Murray ex rel. Murray v. U.S.

• Citation: 258 F.Supp.2d 1006
• Decision Date: 04 April 2003
• Docket Number: No. Civ. 01-1010 ADM/JSM.,Civ. 01-1010 ADM/JSM.
• Parties: Lynn MURRAY, a minor, by Lesa MURAY, her mother and natural guardian, and Lesa Murray, individually, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Minnesota

Page 1006

258 F.Supp.2d 1006

Lynn MURRAY, a minor, by Lesa MURAY, her mother and natural guardian, and Lesa Murray, individually, Plaintiffs, v. UNITED STATES of America, Defendant.

No. Civ. 01-1010 ADM/JSM.

United States District Court, D. Minnesota.

April 4, 2003.

Ronald H. Schneider, Schneider Law Firm, Willmar, MN, for and on behalf of Plaintiffs.

Gregory G. Brooker, Assistant United States Attorney, Minneapolis, MN, for and on behalf of Defendant.

MEMORANDUM OPINION AND ORDER

MONTGOMERY, District Judge.

I. INTRODUCTION

On January 30, 2003, the Motion for Summary Judgment [Docket Nos. 15, 17] of Defendant United States of America ("Defendant") was argued before the undersigned United States District Judge. For the reasons set forth below, the Summary Judgment Motion is granted.

II. BACKGROUND

An extraordinarily tragic event precipitates the claims in this case. On September 18, 1998, 17-year-old Jessica Ann Baker ("Baker") was driving her father's car to school on a county road near her home in Revere, Minnesota. At approximately 7:45 a.m., Baker and 14-year-old Lynn Murray ("Murray"), the only passenger in the car, were involved in a single-car accident. Baker lost control of the car, which left the road and landed in a dry creek bed below a bridge. Baker was killed and Murray was severely injured. Baker and Murray, students at the Westbrook-Walnut Grove High School, were en route to school at the time of the accident. The school is approximately 16 miles southwest of Revere. Baker routinely drove Murray, her best friend, to school. Murray's federal claim is dependant on Baker's military status on the morning of the accident.

On August 28, 1998, 22 days prior to the accident, Baker joined the Minnesota Army National Guard ("National Guard"). By all accounts, Baker was extremely enthusiastic and proud of her involvement with the National Guard. Baker was inducted into the National Guard's "Delayed Training Program," which allows members to defer their basic training until after graduation from high school. As part of this program, Baker was required to perform inactive duty training with her assigned unit stationed in Montevideo, Minnesota. Baker's first inactive duty training with her unit was scheduled to be September 18-20, 1998.

To avoid Baker missing school for inactive duty training, Michael Wood ("Wood"), Baker's National Guard Recruiter, along with Unit Commander Captain Bastian C. Vanhofwegen, gave written orders for Baker to report to her high school in uniform on September 18, 1998, and to attend her regular classes in lieu of training with her National Guard unit. The orders stated that Baker was "hereby ordered to attend" a "Rescheduled Training" by attending Westbrook-Walnut Grover High School "in proper uniform for not less than four (4) hours each training period" on September 18, 1998, from 8:00 am to 4:30 p.m., instead of the assembly scheduled for that day at Camp Ripley, near Little Falls, Minnesota. Def. Ex. F; pls. Ex. G at 51-53. Wood asserts he had prepared similar orders for other newly enrolled National Guard members who were still in high school. Def. Ex. D ¶ 6. No formal recruiting events were scheduled at Baker's school on September 18, 1998.

Baker was to be paid for two training periods for that day, from 8:00 a.m. to 12:00 p.m., and from 12:00 p.m. to 4:30 p.m., but she was not to be paid travel pay or to be reimbursed for mileage. Id. ¶ 6, 11; Def. Exs. G at 67-68, ¶ at 20-21, P at 23-24, 27, 30-31, 36-39. Section C(2)(a) of the Joint Federal Travel Regulations states that, for National Guard members with Baker's status of "Inactive Duty Training With Pay," "[t]here is no entitlement to travel or transportation allowances for ... travel between home and ... the assigned unit ... [or] the place of duty instead of a unit training assembly." Def. Ex. Q. Baker's accident occurred while she was en route to school, prior to arrival. A National Guard official assigned to investigate the accident concluded that Baker was "off-duty" at the time of the accident. Def. Ex. O at 1. The investigator determined the cause of the accident was that Baker "failed to exercise an alert and attentive posture while operating the vehicle, resulting in loss of control." Id. At the time of the accident, Baker had National Guard brochures in the back seat of the car because Wood had allegedly told Baker her day at school in uniform would be the "perfect opportunity" to hand out promotional fliers. Murray Aff. ¶ 8 (Pl.Ex. K).

Baker's Unit Commander later authorized payment of $28.56 to Baker's family, as though Baker had worked the first four-hour period of inactive duty training, from 8:00 a.m. to 12:00 p.m. Def. Ex. R 114. This gesture is of no legal significance as it is manifest that Baker never arrived at the school to commence her "training" at 8:00 a.m. The National Guard also conducted an "in the line of duty" investigation to determine if Baker's family was eligible to receive certain benefits. Def. Ex. I ¶¶ 2-4. On November 14, 1998, the National Guard determined that Baker's death occurred in the line of duty for purposes of benefit eligibility. Id.

Plaintiffs Murray, the passenger in the car, and her mother, filed this claim against the United States on June 6, 2001, seeking $5.4 million in damages under the Federal Tort Claims Act ("FTCA").¹ Compl. ¶ 18. Plaintiffs argue that because Baker was en route to her school where her presence in uniform would be considered a National Guard training exercise, and because she was transporting National Guard brochures in her car, she should be considered a National Guard recruiter acting in the course and scope of duty at the time of the accident.

III. DISCUSSION

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall issue "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see Matsushita Elec Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). On a motion for summary judgment, the Court views the evidence in the light most favorable to the nonmoving party. Ludwig v. Anderson, 54 F.3d 465, 470 (8th Cir.1995). The nonmoving party may not "rest on mere allegations or denials, but must demonstrate on the record the existence of specific facts which create a genuine issue for trial." Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir.1995). Further, "the mere existence of some alleged factual dispute between the parties is not sufficient by itself to deny summary judgment.... Instead, `the dispute must be outcome determinative under prevailing law.'" Get Away Club. Inc. v. Coleman, 969 F.2d 664, 666 (8th Cir. 1992) (citation omitted).

The United States has waived its sovereign immunity such that it is liable for personal injuries:

caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1) (2003). United States District Courts have exclusive jurisdiction over such claims. Id. This liability extends to National Guard members who, while employees of the state, are considered federal employees while "engaged in training or duty." 28 U.S.C. § 2671 (2003). In the case of a member of the National Guard, "[a]cting within the scope of his office or employment" means "acting in the line of duty." Id. "As a waiver of sovereign immunity, the FTCA is to be strictly construed and is not to be extended by implication." Western National Mutual Ins. Co. v. United States, 964 F.Supp. 295, 297 (D.Minn.1997).

For the statute to apply, it must be determined whether Baker was acting as an employee of the government. Since Baker had not yet arrived at school, Plaintiffs argue that she was involved in recruiting activities while in her car by transporting the promotional materials. Accordingly, in order for Baker to be considered a federal employee at all, she must have been acting as a National Guard recruiter at the time of the accident. See Logue v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215, 37 L.Ed.2d 121 (1973) (stating that whether a person is a federal employee under the FTCA is a question of federal law). If she was a federal employee, then the determination of whether or not she was acting within the scope of employment becomes relevant. Whether a federal employee's actions were within the scope of employment for liability purposes is a question governed by the relevant state law. Brown v. Armstrong, 949 F.2d 1007, 1012 n. 7 (8th Cir.1991) (citing Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955)).

A. Was Baker a Federal Employee at the Time of the Accident?

Plaintiffs argue that Baker was acting as a recruiter at the time of the accident because she was transporting National Guard promotional materials in her car, and that she was "under direct orders" requiring that she have the promotional materials with her at school. pls. Mem. in Resp. at 10. To support this argument, Murray relies on the National Guard's recruiting literature.

Plaintiffs cite to a document called "Personnel Procurement—Army National Guard Recruiting Program." pls. Ex. G(4). Chapter 7 (Advertising and Sales Promotion) of the pamphlet states that: "Well-conceived and carefully executed advertising and sales promotion efforts are essential to successful recruiting and retention programs." Id. § 7-1 (emphasis...