Kerns v. U.S., Civil Action No. CCB-07-1006.
| Decision Date | 07 February 2008 |
| Docket Number | Civil Action No. CCB-07-1006. |
| Citation | 534 F.Supp.2d 633 |
| Parties | Stacia Lynn KERNS v. UNITED STATES of America. |
| Court | U.S. District Court — District of Maryland |
Paul D. Bekman, Michael Patrick Smith, Salsbury Clements Bekman Marder and Adkins LLC, Baltimore, MD, for Stacia Lynn Kerns.
Ariana Wright Arnold, Office of the United States Attorney, Baltimore, MD, for United States of America.
Now pending before the court is a motion to dismiss filed by defendant United States of America against plaintiff Stacia Lynn Kerns. Pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b)(1), Kerns is suing the United States under a theory of vicarious liability for the allegedly negligent acts of Debra Scott that resulted in a traffic accident and the tragic death of Kerns' husband, Gregory Kerns, Jr. Arguing that Scott was not acting within the scope of her employment at the time of the accident; the United States seeks dismissal of the case for lack of subject matter jurisdiction. The issues in this motion have been fully briefed and no hearing is necessary. For the reasons stated below, the defendant's motion will be granted.
On June 24, 2005, at approximately 9:30 p.m., Debra Scott was involved in a deadly traffic accident with Gregory Kerns, Jr. just outside of the Fort Meade army base in Anne Arundel County, Maryland. Scott had earlier arrived at BWI airport at approximately 1:06 p.m. pursuant to military travel orders authorizing her travel from McKees Rock, Pennsylvania to Annapolis, Maryland to attend a three-day conference beginning on June 25, 2005. As a contract employee with the 99th Regional Readiness Command, Scott was tasked to provide administrative support for the Family Readiness Program conference at the Radisson Hotel in Annapolis. Scott's travel orders appeared to require that she travel to Maryland via commercial aviation and that she was not authorized to use a rental car. (Def.'s Mem. at Ex. 2, Travel Orders.) The travel orders were silent, however, on how Scott was to proceed from the airport to the conference center in Annapolis.
At 1:34 p.m., Scott rented an automobile from the Alamo, car rental center at BWI airport under her own name and with her own credit card.1 (See id. at Ex. 7, Alamo Contract.) It is not clear precisely what Scott did immediately after receiving her rental car, but two separate affidavits from Scott's supervisors note that Scott had stated an intention to visit friends in the Fort Meade area. (See id. at Ex. 3 ¶ 5, Ex. 4 ¶ 5.) Although neither of Scott's supervisors knew specifically what she was doing at the time of the accident, one of her supervisors, Barbara Wilson, averred that "the conference ... had not yet begun, and she [Scott] was not performing any duties related to the conference or Army business at the time of the accident." (Id. at Ex. 3 ¶ 4.)
Noting that she could check into the Annapolis hotel after 4:00 p.m. on June 24, Scott states in her affidavit that she went shopping at the Fort Meade Post Exchange ("PX") immediately prior to the accident. According to the government, Fort Meade is located approximately 16.9 miles from the Annapolis conference center. (Def.'s Mem. at 7.) It was upon leaving Fort Meade that Scott was involved in the traffic accident that ultimately resulted in the death of Gregory Kerns, Jr., an active duty member of the U.S. Navy. (Def.'s Reply Mem. at Ex. 1 ¶ 6, Scott Aff.) Scott suggests that had she "not been on invitational government travel orders and provided with an airline ticket by the U.S. Government to fly to BWI to be a briefer at a Key Volunteer and Staff Training meeting in Annapolis, Maryland, for benefit of the U.S. Army, [she] would not have been at FT Meade at the time of the collision, and this collision would not have occurred." (Id. at Ex. 1 ¶ 7.)
When FTCA subject matter jurisdiction is challenged under Rule 12(b)(1), the plaintiff bears the burden of persuasion and must establish an unequivocal waiver of immunity with respect to her claim. See Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995). There are two ways in which to present a 12(b)(1) motion for lack of subject matter jurisdiction. First, a defendant may claim that a complaint "simply fails to allege facts upon which subject matter jurisdiction can be based." Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982). In that case, all the facts alleged in the complaint are assumed to be true and the plaintiff is essentially given the same procedural protection as she would have under a Rule 12(b)(6) motion for failure to state a claim upon which relief may be granted. Id. Second, a defendant may claim that the jurisdictional allegations of the complaint are sufficient, but are not true. Id. In that event, the court may consider evidence beyond the pleadings in satisfying itself of its authority to hear the case without converting the proceeding to one for summary judgment. Williams, 50 F.3d at 304 (citing Mortensen v. First Federal Say. & Loan Ass'n, 549 F.2d 884, 891 (3rd Cir.1977)). The court must then weigh all the evidence to determine if there is jurisdiction. Adams, 697 F.2d at 1219.
This case involves the second kind of motion in that the United States is challenging Kerns' apparent belief that Scott was acting within the scope of her employment at the time of the accident. The evidence beyond the allegations found in the complaint, however, clearly establishes that Scott was not acting within the scope of her employment, thereby precluding the viability of a FTCA claim against the United States.
The FTCA allows a plaintiff to sue the United States for damages resulting from the torts of federal government employees acting within the scope of their employment to the extent that a private party would be liable for those acts under state law. 28 U.S.C. § 1346(b). Thus, the FTCA serves as a limited waiver of the sovereign immunity of the United, stated, allowing the government to be held liable for the negligent acts or omissions Of federal agents or employees. Williams, 50 F.3d at 305. It does not, however, waive the government's sovereign immunity for injuries resulting from the tortious Conduct of an employee when' an employer would not be vicariously liable under State law.
"The doctrine of respondeat superior, in Maryland, allows an employer to be held vicariously liable for the tortious conduct of its employee when that employee was acting within the scope of the employment relationship." Oaks v. Connors, 339 Md. 24, 660 A.2d 423, 426 (1995) (citing Dhanraj v. Potomac Elec. Power Co., 305 Md. 623, 506 A.2d 224 (1986)). An employee's tortious acts are within the scope of his employment if "they were in furtherance of the employer's business and were `authorized' by the employer." Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467, 470 (1991). This general rule has been narrowed with respect to the use of automobiles, where:
on account of the extensive use of the motor vehicle, with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice ... It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant's automobile, even though engaged at the time in furthering the master's business unless the master expressly or impliedly consents to the use of the automobile, and ... had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master's business that his control over it might reasonably be inferred.
Oaks, 660 A.2d at 426 (quoting Dhanraj, 506 A.2d at 226). Accordingly, "[t]he `right to control' concept is key to a respondeat superior analysis in the motor vehicle context." Id. at 426-27. Finally, because "[d]rtying to and from work is generally not considered to be within the scope of a servant's employment because getting to work is the employee's own responsibility and ordinarily does not involve advancing the employer's interests ... `absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." Id. at 427 (quoting Dhanraj, 506 A.2d at 226).
Here, Kerns is unable to offer or suggest that she could procure any evidence demonstrating that Scott was furthering her employer's interests or under her employer's control when she rented a car and drove to Fort Meade, located more than fifteen miles from the Annapolis conference center, the afternoon before her work conference was set to begin. First, Scott's affidavit clearly states that the accident occurred soon after she finished shopping at the Fort Meade PX. (Def.'s Reply Mem. at Ex. 1 ¶¶ 5, 6.) Scott gives no indication that she was shopping for or on behalf of her employer. Indeed, Scott's supervisor avers that Scott "was not performing any duties related to the conference or Army business at the time of the accident." (Def.'s Mem. at Ex, 3 ¶ 4.) To the contrary, Scott had told her two supervisors that she planned to rent, a car at BWI and visit friends at Fort Meade. (See Def.'s Mem. at Ex. 3 ¶ 5, Ex. 4 ¶ 5.) Second, although Scott's travel orders do not specify how the employees were to get from BWI to Annapolis, they apparently do not authorize a rental car. (Id. at Ex. 2, Travel Orders.) The fact that Scott did not request or receive reimbursement for the rental car only confirms this point. (Id. at Exs. 5, 6.) The evidence in this case thus indicates that Scott took advantage of the personal time she was afforded the day before her work-related conference was to begin by shopping at Fort Meade and possibly visiting friends. Moreover, these facts preclude Kerns...
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Kerns v. U.S.
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