Trombetta v. United States, CV-84-176-BLG.

• Decision Date: 02 July 1985
• Docket Number: No. CV-84-176-BLG.,CV-84-176-BLG.
• Citation: 613 F. Supp. 169
• Parties: Robert B. TROMBETTA, Mitsie M. Trombetta, and Anthony Trombetta, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Montana

613 F. Supp. 169

Robert B. TROMBETTA, Mitsie M. Trombetta, and Anthony Trombetta, Plaintiffs, v. UNITED STATES of America, Defendant.

No. CV-84-176-BLG.

United States District Court, D. Montana, Billings Division.

July 2, 1985.

Bert W. Kronmiller, Dunaway, O'Connor & Moe, P.C., Billings, Mont., for plaintiffs.

Lorraine Gallinger, Asst. U.S. Atty., Billings, Mont., Collette Winston, Asst. U.S. Atty., Civ. Div., Washington, D.C., for defendant.

OPINION AND ORDER

BATTIN, Chief Judge.

This case is before the Court on defendant's motion to reconsider the Court's order denying defendant's motion to dismiss Count One of plaintiffs' complaint. Upon reconsideration, defendant's motion to dismiss Count One is granted.

In this Court's opinion of January 9, 1985, the Court held that plaintiffs' claim was not barred by the exceptions to the Federal Torts Claims Act (FTCA). That position is supported by the Supreme Court's holding in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983). However, upon reconsideration, the Court finds that there was no duty on the part of the defendant, and therefore the analysis of the case need not proceed to the question of whether the exceptions to the FTCA apply.

The FTCA waives, with certain exceptions, the government's traditional sovereign immunity from suit for commonlaw torts committed by government agents, 28 U.S.C. § 2674, but the source of the claim for relief must be the law of the state where the act or omission complained of occurred. 28 U.S.C. § 1346(b); Lutz v. United States, 685 F.2d 1178 (9th Cir.1982). Montana recognizes the commonlaw tort embodied in the good samaritan doctrine as set out in § 323 of the Restatement (Second) of Torts (1965), Jeffries v. United States, 477 F.2d 52 (9th Cir.1973). Section 323 states as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

As counsel for defendant pointed out, even where the government conducts inspections, it is not undertaking a legal duty to render services as required by the good samaritan doctrine. Jeffries v. United States, 477 F.2d 52 (9th Cir.1973); Roberson v....