Lumsden v. U.S.

• Decision Date: 07 May 2008
• Docket Number: No. 7:06-CV-60-F.,7:06-CV-60-F.
• Citation: 555 F.Supp.2d 580
• Parties: William K. LUMSDEN, Personal Representative of the Estate of Jamie Marie Lumsden, deceased; Candace Michelle Lee; Melanie L. Ritter; Michael M. Clark; and William B. Wilson, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of North Carolina

555 F.Supp.2d 580

William K. LUMSDEN, Personal Representative of the Estate of Jamie Marie Lumsden, deceased; Candace Michelle Lee; Melanie L. Ritter; Michael M. Clark; and William B. Wilson, Plaintiffs, v. UNITED STATES of America, Defendant.

No. 7:06-CV-60-F.

United States District Court, E.D. North Carolina, Southern Division.

May 7, 2008.

COPYRIGHT MATERIAL OMITTED

Jeffrey G. Weber, Anderson Weber & Henry, P.C, Kernersville, NC, Joseph L. Anderson, Anderson Pangia & Associates, PLLC, Winston-Salem, NC, for Plaintiffs.

Kelly Michele Perry, U.S. Attorney's Office, Raleigh, NC, for Defendant.

ORDER

JAMES C. FOX, Senior District Judge.

This matter is before the court on the Government's Motion to Dismiss [DE-11], The plaintiffs have filed a Response [DE-17], to which the Government filed a Reply [DE-21]. The motion is ripe for disposition.

I. FACTUAL AND PROCEDURAL BACKGROUND

The plaintiffs filed this personal injury and wrongful death action against the United States of America on April 25, 2006, pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680, et seq. In the light most favorable to the plaintiffs, the factual basis for their Complaint is as follows.

Prior to October 21, 2004, the Marine Corps, through its agents or officers, were aware that Marine Corps Private Lucas Borges had, on several occasions, acquired and inhaled the chemical compound, ether, belonging to the Government.¹ On or about October 21, 2004, agents or officers of the United States discovered² Private Borges again inhaling ether that belonged to the United States. Marine Corps agents or officers impounded Borges's car, in which the containers of the Government's ether were located.

Several days later, on November 3, 2004, agents or officers of the Marine Corps released to Borges the custody and control of his car—still containing the cylinders of ether. Private Borges then inhaled a sufficient quantity of the either to become extremely intoxicated. In that state of intoxication, Borges drove his vehicle eastbound in a westbound lane of Highway 24 in Onslow County, North Carolina, and slammed head-on into the vehicle in which the plaintiffs and Jamie Lumsden ("the plaintiffs") were riding. Jamie died from her injuries; the other plaintiffs were severely injured. Private Borges was convicted in state court of second degree murder, four counts of assault with a deadly weapon, and driving while impaired.

The Complaint sets out a single "Claim for Relief Negligence and Wrongful Death." Complaint [DE-1] at unnumbered p. 4.³ The plaintiffs seek damages from the Government under the FTCA for the allegedly negligent acts of its officers, agents and employees in delivering to Borges the Government's ether and the keys to his car, knowing of Borges's propensity to abuse the ether and become dangerously intoxicated. See id. at ¶ 21. The plaintiffs claim that Borges's intoxication from huffing the Government's ether resulted in his operating his car in such a manner as to cause a head-on collision with the plaintiffs' vehicle. The plaintiffs claim that the risk of serious injury and/or death was reasonably foreseeable in light of all the facts and circumstances then known to the Government. See id. at ¶ 25. The plaintiffs allege that, "as a direct and proximate result of the head-on collision," they suffered permanent and disabling injuries, and Jamie Lumsden died. The Complaint alleges that, "The collision and injuries, death and related damages were caused solely by the breach of Defendant's duties and by its negligent and careless acts and/or omissions of its agents, servants, officers and/or employees acting within the course and scope of their employment," in several ways, each of which involved the Government's making the ether and Borges's vehicle available to Borges with the knowledge that he abused ether as an intoxicant. Complaint [DE-1], ¶ 27.

The Government filed the instant Motion to Dismiss [DE-11] pursuant to 28 U.S.C. § 2680(h), and Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure on September 29, 2006. The Government since has withdrawn its primary argument for dismissal under Rule 12(b)(1)—that the Feres doctrine prevents this court from exercising subject matter jurisdiction over the plaintiffs' claims.⁴ The court, therefore, will not address that abandoned ground for dismissal. The Government also contends that the plaintiffs' claims arising out of alleged assault and battery are excluded by statute from the FTCA's waiver of immunity, see 28 U.S.C. § 2680(h), and therefore this court lacks subject matter jurisdiction over this case. As another ground for dismissal under Rule 12(b)(i), the Government asserts the "public duty" doctrine as an exception to the FTCA waiver of sovereign immunity.

The "public duty" doctrine also forms a basis for the Government's Rule 12(b)(6) motion to dismiss. The Government argues that application of the doctrine removes the necessary first element, duty, of negligence, and thereby prevents the plaintiffs from stating a claim under any theory of negligence.

II. THE PARTIES

Because more than the usual number of actors are involved in the events underlying this action, it will be helpful to designate them from the beginning. "The plaintiffs" are those persons named as such in the caption of the Complaint. "The Government" is the defendant in this action by operation of the FTCA. "The Government agents" are those individuals acting on behalf of the Government who performed allegedly tortious acts and/or omissions that are alleged to have been an actual and proximate cause of the plaintiffs' injuries and death. "Private Borges" or "Borges" is the actor through whom the Government's agents' negligence proximately and foreseeably caused injury and death to the plaintiffs.

III. ANALYSIS

A. Rule 12(b)(1) motion

The district court should grant a Rule 12(b)(1) motion to dismiss "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999) (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991)). As a general matter, "the plaintiff bears the burden of persuasion if subject matter jurisdiction is challenged under Rule 12(b)(1), because [t]he party who sues the United States bears the burden of pointing to ... an unequivocal waiver of immunity." Williams v. United States, 50 F.3d 299, 304 (4th Cir.1995) (internal citations omitted); see also Welch v. United States, 409 F.3d 646-649 (4th Cir.2005) (when an exception to the FTCA applies, sovereign immunity remains intact and federal courts lack subject matter jurisdiction), cert, denied, 546 U.S. 1214, 126 S.Ct. 1431, 164 L.Ed.2d 132 (2006).

Here, the Government contends that this court lacks subject matter jurisdiction because the plaintiffs cannot prove that the Government waived its sovereign immunity under the FTCA for the conduct upon which this Complaint is based. That is, the Government asserts it is entitled to the benefit of specific exceptions to its waiver of immunity.

(1) Assault and Battery

The Government's first ground for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1) is statutory. The Government explains that the FTCA deprives federal courts of jurisdiction to resolve "`[a]ny claim arising out of assault [or] battery.'" Government's Memorandum [DE-12] at 19 (citing 28 U.S.C. § 2680(h)).⁵ The Government's belief that such a claim is contained in the Complaint may arise by virtue of Private Borges's having been convicted, inter alia, of four counts of assault with a deadly weapon in Onslow County, North Carolina Superior Court.⁶

However, the Complaint cannot reasonably be read to allege that the plaintiffs are seeking relief from the Government arising from an intentional assault and battery inflicted by Private Borges. Indeed, the plaintiffs deny an intent to allege such a tort. Rather, the Complaint alleges "negligence and wrongful death" against the Government by virtue of acts and/or omissions of the Government agents other than Borges that proximately caused their injuries. See Complaint [DE-1], at unnumbered p. 4. The negligent conduct allegedly was that of the Government agents who delivered Borges's car keys and the ether to Borges. Borges's employment by the Government is irrelevant to the plaintiffs' theory of liability. See Sheridan v. United States, 487 U.S. 392, 402, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988) ("The negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of [the intoxicated person's—here, Borges's] employment status.").⁷ In this case as in Sheridan, "[bjecause neither [the intoxicated person's] employment status nor his state of mind has any bearing on the basis for petitioners' claim for money damages, the intentional tort exception to the FTCA is not applicable in this case." Id. at 403,108 S.Ct. 2449.⁸

Accordingly, the Government's Rule 12(B)(1) motion to dismiss for lack of subject matter jurisdiction on a theory that the Complaint seeks recovery for an intentional assault and battery is DENIED as baseless.

(2) "Public Duty" Exception

The Government also contends that this court lacks subject matter jurisdiction by operation of the "public duty" doctrine. That is, the Government contends that, even if the plaintiffs adequately have alleged a cause of action, any relief from the Government is barred by operation of the "public duty" exception to the Government's waiver of immunity under the FTCA, thus depriving this court of subject matter jurisdiction. This principle also is advanced in support of the motion to dismiss for failure to state a claim, and is discussed in conjunction with that analysis, below. The public duty doctrine has no...