Stockberger v. U.S.

• Citation: 332 F.3d 479
• Decision Date: 11 June 2003
• Docket Number: No. 02-3651.,02-3651.
• Parties: Lynne STOCKBERGER, both personally and as the representative of Maurice Stockberger, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 479

332 F.3d 479

Lynne STOCKBERGER, both personally and as the representative of Maurice Stockberger, deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 02-3651.

United States Court of Appeals, Seventh Circuit.

Argued April 16, 2003.

Decided June 11, 2003.

Stephen L. Williams (argued), Mann, Chaney, Johnson, Goodwin & Williams, Terre Haute, IN, for Plaintiff-Appellant.

Jeffrey L. Hunter (argued), Office of U.S. Atty., Indianapolis, IN, for Defendant-Appellee.

Before POSNER, COFFEY, and ROVNER, Circuit Judges.

POSNER, Circuit Judge.

The plaintiff in this suit under the Federal Tort Claims Act appeals from the grant of summary judgment to the United States. Maurice Stockberger, an employee of the federal prison at Terre Haute, Indiana, was an insulin-dependent diabetic and known to be such by his coworkers — many of whom, indeed, were medical workers. He had hypoglycemic episodes (episodes in which his blood sugar would fall to dangerously low levels), observed by and known to be such by them, in which he would exhibit personality changes, becoming hostile, suspicious, unresponsive, agitated — and sometimes denying that he had a medical problem. When his coworkers noticed that he was in one of his hypoglycemic states, they would urge him to eat, or to drink Ensure, a nutritious liquid food substitute. On the day of his death, one of his coworkers noticed that Stockberger, who was complaining about feeling ill and said that he wanted to go home, was having one of his hypoglycemic episodes, and offered him Ensure, which he drank. This made him feel better but he said he still wanted to go home. His coworkers wanted him to remain at the prison "until he recovered," but he was adamant about leaving. The coworker who had given him Ensure thought that Stockberger was in no condition to be driving, but he did not offer to drive Stockberger or try to take away his car keys; nor did he try to contact Stockberger's supervisor or wife. The prison had often in the past provided transportation for sick employees, including diabetic employees — including in fact Stockberger. But it had no written policies concerning the treatment of sick employees.

Stockberger got into his pick-up truck and began driving home. He drove very erratically, no doubt because of his hypoglycemia, veering off the road and then back onto it, knocking down traffic signs, and eventually colliding with a tree. His truck burst into flames when it hit the tree, and he died.

The plaintiff makes two separate claims. The first is that the federal prison system was negligent in failing to have a policy of providing transportation for employees who become dangerously ill at work. This claim is clearly barred by the discretionary-function exception to the tort claims act. 28 U.S.C. § 2680(a). The question how far an employer should go in providing medical assistance for employees who become ill at work involves an exercise of judgment (concerning for example the responsibility of subordinate employees, such as Stockberger's coworkers, to evaluate symptoms and report to supervisors or the prison doctor) rather than the straightforward, unarguable application of settled principles of tort responsibility. See Fang v. United States, 140 F.3d 1238, 1242 (9th Cir.1998); cf. Williams v. United States, 242 F.3d 169, 175 (4th Cir.2001); Kiehn v. United States, 984 F.2d 1100, 1106-07 (10th Cir.1993).

The plaintiff's second and more substantial claim is that the prison's action (or rather inaction) in allowing Stockberger to drive in his hypoglycemic condition was a breach of the duty of care imposed by Indiana tort law, the law that, in accordance with the Federal Tort Claims Act, furnishes the rule of decision for the plaintiff's claim. The claim invites consideration of the broader question of the tort duty if any to rescue a person in distress. The common law traditionally took a hard line, rejecting any legal duty to be a good Samaritan. If A saw that B was about to be struck on the head by a flowerpot thrown from a tenth-story window, and A knew that B was unaware of the impending catastrophe and also knew that he could save B with a shout, yet he did nothing and as a result B was killed, still, A's inaction, though gratuitous (there was no risk or other nontrivial cost to A) and even reprehensible, would not be actionable. E.g., Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 284 (Ind. 1994); Hurley v. Eddingfield, 156 Ind. 416, 59 N.E. 1058 (1901); Zelig v. County of Los Angeles, 27 Cal.4th 1112, 119 Cal. Rptr.2d 709, 45 P.3d 1171, 1182-83 (2002); City of Douglasville v. Queen, 270 Ga. 770, 514 S.E.2d 195, 198-99 (1999); Rhodes v. Illinois Central Gulf R.R., 172 Ill.2d 213, 216 Ill.Dec. 703, 665 N.E.2d 1260, 1270 (1996); Harper v. Herman, 499 N.W.2d 472 (Minn.1993); Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Richard A. Epstein, Torts § 11.3, p. 290 (1999). The common law rule has been changed in some states, see, e.g., Vt. Stat. Ann. tit. 12, § 519(a); Melvin A. Eisenberg, "The Duty to Rescue in Contract Law," 71 Fordham L.Rev. 647, 653-54 (2002), but not in Indiana. Statutory modifications of the common law rule are common, such as requiring a driver who has caused an accident to remain at the scene even if he was not culpable, see, e.g., Fuentes v. Reilly, 590 F.2d 509 (3d Cir.1979) (N.J.law); Brooks v. E.J. Willig Truck Transportation Co., 40 Cal.2d 669, 255 P.2d 802 (1953), or forbidding a hospital emergency room to turn away a patient brought to it before his condition has been stabilized. Thomas v. Christ Hospital, 328 F.3d 890, 893 (7th Cir.2003). But none is applicable to this case.

Various rationales have been offered for the seemingly hardhearted common law rule: people should not count on nonprofessionals for rescue; the circle of potentially liable nonrescuers would be difficult to draw (suppose a person is drowning and no one on the crowded beach makes an effort to save him — should all be liable?); altruism makes the problem a small one and liability might actually reduce the number of altruistic rescues by depriving people of credit for altruism (how would they prove they hadn't acted under threat of legal liability?); people would be deterred by threat of liability from putting themselves in a position where they might be called upon to attempt a rescue, especially since a failed rescue might under settled common law principles give rise to liability, on the theory that a clumsy rescue attempt may have interfered with a competent rescue by someone else. E.g., Jackson v. City of Joliet, 715 F.2d 1200, 1202-03 (7th Cir.1983) (Illinois law); Farwell v. Keaton, 396 Mich. 281, 240 N.W.2d 217 (1976); Stiver v. Parker, 975 F.2d 261, 272 (6th Cir.1992) (also Michigan law).

Whatever the validity of these explanations for the common law rule, they have been held to be overborne in three types of case. The three types are typically said to involve a "special relationship" between rescuer and victim, e.g., Donaldson v. Young Women's Christian Ass'n, 539 N.W.2d 789, 792 (Minn.1995), but that seems to us an unhelpful label because of its vagueness.

The first type of case is where the rescuer had either assumed, explicitly or implicitly, a contractual duty to rescue the victim, e.g., Mastriano v. Blyer, 779 A.2d 951, 955 (Me.2001); Nickelson v. Mall of America Co., 593 N.W.2d 723, 726-27 (Minn.1999); Folsom v. Burger King, 135 Wash.2d 658, 958 P.2d 301, 311 (1998); Randolph's Administrator v. Snyder, 139 Ky. 159, 129 S.W. 562 (1910), or had created in the victim a reasonable expectation that he had assumed such a duty. E.g., Municipal City of South Bend, supra, 639 N.E.2d at 284-85; Board of Commissioners v. Hatton, 427 N.E.2d 696 (Ind.App. 1981); Nickelson v. Mall of America Co., supra, 593 N.W.2d at 726; Stiver v. Parker, supra, 975 F.2d at 271-72; Wilmington General Hospital v. Manlove, 174 A.2d 135 (Del.1961); 3 Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts § 18.6, p. 717 (2d ed.1986).

In the second type of case, the victim was in the rescuer's custody and thus without access to alternative rescuers. E.g., Norman v. Turkey Run Community School Corp., 274 Ind. 310, 411 N.E.2d 614 (1980); Donaldson v. Young Women's Christian Ass'n, supra; Murdock v. City of Keene, 137 N.H. 70, 623 A.2d 755, 756-57 (1993); Beach v. University of Utah, 726 P.2d 413, 415 (Utah 1986); Continental Southern Lines, Inc. v. Robertson, 241 Miss. 796, 133 So.2d 543 (1961); Fagg's Administrator v. Louisville & Nashville R.R., 111 Ky. 30, 63 S.W. 580 (1901). Typical cases of this type are ones in which the victim is a prison inmate or a patient in a mental hospital. E.g., Overall v. State, 525 N.E.2d 1275 (Ind.App.1988); Iglesias v. Wells, 441 N.E.2d 1017 (Ind.App.1982); Murdock v. City of Keene, 137 N.H. 70, 623 A.2d 755, 756-57 (1993); Salazar v. City of Chicago, 940 F.2d 233, 237 (7th Cir.1991); Clements v. Swedish Hospital, 252 Minn. 1, 89 N.W.2d 162, 165-66 (1958). These cases are readily assimilated to cases of the first type through the concept of an implicit contractual duty.

The third class consists of cases in which the victim's peril had been caused by the putative rescuer himself — even if he had caused it nonnegligently, e.g., Palace Bar, Inc. v. Fearnot, 269 Ind. 405, 381 N.E.2d 858, 865-66 (1978); L.S. Ayres & Co. v. Hicks, 220 Ind. 86, 40 N.E.2d 334 (1942); Tippecanoe Loan & Trust Co. v. Cleveland Cininnati Chicago & St. Louis Ry., 57 Ind.App. 644, 104 N.E. 866 (1914); South v. National Railroad Passenger Corp., 290 N.W.2d 819 (N.D.1980); Zylka v. Leikvoll, 274 Minn. 435, 144 N.W.2d 358 (1966); Thomas v. Casey, 49 Wash.2d 14, 297 P.2d 614 (1956); Montgomery v. National Convoy & Trucking Co., 186 S.C. 167, 195 S.E. 247 (1938); Maldonado v. Southern Pacific Transportation Co., 129 Ariz. 165, 629 P.2d 1001 (App.1981); Scatena v. Pittsburgh & New England Trucking, 2 Mass. App.Ct....