Doggett v. U.S.
| Decision Date | 03 October 1988 |
| Docket Number | No. 86-6109,86-6109 |
| Citation | 858 F.2d 555 |
| Parties | Peter H. DOGGETT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert Laney, Associate of Peter J. Sullivan, Marina del Rey, Cal., for plaintiff-appellant.
Shari Silver and Stephen E. O'Neil, Los Angeles, Cal., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, TANG and REINHARDT, Circuit Judges.
Doggett appeals the district court's dismissal for lack of jurisdiction of his Federal Tort Claims Act (FTCA) suit arising from an automobile accident caused by an intoxicated serviceman. The district court dismissed the action on the grounds that under California law the provider of alcoholic beverages is immune from tort liability and that no employee of the United States had the requisite "special relationship" with the intoxicated serviceman to create a duty to control his behavior. We affirm in part and reverse in part.
On October 6, 1983, Mark Patrick Gorman, an active duty enlisted member of the United States Navy, with the rating of Machinist's Mate Third Class (MN3), was stationed at the Naval Weapons Station in Seal Beach, California. At approximately 3:30 p.m., on his way home from work, Gorman stopped at the Consolidated Mess Open (CMO), also known as Bunker 33. Bunker 33 is located within the boundaries of the Seal Beach Naval Weapons Station and operates under the control of its Commanding Officer to provide food, refreshments and recreational facilities for military personnel, their dependents and guests.
MN3 Gorman consumed two bottles and eight or ten glasses of beer at Bunker 33 between 3:30 and 7:20 p.m. While drinking there, Gorman was in the company of five Navy acquaintances, including at least two superior petty officers attached to his unit. At about 7:20 p.m. Gorman left Bunker 33, entered his personal vehicle and departed the Naval Weapons Station through the main gate. Some twenty minutes later Gorman's car crossed the center-line of the Pacific Coast Highway and struck the car in which Peter H. Doggett was a passenger. Doggett suffered severe and disabling injuries, including brain trauma, broken bones, partial paralysis, and loss of visual, verbal and mental acuity.
After an investigation by the Long Beach, California Police Department, Gorman was charged with several violations of the California Vehicle Code, including Section 23153(a) () and Section 23153(b) (). Gorman subsequently pleaded "no contest" and was sentenced on these charges.
Doggett brought suit in district court under the FTCA, 28 U.S.C. Secs. 1346(b), 2671-2680 (1982), on a theory that various Naval members and employees of the United States were negligent in that they allowed Gorman to drive off the Naval Weapons Station in an intoxicated condition. The district court granted the Government's motion to dismiss for lack of jurisdiction, holding that under California law the United States is immune from liability for injuries resulting from its providing alcoholic beverages to a serviceman, and that under California law there is no duty to control the conduct of another. Doggett timely appeals.
We review de novo an order granting a motion to dismiss for lack of subject matter jurisdiction. Gallea v. United States, 779 F.2d 1403, 1404 (9th Cir.1986). The question of United States' liability is entirely legal and we review it de novo. Id. (citing United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).
Under the FTCA, the question of liability is determined with reference to state law. 28 U.S.C. Sec. 2674; Gallea, 779 F.2d at 1404; Louie v. United States, 776 F.2d 819, 824 (9th Cir.1985). We review de novo district court interpretations of state law, Gallea, 779 F.2d at 1404; Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).
Doggett's complaint indicates that the liability he seeks to impose on the United States arises from the actions of one or more of three categories of Naval personnel and civilian employees--the bartender at Bunker 33, the security guard who allowed Gorman to drive off the base, and the enlisted men and officers with whom Gorman spent the late afternoon drinking. First we consider whether these individuals were acting within the scope of their employment during the time in question. Then we turn to the more troublesome question whether state law imposes any duty on these individuals that they may have breached. We analyze in turn the theories of potential liability as they apply to each of these categories of individuals.
The FTCA waives the government's immunity from suit only for personal injuries caused by an "employee of the Government while acting within the scope of his office or employment." 28 U.S.C. Sec. 1346(b). For members of the military, the scope of employment "means acting in line of duty," 28 U.S.C. Sec. 2671, and "line of duty" is defined by the state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam); Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir.1982). California law of respondeat superior defines the scope of employment very broadly. Kimberly M. by Cobbs v. Los Angeles Unified School Dist., 196 Cal.App.3d 1506, 242 Cal.Rptr. 612, 617 (1987) (citing Alma v. Oakland Unified School Dist., 123 Cal.App.3d 133, 139, 176 Cal.Rptr. 287 (1981)); Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir.1979). An employee need not be engaged in the ultimate object of his employment at the time of the wrongful act for liability to be attributed to the employer but the employer is not vicariously liable if the employee substantially deviates from his duties for personal purposes. Kimberly M., 196 Cal.App.3d 1506, 242 Cal.Rptr. at 617. " 'The determination as to whether an employee committed a tort during the course of his employment turns on whether "1) the act performed was either required or 'incident to his duties' ..., or 2) the employee's misconduct could be reasonably foreseen by the employer in any event." [Citation]' " Jeffrey Scott E. v. Central Baptist Church, 197 Cal.App.3d 718, 243 Cal.Rptr. 128, 129 (1988) (quoting Martinez v. Hagopian, 182 Cal.App.3d 1223, 1228, 227 Cal.Rptr. 763 (1986)).
The Government argues strenuously that applying these legal standards leads to the conclusion that Gorman was not acting within the scope of his employment when his vehicle collided with that in which Doggett was a passenger. Doggett's complaint focuses on the negligence of the bartender, the security guard and Gorman's drinking companions and Doggett maintains that the question of whether Gorman was within the scope of his employment is irrelevant. We therefore do not reach the issue of Gorman's negligence, but we note that California law does not appear to support either Doggett's assumption or the Government's position. See, e.g., Childers v. Shasta Livestock Auction Yard, Inc., 190 Cal.App.3d 792, 804-05, 235 Cal.Rptr. 641, 646-47 (1987) (); Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143 (1975) ().
There is no question that the bartender at Bunker 33, a civilian employee of the United States, was acting within the scope of his employment when he served beers to Gorman during the hours from 3:30 to 7:20 p.m. Similarly, the security guard at the main gate was clearly acting within the scope of his employment when he allegedly negligently permitted Gorman to leave the base in an intoxicated condition. It is a slightly more complicated question whether Gorman's off-duty drinking companions were acting within the scope of their employment. The negligence Doggett alleges in this regard goes to the failure of Gorman's companions to prevent him from driving while intoxicated.
Because Bunker 33 is operated by the Navy for the recreational use of military personnel, and because the Navy has promulgated regulations 1 governing the treatment of persons under the influence of alcohol, we conclude that the petty officers who observed Gorman drinking were within the scope of their employment. We reach this conclusion by applying the reasoning of Lutz, 685 F.2d at 1183, in which this court said that a military base regulation requiring pet owners to exercise control of their pets on the base was a delegation "to the dog owner [of] partial responsibility for this base security function." Because base security is a regular military function the obligation to control a dog was held to be within the scope of the dog owner's employment, even though the lapse in control occurred during off-duty hours. Id. Here, the regulation governing the treatment of persons under the influence of alcohol is a comparable security regulation which delegates the responsibility for enforcement to military personnel with responsibility for security matters and to those with supervisory or command authority. The performance of this specific military duty furthers the interests of the Navy and any lapse in performance occurs in...
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...reviewable de novo. Id. In this case California law applies. California defines "scope of employment" very broadly. Doggett v. United States, 858 F.2d 555, 559 (9th Cir.1988). The California test for determining scope of employment "turns on whether '(1) the act performed was either require......