Lutz v. U.S.

Citation685 F.2d 1178
Decision Date02 September 1982
Docket NumberNo. 81-3204,81-3204
PartiesLinda E. LUTZ, as parent and next friend of Catherine Lutz, a minor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1178

685 F.2d 1178
Linda E. LUTZ, as parent and next friend of Catherine Lutz,
a minor, Plaintiff-Appellant,
UNITED STATES of America, Defendant-Appellee.
No. 81-3204.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted April 8, 1982.
Decided Sept. 2, 1982.

Page 1181

R. Keith Strong, Church, Harris, Johnson & Williams, Great Falls, Mont., for plaintiff-appellant.

Allen R. McKenzie, Asst. U. S. Atty., Butte, Mont., for defendant-appellee.

Appeal from the United States District Court for the District of Montana.

Before HUG, SKOPIL, and FLETCHER, Circuit Judges.

HUG, Circuit Judge:

Linda Lutz brought this action under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, on behalf of her daughter, Catherine. The child was severely injured by dog bites while residing in base housing at Malmstrom Air Force Base. Lutz claimed that the dog's owner was negligent in failing to control the animal, and that because the negligent acts occurred within the scope of the dog owner's Air Force employment, the United States was liable for Catherine's injuries. The district court concluded that because the dog owner was not acting within the scope of his employment, there could be no liability under the FTCA. We disagree with that conclusion and reverse the district court judgment.


The injury to Catherine Lutz occurred in August, 1978, when she was two years old. Catherine's father was an Air Force enlisted man, and the family resided in base housing at Malmstrom Air Force Base, near Great Falls, Montana. It was Air Force policy to encourage enlisted persons to live in base housing. Those choosing to live off-base had to obtain permission, and the housing allotment provided for enlisted persons was insufficient to cover off-base rentals. As a result, a very high occupancy rate was achieved at Malmstrom, with six to seven thousand persons residing in base housing.

The housing area in which the Lutz family lived consisted of small mobile homes surrounded by unfenced grass areas. The homes were situated very close to one another, and no barriers separated them. Residents were responsible for the upkeep of their yards. They were allowed to have pets, but were charged by Base Regulation 125-5 with control of any animals brought onto any part of the base. Section (d) of the regulation read in part:

(2) Control: The control of a pet is the owner's responsibility. When outside of the owner's quarters, pets will be kept on a leash or chain or under the direct voice control of a responsible person. Pets found wandering on base will be picked up by the Security Police whenever possible.

Colonel James Henry, the officer in charge of base housing and other support facilities at Malmstrom, testified that the base security police enforced this regulation, and that persons who failed to comply were subject to military discipline.

The mobile home adjoining the Lutzes' was occupied by Airman Harris and his family. Harris owned several dogs, including a wolf-malemute cross he named Satan. That dog was generally kept chained to the back of Harris's mobile home. On the day of the incident on which this case is based, Catherine and her sister were playing near their home. The dog entered the Lutzes' yard and attacked Catherine. She suffered multiple severe bite wounds on her face and shoulders. Despite corrective surgery, she is permanently scarred and may have sustained damage to sensory nerves. Further surgery will be required when Catherine is older. In addition, the district court found that she "suffered great pain during and after the attack and faces the prospect of

Page 1182

further psychological and psychiatric treatment."

Lutz brought this action against the United States, claiming that Airman Harris was acting within the scope of his employment when he negligently failed to control the dog, and that the United States was therefore liable. Damages were sought for Catherine's future medical expenses, including psychiatric care, and her pain and suffering.

After a bench trial, the district court awarded judgment to the United States, concluding that "(i)n keeping the animal which caused the tragic injuries to Catherine Lutz, Airman 1st Class Harris was not acting in the line of duty, but, rather, was acting for his own benefit." The court made no finding as to whether Harris had been negligent. It did find that, had liability existed, reasonable damages would include $5,000 for psychiatric treatment, $25,000 for past pain and suffering, and $10,000 for future pain, suffering, and emotional difficulties.


The FTCA constitutes a waiver of the Government's immunity to suit only as to personal injuries caused by an "employee of the Government while acting within the scope of his office or employment ...." 28 U.S.C. § 1346(b). Where the employee is a member of the military, the scope of employment "means acting in line of duty." 28 U.S.C. § 2671. "Line of duty" is defined in turn by the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam); Dornan v. United States, 460 F.2d 425, 427 (9th Cir. 1972).

We defer to the district court's interpretation of state law, here the Montana law of respondeat superior. Allen v. Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981). However, we are required to apply that interpretation to the historical facts to determine if the government employee acted within the scope of his employment. Where, as here, those facts are not in dispute, the determination of the scope of employment is a question of law, and thus freely reviewable by this court. Dornan, 460 F.2d at 429; see also Craft v. United States, 542 F.2d 1250, 1252 (5th Cir. 1976).

Accordingly, we adopt the view of the district court that under Montana law, an employee who acts entirely for his own benefit is generally held to be outside of the scope of his employment, and his employer is relieved of liability. See Kornec v. Mike Horse Mining & Milling Co., 120 Mont. 1, 180 P.2d 252, 256 (1947); Ellinghouse v. Ajax Live Stock Co., 51 Mont. 275, 152 P. 481, 485 (1915). We note, however, that the fact that the employee deviates from express instructions or acts "in utter disobedience thereof" generally does not relieve the employer of liability. Keller v. Safeway Stores, Inc., 111 Mont. 28, 108 P.2d 605, 611 (1940). "The test of the (employer's) liability is not whether the (act) was committed in accordance with the master's instructions but whether the act complained of arose out of and was committed in prosecution of the task the servant was performing for his master." Kornec, 180 P.2d at 257.

The act to which the district court applied its interpretation of Montana law was the ownership of the dog. Because it found that ownership of a pet was a choice freely made by the base resident, and because that ownership was of no discernible benefit to the Air Force, the court concluded that Harris acted purely for his own benefit.

While we do not dispute these findings, we do not conclude this case turns on Harris's decision to own a dog. The claims of negligence go to Harris's acts or omissions in controlling the dog, and it is to those acts that the scope of employment analysis must be applied.

Colonel Henry, who is charged with the ultimate enforcement of Base Regulation 125-5, testified that the purpose of the regulation was to promote health and safety on the base, to ensure that the base functioned properly, and to assure that residents did not infringe their neighbors' rights. To achieve these goals, Regulation

Page 1183

125-5 is supported by a dual enforcement system. First, base security police patrol to pick up stray dogs. They also act on reports of stray dogs or dog bite incidents. However, the number of residents and pets limits the effectiveness of control by the security police. The base therefore relies primarily upon the second enforcement mechanism, control by the individual pet owner. The regulation requires that the owner exercise total control of the pet anywhere on the base. It thus delegates to the dog owner partial responsibility for this base security function. When the dog owner voluntarily brings a pet onto the base, he is assigned a mandatory, affirmative duty to protect the health and safety of all base residents by controlling the animal. If he fails to perform this assigned duty, he is subject to military discipline. This potential penalty underscores the importance of this duty to overall base security.

In Williams v. United States, 248 F.2d 492, 506 (9th Cir. 1957), we held that a soldier's act fell within the scope of his employment when he was "engaged in performing any duty or duties directly or indirectly associated with normal and regular army activities." We view base security as a regular military activity. Clearly, the employee to whom the security duty is delegated cannot be said to act entirely for his own benefit. Upon assignment of that duty, the employee who controls his dog acts in furtherance of his employer's interest in promoting order and safety on the base. We conclude that this security duty was delegated to Airman Harris, and thus controlling the dog was within the scope of his employment.

The district court expressed concern that imposing liability on the United States in...

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