Stokes v. United States

• Citation: 444 F.2d 69
• Decision Date: 22 June 1971
• Docket Number: No. 71-1101.,71-1101.
• Parties: Terry Lynn STOKES, by her guardian ad litem, C. W. Everett, Jr., Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

444 F.2d 69 (1971)

Terry Lynn STOKES, by her guardian ad litem, C. W. Everett, Jr., Appellant, v. UNITED STATES of America, Appellee.

No. 71-1101.

United States Court of Appeals, Fourth Circuit.

Argued May 5, 1971.

Decided June 22, 1971.

Laurence S. Graham, Greenville, N. C., for appellant.

John R. Whitty, Asst. U. S. Atty. (Warren H. Coolidge, U. S. Atty., E. D. of North Carolina, on brief), for appellee.

Before WINTER, BUTZNER, and RUSSELL, Circuit Judges.

BUTZNER, Circuit Judge.

This appeal raises the question whether a child struck by a post office truck can sue under the Federal Tort Claims Act to recover damages for pain and suffering after the government has reimbursed her parents for medical expenses. The district court held that the child's complaint failed to state a claim against the government and dismissed the action. We reverse.

The complaint alleges that a truck operated by an employee of the Post Office Department struck Terry Lynn Stokes, a three year old child. Her parents, who were not represented by counsel, presented a claim on a post office form, and a postal official advised the child's mother that the proper amount of the claim should be the medical expenses incurred as a result of the injury. Accordingly, the mother completed the form by inserting the sum of $1,142.15, the child's total medical expenses. About 45 days later, the child's parents received a check for this sum. The letter of transmittal stated that the award represented the full amount of the claim and that acceptance would operate as a complete release of the government and its employee. Later, on advice of counsel, the parents requested the Post Office Department to permit them to withdraw the claim in the amount of $1,142.15, and at the same time, they submitted a claim for $25,000. When the post office denied the $25,000 claim, this suit was instituted to recover for the child's disability, pain and suffering.

The Federal Tort Claims Act allows recovery for personal injury "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."¹ In North Carolina, the place of the accident, two related but distinct causes of action arose when the post office truck struck the child. They are: "(1) An action on behalf of the child to recover damages for pain and suffering, permanent injury and impairment of earning capacity after attaining majority; and (2) an action by the parent, ordinarily the father, for (a) loss of the services and earnings of the child during minority, and (b) expenses incurred for necessary medical treatment for the child's injuries." Kleibor v. Rogers, 265 N.C. 304, 144 S.E.2d 27 (1965); accord, Foster v. Foster, 264 N.C. 694, 142 S.E. 2d 638 (1965). In Kleibor, the court held that a judgment against an infant because of his contributory negligence was not res judicata in a subsequent action brought by the infant's father for medical expenses. Foster held that while an infant could not sue her mother for negligently caused personal injuries, the infant's father could sue the mother for medical expenses.

The $1,142.15 for medical expenses received by the parents did not include any payment to the child on account of her disability, pain, and suffering. Since under North Carolina law, the child has a claim separate and apart from that of her parents for medical expenses, settlement of the claim for medical expenses did not discharge the government from all liability.

Title 28 U.S.C. § 2675² provides that a claimant must first present his claim to the appropriate federal agency. Subse...