Troglia v. U.S.

• Decision Date: 24 August 1979
• Docket Number: No. 77-1342,77-1342
• Citation: 602 F.2d 1334
• Parties: Peter P. TROGLIA, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1334

602 F.2d 1334

Peter P. TROGLIA, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 77-1342.

United States Court of Appeals, Ninth Circuit.

Aug. 24, 1979.

David A. Offutt, Marysville, Cal., for plaintiff-appellant.

Dwayne Keyes, Sacramento, Cal., Louis J. Bizzarri, Sacramento, Cal., for defendant-appellee.

Before MOORE ^*, SNEED and KENNEDY, Circuit Judges.

MOORE, Circuit Judge:

Peter P. Troglia, Jr. appeals from a judgment of the United States District Court for the Eastern District of California (Honorable Philip C. Wilkins, District Judge), entered December 2, 1976, granting a motion for summary judgment in favor of the defendant United States of America. Troglia had filed a complaint seeking damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1976) (hereinafter "FTCA" or "the Act"), for personal injuries suffered in an automobile accident. The United States based its motion for summary judgment on the argument that Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), barred any recovery under the FTCA.

The salient facts alleged are that plaintiff, an Air Force Technical Sergeant assigned to Beale Air Force Base, California, on December 13, 1973 was driving his car on Vassar Lake Road, Yuba County, California, where his car was struck head on by a motor vehicle driven on the wrong side of the road by Karl Beck; that Beck was intoxicated as a result of having been sold intoxicating beverages at the Base's NCO Club by its employees when they knew or should have known Beck was intoxicated; that the NCO Club was under the control, operation, and management of the Army and Air Force Exchange Service, an agency of the United States Government; and that Troglia was seriously injured. By way of answer, the Government alleged that Troglia was on active duty; that the accident occurred within the geographical and jurisdictional limits of the Base; that Troglia was subject to all military regulations, orders, and disciplinary action under the Uniform Code of Military Justice; and that the action was barred by the doctrine of Feres.

At oral argument, both parties seemed to agree that the accident occurred on property owned by the United States, adjacent to the confines of Beale Air Force Base. However, the accident took place approximately one-half mile outside the gate guarding access to the base itself. The United States had granted an easement for the road to Yuba County. Vassar Lake Road, including the site of the accident, was maintained by Yuba County and was patrolled by the Yuba County Sheriff's Office.

The tort for which the Government is alleged to be responsible must be that of its NCO Club employee agents who continued to serve drinks to an intoxicated person. Under California law, a tavern operator or his employee may be liable to a person injured by a patron of the tavern whose intoxication caused the injury if the tavern operator's conduct in serving liquor to the patron is a proximate cause of the injury. Vesely v. Sager, 5 Cal.3d 153, 95 Cal.Rptr. 623, 486 P.2d 151 (1971). If Troglia's allegations are true, the United States would seem to be liable to him under California substantive law and the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680 (1976), unless Troglia's status as a member of the United States Armed Forces bars his recovery pursuant to the rule of Feres v. United States, supra. It thus becomes necessary to consider Feres and the related cases and analyze the effect of the so-called Feres rule on this case.

By enacting the FTCA the Congress was willing to relinquish the sovereignty rights of the United States against suit to the extent specified therein. Section 1346(b) gives the district courts jurisdiction over claims against the United States for "personal injury" caused by the negligent act "of any employee of the Government while acting in the scope of his employment under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the laws of the place where the act or omission occurred". ¹

Apparently, the first time the question of a serviceman's ² standing under the FTCA reached the Supreme Court was in 1949 in which year that Court accepted on certiorari a case from the Fourth Circuit, United States v. Brooks, 169 F.2d 840 (4th Cir. 1949), wherein two servicemen and their father, a civilian, had been injured, one serviceman fatally, in a collision with a military vehicle on a public highway. Both soldiers had been on leave or furlough at the time. Recovery had been allowed under the FTCA, but was overturned by the Court of Appeals, Chief Judge Parker writing a long dissent. Even then the question of the applicability of the FTCA to servicemen was in doubt, Judge Dobie, writing for the majority, said:

"This problem of statutory interpretation is close and difficult, due primarily to the inept draftsmanship on the part of Congress in failing to make clear and express provision as to soldiers in the United States Army." United States v. Brooks, 169 F.2d at 842.

In his strong dissent, Judge Parker said "Legislation is a matter for Congress, not for the court: and the language used by Congress clearly covers soldiers as well as civilians." (Id. at 847).

The Supreme Court, granting certiorari, said: "We brought the case here on certiorari because of its importance as an interpretation of the Act". Brooks v. United States, 337 U.S. 49, 50, 69 S.Ct. 918, 919, 93 L.Ed. 1200 (1950).

The "importance" of the case arises from the discussion of the statute's applicability to servicemen wherein the Court said:

"The statute's terms are clear. They provide for District Court jurisdiction over Any claim founded on negligence brought against the United States. We are not persuaded that 'any claim' means 'any claim but that of servicemen'. . . . Without resorting to an automatic maxim of construction, such exceptions make it clear to us that Congress knew what it was about when it used the term 'any claim'. It would be absurd to believe that Congress did not have the servicemen in mind in 1946, when this statute was passed." 337 U.S. at 51, 69 S.Ct. at 919 (emphasis in original).

In holding that the Government could be liable to the Brookses under the FTCA, the Court explained:

"The Government envisages dire consequences should we reverse the judgment. A battle commander's poor judgment, an army surgeon's slip of hand, a defective jeep which causes injury, all would ground tort actions against the United States. But we are dealing with an accident which had nothing to do with the Brooks' army careers, injuries not caused by their service except in the sense that all human events depend upon what has already transpired. Were the accident incident to the Brooks' service, a wholly different case would be presented." 337 U.S. at 52, 69 S.Ct. at 920 (footnote omitted).

The Court also held that the existence of compensatory payments to injured servicemen and their survivors provided by other statutes did not indicate Congressional purpose to forbid tort actions under the FTCA. The various statutes involved say nothing about the exclusiveness of the remedies provided and do not require an election between remedies. However, payments received by the plaintiff under other laws may be deducted from his or her recovery under the FTCA.

The following year in Feres v. United States, supra, the Supreme Court considered three different factual situations. In one case, the decedent Feres was on active duty in the Army when he died as a result of a fire in his barracks. In the other two cases, the injuries had been inflicted on servicemen by military physicians. With respect to all three cases, 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". 340 U.S. at 146, 71 S.Ct. at 159. Thus, although it was no part of the FTCA as congressionally enacted, the Supreme Court in Feres injected into the statute a governmental exemption from liability if the injury was to "servicemen" and was incurred "in the course of activity incident to service". Since the Court had just held in Brooks that servicemen as such were not excluded, the thrust of exclusion would appear to be in the words "activity incident to service".

In 1954, Brown v. United States, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), was decided, creating a trilogy of leading cases the import of which has proved to be far from clear. Brown was a discharged veteran who entered a Veterans Administration hospital for treatment of a knee injury which had been incurred while Brown was on active duty. Negligent treatment by persons at the hospital caused serious and permanent injury to the nerves in Brown's leg. The Supreme Court upheld his FTCA claim, holding that Brooks rather than Feres controlled because "the negligent act giving rise to the injury in the present case was not incident to the military service. . . ." 348 U.S. at 113, 75 S.Ct. at 144. The Brown decision made it clear that Brooks was still good law and that Brooks and Feres must be read together. Furthermore, the fact that Brown had received a compensation award under another statute did not bar a suit under the FTCA; its effect would have been merely to reduce the amount of the FTCA recovery. 348 U.S. at 113, 75 S.Ct. at 143. ³

Since the three cases were decided, the Courts of Appeals have played a role in modifying the shape of the Brooks-Feres-Brown framework. It would appear to be fairly well established that if a serviceman is injured while On-base, he cannot recover under the FTCA, whatever the cause of the injury. For example, recovery was barred in the following cases: Chambers v. United States, 357 F.2d 224 (8th Cir. 1966) (serviceman drowned while swimming for recreation in base pool); ⁴ Zoula v. United...