Hallett v. US

• Decision Date: 21 February 1995
• Docket Number: No. CV-S-93-802-PMP to CV-S-93-804-PMP,CV-S-93-853-PMP (RLH) and CV-S-93-854-PMP (RLH).,CV-S-93-802-PMP to CV-S-93-804-PMP
• Citation: 877 F. Supp. 1423
• Parties: Suzanne HALLETT, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant. Lisa C. REAGAN, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant. Marie Colleen WESTON, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant. Judy MAS, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant. Rhonda RAMA and Darren Rama, California Citizens, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Nevada

877 F. Supp. 1423

Suzanne HALLETT, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant.

Lisa C. REAGAN, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant.

Marie Colleen WESTON, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant.

Judy MAS, a California Citizen, Plaintiff, v. The UNITED STATES of America, Defendant.

Rhonda RAMA and Darren Rama, California Citizens, Plaintiff, v. The UNITED STATES of America, Defendant.

Nos. CV-S-93-802-PMP to CV-S-93-804-PMP, CV-S-93-853-PMP (RLH) and CV-S-93-854-PMP (RLH).

United States District Court, D. Nevada.

February 21, 1995.

COPYRIGHT MATERIAL OMITTED

Marie Louise Hagen, Torts Branch Civil Div., U.S. Dept. of Justice, Washington, DC, for defendant.

Shamoon Zakaria, Daniel Birnbaum, Brown, Monzione, Fabbro, Zakaria & Scarlett, San Francisco, CA, Cal J. Potter, Potter Law Offices, Las Vegas, NV, for plaintiffs Suzanne Hallett, Lisa C. Reagan and Marie Colleen Weston.

Melvin M. Belli, Sr., Kevin R. McLean, Law Office of Melvin Belli, San Francisco, CA, Frank Stapleton, Las Vegas, NV, for plaintiff Rhonda Rama, Darren Rama and Judy Mas.

PRO, District Judge.

This action arises from a series of events alleged to have occurred at the annual Tailhook Conventions held at the Las Vegas Hilton Hotel ("the Hilton") in September 1990 and September 1991. The important issue before this Court is not, however, whether the events alleged by Plaintiffs occurred at the Tailhook Convention. Nor is the Court called upon to determine whether Plaintiffs may have viable claims for relief against a variety of potential defendants. The sole issue before this Court is whether the United States may be held liable for the alleged assaults under the Federal Tort Claims Act.

Plaintiff Suzanne Hallett ("Hallett") was a guest at the Hilton in September 1990 when she was allegedly asked by Naval officers to attend social events related to the Convention. The social events revolved around the hospitality suites of the third floor of the Hilton. Hallett claims that upon entering the third floor hallway to attend these social events, she was assaulted by many men, most of whom she claims were Naval officers, who touched and grabbed her as she was forced down the hallway through a so-called "gauntlet."

The remaining Plaintiffs, Lisa C. Reagan ("Reagan"), Marie Colleen Weston ("Weston"), Judy Mas ("Mas"), and Rhonda Rama ("Rama"), each claim that they were assaulted in a similar manner at the 1991 Convention. Plaintiff Rhonda Rama further alleges that sometime after having to endure the "gauntlet" she was taken to the fourteenth floor of the Hilton where she was raped.

Plaintiffs each filed separate Complaints naming the United States Department of the Navy ("the United States") as Defendant, and asserting four causes of action for sexual assault and battery, negligence, negligent infliction of emotional distress and punitive damages.¹ Plaintiff Darren Rama alleged a Fifth Cause of Action for loss of consortium.

On April 18, 1994, this Court entered an Order (# 31) dismissing Plaintiffs' First, Third, and Fourth causes of action, and further dismissing Plaintiff Darren Rama's Fifth Cause of Action. The only remaining claim is the Second Cause of Action for negligence in which Plaintiffs allege a duty on the part of the United States as the occupant or possessor of the premises where the alleged incidents occurred. See Order (# 31).

Presently before the Court is the Defendant United States' Motion to Dismiss or, in the Alternative, for Summary Judgment (# 49), filed November 14, 1994. Plaintiffs Hallett, Reagan, and Weston filed their Opposition to Defendant's Motion to Dismiss or, Alternatively, for Summary Judgment and Request for Oral Hearing (# 50), and filed a Separate Statement of Material Facts Genuinely in Dispute (# 51) pursuant to Local Rule 140-7 on November 28, 1994. The United States filed its Reply to the Separate Statement of Material Facts Genuinely in Dispute of Plaintiffs Hallett, Reagan, and Weston and its Reply Memorandum of Points and Authorities (# 56) on December 12, 1994.

Plaintiffs Judy Mas and Rhonda Rama filed their Opposition to Defendant's Motion to Dismiss, or Alternatively, for Summary Judgment, and Request for Oral Hearing (# 54) on December 5, 1994. The United States filed its Reply (# 57) on December 23, 1994.

This Court held a hearing on this matter on February 17, 1995.

I. Jurisdiction

A. Motion to Dismiss

If an opposing party challenges the sufficiency of the jurisdictional allegations in the complaint, the party who claims that jurisdiction exists must prove the existence of federal jurisdiction. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 785, 80 L.Ed. 1135 (1936); Thornhill Publishing Co. v. General Tel. and Electronics Corp., 594 F.2d 730, 733 (9th Cir.1979); see Data Disc., Inc. v. Systems Technology Associates, Inc., 557 F.2d 1280, 1285 (9th Cir.1977). When resolution of the jurisdictional issue is separable from resolution of factual disputes as to the merits of the case, the Court "may consider the evidence presented with respect to the jurisdictional issue and rule on that issue, resolving factual disputes if necessary." Thornhill Publishing Co., 594 F.2d at 733. In considering a motion to dismiss based on lack of jurisdiction, this Court may review affidavits and other evidence to resolve factual disputes on the issue of jurisdiction without converting the motion into one for summary judgment. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989); see Capitol Industries-EMI, Inc. v. Bennett, 681 F.2d 1107, 1118 n. 29 (9th Cir.1982), cert. denied, 455 U.S. 943, 102 S.Ct. 1438, 71 L.Ed.2d 655 (1982); Thornhill Publishing Co., 594 F.2d at 733.

The dispute over jurisdictional facts in this case concerns whether the alleged acts by those members of the military attending the 1990 and 1991 Tailhook Conventions were within the scope of their employment. The dispute on the merits in this case concerns whether the United States owed a duty to Plaintiffs arising out of the alleged control of the third floor of the Las Vegas Hilton during the Tailhook Convention. The Court finds that the resolution of the jurisdictional issue is separable from the resolution of the merits. The Court must therefore resolve the jurisdictional issue before allowing the case to proceed on the merits.

B. Scope of Employment

The Federal Tort Claims Act ("FTCA") waives the Government's immunity to a plaintiff's suit for personal injuries caused by an employee of the Government. Washington v. United States, 868 F.2d 332, 333 (9th Cir.1989), cert. denied, 493 U.S. 992, 110 S.Ct. 539, 107 L.Ed.2d 536 (1989). To invoke jurisdiction under the Federal Tort Claims Act ("FTCA"), a plaintiff must show that her injury was 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." 28 U.S.C. § 1346(b) (1994). See Sheridan v. United States, 487 U.S. 392, 398, 108 S.Ct. 2449, 2453-54, 101 L.Ed.2d 352 (1988); Washington, 868 F.2d at 333.

The determination of "scope of employment" under the FTCA does no more than invoke state principles of respondeat superior. Lutz v. Secretary of the Air Force, 944 F.2d 1477, 1488 (9th Cir.1991); Lutz v. United States, 685 F.2d 1178, 1182 (9th Cir. 1982); United States v. McRoberts, 409 F.2d 195, 197 (9th Cir.1969) (per curiam), cert. denied, 396 U.S. 1014, 90 S.Ct. 551, 24 L.Ed.2d 505 (1970); see Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). The law of the state where the act or omission occurred governs the inquiry into "scope of employment." Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972); see Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 590-91, 7 L.Ed.2d 492 (1962) (liability for an employee's act of negligence is determined by the law of the state where the act occurred); Miller v. United States, 945 F.2d 1464, 1466 (9th Cir.1991) (actions against the United States under the FTCA are governed by the substantive law of the state where the allegedly tortious act or omission occurred).

Military personnel act within the scope of their employment if they act "in line of duty." 28 U.S.C. § 2671 (1994). "Line of duty" is defined also by the applicable state law of respondeat superior. Washington, 868 F.2d at 333.

Under Nevada law, whether an employee was acting within the scope of their employment for purposes of respondeat superior liability is generally a question for the trier of fact. National Convenience Stores, Inc. v. Fantauzzi, 94 Nev. 655, 584 P.2d 689, 692 (1978). However, when undisputed evidence exists concerning the employee's status at the time of the tortious act or omission, the Court may resolve the issue as a matter of law. Evans v. Southwest Gas, 108 Nev. 1002, 842 P.2d 719, 721 (1992). See Molino v. Asher, 96 Nev. 814, 618 P.2d 878, 880 (1980) (record devoid of evidence showing tortious conduct was within the course of employment); Connell v. Carl's Air Conditioning, 97 Nev. 436, 634 P.2d 673, 675 (1981) (24-hour on-call employee driving vehicle owned by him but paid for by employer was not acting within scope of employment at time of accident since lack of evidence indicated there were no emergencies employee was responding to).

In Nevada, § 235 of the Restatement of Agency defines "scope of employment." J.C. Penney Co. v. Gravelle, 62 Nev. 434, 155 P.2d 477, 482 (1945) (assault by store clerk on individual who interfered with clerk's pursuit of a shoplifter not within scope of clerk's employment since it became a personal matter arising not out of the employer's business nor in the furtherance of its interests). Under this...