Mariano v. U.S., 77-2634

• Decision Date: 05 September 1979
• Docket Number: No. 77-2634,77-2634
• Citation: 605 F.2d 721
• Parties: Federico C. MARIANO, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 721

605 F.2d 721

Federico C. MARIANO, Appellant, v. UNITED STATES of America, Appellee.

No. 77-2634.

United States Court of Appeals Fourth Circuit.

Argued May 10, 1979.

Decided Sept. 5, 1979.

David P. L. Berry and John B. Gaidies, Norfolk, Va. (Anderson & Berry, Norfolk, Va., Rixey & Heilig, Norfolk, Va., on brief), for appellant.

Charles R. Dalton, Jr. and James A. Metcalfe, Seawell, McCoy, Dalton, Hughes, Gore & Timms, Norfolk, Va. (William B. Cummings, U. S. Atty., Alexandria, Va., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, and WIDENER and HALL, Circuit Judges.

K. K. HALL, Circuit Judge:

Federico Mariano, a Chief Petty Officer at the Norfolk Naval Station, sought compensation under the Federal Tort Claims Act for injuries he sustained while working as night manager at the Tradewinds Club, a recreational facility maintained on the base by the government. Following a nonjury trial, the district court dismissed Mariano's complaint, ruling that his injury was incident to his military service and that recovery therefore was precluded. We affirm the judgment of the district court.

In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the Supreme Court ruled that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159. The Court denied recovery in each of the three cases consolidated in Feres, and stated that "(t)he common fact underlying the three cases is that each claimant, while on active duty and not on furlough, sustained injury due to negligence of others in the armed forces." 340 U.S. at 138, 71 S.Ct. at 155. This court has adopted that statement as the proper test of whether an injured serviceman's recovery under the Federal Tort Claims Act is barred, and has held that "an active-duty serviceman, temporarily in off-duty status and engaged in recreational activity on a military base, cannot sue the United States for the alleged negligence of another serviceman or civilian employee of the military." Hass v. United States, 518 F.2d 1138, 1142 (4th Cir. 1975).

At the time of his injury, Mariano was in an off-duty status from his command, on liberty but not on furlough. He was working as night manager at the Tradewinds Club, a recreational facility owned and operated by the United States to promote the well-being, morale and efficiency of enlisted personnel. Mariano was attempting to quell a disturbance in the Club when he was struck in the face by a glass thrown by a Navy Seaman. He claims that his injury was the result of negligence of the Club's other employees and the government's negligence in failing to employ a sufficient number of adequately trained and equipped personnel...