Nelson v. U.S.

• Decision Date: 05 February 1988
• Docket Number: No. 86-5447,86-5447
• Citation: 838 F.2d 1280
• Parties: Linda M. NELSON, parent of Nelson, Tracey R., Appellee, v. UNITED STATES of America, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1280

838 F.2d 1280

267 U.S.App.D.C. 330

Linda M. NELSON, parent of Nelson, Tracey R., Appellee, v. UNITED STATES of America, Appellant.

No. 86-5447.

United States Court of Appeals District of Columbia Circuit.

Argued April 3, 1987.

Decided Feb. 5, 1988.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 85-00949).

Robert L. Willmore, Deputy Asst. Atty. Gen., Dept. of Justice, with whom Richard K. Willard, Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty., Robert S. Greenspan and Marc Richman, Attys., Dept. of Justice, Washington, D.C., were on the brief, for appellant. R. Craig Lawrence and James N. Owens, Asst. U.S. Attys., Washington, D.C., also entered appearances for appellant.

Norman L. Blumenfeld, Washington, D.C., for appellee.

Before MIKVA, BORK and BUCKLEY, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

BORK, Circuit Judge:

This appeal requires us to determine whether the United States can be held liable in tort for injuries a civilian Air Force base resident sustained when she was attacked by a dog kept by a serviceman who also resided on the base. The district court concluded that the government was liable under two separate lines of analysis: (1) that the serviceman acted within the scope of his employment in keeping the dog; and (2) that the base security force was the "owner" of the dog and breached a duty to the plaintiff to remove the dog from the base. We think neither of these theories adequate to support liability.

Although we do not accept the district court's theories of liability, we think the record adequately sustains a third theory of liability. We hold that the government, through its employees, the base security, violated the duty of care owed to those who are invited on to its land. Because the government did not act reasonably in maintaining safe conditions in its residential areas, we affirm the judgment of the district court.

I.

The incident giving rise to this litigation occurred in April, 1983, at Bolling Air Force Base in the District of Columbia. Tracey Nelson, then nine years old, lived on the base in residential quarters assigned to her father by his employer, the United States Navy. Air Force Sergeant Clyde Casey, who at the time was stationed overseas, was also assigned residential quarters on the base. Casey's family lived in these quarters along with their dog Rocky, a 3-year-old, 5-foot-long, 65-pound German shepherd.

Tracey and a friend passed the Caseys' backyard on their way to a base playground adjacent to the Caseys' residence. Sergeant Casey's 18-year-old son, Robert was in the backyard, as was Rocky. Robert was trimming the grass with a weedeater. Tracey stopped in front of the Caseys' 4 foot-high backyard fence to ask Robert about a ball her brother had lost. As Tracey was waiting to speak to Robert, Rocky came up to the opposite side of the fence without attracting her attention. The dog rose on its hind legs, lunged at Tracey, and bit her in the face. The bites inflicted severe injuries. Notwithstanding extensive reparative and cosmetic surgery, Tracey is permanently disfigured and has ongoing eye problems as a result of the incident.

Appellee Linda Nelson, Tracey's mother, brought this suit against the United States individually and on Tracey's behalf. Nelson argued that the government had derivative liability for its employees' negligence under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. Secs. 1346(b) & 2671 (1982), on either of two theories. First, Mrs. Nelson claimed that Sergeant Casey had acted negligently within the scope of his employment in failing to exercise proper control over his pet as required by base regulations. Second, Mrs. Nelson charged that base security personnel were negligent for failing to remove Rocky from the base despite the fact that the dog had bitten or scratched children on at least two occasions during the two years prior to the Nelson incident.

After a two-day bench trial, the district court found for the plaintiff and entered a verdict of $342,000. See Nelson v. United States, 633 F.Supp. 1263 (D.D.C.1986). The court accepted both of the plaintiff's theories of liability. The court found that while Sergeant Casey's decision to own a pet was personal and not within the scope of his employment, Casey's control of the animal was governed by base regulations, which brought it into the scope of his duties as a military employee. Under this theory, Casey was acting within the scope of his employment in failing to prevent Tracey's injury, and therefore the United States was derivatively liable under the FTCA for Casey's negligence. In adopting this line of reasoning, the district court relied heavily on the decision of the Ninth Circuit in a remarkably similar case, Lutz v. United States, 685 F.2d 1178 (9th Cir.1982).

The district court also found that base security breached a duty of care owed to base residents by negligently permitting Sergeant Casey to keep the dog on the base. The court reasoned that because the base police knew about Rocky's violent propensities and had the authority to remove the animal from the base, they should be treated no differently from a pet owner who fails to control a dog he knows to be dangerous. Under this second theory, the government was also liable under the FTCA for its agents' negligence while acting in the scope of their employment.

II.

A.

The FTCA waives the government's sovereign immunity with respect to liability for money damages for injuries caused by negligent acts or omissions of government employees acting within the scope of their 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. Sec. 1346(b) (1982). Each of appellees' theories of recovery, therefore, hinges on a showing that Tracey Nelson's injuries were caused by government employees acting within the scope of their employment. For military employees, Congress has defined acting within the scope of employment to mean "acting in [the] line of duty." 28 U.S.C. Sec. 2671 (1982). "Line of duty," in turn, takes its meaning from the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam). The central question in this case thus becomes whether the government would be liable for the conduct of either Sergeant Casey or the base security under the District of Columbia's law of respondeat superior.

District of Columbia law permits an employer to be held liable for the acts or omissions of its employees committed within the scope of their employment. See Penn Cent. Transp. Co. v. Reddick, 398 A.2d 27, 29 (D.C.1979). In attempting to fix the contours of the imprecise legal phrase "scope of employment," see id., the District of Columbia Court of Appeals has focused on whether the employee was furthering his employer's interests. Thus, in Reddick, the court held that a railroad company could not be found liable for an assault committed by one of its employees, because the employee's action "was in no degree committed for [the employer's] benefit, to further its interest, or to serve its purposes." Id. at 32. More recently, in finding that an off-duty policeman was not acting in the scope of his employment when he assaulted a private citizen, the court found it "of particular importance that at no time was [the officer's] conduct in furtherance of the District's interests." District of Columbia v. Coron, 515 A.2d 435, 438 (D.C.1986). See also Weinberg v. Johnson, 518 A.2d 985, 990 (D.C.1986) (tort must be actuated, at least in part, by a purpose to further the employer's business); Boykin v. District of Columbia, 484 A.2d 560, 562 (D.C.1984) (District not liable for employee's assault of student because conduct "was in no degree committed to serve the school's interest").

B.

The district court concluded that in negligently failing to control his dog, Sergeant Casey was acting within the scope of his employment under District of Columbia law. In this determination, the district court followed the Ninth Circuit's Lutz decision. 685 F.2d 1178 (9th Cir.1982). In Lutz, the mother of a young girl who resided on an Air Force base brought an FTCA action against the United States seeking damages for severe injuries sustained by her daughter when a dog owned by another base resident entered her backyard and bit her. The Ninth Circuit noted that a base regulation required the dog's owner to control the pet and to keep it on a leash while it was outside of the owner's quarters. Persons who failed to comply with this and other base regulations were subject to military discipline. The court reasoned that in issuing the regulation, the Air Force had imposed on the dog's owner "a mandatory, affirmative duty to protect the health and safety of all base residents by controlling the animal." 685 F.2d at 1183. The court concluded that given the unique context of military life, in which the employment relationship continues even during off-duty hours, the owner's responsibility to control the animal at all times fell within the scope of his employment. See id.; see also Craft v. United States, 542 F.2d 1250 (5th Cir.1976) (government liable for child's injuries caused by base resident's negligent use of lawnmower while cutting grass outside of his apartment as required by army regulations). The Lutz court therefore determined that the United States was liable under the FTCA for the resident's negligent discharge of his duty.

The decision below adopted an identical line of reasoning. The court observed that Bolling Air Force Base regulations, enforced through the threat of military discipline, required base residents to control their pets kept on the base. Because the military mandated Sergeant Casey's restraint of his pet in this way,...