Knight v. United States, Civ. No. C-72-208.

• Decision Date: 31 October 1972
• Docket Number: Civ. No. C-72-208.
• Parties: Henry L. KNIGHT, Administrator of the Estate of John Dawson Knight, Plaintiff, v. The UNITED STATES of America, Defendant.
• Court: U.S. District Court — Western District of Tennessee

361 F. Supp. 708

Henry L. KNIGHT, Administrator of the Estate of John Dawson Knight, Plaintiff, v. The UNITED STATES of America, Defendant.

Civ. No. C-72-208.

United States District Court, W. D. Tennessee, Western Division.

October 31, 1972.

Lucius E. Burch, Jr., Joel Porter, Burch, Porter & Johnson, Memphis, Tenn., for plaintiff.

Thomas F. Turley, Jr., U. S. Atty., Glen Reid, Jr., Asst. U. S. Atty., Memphis, Tenn., for defendant.

MEMORANDUM DECISION

BAILEY BROWN, Chief Judge.

This action was brought, pursuant to the Federal Tort Claims Act, by Henry L. Knight for the wrongful death of his son, Corporal John Dawson Knight. Corporal Knight's death occurred on the night of March 31, 1970, as a result of his drowning in the enlisted men's swimming pool at the Naval Air Station in Millington, Tennessee. The plaintiff claims that Corporal Knight's death was the direct and proximate result of the negligence of the Government, acting through its agents, in the design, construction, maintenance and operation of the pool.

Only under some circumstances may a serviceman or his representative maintain an action under the Tort Claims Act. The threshold question for our determination is whether this particular plaintiff may maintain this action. The Government contends that the plaintiff may not and has filed a motion for summary judgment. A hearing was held, evidence taken and argument heard. We believe that the case is now ripe for disposition on summary judgment. The purpose of this memorandum decision is to express the reasons for our determination that the motion for summary judgment should be granted.

I. Facts

The facts insofar as they are pertinent to this motion are as follows. At the time of his death, Corporal Knight was stationed at Millington and on active duty. He drowned at approximately 8:00 P.M. in a pool that was open to civilians as well as servicemen. At the time the tragedy occurred, a Boy Scout troop was using the pool.

At the time of his death Corporal Knight was using the pool for recreational purposes. Having completed his normal daily military duties, he was on "authorized liberty," a status which entitled him to engage in personal activities on or off the base until it was time for him to report to work at 8:00 A.M. the next day. Nevertheless, Corporal Knight was still subject to military orders throughout the course of his liberty status. As testified to by Captain Richard Rogers of the Naval Judge Advocate General Corps, all naval personnel using the pool are subject to any lawful orders given them, including any orders issued by a Navy lifeguard. Captain Rogers further testified that if one of the naval personnel disobeyed a lawful command of a lifeguard, he would be subject to military discipline, whereas a civilian who disobeyed such an order could not be punished by military authorities. Though, at the time of his death, Corporal Knight was subject to any lawful order given him, the record does not establish whether there were actually present at the scene of the accident any lifeguards who had given, or were in a position to give, Corporal Knight any lawful orders. For purposes of this motion we shall assume that at the time the tragedy occurred there were no lifeguards present at the scene of the accident and that Corporal Knight was not acting under any military order.

II. The Brooks-Feres-Brown Line of Cases

In three cases spanning the years, 1949-1954, the United States Supreme Court attempted to define the circumstances under which a serviceman could maintain an action for personal injury under the Tort Claims Act. The first of these cases, Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), held that servicemen were entitled to recover under the Tort Claims Act for injuries which would otherwise be actionable, provided the injuries were not "incident to their service." The two plaintiffs in Brooks were brothers who, while on furlough from the army, were injured on a public highway when the privately owned automobile in which they were riding was struck by an army truck being driven by a civilian employee. The Court held that the plaintiffs' injuries were not incident to their military service and, thus, allowed recovery under the Act. The Court was careful to confine its holding to cases involving injuries which were not "incident to service." Thus, the Court said at 337 U.S. 52, 69 S.Ct. 920:

"The Government envisages dire consequences should we reverse the judgment. A battle commander's poor judgment, an army surgeon's slip of hand, a defective jeep which causes injury, all would grant tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks' service, a wholly different case would be presented."

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court was again called upon to determine the circumstances under which servicemen could bring actions under the Tort Claims Act. Stating that the case before it was the "`Wholly different case' reserved from our decision in Brooks," 340 U.S. at 138, 71 S.Ct. at 155, the Court, in denying recovery, held that the Tort Claims Act does not extend its remedy to members of the armed forces who sustain "incident to their service" what would otherwise be an actionable wrong. Feres involved three separate cases which came up from three different circuits. One plaintiff was the representative of an army officer whose death was caused by a fire in an allegedly unsafe barracks where he was quartered while on active duty. Another plaintiff was the representative of a soldier whose death was allegedly caused by negligent and unskillful treatment by army surgeons while he was on active duty. The third plaintiff was injured when a towel was left in his stomach during the course of an operation he was required to undergo while in the army.

In reaching its decision, the Court primarily relied on that part of the Tort Claims Act which reads: "The United States shall be liable . . . in the same manner and to the same extent as a private individual under like circumstances . . . ." 28 U.S.C. § 2674. The Court concluded that the claims were not within the scope of this language, because there existed no analogous liability on the part of either an individual or a state. The Court said at 340 U.S. 141-142, 71 S.Ct. 157:

"One obvious shortcoming in these claims is that plaintiffs can point to no liability of a `private individual' even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving. Nor is there any liability `under like circumstances,' for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command."

Noting that Congress had provided that the law governing a claim brought under the Tort Claims Act is to be the law of the state where the act or omission occurred, the Court also reasoned that the uniquely federal relationship of a soldier to the Government should not be disturbed by state laws. Along this same line, the Court said that it would be unfair to subject servicemen to the variations in state law, since they have no say in where they are assigned.

The next case in which the Supreme Court had occasion to consider a claim brought by a serviceman was United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). That case involved a serviceman who, after his discharge from the service, suffered an injury to his knee when an allegedly defective tourniquet was used during the course of an operation performed in a Veterans Administration hospital. He had originally hurt his knee while on active duty. The Court held that the plaintiff could maintain an action under the Tort Claims Act for damages arising out of the operation. The Court held the action maintainable because the injury was not incurred while the plaintiff was on active duty or subject to military discipline. In so holding, the Court said that it was adhering "to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty." 348 U.S. at 113, 75 S.Ct. at 144.

III. Recent Sixth Circuit Pronouncement: The Hale Opinions

The Sixth Circuit had an opportunity to deal with a serviceman's claim under the Tort Claims Act in Hale v. United States, 416 F.2d 355 (1969). That case came up to the Court of Appeals on an appeal from the District Court's order granting the Government's motion to dismiss without a hearing. Because of the posture of the appeal, the Court of Appeals recited the facts as they were stated in the complaint. Those facts may be summarized as follows. On March 2, 1965, at approximately 12:45 A.M., the plaintiff, an army private, was standing on the curb of the main highway which runs through Clarksville, Tennessee, waiting for a ride back to Fort Campbell in Kentucky when a military police truck approached him and stopped. According to the complaint, one of the two men riding in the front of the truck "ordered" the plaintiff to come out into the highway where the military police vehicle was stopped. The same man then asked the plaintiff whether he was a civilian or a serviceman. The plaintiff stated that he was a soldier, whereupon the man asked to see his identification. After checking the identification, the M.P. told the plaintiff to get into the back of the truck and they would give him a ride back to Fort Campbell. The plaintiff walked around to the back of the vehicle at which time he was struck by an oncoming car.

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