Flynn v. U.S.

• Decision Date: 16 May 1990
• Docket Number: No. 88-2213,88-2213
• Citation: 902 F.2d 1524
• Parties: Donald W. FLYNN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. Joyce ROBERTSON, Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1524

902 F.2d 1524

Donald W. FLYNN, et al., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Third Party Plaintiff-Appellee, v. Joyce ROBERTSON, Third Party Defendant-Appellee.

No. 88-2213.

United States Court of Appeals, Tenth Circuit.

May 16, 1990.

Paul W. Mortensen (Robert H. Wilde, Cook & Wilde, P.C., Midvale, Utah, with him on the brief), Moab, Utah, for plaintiffs-appellants.

Dee V. Benson, U.S. Atty. (Brent D. Ward, U.S. Atty. and Joseph W. Anderson, Asst. U.S. Atty., on the brief), Salt Lake City, Utah, for defendant-third party plaintiff-appellee U.S.

Darwin C. Hansen, Hansen & Crist, Bountiful, Utah, for third party defendant-appellee Joyce Robertson.

Before SEYMOUR and BALDOCK, Circuit Judges, and THEIS, District Judge. ^*

THEIS, District Judge.

Plaintiffs appeal from the district court's grant of summary judgment in favor of defendant United States of America and third party defendant Joyce Robertson. 681 F.Supp. 1500. Plaintiffs brought this action against the United States of America pursuant to the Federal Tort Claims Act for the wrongful death of their decedent. R.Vol. I, Doc. 1. The United States filed a third party complaint against, among others, third party defendant Joyce Robertson. R.Vol. I, Doc. 23. Subsequently, plaintiffs amended their complaint to add a claim of negligence directly against Joyce Robertson. R.Vol. I, Doc. 28.

Summarized from the district court's opinion, the undisputed facts are as follows. In the evening of March 13, 1985, Helga Robertson ("Helga") was driving southbound on Highway 191, a four lane highway, south of Moab, Utah. Helga's sister-in-law, Joyce Robertson ("Joyce"), was a passenger in Helga's vehicle. At approximately 7:50 p.m., Helga's car struck Betty Daniels ("Daniels") while Daniels was walking across Highway 191. Helga's vehicle came to rest on the center lines of the highway. Joyce told Helga to move the car to the side of the road to prevent the car from being struck. Helga moved the car to the side of the road. She and Joyce then returned to the center of the road to assist Daniels. Joyce directed traffic.

Shortly thereafter, plaintiffs' decedent Joan Flynn ("Flynn") arrived at the accident scene. Flynn was driving a van northbound on Highway 191. Flynn stopped her van near Daniels in the outside lane of the highway and turned on the van's emergency flashing lights. Flynn went to the assistance of Daniels, who was near the center line of the highway. Joyce then went to call for help.

Within minutes of this first accident, three National Park Service (NPS) employees were driving southbound on Highway 191 in an NPS truck equipped with emergency lights and siren. The NPS employees were travelling to a training session. The NPS employees came upon the scene of the accident, which is outside the boundaries of the National Park System. The driver, Cornelius, pulled the vehicle over to the shoulder and turned on the emergency lights as the vehicle slowed to a stop. As Cornelius turned on the lights, he activated the siren for a few seconds.

A few seconds after the NPS vehicle arrived on the scene, a pickup truck driven by Kenneth Partridge swerved into Helga Robertson, Joan Flynn, and Betty Daniels, all three of whom were positioned in the middle of the highway. Partridge was driving in a southbound lane at approximately 52 miles per hour in a 45 miles per hour zone. Partridge testified that he had been following the NPS truck and swerved into the center of the highway when he saw the brake lights of the NPS truck flash on. Partridge testified that he was distracted by the overhead emergency lights on the NPS vehicle.

The district court specifically found that several other factors impaired Partridge's ability to respond to the initial accident. First, the night was dark and the highway was unlighted. Second, Partridge was speeding. Third, he was legally intoxicated. (Partridge subsequently pleaded no contest to two counts of negligent homicide). All three women died--at least two of them, Joan Flynn and Helga Robertson, by the collision caused by Partridge. R.Vol. I, Doc. 127, at pp. 3-6.

Plaintiffs claimed that Joyce Robertson was negligent in causing the first accident, by distracting Helga, and in causing Flynn's death by causing Helga to move the car from the middle of the highway, thus leaving Daniels and the rescuers exposed to danger. Plaintiffs claimed that the NPS employees were negligent in failing to place their vehicle in a position where it would block traffic from striking Daniels and the rescuers, in stopping their vehicle on the side of the road away from the accident, in activating their emergency lights thereby distracting other drivers, in activating their siren and emergency lights thereby distracting the pedestrians, and in having the controls to the emergency lights and siren improperly installed. Plaintiffs also claimed the United States was negligent in failure to train the NPS officers regarding the safe and proper use of emergency equipment and in entrusting the emergency vehicle to the NPS employees. R.Vol. I, Docs. 1, 28, 79.

The district court held that the NPS employees owed no duty to Flynn; that Utah's Good Samaritan Act exonerated them; that the discretionary function exception to the Federal Tort Claims Act barred the claims relating to NPS supervisory personnel for failure to train; and that the Good Samaritan Act immunized Joyce Robertson from liability. R.Vol. I, Doc. 127, at pp. 8-23. The district court denied the plaintiffs' motion for reconsideration. R.Vol. I, Doc. 144. Judgment was entered in favor of the United States and Joyce Robertson. R.Vol. I, Doc. 148. Plaintiffs appeal. We affirm the summary judgment in favor of the United States. Plaintiffs' complaint against Joyce Robertson must be dismissed for lack of subject matter jurisdiction.

We review an order granting or denying summary judgment under the same standard applied by the trial court in determining whether summary judgment is proper. United States v. Gammache, 713 F.2d 588, 594 (10th Cir.1983). Summary judgment is proper if the record before the court shows that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

A. Liability Under Utah Law

The Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b), 2671-2680, makes the United States liable on tort claims under those circumstances in which a private individual would be liable under state law. The court must apply the law of the place where the alleged negligence occurred. Ewell v. United States, 776 F.2d 246, 248 (10th Cir.1985). We therefore look to Utah law to determine whether the United States is liable to the plaintiffs.

Under Utah law, an essential element of a negligence claim is a duty of reasonable care owed to the plaintiff by the defendant. Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986). Generally, the law does not impose upon a party the affirmative duty to care for another. The law does impose upon a party the affirmative duty to act only when certain special relationships exist. These special relationships generally arise when a party assumes responsibility for another's safety or deprives another of the normal opportunities for self-protection. Id. Before the NPS employees may be held liable for negligence, it must be determined that they owed a duty of care to plaintiffs' decedent. The district court held that no duty of care existed and that if a duty arose as a result of their acts in rendering aid, the Utah Good Samaritan Act shielded them from liability.

Plaintiffs argue that the NPS employees were subject to certain statutory duties. Plaintiffs quote 16 U.S.C. Sec. 1a-6(b), which they assert gave the NPS employees authority to investigate the accident which in turn gave rise to a corresponding duty to render competent assistance. The statute provides:

In addition to any other authority conferred by law, the Secretary of the Interior is authorized to designate, pursuant to standards prescribed in regulations by the Secretary, certain officers or employees of the Department of the Interior who shall maintain law and order and protect persons and property within areas of the National Park System. In the performance of such duties, the officers or employees, so designated, may--

(1) carry firearms and make arrests without warrant for any offense against the United States committed in his presence, or for any felony cognizable under the laws of the United States if he has reasonable grounds to believe that the person to be arrested has committed or is committing such felony, provided such arrest occur within that system or the person to be arrested is fleeing therefrom to avoid arrest;

(2) execute any warrant or other process issued by a court or officer of competent jurisdiction for the enforcement of the provisions of any Federal law or regulation issued pursuant to law arising out of an offense committed in that system or, where the person subject to the warrant or process is in that system, in connection with any Federal offense; and

(3) conduct investigations of offenses against the United States committed in that system in the absence of investigation thereof by any other Federal law enforcement agency having investigative jurisdiction over the offense committed or with the concurrence of such other agency.

16 U.S.C. Sec. 1a-6(b). Plaintiffs misconstrue the statute. NPS employees have limited law enforcement duties, relating primarily to offenses committed within the National Park System. NPS officers are authorized to make arrests and serve process within the National Park System. Id. Sec. 1a-6(b)(1)-(2). They have only limited authority to make arrests outside the National Park System. Id. Sec. 1a-6(b)(1). Their investigative authority is not limited by the statute to park property. Id. Sec. 1a-6(b)(3); United States v. Smith, ...