Mariano v. United States, Civ. A. No. 76-502-N.

• Decision Date: 17 November 1977
• Docket Number: Civ. A. No. 76-502-N.
• Citation: 444 F. Supp. 316
• Parties: Frederico C. MARIANO, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

444 F. Supp. 316

Frederico C. MARIANO, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 76-502-N.

United States District Court, E. D. Virginia, Norfolk Division.

November 17, 1977.

David P. L. Berry, John B. Gaidies, Norfolk, Va., for plaintiff.

Michael A. Rhine, Asst. U. S. Atty., Norfolk, Va., for defendant.

MEMORANDUM ORDER

KELLAM, Chief Judge.

Plaintiff, a Chief Petty Officer on active duty in the United States Navy, seeks to recover compensation from the United States under the provisions of the Federal Tort Claims Act, 28 U.S.C. Section 1346(b) and Section 2671 et seq. for injuries sustained while working as a part-time employee of the Navy Enlisted Mess Open, known as the Tradewinds Club, a non-appropriated fund activity situated on the Naval Station, Norfolk, Virginia (Tradewinds). He filed his claim with the Commanding Officer of the Naval Base, Norfolk, which was denied by the Department of the Navy on the grounds that the United States had no liability for such injury. This suit followed.

I

On September 28, 1973, plaintiff was working as a part-time employee during his off-duty hours in the Tradewinds Club. At time of the injury, he was attached to a command located on the Naval Station, Norfolk. Part-time employment was permitted by the Chief of Naval Personnel, as provided for in Special Services and Messes Personnel Manual, para. 202 which provides in part that "enlisted personnel, whether or not regularly assigned to the non-appropriated fund activity, may be hired in a civilian capacity and paid from non-appropriated funds." The regulation provides that such work must be performed during off-duty hours, must be voluntary, and must not interfere with the proper performance of such person's military duties. Nor may such a person be hired in such a position which regularly involves more than 32 hours of work per week.

At time of the accident and injury on July 13, 1974, plaintiff was in an off duty status from his command, on liberty, but not on leave. He was subject to recall to his command at any time while he was working in the Tradewinds Club. In the performance of his duties at the Tradewinds Club, he was serving as a night manager at the front desk checking identification cards. Some four or more night managers or assistant managers are employed at the Club. While on duty in the Club, he heard a call over the public address system for night managers to proceed to the bar room to provide assistance. As he proceeded, he observed three or four people running in his direction, which was near the main entrance. He heard one of the night managers shout "stop that man." Plaintiff grabbed a man, later identified as Seaman Ray Smith, identified himself and told Smith he was under arrest. He held Smith under control briefly, but a crowd of young black patrons surrounded plaintiff and Smith and commenced assaulting plaintiff, shouting "Don't let our brother be taken away." Smith escaped. Plaintiff pursued one of those who had assaulted him and observed Smith being caught and restrained by one of the night managers. Smith again broke away from the restraint and threw a glass at plaintiff, striking him in the face. As a result of the striking, plaintiff sustained loss of vision in his right eye.

After hospitalization and treatment, plaintiff returned to and continues on active duty as a Petty Officer in the United States Navy. He received and is still receiving full medical treatment and care provided by the Navy.

II

Plaintiff grounds his right of recovery under the Federal Tort Claims Act, contending that at time of his injury plaintiff was employed in a "civilian capacity" and that the injury did not arise out of activities incident to his military service. He asserts the injury arose in part-time employment during his off duty hours.

The alleged negligence of the United States is in the assertions that (a) the defendant failed to provide plaintiff with a safe place within which to work, and (b) failed to provide plaintiff with reasonably safe and suitable tools to perform his duties.

The Tradewinds Club is a non-appropriated instrumentality, owned and operated by the United States at the Naval Station, Norfolk. The policies, regulations and procedures for the operation of all enlisted messes ashore, including the Tradewinds Club, are under the technical direction of the Chief of Naval Personnel. Requirements, duties, instructions and guidelines for the operation and administration of such clubs are set forth in the instruction manuals prepared by the Chief of Naval Operations. Such manuals state that the purpose for the establishment and maintenance of such facilities is the well-being, morale and efficiency of enlisted personnel. The operation of such facilities is the direct responsibility of the Commanding Officers to the same extent as any other elements or facilities of their command. Under the direction of the Chief of Naval Personnel, Commanding Officers have the responsibility to issue appropriate regulations and instructions for the operation of such facilities.

At the time of the injury Captain Samuel S. Anders, Jr. was the Commanding Officer of the Naval Station, with overall command over the Tradewinds Club. The next in line under Captain Anders was civilian employee Robert E. DeVary, Director of Special Services. Director of the enlisted messes was civilian Samuel G. Copeland, and on the date of the injury, directly under Copeland, was civilian employee Hollifield, who was the day to day manager of the Club. Hollifield was assisted by three assistant managers, who were sometimes referred to as duty night managers, two of whom were civilian employees, and one of whom was an active duty enlisted man working as a part-time employee. Assisting these persons in the operation of the Club and the maintenance of order were night managers. All of the night managers were active duty petty officers or non-commissioned officers, who were said to have been selected because they had demonstrated military leadership ability. Administrative and operational instructions for the Club were issued or approved by the Commanding Officer. Club privileges were extended to those having connection with the Armed Forces. Authorized persons were permitted one civilian guest. The manual of the Naval Station set forth directions and guidelines for the maintenance of order in the Club.

III

Prior to July 1973 the Tradewinds Club had been operated and administered by the Naval Exchange Officer under the Navy Exchange System. During the term of its operation and for a while after Special Services took over the operation of the Club, uniformed civilian police of the Naval Station Special Police Force and active duty personnel of the Shore Patrol, in uniforms, were on active duty inside the Club to maintain order. The night managers who were then called the Security Force under the Navy Exchange System carried handcuffs on their persons.

Under the operation of the Navy Exchange and Special Services, disturbances arose at the Club. Some were minor and on other occasions the Special Police Force was requested to lend assistance. At times, customers of the Club were arrested or taken into custody, incarcerated or returned to their command for action.

Complaints were made that the night managers were misusing their authority and that the presence of uniformed police and shore patrolmen contributed to the problem of disorder within the Club. The Commanding Officer, the Chief of Police, the Special Services Officer, and the Enlisted Mess Director, after discussion, all concluded that the presence of Special Police Force and shore patrol personnel antagonized the patrons of the Club. By agreement of all...