Davis v. Knud Hansen Memorial Hospital, KNUD-HANSEN

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBefore ADAMS, MARIS and SLOVITER; SLOVITER
Citation635 F.2d 179
PartiesRichard J. DAVIS, Appellant, v.MEMORIAL HOSPITAL, Government of the Virgin Islands, and Curtis R.Coulam, M.D., Appellees.
Decision Date09 October 1980
Docket NumberKNUD-HANSEN,No. 79-2768

Page 179

635 F.2d 179
Richard J. DAVIS, Appellant,
v.
KNUD-HANSEN MEMORIAL HOSPITAL, Government of the Virgin
Islands, and Curtis R.Coulam, M.D., Appellees.
No. 79-2768.
United States Court of Appeals,
Third Circuit.
Argued April 21, 1980.
Decided Oct. 9, 1980.

Page 180

John J. Mahon (argued), Learned & Mahon, Charlotte Amalie, St. Thomas, V. I., for appellant.

Page 181

Ive Arlington Swan, Atty. Gen., Edward A. Wascoe (argued), Asst. Atty. Gen., Dept. of Law, Charlotte Amalie, St. Thomas, V. I., for appellees.

Before ADAMS, MARIS and SLOVITER, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

On this appeal from a decision of the district court of the Virgin Islands, we are required to decide whether officers and employees of the Government of the Virgin Islands have blanket immunity for torts committed while they were acting in their official capacity. We hold they do not, and reverse the decision of the district court which held to the contrary.

II.

Plaintiff Richard Davis sued Knud-Hansen Memorial Hospital, an instrumentality of the Government of the Virgin Islands, the Government of the Virgin Islands, and Dr. Curtis R. Coulam, "a physician employed at Knud-Hansen Memorial Hospital," alleging that from November 15 to November 23, 1975, he was negligently treated by Dr. Coulam at Knud-Hansen for a compound fracture of the right tibia. Service of the complaint on Dr. Coulam was not effected for some time. In the interim the court dismissed the complaint as to the Hospital and the Government because of plaintiff's failure to comply with the procedural requirements of the Virgin Islands Tort Claims Act, V.I. Code Ann. tit. 33, §§ 3401-13 (Supp.1978). 1 That order is not the subject of this appeal.

Thereafter, Dr. Coulam was served. On January 15, 1979, he moved to dismiss plaintiff's complaint, alleging that he was immune from suit pursuant to section 2(b) of the Revised Organic Act of the Virgin Islands, 48 U.S.C. § 1541(b), or, in the alternative, on the ground of common law immunity. On October 5, 1979, the court granted defendant's motion and dismissed the complaint as to Dr. Coulam.

The district court held that section 2(b) of the Revised Organic Act of the Virgin Islands "clothed all officers and employees of the government with immunity from tort suits for all acts performed while acting within the scope of their employment." The court rejected the view articulated in a recent series of Virgin Islands cases that held there was no statutory immunity for government employees sued in their individual capacity. The court interpreted the

Page 182

decision of this court in Ocasio v. Bryan, 6 V.I. 43, 374 F.2d 11 (3d Cir. 1967), which denied statutory immunity to individual Government employees, as limited to suits for damages brought under 42 U.S.C. § 1983. The court held that section 2(b) of the Revised Organic Act should be interpreted analogously with the Federal Tort Claims Act, which the court apparently construed as providing immunity for federal employees even for negligence in the course of ministerial functions. 2 The court concluded that it was "difficult to adhere to the ministerial/discretionary dichotomy, however reasonable and logical it might be, when the plain language of our basic law commands otherwise." The court reasoned that the interest sought to be protected is that of the public fisc, and that "permitting suits against the government employees and officers does work to the financial detriment of the government" because public employees threatened with the possibility of legal action would demand that the government pay for their insurance. Therefore, defendant's motion to dismiss was granted, on the ground that " § 2(b) confers immunity to all officers and employees of the Government of the Virgin Islands with respect to their official doings."

III.

Resolution of this issue requires analysis of the conflicting lines of cases on the scope of the immunity granted by section 2(b) of the Revised Organic Act that emanated from the two district court judges of the Virgin Islands, Judge Christian who wrote the opinion in the instant case and the late Judge Young. Section 2(b) of the Revised Organic Act of July 22, 1954, which provides for the territorial government of the Virgin Islands, states:

The government of the Virgin Islands ... shall have the right to sue by such name and in cases arising out of contract, to be sued:

Provided, That no tort action shall be brought against the government of the Virgin Islands or against any officer or employee thereof in his official capacity without the consent of the legislature constituted by (this Act).

48 U.S.C. § 1541(b). 3 In 1971, the legislature of the Virgin Islands enacted the Virgin Islands Tort Claims Act which, inter alia, waived this immunity by the following provision:

The Government of the Virgin Islands hereby waives its immunity from liability and action and hereby assumes liability with respect to injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government of the Virgin Islands while acting within the scope of his office or employment, under

Page 183

circumstances where the Government of the Virgin Islands, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. The Government consents to have this liability determined in accordance with the same rules of law as applied to actions in the courts of the Virgin Islands against individuals or corporations; Provided, That the claimant complies with the provisions of this chapter.

33 V.I. Code Ann. § 3408 (Supp.1978). 4

Shortly thereafter, both Judge Christian and Judge Young held that the interaction of these two provisions meant that the legislature had consented to tort actions against the Government but not against officers and employees acting within their official capacity. In Spisso v. Tonkin, No. 109-1972 (D.V.I. Sept. 7, 1973), Judge Young dismissed a claim against four officers and employees of the Virgin Islands Government for negligently delaying the levy of a writ of attachment, stating that "(t)he legislature has consented to actions against the Government, (V.I. Code Ann. tit. 33, § 3408), but not to suits against officers and employees acting in their official capacity." (Emphasis in original). This approach was followed in Simon v. Lovgren, 10 V.I. 302, 368 F.Supp. 265 (D.V.I.1973), where the same judge dismissed the tort count of a complaint seeking damages against an officer of the St. Croix Department of Public Safety for assault and battery, since plaintiff conceded that the officer was acting within the scope of his employment. Id. at 305-06, 368 F.Supp. at 267. Accord, Parsons v. Government of the Virgin Islands, No. 573-1973 (D.V.I. March 21, 1974). Thereafter, in a case factually similar to the instant case, Judge Christian held that a physician employed by the Knud-Hansen Memorial Hospital was immune from suit for her allegedly negligent acts because the court was "bound by the language of Section 2(b) of the Revised Organic Act to hold that, as an employee of the government, acting within her official capacity, she is immune from suit." Camacho v. Knud-Hansen Memorial Hospital, No. 279-1969 (D.V.I. Oct. 17, 1974). Accord, Sargent v. Paiewonsky, 10 V.I. 544 (D.V.I.1974).

In none of these cases did the courts analyze the effect of the prior decision of this court in Ocasio v. Bryan, 6 V.I. 43, 374 F.2d 11 (3d Cir. 1967), which also construed the extent of immunity provided by section 2(b) of the Revised Organic Act. In that case the district court had dismissed an action for damages brought against three police officers under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1986. The district court held that section 2(b) of the Revised Organic Act prevailed over the earlier enacted Civil Rights Act, and therefore the Revised Organic Act provided immunity from Civil Rights Act suits because they sound in tort. This court reversed, holding that

(s)ection 2(b) was intended to bar tort actions against the Government of the Virgin Islands without its consent. It therefore provides against evasion of its policy of sovereign immunity in tort through the device of a suit against an officer or employee of the Government in his official capacity. ... So construed, the provision envelops government officers with immunity only where the suit is in reality against the Government itself, so that an adverse judgment would require a payment out of public funds, rather than a payment by an individual in his private capacity.

Ocasio v. Bryan, 6 V.I. 43, 46, 374 F.2d 11, 13 (3d Cir. 1967), reversing 5 V.I. 677, 261 F.Supp. 409 (D.V.I.1966). Since the police officers were being sued in their individual private capacity, the action could be maintained notwithstanding section 2(b) of the Revised Organic Act.

Thereafter, in Mathurin v. Government of the Virgin Islands, 12 V.I. 23, 398

Page 184

F.Supp. 110 (D.V.I.1975), a suit brought against the Government of the Virgin Islands and six individual police officers under the Virgin Islands Tort Claims Act for damages for injuries sustained as a result of alleged police beatings, Judge Young undertook a reconsideration of the Virgin Islands immunity law as it relates to government officials and employees. After analyzing the historical basis of the doctrine of official immunity as articulated in Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), Judge Young concluded that the distinction between ministerial acts and discretionary acts performed by government employees "must be read into Section 2(b) of the Organic Act in order to give credence to the historical justification for the immunity doctrine." 12 V.I. at 30, 398 F.Supp. at 114. Thus the court, again without consideration of the effect of Ocasio v. Bryan, supra,...

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27 practice notes
  • Lojuk v. Johnson, No. 84-1528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 8, 1985
    ...preclude liability. Our decision today accords with the holdings of at least three other circuits. Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir.1980); Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977) (en banc ); Henderson v. Bluemink, 511 F.2d 399 (D.C.Cir.1974). 5 These three......
  • Irving v. United States, Civ. No. 81-501-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • February 22, 1982
    ...no matter the level of skill required in performance, into one which is discretionary. Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179, 186 (3rd Cir. 1980). In the instant case, whether or not the agency decision or a lack thereof complained of, made under the complex regulations set f......
  • Canon v. Thumudo, Docket Nos. 77151
    • United States
    • Supreme Court of Michigan
    • May 3, 1988
    ...acts that are not and should not be regarded as being immune from tort liability. In Davis v. Knud-Hansen Memorial Hosp., 635 F.2d 179, 186 (CA 3, 1980), a government doctor was denied immunity with respect to his treatment of a patient's compound bone fracture. The court "Although an ......
  • State v. Lenarz, No. 18561.
    • United States
    • Supreme Court of Connecticut
    • July 19, 2011
    ...by the defendant. See, e.g., [3 W. LaFave et al., supra], at § 11.8(b), [pp. 845–54] 42 ... [ United States ] v. Morales, [supra, 635 F.2d at 179] (‘[b]ecause the ... evidence ... does not disclose an intentional, governmentally instigated intrusion [into] confidential discussions between [......
  • Request a trial to view additional results
27 cases
  • Lojuk v. Johnson, No. 84-1528
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • August 8, 1985
    ...preclude liability. Our decision today accords with the holdings of at least three other circuits. Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179 (3d Cir.1980); Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977) (en banc ); Henderson v. Bluemink, 511 F.2d 399 (D.C.Cir.1974). 5 These three......
  • Irving v. United States, Civ. No. 81-501-D.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of New Hampshire
    • February 22, 1982
    ...no matter the level of skill required in performance, into one which is discretionary. Davis v. Knud-Hansen Memorial Hospital, 635 F.2d 179, 186 (3rd Cir. 1980). In the instant case, whether or not the agency decision or a lack thereof complained of, made under the complex regulations set f......
  • Canon v. Thumudo, Docket Nos. 77151
    • United States
    • Supreme Court of Michigan
    • May 3, 1988
    ...acts that are not and should not be regarded as being immune from tort liability. In Davis v. Knud-Hansen Memorial Hosp., 635 F.2d 179, 186 (CA 3, 1980), a government doctor was denied immunity with respect to his treatment of a patient's compound bone fracture. The court "Although an ......
  • State v. Lenarz, No. 18561.
    • United States
    • Supreme Court of Connecticut
    • July 19, 2011
    ...by the defendant. See, e.g., [3 W. LaFave et al., supra], at § 11.8(b), [pp. 845–54] 42 ... [ United States ] v. Morales, [supra, 635 F.2d at 179] (‘[b]ecause the ... evidence ... does not disclose an intentional, governmentally instigated intrusion [into] confidential discussions between [......
  • Request a trial to view additional results

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