Phillips v. U.S., EP-05-CA-224-PRM.
| Decision Date | 18 July 2006 |
| Docket Number | No. EP-05-CA-224-PRM.,EP-05-CA-224-PRM. |
| Citation | 500 F.Supp.2d 668 |
| Parties | Ronald William PHILLIPS and Wendy S. Phillips, Individually and as Next Friends of Christian Phillips, a minor, Plaintiffs, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Western District of Texas |
James Allen Martinez, Assistant City Attorney, El Paso, TX, John N. Mastin, Law Offices Of John N. Mastin, San Antonio, TX, for Plaintiffs.
Eduardo R. Castillo, Assistant United States Attorney, El Paso, TX, for Defendant.
ORDER GRANTING DEFENDANT'S ALTERNATIVE MOTION FOR SUMMARY JUDGMENT
On this day, the Court considered Defendant United States of America's ("Defendant" or the "Government") "Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Motion"), filed on May 26, 2006, Plaintiffs Ronald William Phillips and Wendy S. Phillips's, individually and as next friends of Christian Phillips, (collectively "Plaintiffs") "Brief and Response to Defendant's Motion to Dismiss or, in the Alternative, Motion for Summary Judgment" ("Response"), filed on June 16, 2006, and Defendant's "Reply to Plaintiffs' Response" ("Reply"), filed on June 26, 2006 in the above-captioned cause. After due consideration, the Court is of the opinion that Defendant's Alternative Motion for Summary Judgment should be granted for the reasons set forth below.
On February 24, 2004, Christian Phillips was bitten by Army Specialist Nathaniel Tutor's ("SPC Tutor") pit bull dog ("King"). Def.'s Mot. 1; Pls.' Resp. 1. At the time of the incident, Plaintiffs and SPC Tutor resided on post housing provided by the United States Army at Fort Bliss, El Paso, Texas. Pls.' Resp. 2. On the date in question, Fort Bliss imposed on resident pet owners regulations governing the control and maintenance of pets on post housing. Pls.' Resp. 2. Specifically, Fort Bliss maintained United States Army Air Defense Artillery Center and Fort Bliss ("USAADACENFB") Regulation 190-4 ("Regulation 190-4") and Regulation 210-50 ("Regulation 210-50"). Def.'s Mot., Appendix A, Ex. 1 (Regulation 190-4), Ex. 2 (Regulation 210-50).
On June 9, 2005, Plaintiffs filed the instant lawsuit against the Government pursuant to the Federal Tort Claims Act ("FTCA"). Pls.' Original Compl. ¶ 3. SPC Tutor is not a party to this lawsuit. Rather, Plaintiffs are proceeding solely against the Government on two separate legal theories.1 First, Plaintiffs seek to hold the Government liable under a theory of respondeat superior for the negligent acts or omissions of SPC Tutor. Pls.' Resp. 2. Second, Plaintiffs allege that the Government is liable under a theory of premises liability for its failure to create, implement, oversee, supervise, or enforce "adequate policies and procedures that would effectively protect those class of persons entitled to be protected." Pls.' Resp. 2.
The Government counters that the discretionary function exception to the FTCA precludes Plaintiffs from holding the Government liable for its adoption or enforcement of policies regulating animals. Def.'s Mot. 2. Furthermore, the Government asserts that it may not be held liable for any negligent act or omission of SPC Tutor because he was not acting in the line of duty. Id. Lastly, the Government contends that SPC Tutor was not negligent. Id.
Because the Court will consider supporting documentation attached to the Government's Motion as well as Plaintiffs' responsive pleading, the Court will treat the instant motion as one for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Stewart v. Murphy, 174 F.3d 530, 532-33 (5th Cir. 1999) (citing FED. R. CIV. P. 12(b)).
Federal Rule of Civil Procedure 56(c) mandates summary judgment "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." The party seeking summary judgment bears the initial burden of informing the court of the basis for his motion and identifying the parts of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although the movant must "`demonstrate the absence of a genuine issue of material fact,' [it] need not negate the elements of the non-movant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (en banc) (quoting Celotex, 477 U.S. at 323, 106 S.Ct. 2548). A fact is "material" if its resolution in favor of one party might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute about a material fact is "genuine" if the evidence indicates that a reasonable fact-finder could find in favor of the non-moving party. Id.
If the movant satisfies his initial burden, the non-movant must come forward with "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citing FED. R. CIV. P. 56(e)). In other words, "the non-movant must adduce evidence which creates a material fact issue concerning each of the essential elements of its case for which it will bear the burden of proof at trial." Abbott v. Equity Group, Inc., 2 F.3d 613, 619 (5th Cir.1993). A court must resolve factual controversies or disputes in the non-movant's favor, but "only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075 (emphasis added). A court should not, "in the absence of any proof assume that the nonmoving party could or would prove the necessary facts." Id. (citing Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990)). Rather, the non-movant must "go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file," identify those facts establishing a genuine issue for trial. Celotex, 477 U.S. at 324, 106 S.Ct. 2548 (internal quotations omitted). "This burden is not satisfied with some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence." Little, 37 F.3d at 1075 (internal quotations and citations omitted). Likewise, "some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48, 106 S.Ct. 2505 (emphasis omitted). The non-movant "is required to identify specific evidence in the record and to articulate the precise manner in which that evidence supports his or her claim." Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998).
"Absent a waiver, sovereign immunity shields the Federal Government ... from suit." FDIC v. Meyer, 510 U.S. 471, 475, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994). The FTCA, comprising in pertinent part 28 U.S.C. ** 1346, 2401, and 2671 through 2680, "was designed primarily to remove the sovereign immunity of the United States from suits in tort and ... to render the Government liable in tort as an individual would be under like circumstances." Richards v. United States, 369 U.S. 1, 6, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962); 28 U.S.C. § 2674. Through the FTCA, "the [G]overnment has generally waived its sovereign immunity from tort liability for the negligent or wrongful acts or omission of its agents who act within the scope of their employment." Truman v. United States, 26 F.3d 592, 594 (5th Cir.1994).
Pursuant to Title 28 U.S.C. § 1346(b), the United States is liable "for injury or loss of property, or personal injury or death 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) (2005).
In Plaintiffs' Complaint, they allege that the Court should hold the Government directly liable for Christian Phillips's injuries because the Government undertook to set forth rules and regulations for the protection of individuals such as Christian Phillips. Pls.' Compl. ¶ 9. Plaintiffs further allege that the Government's regulations pertaining to pet maintenance were "inadequate as established...." Id. The Government contends that, pursuant to the discretionary function exception, it has not waived sovereign immunity from suit for its adoption and enforcement of regulations such as the animal policy at Fort Bliss. Plaintiffs wholly fail to address the Government's discretionary function exception argument in their Response.
The FTCA contains limitations and exceptions to the Government's waiver of sovereign immunity. The FTCA limitation relevant to the instant case is the "discretionary function" exception ("DFE"), which provides that the Government retains immunity from suit for any claim "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). A court conducts a two step inquiry to determine whether the DFE insulates government conduct from liability under the FTCA. See United States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991) (). First, a...
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