Tyndall v. United States, Civ. A. No. 1294-1298.

• Decision Date: 15 January 1969
• Docket Number: Civ. A. No. 1294-1298.
• Citation: 295 F. Supp. 448
• Court: U.S. District Court — Eastern District of North Carolina
• Parties: Donald L. TYNDALL v. UNITED STATES of America. Lisa Michelle TYNDALL, a minor, by her General Guardian, Donald L. Tyndall v. UNITED STATES of America. Kimberly Fay TYNDALL, a minor, by her General Guardian, Donald L. Tyndall v. UNITED STATES of America. Donald L. TYNDALL, Administrator of Estate of Elizabeth M. Tyndall, Deceased, v. UNITED STATES of America. Bruce Edward TYNDALL, a minor, by his General Guardian, Donald L. Tyndall v. UNITED STATES of America.

295 F. Supp. 448

Donald L. TYNDALL v. UNITED STATES of America.

Lisa Michelle TYNDALL, a minor, by her General Guardian, Donald L. Tyndall v. UNITED STATES of America.

Kimberly Fay TYNDALL, a minor, by her General Guardian, Donald L. Tyndall v. UNITED STATES of America.

Donald L. TYNDALL, Administrator of Estate of Elizabeth M. Tyndall, Deceased, v. UNITED STATES of America.

Bruce Edward TYNDALL, a minor, by his General Guardian, Donald L. Tyndall v. UNITED STATES of America.

Civ. A. Nos. 1294-1298.

United States District Court E. D. North Carolina, Wilmington Division.

January 15, 1969.

William S. McLean, Asst. U. S. Atty., Eastern District of North Carolina, Raleigh, N. C., for the United States.

Russell J. Lanier, Kenansville, N. C., and George Rountree, Jr., Rountree & Clark, Wilmington, N. C., and Henry L. Stevens, III, Kenansville, N. C., for plaintiffs.

OPINION and JUDGMENT

DALTON, District Judge.

This action is based on 28 U.S.C.A. § 1346(b) and §§ 2671-2680, of the Federal Tort Claims Act. The government has moved for summary judgment upon the facts appearing in the pleadings, depositions, and stipulations filed with this court, claiming that as a matter of law the government is not liable to the plaintiff under the following circumstances, some of which appear indistinctly in the record.

About 10:30 p.m. on October 5, 1967, Donald L. Tyndall, his wife and their three children, the plaintiffs, were riding in their car on North Carolina Route #24. About one mile east of Beulaville, North Carolina, the plaintiffs' car collided with a two-ton truck driven by Private Robert H. Braathe, a member of the United States Marine Corps. The collision caused the death of Mrs. Tyndall and Private Braathe, and Donald Tyndall and his three children were seriously injured. At the time of the accident Private Braathe was stationed at the Marine Corps Air Facility located near Jacksonville, North Carolina, about thirty miles from the scene of the accident. The truck was the property of the United States and had been assigned to the Marine Corps base. On the night in question, Private Braathe had been off duty since 4:30 p.m. and had been drinking heavily since early evening. About 8:00 p.m. while leaving his barracks with a nearly empty vodka bottle in his hand he met two other marines. During this encounter Private Braathe offered to wager that he could drive to Connecticut and back by the following morning. The other two men refused to accept the bet and went on their way. Private Braathe then went to the Supply Station, where he met Corporal Grunden, the duty clerk that night at the Supply Station. Corporal Grunden was leaving the building to make two deliveries in the ill-fated truck, and Private Braathe accompanied Corporal Grunden on these deliveries. After making the deliveries Corporal Grunden refueled the truck and parked it near the Supply Station, leaving the ignition key in the ignition switch. Corporal Grunden, however, does not recall leaving the key in the truck. In the course of their conversation that evening, Private Braathe mentioned to Corporal Grunden that he wanted to drive to Connecticut that night. According to Corporal Grunden, Braathe seemed to dismiss the idea when Grunden reminded him that his car would not make it that far. Corporal Grunden said that Braathe appeared to have been drinking, but did not appear to be intoxicated. The assistant duty clerk for that evening stated that Corporal Grunden took away from Private Braathe the keys to Braathe's personal car. After the accident Corporal Grunden disclosed to his superior, Sergeant A. L. Marr, that Pfc. Braathe consumed more than a quart of vodka on the night of the accident. At about 9:00 p.m. that night a Marine Corps sergeant encountered Pfc. Braathe as he was leaving his barracks with a vodka bottle in his hand. The sergeant asked Braathe where he was going, to which Braathe replied that he was going home. The sergeant asked Braathe how he was getting there and Braathe answered that he was going to get there by "government transportation," and would be back by Friday night. Shortly after this conversation Braathe went back to the Supply Station where he told Corporal Grunden that he was going to sleep in the truck because his clothes were laid out on his bunk for a morning inspection. Corporal Grunden let him go because "he was tired of messing with him."

Neither of the two sentries at the main gate saw Private Braathe or the truck leave the base. Between 10:00 p. m. and the time of the accident Pfc. Braathe was seen by three motorists as he attempted to pass them on highway #24. One car was forced off the road by the truck's failure to cross the center line in passing. Another traveling about 55 m.p.h. was struck in the rear taillight and knocked into a ditch as the truck attempted to pass. The driver of the third car had just passed the plaintiffs' car, which was coming from the opposite direction, when she heard the sound of brakes and a crash.

Other relevant facts brought forth by the government revealed that the truck which Private Braathe was driving had been permanently assigned to the Supply Department. While the prevailing orders were that the truck was to be returned to the motor pool each day, this was not always done. Private Braathe was a supply clerk and general warehouseman, whose duties included receipting material, stocking and assistance in deliveries. Only occasionally did Private Braathe's duties include driving the delivery trucks.

Marine Corps regulations and procedures for the use of the truck require special authorization by the Officer of the Day before Marine Corps vehicles may be used for official off-station trips after 4:30 p.m. No such authorization was given on the night of October 5th. Corporal Grunden had no authority to authorize such trips. His duties as supply clerk are not entirely clear, but apparently, on the evening in question, they included responsibility for the "clean-up and security" of the Supply Station.

Marine Corps regulations also provided for the "security" of vehicles: "Unattended vehicles will be secured, engines locked and keys removed, and brakes will be effectively set." It would appear that this regulation was not followed on the night in question.

Upon these facts the plaintiffs, relying on the doctrine of res ipsa loquitur, insist that someone must have been negligent in permitting Private Braathe to operate the truck in his drunken condition. Plaintiffs argue further that the non-compliance with the Marine Corps regulation as to securing motor vehicles was analogous to violation of a safety statute, which in North Carolina would be negligence per se. Finally, plaintiffs argue that Corporal Grunden was negligent in making the truck available to Private Braathe which was a proximate cause of the accident, and that the government must be held responsible under the applicable rules of respondeat superior.

The government argues that under the North Carolina rules of respondeat superior, the United States Government, as a matter of law, cannot be held responsible for the plaintiffs' injuries. It is urged that Private Braathe, while clearly negligent, was on a frolic of his own at the time of the accident, and the negligence, if any, on the part of Corporal Grunden or others, was not the proximate cause of the accident.

We note at the outset that summary judgment is seldom an appropriate method by which federal courts should dispose of negligence cases since in the usual case material facts are in dispute. See 3 Barron and Holtzoff, Federal Practice and Procedure § 1232.1 (1956); 6 Moore's Federal Practice, ¶ 56.17 42 at 2583 (2d Ed.1966). In White v. United States, 317 F.2d 13, 18 (4th Cir. 1963), a suit under the Federal Tort Claims Act, the applicable rule reiterated:

* * * summary judgment should be granted only where it is perfectly clear that no issue of fact is involved and inquiry into the facts is not desirable to clarify the application of the law. * * * And this is true even where there is no dispute as to the evidentiary facts in the case but only as to the conclusions to be drawn therefrom.

See also Pierce v. Ford Motor Co., 190 F.2d 910, 915 (4th Cir. 1951), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L. Ed. 666 (1951). Since juries are not available under the Tort Claims Act, 28 U.S.C.A. § 2402, summary judgment would seem to be particularly inappropriate when the question is whether particular acts constitute negligence. If one thing is clear from the evidence submitted by the government in support of its motion, it is that further inquiry into the facts would be helpful in determining their legal consequence. Hence, the government's motion is denied.

Since we conclude that under the above-quoted test, this case might present a "jury question," we deem it unnecessary at this time to consider plaintiffs' argument under North Carolina law¹ that the rule of res ipsa loquitur would give rise to a jury question. See White v. Hines, 182 N.C. 275, 109 S.E. 31 (1921).

Whether the government may be held liable for these plaintiffs' damages is determined by "* * * the law of the place where the negligent act or omission occurred." 28 U.S.C.A. § 1346(b). Where the action involves torts of servicemen, the government is responsible only if the tortious action of the serviceman occurred while he was "acting in line of duty." 28 U.S.C.A. § 2671. "Acting in the line of duty," however, merely invokes the state rules of respondeat superior. Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955); see 7 Wm. & Mary L.Rev., Current Decision, 413 (1966). The North Carolina rule of respondeat superior is familiar: The question is whether the tortious conduct of the servant occurred when he was acting in the scope of his employment. Riddle v. Whisnant, 220 N.C. 131, 16 S.E.2d 698 (1941); Chappell v. Dean, 258 N.C. 412, 128 S.E.2d 830 (1963).

That...