Fitzpatrick v. US
| Decision Date | 07 December 1989 |
| Docket Number | Civ. A. No. 88-270-CMW,88-82-CMW. |
| Parties | Eileen M. FITZPATRICK, Plaintiff, v. UNITED STATES of America, Defendant. Cheryl Ann and Alan KEHNAST, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — District of Delaware |
Elwood T. Eveland, Jr., of Woloshin, Tenenbaum & Natalie, Wilmington, Del., for plaintiff Fitzpatrick.
Robert Pasquale, and Arthur M. Krawitz, of Doroshow, Pasquale & Linarducci, Wilmington, Del., for plaintiffs Kehnasts.
William C. Carpenter, Jr., U.S. Atty., and Patricia C. Hannigan, Asst. U.S. Atty., Wilmington, Del., for defendant.
Plaintiffs Cheryl Ann and Alan Kehnast brought suit in this Court pursuant to 28 U.S.C. § 2671, et seq., (the Federal Tort Claims Act) on February 19, 1988, against defendant United States of America. Plaintiffs alleged that they sustained injuries in a motor vehicle accident due to the negligence of a member of the United States military.
Plaintiff Eileen M. Fitzpatrick also commenced an action in this Court pursuant to the Federal Tort Claims Act on May 20, 1988, against defendants United States of America and Willie D. Davis.1 Plaintiff Fitzpatrick's complaint averred injuries resulting from the same motor vehicle accident.
Plaintiffs Cheryl Ann and Alan Kehnast moved for leave to amend their original complaint on July 1, 1988. By an Order dated August 15, 1988, the Court granted this motion. This amended complaint added a claim of negligent entrustment (of a motor vehicle) against the United States.
On March 14, 1989, the Court issued an Order of Consolidation with respect to the actions of plaintiffs Cheryl Ann and Alan Kehnast, and plaintiff Eileen M. Fitzpatrick against the United States.
The United States submitted a motion to dismiss, or in the alternative, for summary judgment on June 12, 1989. The United States moved to dismiss and alternatively for summary judgment against the negligence claims of all three plaintiffs in the consolidated action. With respect to plaintiffs Cheryl Ann and Alan Kehnast, the United States asserts that summary judgment in its favor also is warranted on the negligent entrustment claim. Accordingly, these motions are before the Court.
This Court has jurisdiction pursuant to 28 U.S.C. § 1346(b).
For the reasons which will be stated herein, the Court denies the United States' motions to dismiss and for summary judgment.2
In March of 1985, Willie D. Davis was a Sergeant First Class in the United States Army ("the Army") assigned to Readiness Group Mead, at Fort Meade, Maryland. Sergeant Davis' position was Senior Medical Sergeant which included the responsibility of acting as a medical advisor for the National Guard and Army Reserves in Delaware, Maryland, Virginia, and the District of Columbia. Sergeant Davis usually would drive from Fort Meade to a location of a National Guard or Army Reserve unit, frequently for weekend drills. Sergeant Davis' position involved assisting in the training of members of the Army Reserves and National Guard on the proper operation of a military medical unit. When Sergeant Davis was required to travel to the location of a National Guard or Army Reserve unit, he had authorization to operate a government vehicle and to make his own arrangements for overnight accommodations.
On Friday, March 15, 1989, Sergeant Davis obtained a government-leased vehicle from the motor pool at Fort Meade. He then proceeded to drive this vehicle to New Castle, Delaware to participate in the activities of the 116th M.A.S.H. unit of the National Guard over the weekend. At his deposition, Sergeant Davis testified that he had essentially no recollection of the events which transpired after his arrival at the National Guard unit in Delaware that Friday evening to the time when he awoke in a jail cell the following Saturday morning.
Sergeant Davis subsequently made a formal statement about this trip and the events surrounding it to Captain Kenneth Grant. According to the substance of this statement, it appears that Sergeant Davis arrived at the National Guard unit in Delaware at about 6:00 P.M. on March 15, 1985. Sergeant Davis then attempted to contact Specialist Ralph Scott, the trainee NCO for the 116th M.A.S.H. unit, but was unsuccessful. He thereafter went to the officer's club for the apparent purpose of locating a Captain Hayes, the unit executive officer. Upon learning that Captain Hayes was not at the club, Sergeant Davis remained at the officer's club, during which time he consumed alcohol, socialized, and played pool. Sergeant Davis spoke intermittently with a Lieutenant Kearns and they played pool together. Davis' conversation with Lieutenant Kearns in part related to her job responsibilities within the unit.
At about 9:30 P.M., Sergeant Davis left the club and drove the government-leased car toward his motel billet which was located about five or six miles from the club. On his way to his motel billet, Sergeant Davis collided with the last of three cars stopped at a traffic signal on Route 71, near Churchman's Road, New Castle, Delaware. The vehicle Davis was driving hit the vehicle of plaintiffs Cheryl Ann and Alan Kehnast, which struck the vehicle of plaintiff Eileen M. Fitzpatrick, which in turn hit a vehicle driven by a Mr. William Sebok. Witnesses summoned police to the scene of the accident. The police arrested Sergeant Davis for Driving Under the Influence of Alcohol. Davis submitted to a breathalyzer test at Delaware State Police Troop 6 and this test indicated a blood alcohol level of 0.20. All plaintiffs suffered injuries as a result of this accident.
After the accident, the Army commenced a formal investigation. The Army, at the conclusion of the investigation, instituted disciplinary measures against Sergeant Davis, including the loss of on-post driving privileges in his private vehicle for one year, a restitution payment for damage to the vehicle, a Letter of Reprimand, relief from his duties, a fine, and orders to attend an in-patient alcohol treatment facility. These measures effectively constituted the demise of Davis' twenty-three year military career.3
At the time of the accident, the Army had a formal policy regarding drug and alcohol abuse.4
Federal Rule of Civil Procedure (F.R. C.P.) 12(b) provides that certain defenses can be asserted by motion, including the contention that the court lacks subject matter jurisdiction over the controversy. F.R. C.P. 12(b)(1). In the present case, the United States asserts that there is no federal subject matter jurisdiction because the threshold requirements for jurisdiction under the Federal Tort Claims Act have not been met. The gravamen of this assertion is that Sergeant Davis was not acting within the scope of his employment at the time of the accident within the meaning of 28 U.S.C. § 1346(b).
The Court views the United States' motion to dismiss as a factual attack on the jurisdictional allegations of the complaints of the plaintiffs, and therefore the Court may look beyond the face of the pleadings in this determination. See International Association of Machinists & Aerospace Workers v. Northwest Airlines, Inc., 673 F.2d 700, 711-12 (3d Cir.1982); 2A Moore's Federal Practice ¶ 12.072.-1. A plaintiff can defeat a motion to dismiss for lack of subject matter jurisdiction by establishing a prima facie case of federal subject matter jurisdiction. See 1 Moore's Federal Practice 1989 Rules Pamphlet (Federal Judiciary Edition) § 12.4.
F.R.C.P. 56(c) ("Rule 56") provides that summary judgment is proper if "there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law." A court confronted with a summary judgment motion "must view all facts, and any reasonable inference from those facts, in the light most favorable to the party opposing summary judgment." Wilmington Housing Authority v. Pan Builders, Inc., 665 F.Supp. 351, 353 (D.Del.1987) (citing Adickes v. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970)). The movant carries the burden of demonstrating the absence of genuine issues of material fact, regardless of which party would have the burden of persuasion at trial. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052, 108 S.Ct. 26, 97 L.Ed.2d 815 (1987).5
All plaintiffs have submitted claims against the United States alleging that negligence on the part of Sergeant Davis caused their injuries from the accident. These claims are based upon 28 U.S.C. §§ 1346(b) and 2671.6 The essence of the controversy lies with the threshold requirement that Sergeant Davis must have been acting within the scope of his employment at the time of the accident before the Government is liable under § 1346(b).7See Short v. United States, 245 F.Supp. 591, 592 (D.Del.1965) ().8 The United States contends that the plaintiffs have not established a prima facie case that Sergeant Davis was acting within the scope of his government employment at the time of the accident, or alternatively, that Sergeant Davis was not acting in the scope of his employment as a matter of law.
A member of the United States military is deemed as acting within the scope of his or her employment, for purposes of 28 U.S.C. § 1346(b), if he or she is "acting in line of duty". 28 U.S.C. § 2671. State law pertaining to the doctrine of respondeat superior governs the determination of the scope of employment. Williams v. United States, 350 U.S. 857, 859, 76 S.Ct. 100, 100 L.Ed. 761 (195...
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