Elliott By and Through Elliott v. U.S.

• Court: U.S. Court of Appeals — Eleventh Circuit
• Writing for the Court: Before HATCHETT; HATCHETT
• Citation: Elliott By and Through Elliott v. U.S., 13 F.3d 1555 (11th Cir. 1994)
• Decision Date: 15 February 1994
• Docket Number: No. 93-8027,93-8027
• Parties: David E. ELLIOTT, Jr., an incapacitated adult By and Through his guardian, Barbara V. ELLIOTT, Barbara V. Elliott, Individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

Page 1555

13 F.3d 1555

David E. ELLIOTT, Jr., an incapacitated adult By and Through his guardian, Barbara V. ELLIOTT, Barbara V Elliott, Individually, Plaintiffs-Appellees, v. UNITED STATES of America, Defendant-Appellant.

No. 93-8027.

United States Court of Appeals Eleventh Circuit.

Feb. 15, 1994.

H. Randolph Aderhold, Jr., Asst. U.S. Atty., Macon, GA, Vicki Raines Crowell, Dept. of the Army, Office of the Staff Judge Advocate, Fort Benning, GA, Lowell V. Sturgill, Jr., Robert S. Greenspan, U.S. Dept. of Justice, Washington, DC, for defendant-appellant.

Paul Van Kilpatrick, Max Reginald McGlamry, Charles Neal Pope, Columbus, GA, Wade H. Tomlinson, III, Michael L. McGlamry, Steven W. Saccoccia, Pope, McGlamry, Kilpatrick & Morrison, Atlanta, GA, for plaintiffs-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before HATCHETT, Circuit Judge, GODBOLD and FAY ^*, Senior Circuit Judges.

HATCHETT, Circuit Judge:

Applying Supreme Court and Eleventh Circuit precedent, we affirm the district court's ruling that the Feres doctrine (Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950)) does not bar a member of the armed forces from filing a lawsuit against the United States for injuries suffered due to the negligence of a branch of the armed forces where the member of the armed forces is on active duty, but suffers the injury while on leave outside a combat zone while engaged in activities unrelated to combat training or to the mission of the service member's unit.

FACTS

David Elliott, Jr., a staff sergeant in the U.S. Army, lived with his wife, Barbara Elliott, a civilian, in an apartment provided for them on the military base at Fort Benning, Georgia. On August 14, 1989, David Elliott received ordinary leave, pursuant to his request, altering his duty status to "on leave" and "absent with authority." Under the terms of his leave, the Army did not expect Elliott to report to duty until the morning of August 30, 1989.

Before his leave expired, Elliott returned to his apartment at Fort Benning. During the evening of August 28, 1989, Barbara Elliott returned to the apartment from work and went to bed early because she felt nauseous. When Barbara went to bed, David was awake watching television, sitting on the living room sofa. The following day, after Barbara failed to report to work, the Army dispatched military police to the Elliotts' apartment. Upon breaking into the apartment, the military police discovered Barbara Elliott on the bed and David Elliott on the sofa, unconscious and comatose. Military personnel immediately transported the Elliotts to a hospital at Fort Benning, where the medical staff treated them for carbon monoxide poisoning resulting from a faulty venting system attached to the water heater in the apartment.

David Elliott remained in a coma for two weeks, and on October 20, 1989, the hospital discharged him to Montgomery Rehabilitative Hospital in Montgomery, Alabama, a private hospital. Barbara Elliott, although comatose upon her admission to the hospital, recovered sufficiently for the hospital staff to discharge her on September 14, 1989. David Elliott suffered serious, permanent, and debilitating injuries from inhaling carbon monoxide.

PROCEDURAL HISTORY

After the Army denied their administrative claims, the Elliotts brought this lawsuit for negligence pursuant to the Federal Torts Claims Act in the United States District Court for the Middle District of Georgia. ¹ The government moved to dismiss all of David Elliott's claims and Barbara Elliott's claim for loss of consortium, arguing that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), barred the claims. The district court denied the government's motion and conducted a non-jury trial. Following its case-in-chief, the government renewed its motion for dismissal based on Feres. The district court again denied the government's motion.

Following trial, the district court entered judgment for the Elliotts, finding that the carbon monoxide entered the apartment from a defective and deteriorated hot water heater and vent pipe, which resulted from the Army's negligent maintenance of the vent pipe. Additionally, the district court concluded that the Army's failure to properly install, inspect, and maintain the vent pipe violated its own regulations and its duties as a landlord under Georgia law. Finally, the district court found that the evidence proved that the Army's breach of its statutory and regulatory duties proximately caused the Elliotts' injuries and damages, including loss of consortium.

Upon finding the government liable, the district court awarded Barbara Elliott damages of $3,010,110.68, including $750,000 for loss of David's consortium, and awarded David Elliott damages of $8,968,439, including $500,000 for loss of Barbara's consortium. On January 7, 1993, the United States filed this appeal challenging the district court's judgment with respect to David Elliott's claim for damages and Barbara Elliott's claim for loss of her husband's consortium. ²

CONTENTIONS

The government contends that the Feres doctrine bars military personnel from filing claims for injuries suffered during an "activity incident to service." The government further contends that providing David Elliott with free housing is an activity incident to his service in the armed services. Thus, the government argues, because Elliott suffered his injuries while engaging in an activity "incident to service," the Feres doctrine bars his claims.

The Elliotts contend that the Feres doctrine does not apply in this case because David Elliott did not incur injuries while engaged in an activity incident to his service. Because he was on ordinary leave watching television in his apartment, the Elliotts contend that David was not under the compulsion of military orders or involved in military operations; therefore, the Feres doctrine does not bar his claims. Thus, they argue, because David's injuries resulted from the Army's failure to provide a safe and hazard-free apartment, they may recover under the Federal Torts Claims Act.

Alternatively, the Elliotts contend that application of the Feres doctrine to this case violates the Constitution and is inconsistent with recent cases modifying the holding in Feres.

ISSUES

The appeal presents two issues: (1) whether the Feres doctrine denies military persons recovery for injuries incurred while on leave due to an armed forces's negligent maintenance of on-base housing; and (2) whether the Feres doctrine bars Barbara Elliott's claim for loss of consortium.

DISCUSSION

I. THE FEDERAL TORTS CLAIMS ACT

The Federal Torts Claims Act (FTCA) permits private citizens to bring claims and lawsuits against the United States

for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. Sec. 1346(b) (1988). In passing the FTCA, Congress relaxed the long standing common law doctrine of sovereign immunity which barred certain tort lawsuits against the United States. Feres, 340 U.S. at 139, 71 S.Ct. at 156. Congress enacted the FTCA to provide meaningful remedies for some wrongful government actions to relieve Congress and the public of the burdens and inequities of private bills. Feres, 340 U.S. at 139-40, 71 S.Ct. at 156; Parker v. United States, 611 F.2d 1007, 1009 (5th Cir.), reh'g denied, 615 F.2d 919 (5th Cir.1980). Under the FTCA, the government must compensate victims "in the same manner and to the same extent as a private individual under like circumstances" if found liable. 28 U.S.C. Sec. 2674.

Within the provisions of the FTCA, Congress limited litigants' right to sue in certain circumstances. One limitation, contained in 28 U.S.C. Sec. 2680(j), provides government immunity from lawsuits for service member's injuries "arising out of the combatant activity of the military or naval forces, or the Coast Guard, during time of war." The FTCA, however, contains no express provision barring claims of military personnel during peacetime.

The Feres doctrine has never been held to bar all military personnel lawsuits. Beginning with Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), military personnel have successfully brought lawsuits for injuries sustained while serving in the military. In Brooks, a civilian employee of the Army driving an Army vehicle struck an automobile, killing a serviceman and injuring another. Applying the plain language of the FTCA, the Supreme Court reasoned that its "terms are clear," and thus, the provision for "any claim" does not mean "any claim but that of serviceman." Brooks, 337 U.S. at 51, 69 S.Ct. at 919. In permitting the Brooks' to collect under the FTCA, the Supreme Court distinguished instances where an injury arises out of military service: "[W]e are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks' service, a wholly different case would be presented." Brooks, 337 U.S. at 52, 69 S.Ct. at 920.

Under Brooks, injured service personnel may sue the United States for injuries arising from the negligent conduct of other military personnel. See United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954) (veteran may bring lawsuit for injuries suffered during surgery in a Veterans Administration hospital); Parker, 611 F.2d 1007 (surviving widow may bring lawsuit for wrongful death of serviceman killed while driving on military base); Pierce v. United States, 813 F.2d 349 (...