Eckles v. United States, 78-71 Civil.
Decision Date | 06 March 1979 |
Docket Number | No. 78-71 Civil.,78-71 Civil. |
Citation | 471 F. Supp. 108 |
Parties | Susan E. ECKLES, Executrix of the Last Will and Testament of Donald R. Eckles, Deceased, v. UNITED STATES of America. |
Court | U.S. District Court — Middle District of Pennsylvania |
Wayne F. Shade, Carlisle, Pa., for plaintiff.
Paul Killion, Asst. U. S. Atty., Harrisburg, Pa., Cecile Hatfield, Trial Atty., Aviation Section, U. S. Dept. of Justice, Washington, D. C., John Harrison, Gary Allen, Fed. Aviation Admin. Dept. of Transportation, Washington, D. C., Capt. Peter Dalmut, U. S. Dept. of Army, Washington, D. C., for defendant.
Plaintiff has instituted this action pursuant to the Federal Tort Claims Act (hereinafter the Act), 28 U.S.C. §§ 1346(b), 2671 et seq.1 She seeks, as widow and executrix, to recover damages for the death of Lieutenant Colonel Donald R. Eckles, killed in a plane crash while flying, for recreational purposes, as a member of the Carlisle Barracks Aero Club. Plaintiff alleges that the training received by Lt. Colonel Eckles from an Aero Club instructor was negligent and inadequate, specifically, that he was not taught how to recover from a spin or stall/spin; that the plane which decedent was flying was improperly rigged as a result of negligence; and that the Federal Aviation Administration (hereinafter FAA) negligently failed to require spin training of all student pilots. Presently before the court is a motion for summary judgment by defendant on the grounds that a) plaintiff is barred from recovery based on the Feres doctrine2; b) a prior judgment in a Pennsylvania state court bars plaintiff here based on collateral estoppel; and c) the alleged action or inaction of the FAA is a discretionary function encompassed by 28 U.S.C. § 2680 and, hence, no action can be maintained pursuant to the Act based on that action or inaction. The motion will be granted, primarily on the basis of the Feres doctrine, see infra.
At the time of his death on July 25, 1975, Lieutenant Colonel Eckles was on active duty in the United States Army, assigned to the United States Army Logistics Evaluation Agency, New Cumberland Army Depot, New Cumberland, Pennsylvania. Decedent was not on authorized leave or pass status and thus was technically subject to military duties twenty-four (24) hours a day, including during the day of the crash.
Lt. Colonel Eckles was a member of the Carlisle Barracks Aero Club (hereinafter the Club). The Club is a nonappropriated fund instrumentality of the Federal Government whose basic purpose is to provide an opportunity for its members to engage in recreational flying and to encourage them to develop skills in aeronautics and related fields. Only military personnel, certain civilian employees of the Department of Defense, plus dependents over sixteen years of age, may be members of the Club. Decedent was permitted to be a member because of his active duty status in the Army.
At the time of the crash decedent was solo flying, for recreation, a Cessna Model 150H Aircraft, owned by the Club. He was authorized to use the aircraft only because of his membership in the Club. Apparently the plane entered into a spin or stall/spin, from which he was unable to recover. Plaintiff, his widow, is currently receiving the survivor benefits as set out under federal law for services-connected deaths. See 38 U.S.C. §§ 401 et seq.
In the seminal case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) the United States Supreme Court held that ". . . the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." p. 146, 71 S.Ct. p. 159. That opinion decided three separate cases. Two involved malpractice claims against military medical personnel by men who were on active duty while they underwent the allegedly negligent treatment. The third involved a barracks' fire which killed a serviceman. Negligence was alleged in housing him in a barracks unsafe because of a defective heating plant and in not having an adequate fire watch. The court held that none of the claimants could maintain an action against the federal government under the Act because they were all engaged in activity incident to service at the time of the injury.
There are numerous policy considerations underlying the Feres doctrine. Namely; 1) A primary purpose of the Act was to provide a remedy where none had existed. This would not apply to servicemen since a comprehensive system of relief had already been developed and still exists for military personnel and their dependents. 2) Under the Act, liability is determined by the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b). The government is liable where a private person in a similar situation under state law would be liable. It generally makes sense to apply local law under the Act since that is the law that ordinarily controls tort actions and normally a claimant has chosen his location. But this makes little sense in the context of military personnel, who have no control over their location. 3) There is really no overall situation equivalent to the military under state law where liability is generally imposed. The relationship of a soldier and the United States is distinctly federal. See Peluso v. United States, 474 F.2d 605 (3rd Cir. 1973) and 4) The possible serious adverse results that might occur in terms of discipline and military relationships if suits under the Act were permitted for negligent acts committed in the course of duty. See United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Camassar v. United States, 400 F.Supp. 894 (D.Conn. 1975).
Although there have been many cases interpreting the Feres decision and the rule and rationale of the doctrine are easy to state, it is difficult to set out a standard with which to judge whether particular behavior is in the course of activity incident to service. Furthermore, it is clear that the presence or absence of one or more of the four policy reasons set out above is not determinative. Rather, the decided cases have focused on what the claimant was doing when the injury occurred, where the injury happened, and the claimant's duty status at the time of the injury.4 This type of approach has the advantage of simplicity and makes sense, given the fact that there really is no way to apply the policy considerations to all the factual possibilities. And this approach also emphasizes what I believe to be the most important factor; namely, the extent to which the injured serviceman's activity was related to his status as a member of a military service.
I think it is clear that under the decided cases this action is barred by the Feres doctrine, with one case, Woodside v. United States of America, No. C-1-75-447 (S.D. Ohio, Feb. 28, 1977), very much on point. There an Air Force captain, not a pilot, was on leave and was killed when the plane he was flying in with his pilot-instructor crashed. The plane was owned by an Aero Club. The court found Feres to be applicable and the action barred.5 As to other cases barring actions based on Feres see for e. g., Hass v. United States, 518 F.2d 1138 (4th Cir. 1975) ( ); Herreman v. United States, 476 F.2d 234 (7th Cir. 1973) ; Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) ; Camassar v. United States, 400 F.Supp. 894 (D.Conn.1975) ; Mariano v. United States, 444 F.Supp. 316 (E.D.Va.1977) ( ).
I can see no relevant difference between the situation presented here and that in the cases cited above. Lt. Colonel Eckles was on active duty.6 Most importantly, he could not have been a member of the Club or flown the plane without having been part of the armed forces. Hence, his activity was directly related to his status as a serviceman. Furthermore, if a serviceman could sue for injuries resulting from activities related to the Aero Club, the serious adverse effects regarding military discipline and military relationships with which the Supreme Court was concerned, see supra, could materialize. It is true that Lt. Colonel Eckles was not killed on base. However, he was in a plane owned by the Club and, as stated, he could only be there because of his status as a serviceman. Thus, his injuries arose out of an activity incident to service.7
Plaintiff's reliance on Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), (which is still good law, see United States v. Brown, supra), and United States v. Hainline, 315 F.2d 153 (10th Cir. 1963), cert. denied 375 U.S. 895, 84 S.Ct. 172, 11 L.Ed.2d 124 (1963) is misplaced. In Brooks the injured servicemen were on furlough, driving in their private vehicle away from any military base when they were involved in a car crash with, by coincidence, a military vehicle....
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