Heredia v. US

Decision Date31 May 1995
Docket NumberNo. 94 CIV. 3179 (MGC).,94 CIV. 3179 (MGC).
Citation887 F. Supp. 77
PartiesAntonio HEREDIA, Plaintiff, v. UNITED STATES of America and Juan Velasco, Defendants.
CourtU.S. District Court — Southern District of New York


George Zelma, New York City, for plaintiff.

Mary Jo White, U.S. Atty., S.D.N.Y. by Gideon Schor, Asst. U.S. Atty., New York City, for defendant U.S.


CEDARBAUM, District Judge.

This is an action brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for injuries suffered by plaintiff in an automobile accident. The United States moves to dismiss the amended complaint for failure to state a claim under the FTCA. For the reasons discussed below, defendant's motion to dismiss is granted in part and denied in part.


Plaintiff Antonio Heredia was an eighteen year-old high school student and a participant in the Marine Corps' "Delayed Entry Program." The Delayed Entry Program permits the Recruiting Service of the Marine Corps to accept applicants but delay their departure for recruit training. Participants in the program — commonly referred to as "poolees" — perform no official duties and are not entitled to pay or benefits, although as a condition of participation they must enlist in the Marine Corps Reserves. A poolee is expected to report for active duty on a certain date, but acceptance in the Marine Corps is conditioned upon a poolee's fitness and good behavior. See United States Military Personnel Procurement Manual, Enlisted Processing, Chapter 2 § 2301(1)(b) (attached as Exhibit A to Decl. of Asst. U.S. Att'y Gideon A. Schor.)

The amended complaint alleges that plaintiff and another poolee, Juan Velasco, spent August 13, 1992 working at the "request and command" of Marine Corps recruiter Sgt. Freddy A. Feliz at the Marine Corps Recruiting office at 72 Westchester Square in the Bronx. (Amend.Compl. at ¶ 16.) According to the amended complaint, Feliz instructed Velasco to assist him with recruiting activities by travelling to the Pan American Motor Inn in Queens. Feliz "expressly or impliedly" gave Velasco — who was a licensed driver — permission to use Feliz' personal automobile to perform this errand. This is alleged to be a violation of Marine Corps regulations. (Id. at ¶ 19.) It is also alleged that Feliz had previously permitted Velasco to use his automobile to run personal errands for him. (Id. at ¶¶ 20-21.) Feliz is not alleged to have instructed plaintiff to accompany Velasco to Queens, although plaintiff telephoned his mother to inform her that he would be home later than usual because he was assisting Feliz with recruiting activities. (Id. at ¶ 18.) While driving to Queens, Velasco lost control of the automobile, skidded off the road and hit a tree. Plaintiff, who was sitting in the front passenger seat, suffered massive abdominal and neurological injuries. (Id. at ¶ 24.) Plaintiff claims that the United States is liable for the negligence of Velasco, and for Feliz' allegedly negligent supervision of Velasco.

The United States moves to dismiss the amended complaint on the grounds that (1) it cannot be liable under the FTCA for the negligence of Velasco, since Velasco was not a federal employee at the time of the accident, and (2) it cannot be liable for the negligence of Feliz, because Feliz would not be liable for plaintiff's injuries under New York law. At oral argument, I dismissed Count Three of the amended complaint, which was against Feliz individually under N.Y.Veh. & Traf.Law § 388 (McKinney 1986). (Trans. of Proc., Dec. 16, 1994, at 27.)


When considering a motion to dismiss the complaint for failure to state a claim, the court must presume the truth of all material facts alleged in the complaint and all inferences must be drawn in favor of the pleader. See, e.g., Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir.1995). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957).

I. Liability of the United States for the conduct of Velasco

The Federal Tort Claims Act confers exclusive jurisdiction upon the federal courts for civil actions involving

personal injury or death 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, 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) (1988). Thus, plaintiff's claim against the United States for the negligence of Velasco may proceed only if Velasco was an "employee of the Government" who was acting "within the scope of his office or employment" at the time of the accident. "Employees" of the United States are defined by the FTCA as "officers or employees of any federal agency, ... and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." 28 U.S.C. § 2671. The Second Circuit has stated that this language is to be construed "with an eye to general agency law rather than to the formalities of employment contracts." Witt v. United States, 462 F.2d 1261, 1263-64 (2d Cir.1972).

It is not alleged that Velasco was either enlisted in the Marine Corps or a government employee at the time of the accident. However, plaintiff contends that Feliz' "order" to Velasco to travel to Queens on his behalf created a principal-agent relationship, which in turn transformed Velasco into a federal "employee" under the FTCA pursuant to Witt. Witt held that a civilian employee of a private club run by a private association of military personnel on a military base was an "employee" under the FTCA. The plaintiff was a military prisoner who had "volunteered" for a prison work detail to shovel manure at the club. He was injured in an accident caused by the negligence of the civilian employee. Although there was no written agreement, the court noted that the civilian supervisor was "impliedly authorized by the Commandant of the Disciplinary Barracks to transport prisoners in his custody to a work detail ... to supervise or help supervise that detail and to return the prisoners." Id. at 1264. Under the circumstances, the court held that the civilian employee was acting on behalf of a federal agency without compensation and the United States could be liable for his negligence under the FTCA. Id. at 1264-65.

Agency is a relationship which "results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act." In re Shulman Transp. Enters., Inc., 744 F.2d 293, 295 (2d Cir.1984) (quoting Restatement (Second) of Agency § 1(1) (1957)). An essential element of an agency relationship is that the agent acts subject to the principal's direction and control. Id. at 295. New York courts have held that "where the circumstances alleged in the pleading `raise the possibility of a principal-agent relationship,' and no written authority for the agency is established, questions as to the existence and scope of the agency" are issues of fact and are not properly the basis of a motion to dismiss. Maurillo v. Park Slope U-Haul, 194 A.D.2d 142, 147, 606 N.Y.S.2d 243, 247 (2d Dep't 1993) (quoting Fogel v. Hertz Int'l, Ltd., 141 A.D.2d 375, 376, 529 N.Y.S.2d 484, 485 (1st Dep't 1988)).

In Maurillo, Alex Maurillo, Sr., ("Alex Sr.") asked his son, Alex Maurillo, Jr. ("Alex Jr.") to assist him in moving furniture from the family home in Brooklyn to a summer residence. Alex Sr. told Alex Jr. to rent a moving van for this purpose, gave Alex Jr. his credit card to pay for the rental, and "pointed out several things" which he wanted transported. Alex Jr. rented the van, and with the help of several of his brothers, transported the items to the summer residence. While driving back to Brooklyn, Alex Jr. stopped the van abruptly, causing his brother Michael — who was riding in the cargo area of the van — to fall to the floor. Michael sustained severe injury to his cervical spine that rendered him a paraplegic. Michael and Alex Sr. sued Alex Jr. and several other defendants. The defendants counterclaimed seeking indemnification and/or contribution from Alex Sr. on the theory that in engaging Alex Jr. to serve as his agent, Alex Sr. was liable as a principal for Alex Jr.'s negligence. While noting the novelty of the claim — particularly because it was based on interfamilial activity — the court held that the defendant's counterclaims (except the counterclaim of Alex Jr., who was barred from seeking contribution or indemnification because he was an actively negligent tortfeasor) sufficiently alleged facts which "raised a triable issue of fact regarding agency which is sufficient to defeat the plaintiff's motion to dismiss." 194 A.D.2d at 147, 606 N.Y.S.2d at 247.

The amended complaint alleges that Velasco and plaintiff were in the recruiting office on the day of the accident "to carry out instructions, to perform duties and to be otherwise supervised and directed by, and to be under the supervision, control, command and auspices" of Feliz. (Amend.Compl. at ¶ 11.) Feliz "instructed" Velasco to help with recruitment at the Pan American Motor Inn in Queens, and Feliz "expressly or impliedly" gave Velasco permission to use his personal automobile. (Id. at ¶¶ 16, 17.) At the time of the accident, Velasco was driving Feliz' car with Feliz' "consent and knowledge." (Id. at ¶ 22.) These allegations raise a triable issue of fact as to whether Velasco was an agent of Feliz. Maurillo, 194 A.D.2d at 147, 606 N.Y.S.2d at 247. That issue cannot be determined on a motion to dismiss the...

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