Keisel v. Buckeye Donkey Ball, Inc.
| Decision Date | 06 April 1970 |
| Docket Number | Civ. A. No. 199-69-N. |
| Citation | 311 F. Supp. 370 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | William A. KEISEL, Plaintiff, v. BUCKEYE DONKEY BALL, INC., Defendant and Third-Party Plaintiff, v. UNITED STATES of America, Third-Party Defendant. |
Glenn B. McClanan, Virginia Beach, Va., for plaintiff.
Calvin H. Childress, Norfolk, Va., for defendant.
John R. Crumpler, Jr., Norfolk, Va., for third-party defendant.
This matter stands on a motion for summary judgment filed by the United States of America, the third-party defendant, directed to the third-party complaint as filed by Buckeye Donkey Ball, Inc. For the reasons herein stated, the Court is of the opinion that the motion must be sustained.
Plaintiff, a warrant officer in the United States Navy, was injured when he fell from a donkey during a game of "donkey ball" sponsored by the Special Services Division at the Oceana Naval Air Station. Plaintiff alleged that the defendant, Buckeye Donkey Ball, Inc., had negligently furnished an unsafe donkey for the game. Buckeye, in turn, has filed its third-party complaint against the United States of America. The United States contends that the plaintiff was engaged in activity incident to his military service at the time of the accident and that the action against the United States, either by the plaintiff or the third-party plaintiff, is barred as a matter of law.
It appears to be settled law 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." Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950).
In the present case, the third-party plaintiff stands in no different posture with regard to any claim against the United States than would the plaintiff had he instituted a direct action against the Government. The ultimate question is whether plaintiff's participation in this donkey ball game was in the course of activity incident to service. The issue has apparently been determined adversely to the third-party plaintiff by the opinion of District Judge Albert V. Bryan, now Circuit Judge, in Drumgoole v. Virginia Electric and Power Company, 170 F.Supp. 824 (E.D.Va., 1959).
The facts surrounding the accident are that during the last week in July 1967, plaintiff's commanding officer announced that there would be a donkey softball game and that the Aircraft Maintenance Department of the Oceana Naval Air Station had been requested to furnish the participants. The commanding officer asked for volunteers but, at that time, no one stepped forward. Approximately one week later, plaintiff received a memorandum stating in substance that the plaintiff and two other men would represent the Aircraft Maintenance Department in this activity. Plaintiff advised his commanding officer that he was not...
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Kessler v. United States, Civ. A. No. 80-2002-8.
...(8th Cir. 1966); Watkins v. United States, 462 F.Supp. 980 (S.D.Ga.1977), aff'd, 587 F.2d 279 (5th Cir. 1979); Keisel v. Buckeye Donkey Ball, Inc., 311 F.Supp. 370 (E.D.Va. 1970); Richardson v. United States, 226 F.Supp. 49 (E.D.Va.1964); Holcombe v. United States, 176 F.Supp. 297 (E.D.Va. ......
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Woodside v. U.S.
...party, Degentesh v. United States, 230 F.Supp. 763 (N.D.Ill.1964); and playing in a "donkey soft-ball game," Keisel v. Buckeye Donkey Ball, Inc., 311 F.Supp. 370 (E.D.Va.1970). The government contends that Feres applies to any service member who, at the time of injury or death, was generall......
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Hass for Use and Benefit of U.S. v. U. S., 74-1996
...when he is riding a donkey during a ballgame sponsored by the Special Services division of a naval air station, Keisel v. Buckeye Donkey Ball, Inc., 311 F.Supp. 370 (E.D.Va.1970), and while swimming in a swimming pool at an airbase, Chambers v. United States, 357 F.2d 224 (8th Cir. Although......
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Hopkins v. United States, 82 CV 1938(ERN).
...Camassar v. United States, 531 F.2d 1149 (2d Cir.1976); Chambers v. United States, 357 F.2d 224 (8th Cir.1966); Keisel v. Buckeye Donkey Ball, Inc., 311 F.Supp. 370 (E.D.Va.1970). Similarly, injuries sustained while the claimant was on active duty status and subject to military orders, have......