Martinez v. US, Civ. A. No. D:87-3067-8.

• Decision Date: 03 July 1990
• Docket Number: Civ. A. No. D:87-3067-8.
• Citation: 740 F. Supp. 399
• Parties: Chris Ann MARTINEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of South Carolina

740 F. Supp. 399

Chris Ann MARTINEZ, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. D:87-3067-8.

United States District Court, D. South Carolina, Beaufort Division.

July 3, 1990.

F. Mikell Harper, Beaufort, S.C., for plaintiff.

Heidi M. Solomon, Asst. U.S. Atty., Charleston, S.C., for defendant.

ORDER

BLATT, Senior District Judge.

On May 14, 1986, plaintiff was struck by a white pick-up truck while jogging on the shoulder of Yorktown Boulevard, Marine Corps Depot, Parris Island, South Carolina. The truck was driven by Michael R. Fenn, Jr., a United States Marine. Fenn was arrested by military authorities and court martialed on August 5-6, 1988. At this court martial, Fenn pleaded guilty to two offenses: leaving the scene of the accident and aggravated assault. As there was no plea bargain, Fenn was also tried and convicted by the court of assault with intent to commit murder.

Plaintiff brought this action against the United States, pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b) et seq., requesting recovery for damages sustained as a result of Fenn's hitting her with his truck.¹ In her complaint, plaintiff characterizes Fenn's action as "negligent", and, additionally, asserts that the United States negligently failed to supervise Fenn. The United States asserts several defenses to plaintiff's complaint. It denies that Fenn was under any supervision at the time he struck plaintiff, and it further denies that Fenn was acting within the scope of his government employment at the time of the incident. Finally, the United States asserts that Fenn's conduct was done intentionally and, therefore, is barred by the "assault" exception to the FTCA, 28 U.S.C. § 2680(h).

Defendant United States had previously filed a motion to dismiss, or in the alternative for summary judgment, asserting that this suit was barred by the assault exception, that Fenn was not within the scope of his employment, and that this action was barred by collateral estoppel. This motion was denied by the court on December 28, 1988. Martinez v. Fenn, 702 F.Supp. 126 (D.S.C.1988). In denying defendant's motion to dismiss, the court focused on the "assault exception" defense. Finding that under federal common law assault does not necessarily include the element of intent, the court held that Fenn's plea in the military court did not rise to the level of an "assault" for purposes of 28 U.S.C. § 2680(h). At the time the court decided the motion to dismiss, however, the court had not been apprised by the parties, nor was this issue raised by the United States, of the fact that Fenn was also tried and convicted in the charge of "assault with intent to commit murder". Transcript of Court Martial, at 251.

The Government brought to the court's attention Fenn's conviction of assault with intent to commit murder in a motion for summary judgment filed March 13, 1989. At the trial of this matter, the court denied defendant's motion for summary judgment based on collateral estoppel or judicial estoppel grounds. The Government asserted that it was entitled to summary judgment on the ground of collateral estoppel because Fenn had been convicted of assault with intent to commit murder — thereby the issue of Fenn's intent had already been litigated. However, the plaintiff, although a witness in the court martial proceedings, was not a party to those proceedings. As noted by the plaintiff, the general rule in the Fourth Circuit and elsewhere is that judgments in criminal cases in these circumstances are not admissible in civil cases. New York Life Ins. Co. v. Murdaugh, 94 F.2d 104, 107-08 (4th Cir. 1938); Chamberlain v. Pierson, 87 F. 420, 424 (4th Cir.1898). Finding that Fenn's conviction did not operate as collateral estoppel here against plaintiff, the court denied summary judgment on that ground.

The Government also asserts that the doctrine of judicial estoppel should operate to preclude Ms. Martinez from bringing this action. Under that doctrine, a party may be precluded from adopting a position different from one taken in a prior proceeding. See, Allen v. Zurich Ins. Co., 667 F.2d 1162, 1166 (4th Cir.1982). The Government contends that plaintiff's testimony at the Court Martial was instrumental in having Fenn convicted of intentional assault, and, therefore, completely inconsistent with her position in this court that his striking her was an unintentional act. While it is true that plaintiff did testify at the Court Martial, comparing her testimony at that proceeding with her testimony at the trial in this matter, this court finds that such testimony was not materially different. In her testimony at the court martial, plaintiff never actually stated that Fenn intentionally struck her; therefore, this court finds the doctrine of judicial estoppel inapplicable in this case.

Having determined that the Government was not entitled to summary judgment, the court proceeded to take evidence on the threshold factual issues before the court: whether Fenn was acting within the scope of employment when the incident occurred, and whether Fenn intentionally struck the plaintiff. Once the plaintiff has established a prima facie case of applicability of the FTCA, the burden shifts to the government to prove that an act is excepted by 28 U.S.C. § 2680. Carlyle v. United States, Dept. of the Army, 674 F.2d 554 (6th Cir.1982).

Technically, the issue of whether Fenn was acting "in the scope of his employment" must first be addressed. See, Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). In order for the Government to be held liable under the FTCA, the complained-of commission or omission must be caused by a government employee "while acting within the scope of his office or employment". 28 U.S.C. § 1346(b). In making this determination, the court looks to the principles of master-servant law of the jurisdiction in which the court sits. Kennedy v. United States, 585 F.Supp. 1119, 1122 (D.S.C.1984).

The testimony is undisputed that Fenn was traveling from one duty station to another at the time of the incident. Fenn had left his duty at the Mars Station and had been directed to proceed to further duty at the Depot Communications Center, located approximately two miles away. Defendant United States asserts that Fenn took a circuitous route to reach his second duty station, thereby traveling "outside the scope of his employment."² While Fenn admittedly did not take a direct route from his duty at the Mars Station to his duty at the Communications Center, he never left the military base. The court finds that the fact that Fenn stopped at a convenience store on the way to his second duty station did not operate to take him out of the scope of his employment. In a similar case, Sola v. Sunny Slope Farms, 244 S.C. 6, 135 S.E.2d 321, 326 (1964), the South Carolina Supreme Court upheld the finding by the Workmen's Compensation Commission that a worker who was fatally injured while traveling between his job at a peach-picking shed and the company-provided labor camp was injured "within the scope of his employment" because of the "regularity of the work at the two places and the necessary travel between such". Id. The fact that Fenn was expected to report to both locations as part of his duty in the Marine Corps, and the fact that Fenn never left the military enclave, convince this court that Fenn's conduct meets the preliminary requisite of the FTCA that a government agent be "within the scope of his employment".³

Having determined that Fenn was acting in the course and scope of his employment, the court now turns to the Government's argument that Fenn's action was intentional and, consequently, barred by the "assault exception" to the FTCA, 28 U.S.C. § 2680(c). As previously noted, this court has decided that the finding by the Court Martial that Fenn acted intentionally is not dispositive of this civil action brought by Ms. Martinez; therefore, the court took evidence on the issue of whether Fenn's striking of Ms. Martinez was intentional. While there is conflicting evidence in the record concerning the issue of intent, the court is convinced that the Government has met its burden of proving that Fenn intentionally struck the plaintiff, thereby absolving the Government from any liability to plaintiff under 28 U.S.C. § 2680(c).

The Government called Gunnery Sergeant Jeffery Lovejoy, an expert in accident reconstruction, who had investigated the incident involving Fenn and Ms. Martinez. His testimony, replete with photographs of the incident scene, was that Fenn's truck entered the shoulder of the road on which pla...