APPENDIX A UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GARON CAMASSAR, Administrator, | C.T.A., D.B.N. of the Estate of Carvel | P. Gramlich, | Plaintiff > CIVIL ACTION NO. 15,845 vs. | UNITED STATES OF AMERICA, | Defendant |

RULING ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

This is a wrongful death action brought under the Federal Tort Claims Act (28 U.S.C. §§ 1346(b) and 2671 et seq.), arising from the death of plaintiff's decedent in a motor vehicle accident while serving in the United States Navy. On motion for summary judgment, defendant contends that the undisputed circumstances show the case to be within the bar to suit "for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service" first announced by Supreme Court interpretation of the Act's intended scope in Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).

The parties' fact stipulations demonstrate the following:

On the date of the accident, Wednesday, February 16, 1972, decedent was serving as a Chief Torpedoman's Mate on the U.S.S. Fulton, a navy submarine tender then docked "on Pier 2, Naval Ammunition Depot, Earle, New Jersey". Decedent was engaged in loading the ship during the morning, leaving for lunch on shore when the task was concluded, returning for a muster at about 1:00 P.M., and departing the ship again at approximately 1:30 P.M. on authorized liberty — which counsel for both parties explained at oral argument as meaning freedom to enjoy the rest of the day off. The afternoon and early evening were spent on shore with several shipmates and friends, mainly at the Petty Officers' Club; decedent was driven back to the ship by Chief Charles H. Koblenzer at about 9:30 P.M. in the latter's privately owned truck, dropped off some wood for use in making a model sailboat, and left the ship once more as a passenger in Koblenzer's truck at approximately 9:45 P.M. after Koblenzer indicated that he was going back to shore to meet his girlfriend and to get something to eat. The accident in suit occurred on the way.

Defendant's answer admits plaintiff's allegations that the government "through its Department of the Navy, owned, possessed and controlled" the depot, including loading pier no. 2 "upon which was located a roadway for vehicular traffic and tracks for train traffic"; as to the accident's circumstances, the complaint further alleges that Koblenzer's truck "became caught in the railroad tracks, skidded, went out of control, and . . . off the roadway into the water, causing . . . decedent to drown", as the result of the roadway's "dangerous and defective condition" negligently left uncorrected and consisting of driving hazards posed by the tracks' presence and the lack of warning signs and adequate railings.

The Federal Tort Claims Act does not in terms preclude suits by military personnel other than for claims "arising out of . . . combatant activities . . . during time of war", 28 U.S.C. § 2680(j), but while narrow construction of the statute's generally framed waiver of sovereign immunity may be suspect, cf. Rayonier, Inc. v. United States, 352 U.S. 315, 319-320, 77 S.Ct. 374, 1 L.Ed.2d 354 (1957), the right to sue has long been held not to extend to servicemen injured on peacetime active duty as the result of carelessness on the part of other members of the armed forces, see Feres v. United States, supra. The Feres doctrine was originally stated in the context of three claims deemed insufficient, two instances of alleged malpractice by army surgeons and a negligence claim arising from an army lieutenant's death in a barracks fire allegedly resulting from a defective heating plant and an inadequate fire watch, see id. 340 U.S. at 136-137, 71 S.Ct. 153, and the Court expressly distinguished earlier recognition of a right of action for "injury . . . which did not arise out of or in the course of military duty", id. at 146, 71 S.Ct. at 159, in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), permitting suit by two soldiers injured on leave when their private automobile was struck on a public highway by an army truck negligently driven by a civilian army employee, see id. at 50, 69 S.Ct. 918.

Feres has been explained as impelled by the Court's concern with the

"peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty . . .."

United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963). If so, any actual (1954), as quoted in United States v. "discipline" nexus would seem rather tenuous in the usual malpractice action, but it may be noted that even Brown's allowance of suit by a veteran for post-discharge malpractice in a Veterans Administration hospital in connection with treatment of an underlying service-connected injury provoked sharp dissent by three members of the Court, United States v. Brown, supra, 348 U.S. at 113-114, 75 S.Ct. 141, Brown itself has not been generously interpreted, see Henning v. United States, 446 F.2d 774 (3 Cir. 1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 676, 30 L.Ed.2d 664 (1972), cf. Shults v. United States, 421 F.2d 170 (5 Cir. 1969), and the in-service medical malpractice claim has been consistently rejected to date, see, e. g., Harten v. Coons, 502 F.2d 1363 (10 Cir. 1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975), Lowe v. United States, 440 F.2d 452 (5 Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 83, 30 L. Ed.2d 64 (1971), Buckingham v. United States, 394 F.2d 483 (4 Cir. 1968), Norris v. United States, 137 F.Supp. 11 (E.D.N.Y.1955), aff'd per curiam, 229 F.2d 439 (2 Cir. 1956).

Although Feres and Brown leave little factual middle ground for malpractice litigation, the widely differing circumstances of the barracks fire tragedy in Feres and the ordinary motor vehicle accident in Brooks naturally afford greater possible scope for entertaining in-service accidental injury claims. It is fair to state in this context also, however, that while the "precise rationale for the Feres rule and its continuing validity have been the source of some confusion", Henninger v. Unites States, 473 F.2d 814, 815 (9 Cir.), cert. denied, 414 U.S. 819, 94 S.Ct. 43, 38 L.Ed.2d 51 (1973), the majority of lower court decisions have traditionally considered Brooks the exceptional situation, "effectively requiring the military claimant to demonstrate that even an off-duty injury has no significant link with conditions of life in the armed forces", Boyd v. United States, Civil No. 15,384 (D. Conn.1973), aff'd, 493 F.2d 1397 (2 Cir. 1974) (Table). If questionable to remark simply that "Feres required no nexus between discipline and injury", Hall v. United States, 451 F.2d 353, 354 (1 Cir. 1971), the more commonly articulated focus on whether the serviceman was in some sense subject to military control or discipline at the time of injury, see, e. g., Mills v. Tucker, 499 F.2d 866, 867-868 (9 Cir. 1974), see also Herreman v. United States, 476 F.2d 234 (7 Cir. 1973), Hale v. United States, 452 F.2d 668 (6 Cir. 1971), is perhaps better understood as a test of remoteness between injury and the injured person's military status, see Knight v. United States, 361 F.Supp. 708, 713 (W.D.Tenn. 1972), aff'd, 480 F.2d 927 (6 Cir. 1973) (Table), cf. Gursley v. United States, 232 F.Supp. 614 (D.Colo.1964). In that regard, Supreme Court comment that its construction of the Federal Tort Claims Act in Feres ruling out service-related claims "seems best explained" as prompted by such considerations as "the effects of the maintenance of such suits on discipline", United States v. Muniz, s...