Hartzell v. U.S.

• Decision Date: 10 April 1986
• Docket Number: No. 84-2592,84-2592
• Citation: 786 F.2d 964
• Parties: James H. HARTZELL, Beryl Hartzell, and Ross Hartzell, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 964

786 F.2d 964

James H. HARTZELL, Beryl Hartzell, and Ross Hartzell Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.

No. 84-2592.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 16, 1985.

Decided April 10, 1986.

Denis R. Malm, Wachtel, Biehn & Malm, Lake Havasu City, Ariz., Paul Ulrich, Lewis & Roca, Phoenix, Ariz., for plaintiffs-appellants.

Elizabeth Jucius Dunn, Asst. U.S. Atty., Phoenix, Ariz., for defendant-appellee.

Appeal from the United States District Court for the District of Arizona.

Before DUNIWAY, TANG, and FLETCHER, Circuit Judges.

DUNIWAY, Circuit Judge:

The Hartzells appeal from a summary judgment against them in their action against the United States for injuries resulting from an automobile accident involving Air Force Staff Sergeant Joni McDonald. The district court held that McDonald was not acting within the scope of her employment at the time of the accident and that the United States could not, therefore, be held liable under the doctrine of respondeat superior for her alleged negligence. We affirm.

FACTS

The Air Force employed Sergeant McDonald as an administrative specialist. Her permanent duty station was Kirtland Air Force Base, near Albuquerque, New Mexico. From April 14 until April 27, 1981, she was assigned to temporary duty at Camp Mercury in Nevada. She was given authorization for temporary duty travel from Kirtland to Camp Mercury. Her orders also authorized her return to Kirtland at the end of her temporary duty assignment. The orders originally required that she travel by either commercial airlines or a government vehicle, but, at her request, they were amended to permit her to drive her own automobile. McDonald made the request for personal reasons. Reimbursement was limited to the costs she would have incurred had she used a commercial airline.

McDonald's work duties at Camp Mercury ended at 6:00 p.m., April 27, 1981. Before leaving, she asked for and received an additional day, April 29, in which to make the return trip to Kirtland. She wanted the time to visit Las Vegas and sightsee on her drive back to New Mexico. Under Air Force regulations, the additional day was leave or vacation time. She was ordered to report for duty at Kirtland by 7:30 a.m. on April 30.

McDonald spent April 28, 1981, on personal recreation in and around Las Vegas. On April 29, 1981, she left Las Vegas, traveling south on U.S. Highway 93 toward Kingman, Arizona. From Kingman, she intended to travel east on Interstate 40 to Kirtland. She also considered taking a side trip off I-40 to visit the Grand Canyon. The auto accident with the Hartzells occurred before she reached the intersection with Interstate 40.

The district court found that McDonald departed from the direct route between Las Vegas and Kirtland to sightsee at the Grand Canyon. The record does not support this finding. The accident happened on U.S. Highway 93. The only road to the Grand Canyon that intersects McDonald's route is approximately one hundred fifty miles east of Kingman on Interstate 40. McDonald was, however, considering a sidetrip to the Grand Canyon.

The district court found that because McDonald "opted to travel by her own personal automobile, to travel over several days, and to sightsee off the direct interstate route," her journey was more for personal enjoyment than Air Force business. It also found that, because McDonald was on leave on the day of the accident, she was beyond the physical control of the Air Force, and, therefore, not acting within the scope of her employment.

DISCUSSION

The Federal Tort Claims Act (FTCA) provides that the United States is liable for personal injuries caused by the negligence or wrongful acts of government employees who are acting within the scope of their office or employment. 28 U.S.C. Sec. 1346(b). When an employee is a member of the military, his scope of employment is defined as "acting in the line of duty." 28 U.S.C. Sec. 2671.

The question whether McDonald was acting within the scope of her employment is controlled by the law of the state in which the accident occurred. 28 U.S.C. Sec. 1346(b); Williams v. United States, 1955, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (per curiam); Louie v. United States, 9 Cir., 1985, 776 F.2d 819, 824. The "line of duty" standard does not expand scope of employment beyond that recognized under the state law of respondeat superior. E.g., Lutz v. United States, 9 Cir., 1982, 685 F.2d 1178, 1182; Chapin v. United States, 9 Cir., 1958, 258 F.2d 465, 468.

The district court's resolution of factual questions is reviewed under the "unless clearly erroneous" standard. Fed.R.Civ.P. 52(a); Matter of McLinn, 9 Cir., 1984, 739 F.2d 1395, 1398 (in banc). Its interpretation of state law is reviewed de novo. Id. at 1403; Louie, 776 F.2d at 822.

Under Arizona law an employee is considered to be acting within the scope of employment if he meets either of two related tests. The first, adopted from section 228 of the Restatment (Second) of Agency, states that the act of an employee is within the scope of employment only if: (1) it is typical of the kind of work the employee was hired to perform; (2) it occurs within the authorized time and space limits; and (3) it was intended at least in part to serve the master. Anderson v. Gobea, 1972, 18 Ariz.App. 277, 280, 501 P.2d 453, 456. The second holds an employer liable for the negligence of an employee if, at the time of the accident, the employee is: (1) subject to the employer's control or right to control; and (2) acting in furtherance of the employer's business. Robarge v. Bechtel Power Corp., Ariz.App., 1982, 131 Ariz. 280, 640 P.2d 211, 214. See State v. Superior Court, 1974, 111 Ariz. 130, 524 P.2d 951, 953.

McDonald did not meet either of these tests at the time of the accident. She was an administrative specialist who performed mostly clerical duties. Driving her own vehicle for personal reasons was not an act typical of work she was hired to perform. Because the accident took place while McDonald was on leave, it also did not occur within the authorized time and space of her employment.

Air Force Regulation 177-103 allows travel time based on "when member could have departed, arrived, and returned by common carrier means...." Any additional travel time is charged as leave. Air Force Regulation 177-103 (Table 40-1). This method of calculating travel with leave is not at odds with Joint Travel Regulation M3050. It states only that service personnel are "deemed to be in travel status while performing travel away from their permanent duty station, upon public business, pursuant to competent travel orders...." This very general description is not inconsistent with the detailed Air Force regulations concerning leave taken in connection with authorized travel. We have recognized that the Air Force's distinction between leave and approved travel time may decide a case. Berrettoni v. United States, 9 Cir., 1970, 436 F.2d 1372, 1373-74.

Although McDonald's travel from a temporary duty station back to her permanent duty station was in some part intended to serve the Air Force, this factor alone is not sufficient to bring her within the scope of employment. She had sought and received permission to travel in her own vehicle for purely personal reasons. Under these circumstances, it cannot be said that her act of driving on that day was intended to serve the Air Force. McDonald was not acting within the scope of employment under the Anderson test.

McDonald also fails Arizona's control-based test for acting within the scope of employment. See Robarge, 640 P.2d at 214. Arizona courts considering it in the context of employees traveling to or from job sites have focused on the employer's right to control the employee's choice of vehicle, route and manner of travel, and right to impose work-related duties on the employee during the course of travel. State v. Superior Court, 524 P.2d at 954; Robarge, 640 P.2d at 214. The Air Force, as McDonald's employer, did not exercise control over these aspects of McDonald's conduct at the time of the accident. McDonald was originally ordered to travel by commercial airline or government vehicle, but, for personal reasons, sought to travel by her own car instead. The Air Force did not direct McDonald to follow a certain route or to drive in a particular manner. Nor did it request that she perform any service related duties en route. In similar cases, the Arizona courts have held that the employee was not acting within the scope of employment at the time of his or her alleged negligence. State v. Superior Court, 524 P.2d at 954 (Arizona had "no claim to or a remote interest in" a national guardsman travelling to a weekend training session in his own car and without orders to perform additional services or drive in particular manner along a prescribed route); Robarge, 640 P.2d at 214 (employee driving home at end of workday was not within the scope of employment because he was travelling in his own vehicle and without employer imposed obligations regarding route, manner of travel, or work-related duties.)

An additional factor supporting the district court's decision is that McDonald was on leave on the day of the accident. See, e.g., Cooner v. United States, 4 Cir., 1960, 276 F.2d 220, 225 ("[a] serviceman on leave or on pass cannot, normally, be said to be acting within the scope of his employment"). After concluding her duties at Camp Mercury, McDonald requested an extra day for sightseeing before returning to her permanent assignment at Kirtland. Air Force regulations charged this day as leave time. While on leave, McDonald was free to travel wherever and whenever she wished without regard for her employer's concerns. The Air Force's only interest in her during this period was that she report back to Kirtland on time. This single requirement does not create control over McDonald's conduct bringing her...