Crider v. U.S.

• Citation: 885 F.2d 294
• Decision Date: 10 October 1989
• Docket Number: No. 88-2944,88-2944
• Parties: Randy William CRIDER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 294

885 F.2d 294

Randy William CRIDER, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 88-2944.

United States Court of Appeals, Fifth Circuit.

Oct. 10, 1989.

Deborah Ruth Kant, John F. Cordes, Appellate Staff, Civil Div., Washington, D.C., Harold Wayne Campbell, Corpus Christi, Tex., defendant-appellant.

Benjamin Sley, Corpus Christi, Tex., for plaintiff-appellee.

Esther L. Hajdar, Kevin O'Hanlon, Asst. Attys. Gen., Austin, Tex., for other interested party-the Texas Rehab.

Appeal from the United States District Court for the Southern District of Texas.

Before GEE and JONES, Circuit Judges, and HUNTER, ^* District judge.

EDITH H. JONES, Circuit Judge:

Randy William Crider brought this action under the Federal Tort Claims Act ¹ ("FTCA") seeking recovery for tragic injuries he suffered in a collision between his motorcycle and an automobile driven by an intoxicated driver. Crider contends that his injuries were proximately caused by the negligence of United States Park Rangers who failed to take the intoxicated driver into custody when they stopped him ten hours before the accident. After a non-jury trial the district court awarded Crider $7.5 million in damages. Having determined that Texas tort law will not support a finding of negligence against the government in this case, we must reverse.

BACKGROUND

At approximately 3:40 p.m. on July 23, 1983, two park rangers of the United States Park Service stopped a car driven by eighteen year old John Landry. The rangers had observed Landry speeding along the beach at the Padre Island National Seashore with two teenage girls hanging onto the hood of his car. Upon stopping Landry, the rangers detected the aroma of alcohol on his breath and searched the car. They discovered approximately four ounces of marijuana butts and leaves, a homemade pipe for smoking marijuana, a partially-empty bottle of whiskey, and eight bottles of beer. One of the rangers testified that Landry had extremely red eyes, a symptom of marijuana smoking.

Though the district court found that Landry was intoxicated at the time he was stopped, the rangers did not charge him with driving while intoxicated or arrest him. Instead, the rangers issued Landry citations for possession of a controlled substance, possession of alcohol by a minor, speeding, and failure to have mandatory liability insurance. The citations required Landry to appear before a United States Magistrate the following Monday. One of the rangers instructed Landry not to drive for an hour and a half so that he could sober up. The rangers then left to take the two girls back to their station and arrange other transportation for them.

Ignoring the ranger's instructions, Landry left the scene immediately after the rangers did. Later that day he picked up a friend, James Wallace, illegally purchased more whiskey, and went home to "drink it up" with his friends. Throughout the evening and into the early morning Landry continued to drink alcohol and smoke marijuana. Sometime after midnight, Landry took Wallace home. On his way back he collided with the motorcycle ridden by Randy Crider. The accident occurred at 1:40 a.m., as Landry attempted to pass three cars while driving 80 miles per hour. Crider suffered a severed left arm as a result of the collision, and his left leg was later amputated above the knee because of its severe mutilation.

In this FTCA action, Crider alleges that the park rangers were negligent in not arresting Landry and that such negligence was a proximate cause of his injuries. The district court, after a non-jury trial, ruled that the rangers had been negligent and held the United States liable for Crider's damages.

The United States raises four issues on appeal. First, the government argues that it cannot be held liable because law enforcement decisions like those made by the park rangers fall within the "discretionary function" exception of the FTCA. 28 U.S.C. Sec. 2680(a) (1982). Second, the government asserts that Texas law imposed no tort duty on the rangers to restrain an intoxicated driver. Third, it is contended that the district court erred in holding that the rangers' alleged negligence, ten hours before the accident, was a proximate cause of Crider's injuries. Finally, the government asserts that the district court erred in awarding a structured judgment and in failing to make the findings of fact required to justify the damages awarded.

We limit our analysis to the duty issue, since it is dispositive.

ANALYSIS

Under the FTCA, the United States is liable for the negligence of its employees "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. Sec. 2674 (1982). In determining whether a "private person" would be liable, we are to look to the law of the state "where the act or omission occurred." 28 U.S.C. Sec. 1346(b) (1982); see Rayonier, Inc. v. United States, 352 U.S. 315, 318, 77 S.Ct. 374, 376, 1 L.Ed.2d 354, 357 (1957). Principles of Texas tort law accordingly govern the question of the United States' liability in this case.

The dispositive inquiry here is the first question addressed in all negligence cases: whether the defendants, the park rangers, owed a duty to the plaintiff. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). Texas law furnishes two types of authority with regard to duty, either of which arguably determines whether a "private individual" would be liable to Crider "under like circumstances." Texas courts have rejected the proposition that a law enforcement officer may owe a duty to arrest or restrain a suspect in order to prevent third-party injuries. On the other hand, commencing with Otis Engineering Corp. v. Clark, 668 S.W.2d 307 (Tex.1983), the state supreme court created a duty resting upon an employer of a visibly intoxicated employee to prudently restrain the employee from causing harm to third parties. Under examination, neither type of case supports a duty owed by the park rangers to Crider.

A. Law enforcement officer's duty.

The government contends that the FTCA, in abrogating sovereign immunity where a "private individual" would be liable "under like circumstances," precludes us from considering whether Texas recognizes some duty on the part of law enforcement officers. By contrast in Louie v. United States, 776 F.2d 819, 825 (9th Cir.1985), a case closely analogous to this one, the government prevailed in its assertion that

Reference to Washington law, setting forth the liability of state and municipal entities to establish the government's standard of liability under the FTCA, is both necessary and proper. Id.

Under the special circumstances involved, we think the government got it right in Louie. We are not looking to state law insofar as it immunizes a public entity from liability; rather, we are seeking "like circumstances" which best articulate a state's negligence law.

Mr. Louie's widow filed suit under the FTCA because her husband died in a collision with a drunken off-duty soldier. She alleged that the military police, who fetched the soldier back to Fort Lewis after his off-post citation for driving while intoxicated, should have kept him in custody until he became sober. They did not do so, and the fatal accident occurred a few hours later.

The Ninth Circuit first addressed whether Washington's law of municipal corporations or of a private special relationship was the proper vehicle for assessing FTCA liability. The court conducted its analysis under both lines of authority, but it concluded that municipal liability principles were controlling. The court reasoned:

The circumstances here involve government employees in a law enforcement function. Questions as to the power and authority to arrest, to maintain custody, and to lawfully restrict a person's liberty are unique to the law enforcement function. Because private persons do not wield such police powers, the inquiry into the government's liability in this situation must include an examination of the liability of state and municipal entities "under like circumstances."

Louie v. United States, 776 F.2d 819, 825 (9th Cir.1985). This interpretation of "like circumstances" seems compelling. We must disregard state rules of sovereign or official immunity in analyzing the scope of FTCA liability, because these conflict with Congress's analogy to "private person" liability under Sec. 2674. See United States v Texas courts have twice considered on the merits, irrespective of official or sovereign immunity claims, whether a police officer has any tort duty to protect the public from acts of a criminal suspect. ² Each time, the court declined to impose any such duty. Dent v. City of Dallas, 729 S.W.2d 114, 116 (Tex.App.--Dallas 1986, writ ref'd n.r.e.); Munoz v. Cameron County, 725 S.W.2d 319, 321-22 (Tex.App.--Corpus Christi 1986, no writ).

Muniz, 374 U.S. 150, 164, 83 S.Ct. 1850, 1859, 10 L.Ed.2d 805, 816 (1963); Wright v. United States, 719 F.2d 1032, 1034-35 (9th Cir.1983). Similarly, the performance of a "uniquely governmental function" has repeatedly been rejected as a defense to FTCA liability. Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376, 1 L.Ed.2d 354, 358 (1957); Indian Towing Co. v. United States, 350 U.S. 61, 64, 76 S.Ct. 122, 124, 100 L.Ed. 48, 53 (1955); B & F Trawlers, Inc. v. United States, 841 F.2d 626, 630-31 (5th Cir.1988). These rules should not, however, require us to ignore a state's law enunciating negligence principles based on "like circumstances" without regard to local sovereign immunity. In Louie, Washington State had waived sovereign immunity, and the court went on to find that employees of political subdivisions there owe no duty to a given member of the public such as Mr. Louie.

In Dent, the statutory beneficiaries of an innocent motorist killed in a collision with a suspect trying to evade police sought to recover from the officer who had failed to...