Skees v. U.S. By and Through Dept. of Army, 96-5115

• Decision Date: 21 February 1997
• Docket Number: No. 96-5115,96-5115
• Citation: 107 F.3d 421
• Parties: Shirley SKEES, personal representative and widow of John Skees, deceased John Skees, Plaintiff-Appellant, v. UNITED STATES of America, By and Through the DEPARTMENT OF the ARMY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 421

107 F.3d 421

Shirley SKEES, personal representative and widow of John Skees, deceased John Skees, Plaintiff-Appellant, v. UNITED STATES of America, By and Through the DEPARTMENT OF the ARMY, Defendant-Appellee.

No. 96-5115.

United States Court of Appeals Sixth Circuit.

Submitted Feb. 6, 1997.

Decided Feb. 21, 1997.

Vincent P. Yustas (briefed), Brandenburg, KY, for Plaintiff-Appellant.

Terry M. Cushing, Asst. U.S. Attorney, David L. Huber, Asst. U.S. Attorney (briefed), Louisville, KY, for Defendant-Appellee.

Before: KENNEDY, NELSON, and VAN GRAAFEILAND, Circuit Judges ^*.

KENNEDY, Circuit Judge.

Plaintiff, Shirley Skees, the personal representative and widow of John Skees, appeals the District Court's order dismissing her complaint under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., pursuant to Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which precludes recovery under the Federal Tort Claims Act for injuries and deaths that occur incident to service in the military. For the reasons set forth below, we agree and AFFIRM the judgment of the District Court.

I.

The facts of this appeal are uncontested. Defendant, the United States, owns and operates the Ireland Army Community Hospital in Fort Knox, Kentucky, through the Department of the Army. From December 29, 1983 through March 24, 1992, John Skees, the decedent, was on active duty in the United States Army and stationed at Fort Knox. John Skees was admitted to the Ireland Army Community Hospital on March 20, 1992, after declaring that he intended to commit suicide and had prepared a suicide note. His treating physicians at the hospital diagnosed Skees as suffering from "Adjustment Disorder with Mixed Emotional Features and Passive Aggressive Traits."

Shortly after his discharge from the hospital, ¹ on March 23, 1992, Skees reiterated his intent to commit suicide to Sergeant First Class J.T. Daniels, his Platoon Sergeant, and displayed to him the instrument he planned to use to commit suicide. Daniels did not take the weapon away from Skees or engage in any other preventative measures. Daniels did, however, inform his first sergeant, but his first sergeant likewise took no steps to prevent the suicide even when Skees failed to report to duty at his scheduled time. In addition to their knowledge of Skees' intent to commit suicide, his military supervisors were also aware that Skees had a history of alcohol abuse. When Skees informed Daniels for the third time that he intended to end his life, Daniels contacted Ireland Army Community Hospital, but the hospital said they could do nothing for Skees. Skees committed suicide on March 24, 1992. ² It was officially determined that Skees' discharge from the hospital "appeared to be clinically appropriate" and that his suicide was related to the consumption of alcohol.

On May 31, 1995, Shirley Skees, as personal representative and widow of John Skees, filed an action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671, et seq. ("FTCA"), alleging that the acts or omissions of the decedent's military supervisors and the medical staff at Ireland Community Army Hospital were a direct and proximate cause of the decedent's death. In addition to seeking damages for the death of her husband, plaintiff also sought compensation for the loss of her husband's services, assistance, aid, society, companionship and conjugal relationship under Ky.Rev.Stat.Ann. § 411.145 (Banks-Baldwin 1994).

The United States moved to dismiss the complaint on the ground that the United States Supreme Court's decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), precludes an active member of the military or members of the enlisted's family from recovering an award under the FTCA. On November 15, 1995, the District Court granted the United States' motion because "a soldier may not recover under the FTCA for injuries that arise out of or are in the course of activity incident to service." The court also dismissed Shirley Skees' claim for loss of consortium as derivative of her barred claim under the FTCA.

II.

It is not apparent from the pleadings or from the District Court's opinion and/or order on precisely what procedural ground the complaint was dismissed. If the complaint was dismissed for lack of subject matter jurisdiction, as the United States contends we review the dismissal de novo. See Kroll v. United States, 58 F.3d 1087, 1090 (6th Cir.1995)(citing Greater Detroit Resource Recovery Auth. v. EPA, 916 F.2d 317, 319 (6th Cir.1990)). When the factual allegations in the complaint are not disputed, this Court "is to construe the complaint liberally, and ... to take as true all uncontroverted factual allegations on the face of the complaint." Id. (citing Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)).

If this action was dismissed for failure to state a claim upon which relief can be granted under Rule 12(b)(6) of the Federal Rules of Civil Procedure, we similarly review the propriety of the dismissal de novo. See Cline v. Rogers, 87 F.3d 176, 179 (6th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 510, 136 L.Ed.2d 400 (1996), (citing Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296 (6th Cir.1993)). In conducting our review, we must construe the complaint in a light most favorable to the plaintiff, accept as true all of plaintiff's well-pleaded factual allegations, and determine whether plaintiff can prove no set of facts supporting her claims that would entitle her to relief. See Id. (citing In re DeLorean Motor Co., 991 F.2d 1236, 1240 (6th Cir.1993)). Applying these standards, we find that plaintiff's complaint properly did not withstand the motion to dismiss.

The FTCA provides, in relevant part, that:

The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances.

28 U.S.C. § 2674 (1994). Excepted from this general waiver of sovereign immunity are claims "arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war." Id. § 2680(j). This exemption for the activities of the armed forces was broadened by the United States Supreme Court in a trilogy of cases from which a rule of law was established commonly referred to as the "Feres doctrine." See Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950)(consolidated and decided along with Jefferson v. United States and United States v. Griggs ). In Feres, the Court held that "the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." Id. at 146, 71 S.Ct. at 159. While the Court has wavered slightly, since its decision in Feres, regarding the appropriate factors to consider in determining when injuries "arise out of or are in the course of activities incident to service," the Court in United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987), iterated the three rationales that underlie the Feres doctrine:

... First, "[t]he relationship between the Government and members of its armed forces is 'distinctively federal in character,' " ... [w]here a service member is injured incident to service--that is, because of his military relationship with the Government--it makes no sense to permit the fortuity of the situs of the alleged negligence to affect the liability of the Government to [the] serviceman...

Second, the existence of ... generous statutory disability and death benefits is an independent reason why the Feres doctrine bars suit for service-related injuries...

Third, Feres and its progeny indicate that suits brought by service members against the Government for injuries incurred incident to service are barred by the Feres doctrine because they are the "type[s] of claims that, if generally permitted, would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness"...

Johnson at 689-90 (citations omitted).

As explained by this Court in Major v. United States, 835 F.2d 641 (6th Cir.1987), the term "incident to service" espoused in Feres is not a term limited to military training and combat; rather

in recent years, the [Supreme] Court has embarked on a course dedicated to broadening the Feres doctrine to encompass, at a minimum, all injuries suffered by military personnel that are even remotely related to the individual's status as a member of the military, without regard to the location of the event, the status (military or civilian) of the tortfeasor, or any nexus between the injury-producing event and the essential defense/combat purpose of the military activity from which it arose.

Major at 644-45. As concluded by the Supreme Court, included in the term "incident to service" is medical treatment received by a soldier on active duty. Indeed, two of the cases comprising the Feres trilogy asserted claims for negligent medical treatment of servicemen. See Feres at 137, 71 S.Ct. at 155. Accordingly, our Circuit has held, on numerous occasions, that claims by active duty servicemen against the United States for negligent treatment by medical staff at a military hospital are barred by the Feres doctrine.

For example, in Irvin v. United States, 845 F.2d 126 (6th Cir.1988), we held that a servicewoman's suit alleging negligent prenatal care and treatment rendered by employees of the Army was barred "under a straightforward reading of Feres " because the servicewoman was "on active duty in the United States Army during the time in question, and the injuries to her arose out of or were in the course of activity incident to service." Id. at 130. Similarly, in Sidley v. United States, 861 F.2d 988 (6th Cir.1988), this Court held that the trial...