Harrison v. United States

• Decision Date: 02 November 1979
• Docket Number: Civ. No. H-78-494.
• Citation: 479 F. Supp. 529
• Court: U.S. District Court — District of Connecticut
• Parties: Susan G. HARRISON v. UNITED STATES of America and United States Air Force.

479 F. Supp. 529

Susan G. HARRISON v. UNITED STATES of America and United States Air Force.

Civ. No. H-78-494.

United States District Court, D. Connecticut.

November 2, 1979.

Wesley W. Horton, Moller & Horton, Hartford, Conn., for plaintiff.

Cheryl Wattley, George J. Kelly, Jr., Asst. U. S. Attys., Richard Blumenthal, U. S. Atty., Hartford, Conn., for defendant.

RULING ON MOTION TO DISMISS

CLARIE, Chief Judge.

The plaintiff, wife of a United States Air Force Captain, brought this action against the United States of America and the United States Air Force¹ for her alleged loss of consortium, resulting from injuries which her husband suffered in a plane crash while he was an active duty passenger in a military aircraft. The complaint alleges that the defendants were negligent in staffing and maintaining said aircraft, and the plaintiff is now seeking $250,000 damages pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq.

The defendant has moved to dismiss this action, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the grounds that the Federal Tort Claims Act does not allow recovery against the United States by this plaintiff. The Court finds that the plaintiff's action arose out of her husband-serviceman's injuries incurred in the line of active military duty and thus falls within the exception to the Federal Tort Claims Act, which retains Governmental immunity for injuries to military personnel incident to their service. The defendant's motion to dismiss is granted and judgment shall enter for the defendant.

Jurisdiction

The Court has jurisdiction over this action pursuant to 28 U.S.C. §§ 1346(b), 2671 et seq.

Facts

The plaintiff is the wife of Captain John Reginald Harrison of the United States Air Force. She was residing with her husband at Kincheloe Air Force Base in the State of Michigan, when this cause of action arose. She claims governmental negligence in the following respects: (1) that on September 26, 1976, her husband was ordered to travel on a defective and negligently staffed KC-135 aircraft supplied by the defendant; (2) that he was required to fly in his dress uniform rather than a protective flight suit; (3) that the defendant's negligence in the landing of the aircraft caused a crash at Alpena, Michigan; and (4) that Captain Harrison was unable to free himself promptly from the flaming plane, because his seat belt was designed defectively and not authorized for use in a KC-135 aircraft.

The complaint represents that Captain Harrison was burned severely, was hospitalized from September 26, 1976 through January 20, 1977, and thereafter was incapacitated for a considerable period of time. The plaintiff claims that the defendant's negligence caused her the loss of her husband's society, companionship, service, and affection, and all other incidents of the marriage relationship. She also represents that the defendant's negligence in failing to place her in a "non-medical attendant status" caused her unnecessary additional traveling and living expenses in order to be of assistance in the rehabilitation of her husband.

Discussion of Law

The United States has been traditionally shielded from any suit for damages by the doctrine of sovereign immunity. However, Congress removed some of this protection in 1946 when it passed the Federal Tort Claims Act, thus exposing the Government to suit for the wrongs which its agents or employees commit. 28 U.S.C. § 2671 et seq. Congress designated the federal courts as the forum for determining the Government's liability in such matters. Liability may arise from personal injury or property damage caused by the negligence of any Government employee "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. § 1346(b).

The Government's general consent to such liability, as expressed under the Tort Claims Act, is limited by a number of statutory and judicial exceptions. See, for example, 28 U.S.C. § 2680. At issue in the present case is the exception created by the Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), wherein the 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." 340 U.S. at 146, 71 S.Ct. at 159.

The Supreme Court prefaced its holding in Feres by noting that although 28 U.S.C. § 1346(b) confers jurisdiction on the district courts to render judgment upon all civil actions against the United States for money damages, this section does not say all claims must be allowed. "It remains for courts, in exercise of their jurisdiction, to determine whether any claim is recognizable in law." 340 U.S. 141, 71 S.Ct. at 157.

The plaintiff asserts that her claim for loss of consortium is "recognizable in law," because it is distinct and separate from any cause of action which her serviceman-husband might have pursued against the defendant, had he not been barred explicitly by the Feres exception to governmental liability under the Tort Claims Act. The plaintiff argues that her separate action does not come within the Feres exception, because it applies only to servicemen or their representatives.

In deciding the defendant's motion to dismiss, the Court must determine whether under the applicable state law the plaintiff's claim for relief is independent of her husband's claim, and if so, whether this in itself saves her case from falling within the Feres exception, so as to make her claim "recognizable in law" under the Federal Tort Claims Act.

The latter statute provides that the law of the state where the allegedly negligent action occurred governs the issue of liability. 28 U.S.C. § 1346(b). Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). See, Lambertson v. United States, 528 F.2d 441 (2d Cir. 1976). The complaint represents that the plaintiff's serviceman-husband was incapacitated for approximately four months while he recovered from burns occasioned by the defendant's negligent landing of a KC-135 aircraft in Alpena, Michigan. Her cause of action for loss of consortium is thus governed by the law of Michigan, the location of the plane crash.²

In Michigan, a suit for the loss of consortium includes the "loss of society, companionship, service and all other incidents of the marriage relationship." Kailmiai v. Firestone Tire Co., 87 Mich.App. 144, 273 N.W.2d 906 (1978). Such a claim by one spouse is considered by the Michigan courts to be independent of any claim of the other spouse. A wife's action against a tortfeasor for loss of consortium is an action for damages to her own interest, not a remote consequence of the tortfeasor's injury to the husband. Montgomery v. Stephan, 359 Mich. 33, 101 N.W.2d 227 (1960). Thus, even though her husband's claim for relief against the Government is barred by Feres v. United States, supra, this alone does not necessarily bar the plaintiff's separate claim for loss of consortium. Under the applicable local law the two claims are not treated as one, and the plaintiff's claim is not merely derivative.³

The crucial question is whether the plaintiff's claim for relief, although separate and distinct, is nevertheless barred by the Feres doctrine, that is, whether the Government is exempt from liability for her injuries as well as those of her husband. There is a considerable body of case law which has developed around this doctrine defining the boundaries of the exceptions to governmental liability as applied to servicemen, or their representatives, who prosecute claims against the military. There are very few courts, and none in the Second Circuit, that have been called upon to determine how the Feres doctrine should be applied to persons who claim that they have a separate and independent cause of action flowing from injuries suffered by servicemen.⁴ No cases have been found which address the specific issue of whether an independent claim for consortium may be brought against the United States when such claim arises out of injuries to a spouse on active military duty. Nevertheless, the Court is not left without guidance in resolving this issue.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Court denied recovery in each of three cases where a plaintiff had brought suit against the United States for injuries sustained by a serviceman due to negligence of others in the armed forces. Feres v. United States, 177 F.2d 535 (2d Cir. 1949); Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949); Griggs v. United States, 178 F.2d 1 (10th Cir. 1949). Two of these cases involved representatives' claims for wrongful death. The Second Circuit case of Feres v. United States, supra, was a suit by an executrix to recover for her decedent's death caused by the negligence of the United States in quartering him in barracks which burned because of a defective heating plant. The Jefferson case involved a plaintiff who discovered that an army surgeon had inadvertently left a thirty inch long towel in his stomach. In the Griggs case an executrix brought an action for the wrongful death of the deceased resulting from his negligent treatment by army surgeons.

The Supreme Court made it quite clear in Feres that a serviceman, or his representative, cannot recover for his injuries incident to military service. The several reasons given by the Court for denying the causes of action of the three plaintiffs demonstrate that the underlying rationale of the doctrine was firmly established at its inception. The Court reasoned as follows: First, recovery is unnecessary because a comprehensive system of relief is already available to military personnel and their dependents. Second,...