Redmond v. United States, 71 C 22.
| Decision Date | 14 September 1971 |
| Docket Number | No. 71 C 22.,71 C 22. |
| Citation | 331 F. Supp. 1222 |
| Parties | Jessie Mae REDMOND, Administrator of the Estate of Jesse B. Redmond, Deceased, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
John D. Hayes, Chicago, Ill., for plaintiff.
Michael H. Berman, Asst. U. S. Atty., Chicago, Ill., for defendant. William J. Bauer, U. S. Atty., Chicago, Ill. of counsel.
This is an action by the administrator of the estate of Jesse B. Redmond under the Federal Tort Claims Act. The United States has moved to dismiss, or alternatively, for summary judgment claiming the lack of jurisdiction and a failure to state a claim for relief.
The factual situation underlying this controversy is undisputed and relatively simple. As charged in the complaint, it appears that plaintiff's decedent was inducted into the United States Army. Prior to said induction, he underwent a physical examination conducted by the Army at its Chicago Examination and Induction Center. It is inferable that the Army found the decedent to be physically qualified and then formally inducted him. Thereafter, the complaint alleges that at Fort Leonard Wood and Fort Carson the decedent requested medical examination and treatment and that the Army rendered such medical examination and treatment. Subsequently, the decedent was discharged and then died. It appears that the cause of death was a brain tumor which plaintiff charges the defendant negligently failed to discover and diagnose as well as failing to provide adequate medical and diagnostic treatment and examination.
Title 28, section 1346(b) confers upon the district courts exclusive jurisdiction of civil actions against the United States for money damages for death caused by the negligent or wrongful act or omission of any employee of the Government acting within the scope of his office or employment, "if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." Title 28, section 2674 also subjects the United States to liability "in the same manner and to the same extent as a private individual under like circumstances. * * *" The only statutory exception which could be pertinent is contained in § 2680(j) for a claim arising out of the combatant activities of the military during time of war. Such exception is inapplicable, however, to the case at bar as the claim does not arise from combatant activities.
Other exceptions have been carved out of the Tort Claims Act by decisional law. The United States relies on the decision of the Supreme Court in the case of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which announced an exception for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service. This doctrine has been subsequently followed by the courts, e. g., United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954) and Layne v. United States, 295 F.2d 433 (7th Cir. 1961). As this exception is now firmly established and plaintiff does not seriously question it, there is no need for this court to review the rationale of the Feres decision. The...
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...Joseph v. United States, 505 F.2d 525 (7th Cir.1974); Glorioso v. United States, 331 F.Supp. 1 (N.D.Miss.1971); Redmond v. United States, 331 F.Supp. 1222 (N.D.Ill.1971). Aero Engineering Corp. v. United States, 431 U.S. 666, 673-74, 97 S.Ct. 2054, 2058-59, 52 L.Ed.2d 665 (1977). Applicatio......
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West v. U.S., 83-1842
...alleged negligence in pre-induction physical examinations. In Joseph v. United States, 505 F.2d 525 (7th Cir.1974); Redmond v. United States, 331 F.Supp. 1222 (N.D.Ill.1971); and Healy v. United States, 192 F.Supp. 325 (S.D.N.Y.), aff'd, 295 F.2d 958 (2d Cir.1961), plaintiffs alleged that m......
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Thompson v. United States ex rel. Brown, CIV-78-01344-D.
...Cir.1979); Southard v. United States, 397 F.Supp. 409 (E.D.Pa.1975), aff'd mem., 535 F.2d 1247 (Third Cir.1976); Redmond v. United States, 331 F.Supp. 1222 (N.D.Ill.1971); Kilduff v. United States, 248 F.Supp. 310 (E.D. Va.1960). Furthermore, the Feres doctrine has been applied in several c......
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Southard v. United States, Civ. A. No. 73-2788.
...295 F.2d 958 (2d Cir. 1961), involving aggravation of a pre-existing medically disqualifying heart condition. In Redmond v. United States, 331 F.Supp. 1222 (N.D. Ill., 1971), the plaintiff raised a contention that a fatal brain tumor was not determined prior to induction. The court dismisse......