McCord v. United States
| Decision Date | 25 October 1972 |
| Docket Number | Civ. A. No. 6593. |
| Parties | Field C. McCORD, and wife Willie Mae McCord, father and mother and next of kin of Kenneth Wayne McCord, Deceased, v. UNITED STATES of America. |
| Court | U.S. District Court — Middle District of Tennessee |
Edward C. White, Nashville, Tenn., for plaintiffs.
Charles H. Anderson, U. S. Atty., Nashville, Tenn., for defendant.
Field C. McCord and wife, Willie Mae McCord, individually as next of kin and as executors of the estate of Kenneth Wayne McCord, brought suit against the United States of America under the Federal Tort Claims Act, 28 U.S.C. § 1346 et seq., to recover damages for the death of their son, Kenneth Wayne McCord, who was killed on November 22, 1970, when he was shot by Sgt. Roger R. Klay, both of whom were on duty in the United States Army. The case is now before the court on motion of the United States for summary judgment.
On the evening of November 22, 1970, Pfc. Kenneth Wayne McCord and Sgt. Roger R. Klay, both stationed at Fort Bragg, North Carolina, and assigned to the 21st Military Police Company, were on duty at their station in the basement of the Police Department of the City of Fayetteville, North Carolina. At about ten o'clock that evening McCord was shot and killed when a .45 revolver which Sgt. Klay was cleaning discharged. A Fayetteville Police Department investigation ruled the incident accidental homicide.
The issue for determination is whether plaintiffs are precluded from recovering damages in this action under the Federal Tort Claims Act by reason of the fact that Pfc. McCord was on active duty and acting within the line of duty at the time of the shooting.
Plaintiffs allege that Army regulations prohibited the cleaning of weapons at the location of the accident, and they therefore reason that recovery should be allowed since the decedent's death did not arise from an activity that involved an official military relationship between the negligent person and the decedent, but was caused by carelessness and inattention to an unauthorized and needless act.
Defendant asserts that the deceased was acting incident to service and within the line of duty at the time of his accidental death, and that plaintiffs are therefore precluded from recovery under the Federal Tort Claims Act.
The Supreme Court in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out...
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Calhoun v. United States, Civ. No. 76-937-E.
...albeit in violation of Marine Corps regulations, does not waive the Government's immunity. Henninger, supra. In McCord v. United States, 377 F.Supp. 953 (M.D.Tenn.1972), aff'd 477 F.2d 599 (6th Cir. 1973), the court rejected an argument that a violation of regulations would preclude the app......