Louie v. U.S.

Citation776 F.2d 819
Decision Date13 November 1985
Docket NumberNo. 84-4386,84-4386
PartiesClara LOUIE, Representative for Wayne Louie, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Neil J. Hoff, Tacoma, Wash., for plaintiff-appellant.

Gene S. Anderson, U.S. Atty., William Rubidge, Asst. U.S. Atty., Tacoma, Wash., for defendant-appellee.

Appeal from the United States District Court for the Western District of Washington; District Judge Jack E. Tanner, Presiding.

Before EUGENE A. WRIGHT, PREGERSON and ALARCON, Circuit Judges.

EUGENE A. WRIGHT, Circuit Judge:

Although several issues are raised on appeal, we are concerned primarily with the question: Did the government have a special relationship with an off-duty soldier involved in a fatal accident to make it liable under the Federal Tort Claims Act for a death on a public highway?

FACTS

About 9:00 p.m. on August 12, 1982, Deputy Daniel Hudson of the Pierce County Sheriff's Office stopped a private car driven by James Rowe, an off-duty soldier stationed at Fort Lewis, Washington. Following field sobriety tests, Rowe was arrested for driving while under the influence of alcohol (DWI). Deputy Hudson took Rowe to a precinct office. His car was left at the site of the initial stop, several miles from the main gate at Fort Lewis. Rowe kept the car keys. At the sheriff's office, a breathalyzer test on Rowe registered .16+ percent alcohol. Deputy Hudson then cited Rowe for violation of the county criminal code for DWI.

About 10:00 p.m., Deputy Hudson telephoned the military police at Fort Lewis to get transportation for Rowe back to his duty unit. Hudson spoke with Sergeant Emil, the Military Police (MP) Desk Sergeant, and Sergeant Webber, the Charge of Quarters (CQ) on duty at Rowe's unit. Hudson told both sergeants that Rowe had been arrested for DWI. Sergeant Webber asked Deputy Hudson to return Rowe to the MP at the post main gate.

When Hudson and Rowe arrived at Fort Lewis, Specialist Four Wendt, MP on duty at the main gate, called his headquarters which dispatched MP Hamlin in a patrol car to get Rowe and return him to his quarters. In a sworn statement, Wendt stated that he was told of Rowe's DWI but that Rowe was cooperative and caused no problems at the main gate.

Hamlin denied knowledge of Rowe's DWI off-post arrest and testified that Rowe did not seem drunk at the time of the "courtesy ride" to his quarters. Both Wendt and Hamlin observed that Rowe was quiet and cooperative. Sergeant Webber testified that he expected Rowe to report to the unit CQ desk, but he did not see Rowe at all that night. MP Hamlin testified that he left Rowe in front of the door to his barracks and watched Rowe proceed inside the building in an orderly manner.

About 2:30 a.m. the next morning, Rowe drove his car on an interstate highway, heading south in the northbound lanes, and collided head-on with the car of Wayne Louie, who was killed instantly. The hospital blood alcohol test performed on Rowe one hour later indicated a level of .20 percent alcohol. Rowe sustained substantial brain injury and remains seriously impaired and confined to a wheelchair. Louie's widow, the appellant, sued the United States and Rowe under the Federal Tort Claims Act (FTCA), 28 U.S.C. Sec. 1346(b) (1982), seeking damages for wrongful death. 1

PROCEEDINGS BELOW

Following a bench trial, the district court made findings of fact and conclusions of law. It found that the accident and death of Wayne Louie were the proximate result of the negligence of Rowe. It concluded, however, that "[t]he Defendants, United States Army and the United States of America, had no duty to Plaintiffs herein." The court entered judgment for the defendant.

Louie moved under Rule 52(b), Fed.R.Civ.P., to amend the findings and conclusions, contending that two essential issues of material fact were not addressed: (1) whether a "special relationship" existed between Rowe and the United States within the meaning of Restatement (Second) Torts Sec. 315, and (2) whether, under Washington law, a civilian police authority would be liable to the plaintiff on the facts in this case. Louie requested in the alternative that the district court certify the second issue to the Washington Supreme Court. The motion to amend was denied, and Louie timely appealed.

On appeal, Louie presents these issues:

(1) Whether the court erred in denying the motion to amend under Fed.R.Civ.P. 52(b) because it failed to address material issues;

(2) Whether it erred in failing to certify a question of state law to the Washington Supreme Court;

(3) Whether it erred in its application of controlling law under the Federal Tort Claims Act; and

(4) Whether multiple and cumulative errors of law and procedure by the district court denied plaintiff/appellant a fair and impartial trial.

ANALYSIS
I. Standard of Review

We review the court's findings of fact under the "deferential, clearly erroneous standard." United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); Fed.R.Civ.P. 52(a).

The findings and conclusions here focus on whether the government was negligent in failing to control more carefully the actions of Rowe during the several hours prior to the fatal accident. Although the determination of whether established facts constitute negligence involves a mixed question of law and fact, the "mixed question of negligence" is an exception to the general rule that mixed questions are reviewed de novo. McConney, 728 F.2d at 1204. We shall review the district court's findings and conclusions under the clearly erroneous standard. 2

"The existence and extent of a duty of care are questions of law," Armstrong v. United States, 756 F.2d 1407, 1409 (9th Cir.1985), which are determined by reference to Washington law. This circuit reviews de novo a district court's interpretation of state law. Matter of McLinn, 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).

II. Adequacy of Findings and Conclusions

The standard for adequacy of factual findings in this circuit is "whether they are explicit enough on the ultimate issues to give the appellate court a clear understanding of the basis of the decision and to enable it to determine the grounds on which the trial court reached its decision." Nicholson v. Board of Education Torrance Unified School District, 682 F.2d 858, 866 (9th Cir.1982) (citing South-Western Publishing Co. v. Simons, 651 F.2d 653, 655 (9th Cir.1981), cert. denied, 455 U.S. 1018, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982)); see also Clady v. County of Los Angeles, 770 F.2d 1421, 1433 (9th Cir.1985) (findings adequate if they are sufficiently comprehensive to provide a basis of decision and are supported by the record).

A district court's failure expressly to include necessary findings does not require remand if a complete understanding of the issues may be had from the record. Swanson v. Levy, 509 F.2d 859, 861 (9th Cir.1975). We may affirm a judgment on the basis of any evidence in the record that supports it. Nicholson, 682 F.2d at 866 n. 11.

The crucial issue here is whether the government had a duty to control an off-duty serviceman that would give rise to negligence liability under the Federal Tort Claims Act, based on an application of Washington law. Although the findings and conclusions in this case are not comprehensive, we find no need to remand for more findings because we can discern from the record the basis of the trial court's decision.

The colloquies between counsel and the district judge on the government's motions to dismiss disclose fully the judge's focus on whether a "special relationship" existed between the government and Rowe. Judge Tanner was persistent in focusing attention on the issue of negligence liability under Washington law.

Appellant contends that the court failed to address the alleged special relationship between the government and Rowe. The record supports our conclusion that the court relied to a considerable extent on the absence of a special relationship as a basis for concluding that the government owed Louie no duty to control an intoxicated soldier. 3

The record gives sufficient information to give us a clear understanding of the basis of the court's decision. This conclusion that the government owed no duty to appellant properly rested on a consideration of negligence liability under Washington law, including whether a special relationship existed between the government and Rowe. 4 While more explicit findings and conclusions would obviate the need to rely on the trial record, we decline appellant's invitation to remand to amend the findings and conclusions. In addition, because the findings and conclusions were adequate, the district court did not err in denying appellant's motion to amend.

III. Failure to Certify Question of State Law

Appellant contends that the court erred when it declined to certify to the Washington Supreme Court the question whether civilian police, situated as was the government in this case, would be liable for the actions of an intoxicated person. We note that the issue of certification was first raised in a post-judgment memorandum and that appellant requested certification only "[i]f the Court is hesitant to interpret local law with respect to the issue...." Indeed, throughout the trial and in her briefs on appeal, appellant did not contend that the relevant state law was too uncertain to be determined and applied by the federal court.

The appellant listed the certification issue on appeal, but did not brief it. Nor did the government. This court "will not ordinarily consider matters on appeal that are not specifically and distinctly raised and argued in appellant's opening brief." International Union of Bricklayer & Allied Craftsman v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985).

We find that the issue...

To continue reading

Request your trial
70 cases
  • Richardson v. City and County of Honolulu, Civ. No. 91-00725 DAE.
    • United States
    • U.S. District Court — District of Hawaii
    • 16 September 1992
    ...certify a state law question to the state supreme court rests in the sound discretion of the federal district court. Louie v. United States, 776 F.2d 819, 824 (9th Cir.1985). In order for a federal court to be able to certify a question to a state supreme court, the state court must provide......
  • Wise v. U.S.
    • United States
    • U.S. District Court — Eastern District of Virginia
    • 9 June 1998
    ...does not create a "special relationship" giving rise to a special duty to control their off-duty actions. See Louie v. United States, 776 F.2d 819, 827 (9th Cir.1985). As in Fox, defendant in the instant case did not exert "continuous hourly or daily dominance and dominion" over Turner and ......
  • Bowling v. U.S.
    • United States
    • U.S. District Court — District of Kansas
    • 17 September 2010
    ...354 (1957) (emphasis added). 57 United States v. Olson, 546 U.S. 43, 46, 126 S.Ct. 510, 163 L.Ed.2d 306 (2005). 58 Louie v. United States, 776 F.2d 819, 824 (9th Cir.1985); United States v. Inmon, 205 F.2d 681, 684 (5th Cir.1953); Costley v. United States, 181 F.2d 723, 725 (5th Cir.1950); ......
  • Anderson v. Cornejo
    • United States
    • U.S. District Court — Northern District of Illinois
    • 4 September 2003
    ...governmental employees may apply under the FTCA. See Crider v. United States, 885 F.2d 294, 296-97 (5th Cir.1989); Louie v. United States, 776 F.2d 819, 825 (9th Cir. 1985). Cases from the federal district courts in Illinois have consistently reached the same conclusion regarding Illinois's......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT