Hoffman v. US
| Decision Date | 13 June 1994 |
| Docket Number | No. 93-6-CIV-4-H.,93-6-CIV-4-H. |
| Citation | 862 F. Supp. 1431 |
| Court | U.S. District Court — Eastern District of North Carolina |
| Parties | Howard HOFFMAN, Administrator of the Estate of Timothy Hoffman, and individually, and Carol Hoffman, Plaintiffs, v. UNITED STATES of America, Defendant & Third-Party Plaintiff, v. AIRWAY MOVING AND STORAGE, INC., Third-Party Defendant. |
Franklin D. Pope, Robinson, Pope and Pope, Jacksonville, NC, for plaintiffs.
Linda Kaye Teal, Asst. U.S. Atty., Raleigh, NC, for the U.S.
Steven M. Sartorio, Smith, Anderson, Blount, Dorsett, Mitchell and Jernigan, Raleigh, NC, for defendant.
This matter is before the court on defendant's motion for summary judgment and third-party defendant's motion for summary judgment. Plaintiffs brought this action for wrongful death after their child was struck by a truck after leaving the defendant's bookmobile. The defendant, the United States, filed a third-party complaint against the operator of the truck which actually struck and killed the child. In a Memorandum and Recommendation ("M & R") filed May 6, 1994, United States Magistrate Judge Charles K. McCotter, Jr., recommended that the defendant's motion for summary judgment be granted. Judge McCotter also recommended that if the court were to find a genuine issue of material fact as to the government's liability, the third party defendant's motion for summary judgment should be granted. Plaintiffs and defendant filed objections to the M & R within the time allotted, and this matter is ripe for decision.
As grounds for its motion for summary judgment, defendant states that it owed no duty to the decedent. The Magistrate Judge found that, under North Carolina law, an owner of a business owes no duty to an invitee injured off the premises. The Magistrate Judge also found that the defendant's duty as an operator of a motor vehicle was limited to providing a safe place of exit. The court notes that this standard is supported by North Carolina case law. Absent some additional circumstance, such as giving a confusing signal or blinding the pedestrian with the automobile's headlights, an operator of a motor vehicle is only required to let a child out of the vehicle in a place of safety. Colson v. Shaw, 46 N.C.App. 402, 411, 265 S.E.2d 407, 411 (1980).
Plaintiffs object to one finding of fact and four conclusions of law. First, plaintiff objects to the proposed finding of fact that the decedent leaned into the bookmobile instead of boarding the bookmobile for at least one minute. Plaintiff objects to the conclusion of law that its position is that the defendant had four specific legal duties. Plaintiffs instead state that the defendant breached its duty to use ordinary care. Plaintiffs further contend that the government did not fulfill its duty of ordinary care in that there was not a safe place to exit the bookmobile. Plaintiffs object to the Magistrate Judge's conclusion that additional warning devices were not necessary for the safety of the bookmobile, and finally, to the conclusion that the bookmobile operators cannot simultaneously operate the bookmobile and operate as crossing guards.
Plaintiffs' objections do not alter the court's conclusions. Whether the decedent was in the bookmobile for a minute or for an hour has no bearing on whether the defendant owed some duty of care to him. Under North Carolina law, that duty was only to provide a safe place of exit and entry into the motor vehicle. See id. There is no dispute that both the entrance and the exit to the bookmobile were on the right side of the vehicle, with entry and exit being made on the grass as opposed to being in the road itself. Accordingly, the defendant satisfied its duty of care to the decedent. Because the law requires only a safe place of entrance and exit to the vehicle, plaintiffs' additional objections are without merit.
Upon a full and careful review of the M & R, the court finds that the findings and conclusions of the Magistrate Judge are in all respects proper and in accordance with the law. Therefore, the court hereby ADOPTS the M & R as its own. Defendant's motion for summary judgment is GRANTED. As the third-party defendant's liability is predicated on defendant's liability, the motion for summary judgment by the third party defendant is DISMISSED as moot.
This matter is before the court on the defendant's motions to dismiss and, in the alternative, for summary judgment. Also before the court is the third-party defendant's motion for summary judgment. This case results from the tragic death of Timothy Hoffman (Timothy) on 12 December 1989. The government's motion for summary judgment should be allowed, because the United States did not breach any duty owed to Timothy.
On 19 January 1993, Howard and Carol Hoffman filed a wrongful death complaint against the United States pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671, et seq. The Hoffmans allege that the government was negligent and caused the death of their son, Timothy, at the Camp Lejeune Marine Corps Base on the afternoon of 12 December 1989. Specifically, the Hoffmans allege that the government was negligent in the operation of its bookmobile.
On 30 April 1993, the government answered the complaint and filed a third-party complaint against Airway Moving and Storage, Inc. (Airway), the owner of the truck that struck and killed Timothy. The government denies liability and alleges that Airway was negligent and caused Timothy's death. The Hoffmans did not file any claims against Airway. The government's claim against Airway is premised upon the court's finding a basis for liability against the government. Granting the government's summary judgment motion would therefore dispose of the case in its entirety.
The government operates a mobile library, known as the bookmobile, at Camp Lejeune, North Carolina. The obvious purpose of the bookmobile is to give children library service closer to their homes. One of the bookmobile's regularly scheduled stops is on Alabama Avenue in the Berkeley Manor neighborhood.
On 12 December 1989, the bookmobile parked in the westbound lane on Alabama Avenue. Les Williams was the driver of the bookmobile. Williams chose to park the bookmobile on the travel portion of the street, despite having the option to park it on the non-travel portion along the street.
The government was violating its own policy by not having the words "Watch for Children" painted on the bookmobile. In addition, the bookmobile had mechanical problems. A malfunction in the wiring system caused the battery to run down if the hazard lights were utilized for even a short period of time. The gas generator did continue to run, however, creating additional noise.
Frances L. Bing was the librarian in charge of the bookmobile at the Alabama Avenue stop. This stop was very busy, with twenty to thirty people coming on board in thirty minutes' time. Approximately eighty percent were children. Although the bookmobile was permitted to park on Alabama Avenue, other vehicles generally were not allowed to park along the street.
The bookmobile is a bus painted orange and white. Two doors are on the right side of the bookmobile; the back door is for entering, and the front door is for exiting. The bookmobile is arranged so that the driver and librarian can talk to each other and the visitors. Bing's policy and usual practice was to stop children from existing the back, entrance door.
At approximately 4:00 p.m. on 12 December 1989, Timothy opened the side back door of the bookmobile, placed his hand on the stair rail, leaned in, and asked Bing if his brother was on the bookmobile. Bing said no. Timothy turned and left before Bing could stop him from exiting the entrance door. He ran around the back of the bus, crossed the westbound lane, and was struck by the Airway truck, which was heading east. Timothy was taken to the hospital and pronounced dead at 5:21 p.m.
Williams saw Timothy step on the bookmobile. He also saw the Airway truck approaching at about fifteen to twenty miles per hour. Williams did not warn Timothy of the approaching truck.
The truck that hit Timothy was owned by Airway and driven by John Martin. Another Airway employee, Raymond D. Witt, was a passenger in the truck. Martin and Witt were looking for a house on Alabama Avenue. Martin saw the bookmobile. He knew that children congregated around the bookmobile, because he had seen it on Alabama Avenue before. Martin saw no children in or around the bookmobile. As Martin drove past the bookmobile, Timothy appeared in front of the truck and was struck before Martin could apply the brakes.
The United States waived its sovereign immunity from liability in tort with the enactment of the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 1346(b), 2671, et seq. The FTCA gives plaintiffs the option of suing the government in federal courts under some circumstances. Specifically, the FTCA allows for recovery against the government for loss of property, personal injury, or wrongful death caused by federal employees' negligent or wrongful acts while acting within the scope of their employment. 28 U.S.C. § 1346(b). The FTCA essentially imposes liability "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 court must therefore look to the law of the state where the claim arises to determine liability.
The events surrounding this action occurred in Camp Lejeune, North Carolina. In North Carolina, negligence is the "failure to exercise proper care in the performance of a legal duty which a defendant owes the plaintiff under the circumstances surrounding them." Hull v. Oldham, 104...
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