Valdiviez v. U.S., 88-5615

• Decision Date: 22 September 1989
• Docket Number: No. 88-5615,88-5615
• Citation: 884 F.2d 196
• Parties: Jose R. VALDIVIEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 196

884 F.2d 196

58 USLW 2228

Jose R. VALDIVIEZ, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 88-5615

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

Sept. 22, 1989.

As Amended on Denial of Rehearing Oct. 19, 1989.

Jeffrey C. Anderson, Southers & Lyons, Inc., San Antonio, Tex., for plaintiff-appellant.

Winstanley F. Luke, John F. Paniszczyn, Asst. U.S. Attys., Helen M. Eversberg, U.S. Atty., LeRoy Morgan Jahn, Asst. U.S. Atty., San Antonio, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before GEE, REAVLEY and DUHE, Circuit Judges.

DUHE, Circuit Judge:

The issue in this case is whether the United States is liable under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346 et seq. for the consequences that flowed from a homosexual serviceman's act of donating blood contaminated with the virus that causes Acquired Immunodeficiency Syndrome (AIDS). The district court held that it was not.

FACTS

Before donating blood during a military sponsored blood drive, a serviceman signified that he had read literature provided by the blood bank concerning AIDS and understood that members of high risk groups were asked to refrain from donating blood. The serviceman was aware that, as a practicing homosexual, he was in a high risk group for AIDS but gave blood anyway because he did not want anybody to think he was "gay".

On October 22, 1984 at a military hospital, the serviceman's donated blood was transfused into retired serviceman Jose R. Valdiviez, during coronary artery bypass surgery. Before the surgery, Valdiviez was warned of the risk of contracting hepatitis and syphilis from a blood transfusion but was not warned of the risk of AIDS.

Valdiviez sued the United States alleging it was negligent for failing to (1) properly screen for high risk blood donors; (2) timely and adequately test the blood he was given for AIDS; and (3) advise Valdiviez the blood which he would be receiving during surgery had not been tested for AIDS and of the risk of that disease. In a motion for summary judgment, Valdiviez asserted a fourth claim--that the United States was vicariously liable for the actions of the blood donor. The United States filed a cross-motion for summary judgment which was granted by the trial court.

Trial court opinion

The trial court found that the medical community did not reach a consensus regarding whether AIDS could be transmitted by blood until 1984 and that no test was able to detect AIDS contaminated blood until May 1985. The trial court held that a reasonable jury could not find that the possibility of contracting AIDS from a blood transfusion was a material risk at the time Valdiviez received his blood transfusion nor could a reasonable jury find that if Valdiviez had been informed of the "miniscule possibility" of contracting AIDS, he would have refused the heart surgery and the necessary transfusion.

On the vicarious liability issue, the trial court found that the donor's failure to inform blood center personnel that he was a practicing homosexual was intentional and therefore the United States was not liable. The court further found that even if the donor's act was negligent rather than intentional, donating blood was not in the course and scope of his employment. It noted that the donor was not required to give blood and was not paid or given any benefit to donate blood. The trial court concluded that donating blood was a voluntary humanitarian act, not in furtherance of the serviceman's military duties, nor an objective for which military personnel are employed and therefore the United States was not vicariously liable for the donor's act.

FTCA

The Federal Tort Claims Act (FTCA) 28 U.S.C. Sec. 1346 et seq., recognizes the general principle that the United States should be liable for the negligence of government employees performing governmental functions when a private person would be liable under the same circumstances. The purpose of the Act was to make a remedy available when previously it had been barred by sovereign immunity. 14 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure, Sec. 3658 (1985). The main statutory provision, Sec. 1346(b) of Title 28, gives the district courts jurisdiction over actions against the United States for money damages:

... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, 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.

Section 2671 of the FTCA provides that, in the case of a member of the military, "acting within the scope of his office or employment" means acting "in line of duty."

Vicarious liability

On appeal Valdiviez contends that the district court erred in holding that Jackson was not in the course and scope of his employment when he donated blood. Valdiviez argues that the extent of control an employer exercises over a worker is a primary factor in determining whether the worker is a "servant" under the doctrine of respondeat superior, and, that the district court ignored the issue of the United State's control over the donor and the blood donation process. He notes that the blood bank was located at a military facility; that the blood donor's commander authorized the donor to donate blood during the duty day; and implicitly encouraged donations by allowing notices of the blood drive to be posted at the donor's duty station and by allowing time off with pay if the donor fell ill following the donations. Valdiviez also notes that...