Veloz-Gertrudis v. US, CV 90-2755(RR).

• Decision Date: 03 July 1991
• Docket Number: No. CV 90-2755(RR).,CV 90-2755(RR).
• Citation: 768 F. Supp. 38
• Parties: Alexis E. VELOZ-GERTRUDIS, Zenaida Figueroa Veloz and Felicita Gertrudis, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

768 F. Supp. 38

Alexis E. VELOZ-GERTRUDIS, Zenaida Figueroa Veloz and Felicita Gertrudis, Plaintiffs, v. UNITED STATES of America, Defendant.

No. CV 90-2755(RR).

United States District Court, E.D. New York.

June 6, 1991.

As Amended July 3, 1991.

Leavitt, Kerson & Leffler by Paul E. Kerson, Forest Hills, N.Y., for plaintiffs.

Stuart M. Gerson, Asst. Atty. Gen., Andrew J. Maloney, U.S. Atty., Janis G. Schulmeisters, Torts Branch, Civ. Div. by Mark E. Schaefer, Trial Atty., New York City, for defendant.

MEMORANDUM AND ORDER

RAGGI, District Judge:

Alexis E. Veloz-Gertrudis, sues the United States under the Federal Torts Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671-2680 (1988), for injuries sustained in a hazing incident aboard the U.S.S. Forrestal. His mother, Zenaida Figueroa Veloz, and his wife, Felicita Gertrudis, also sue for damages related to this incident.

The United States moves to dismiss plaintiffs' complaint, or in the alternative for summary judgment, relying on the principles enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and its progeny. For the reasons stated herein, the motion to dismiss is granted.

FACTUAL BACKGROUND

For purposes of considering defendant's motion, the court views all facts in the light most favorable to the plaintiffs.

1. The Hazing Incident

In late November 1989, twenty-year old Alexis Veloz-Gertrudis was assigned to active duty as a Navy Airman Recruit aboard the U.S.S. Forrestal. On the night of January 18, 1990, while the Forrestal was in the Mediterranean Sea, Veloz-Gertrudis was the victim of a hazing incident in the ship's engine room. Senior crewmen tied him up with rope and suspended him upside down from an air pressure valve. He was stripped to the waist and grease was smeared over his stomach. Crew members then took turns slapping him on the stomach and chest. When Veloz-Gertrudis sought to avoid the blows by bringing his knees up to his chest, a crew member yanked on the rope by which plaintiff was hanging, forcing his ankles over the top of the valve. Veloz-Gertrudis heard his ankle "pop" and began screaming with pain for the men to stop. Instead, the crewmen continued to strike him, one delivering a series of particularly hard blows in purported retaliation for plaintiff's attempt to kick him.

2. The Subsequent Altercation and Its Report to Navy Authorities

When Veloz-Gertrudis was finally released, an altercation ensued between him and one of the men involved in the hazing, in the course of which plaintiff was punched in the face and neck. A short time later, in another part of the ship, the same crewman charged at Veloz-Gertrudis. Plaintiff tried to defend himself, grabbing a screwdriver from a nearby locker. The crew member nevertheless succeeded in throwing Veloz-Gertrudis to the deck. While other crewmen held plaintiff face down, the original assailant jumped repeatedly on Veloz-Gertrudis' back.

Subsequently, Veloz-Gertrudis was summoned to a meeting with three participants in the original engine room hazing. Plaintiff overheard them agree not to report the incident in light of their personal involvement. One of the men did authorize Veloz-Gertrudis to go to the ship's medical unit, but stressed that he should tell the examining doctor that his injuries had been sustained falling down a ladder. Because he was afraid, Veloz-Gertrudis agreed to lie.

The severity of plaintiff's injuries required his transfer to a Navy hospital. Upon learning that he would be leaving the Forrestal, and after speaking to the ship's priest, Veloz-Gertrudis told senior officials the truth about what had happened.

Thereafter, Veloz-Gertrudis was treated at a military hospital in Spain and at a facility in Jacksonville, Florida.¹ He suffered, inter alia, two broken vertebrae, severe post-traumatic stress disorder and an ankle injury. He has been found permanently disabled by the Navy and his discharge application is pending.

3. The Internal Investigation

Because hazing is strictly prohibited by the Navy, an internal investigation of the events of January 18, 1990 was conducted. That investigation revealed that plaintiff was an unwilling participant in the hazing. It was also determined that other unauthorized "initiations" had taken place in the past on the Forrestal. As a result, several participants in the January 18, 1990 hazing were disciplined. Moreover, certain officers were reinstructed regarding the rules concerning initiations and hazings. Instructions and admonitions were also given via closed-circuit television to all crew aboard the Forrestal.

4. Plaintiffs' Claims

Plaintiffs initially filed claims for damages with the United States Department of the Navy. These were denied by letters dated May 22, 1990 and July 21, 1990 in light of Feres. On August 6, 1990, plaintiffs filed this action. They claim that the United States is liable for the intentional tortious conduct of its subordinates, i.e., the crew members who participated in the hazing. They further claim that the United States is liable for its negligent supervision of the Forrestal crew.

DISCUSSION

The United States urges dismissal for lack of subject matter jurisdiction relying on the Supreme Court decision in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). In Feres, the Court held that the United States was not subject to suit under the Federal Torts Claims Act for injuries that "arise out of or are in the course of activity incident to military service." Id. at 146, 71 S.Ct. at 159. The doctrine applies not simply to suits brought by members of the armed forces, but also to claims made by their families. See In re Agent Orange Product Liability Litigation, 506 F.Supp. 762, 780 (E.D.N.Y.1980) (and cases cited therein).²

Because Feres operates as a "blunt instrument," Bozeman v. United States, 780 F.2d 198, 200 (2d Cir.1985), precluding suit in a wide variety of cases, it has been frequently criticized, see, e.g., United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 2074 n. *, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting) (cases and commentators cited therein). Nevertheless, both the Supreme Court and the Second Circuit recognize its continuing viability. See United States v. Johnson, 107 S.Ct. at 2067-70 (majority upholds Feres doctrine and declines to modify it); accord Sanchez v. United States, 878 F.2d 633 (2d Cir.1989) (applying Feres in light of Johnson). This court must do likewise.

Plaintiffs contend that, even if Feres is good law, it is not applicable to this case since hazing, the activity in which Veloz-Gertrudis was injured, is prohibited by the Navy. Although this court recognizes — and, indeed, respondent concedes — that hazing is not authorized on any Navy ship, this does not by itself mandate a finding that plaintiff's injuries were not incident to his military service or that Feres does not apply.

Although "neither the FTCA nor the opinions of the Supreme Court have indicated definitively the full meaning of the phrase `incident to service,'" see 1 Jayson, Handling Federal Tort Claims § 155.01, at 5-66 (1990), courts have interpreted the phrase broadly and found it applicable to any loss or injury occurring under circumstances rationally connected to a serviceman's status in the armed services. E.g., Woodside v. United States, 606 F.2d 134, 141 (6th Cir.1979); In re Agent Orange Product Liability Litigation, 506 F.Supp. at 775 (and cases cited therein); Camassar v. United States, 400 F.Supp. 894, 897 (D.Conn.1975), aff'd, 531 F.2d 1149 (2d Cir. 1976) (per curiam); 1 Jayson, Handling Federal Tort Claims § 155.02, at 5-68 (and cases cited therein). Thus, Feres has not been limited to those cases in which servicemen have been injured in the course of actual military operations. See In re Agent Orange Product Liability Litigation, 506 F.Supp. at 775 (quoting Hass v. United States, 518 F.2d 1138, 1141 (4th Cir.1975)). Neither has its applicability been dependent upon an injury occurring while a serviceman was acting pursuant to orders. See Woodside v. United States, 606 F.2d at 141. Feres has barred claims as diverse as those involving injury to an Air Force officer sustained while he was training for a commercial pilot's license at a military-sponsored club, id. at 142; to a service member riding a horse rented from a military stable, Hass v. United States, 518 F.2d at 1141, and even to a military policeman killed in an off-base accident allegedly caused by his drunk-driver companion who had become intoxicated at an NCO club, Bozeman v. United States, 780 F.2d at 200-01.

In reaching these results, courts have identified a number of factors relevant to the applicability of Feres. Was the serviceman on duty when the injury was sustained? Was the serviceman, regardless of his duty status, on a military base or craft, and therefore subject to military control or discipline, at the time of the injury? Was he engaged in a military mission? Was he enjoying a privilege related to or dependent upon his military status at the time of the injury? A number of decisions suggest that an affirmative answer to any one of these questions suffices to bring the matter within the bounds of Feres. E.g., Woodside v. United States, 606 F.2d at 141; Hass v. United States, 518 F.2d at 1141; In re Agent Orange Product Liability Litigation, 506 F.Supp. at 776. Other courts urge that the factors be reviewed flexibly in light of the circumstances of a particular case. E.g., Miller v. United States, 643 F.2d 481, 493 (8th Cir.1981) (en banc); Stanley v. Central Intelligence Agency, 639 F.2d 1146, 1151 (5th Cir.1981); see generally 1 Jayson, Handling Federal Tort Claims § 155.02, 5-77 to 5-78 (and cases cited therein).

Whichever approach is here followed, the factors weigh against plaintiffs' maintenance of this lawsuit. There is no question that Veloz-Gertrudis was on active duty on board a Navy ship detailed to patrol the...