Washington v. U.S.
| Decision Date | 21 February 1989 |
| Docket Number | No. 88-5728,88-5728 |
| Parties | Barbara Ann WASHINGTON, individually, and as Guardian Ad Litem for: Christa M. Washington, a minor, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Barbara W. Ravitz, Greines, Martin, Stein & Richland, Beverly Hills, Cal., for plaintiff-appellant.
Robert S. Greenspan, Marc Richman, Civ. Div., Dept. of Justice, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Central District of California.
Before BROWNING, SCHROEDER and NOONAN, Circuit Judges.
Barbara Ann Washington brought suit on her own and her minor daughter Christa's behalf against the United States of America (the government) and two members of the United States Navy, Larry Bartole and Neil Cleaves, for injuries suffered by Christa at the U.S. Naval Housing Quarters, Point Mugu, California. Jurisdiction was under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671 et seq. The mother's claim was dismissed for lack of subject matter jurisdiction because she had not filed an administrative tort claim with the Navy, 38 U.S.C. Sec. 2675(a). Christa's claim was tried to the court, which made findings of fact
and conclusions of law and entered judgment for the government. Christa Washington appeals. We reverse.
At 6:40 p.m., September 19, 1980, in the base housing facilities of the Navy at Point Mugu, California, two active duty members of the Navy, Larry Bartole and Neil Cleaves, were attempting to start Cleaves' 1964 Rambler. The car was in the garage assigned to Cleaves. It had not been operative for several months. Cleaves had given it a basic tune-up and oil change and it still would not run.
The main garage door was closed; a side door was open. Cleaves was in the car, turning on the ignition when he thought appropriate. Bartole tried to prime the carburetor by pouring gasoline from a coffee can into the throat of the carburetor. The engine back-fired. Flames shot from the carburetor. Bartole jerked the can back and spilled gas over his hand. His hand caught fire. He ran to the side door, tripped, and sent the blazing can out the door into the yard. Christa Washington was just outside the door. She was struck by the fiery gasoline. It severely burned the right side of her head, face and neck and right shoulder, arm, wrist and hand.
At the time of the incident Bartole and Cleaves were on authorized liberty status and had completed their ordinary work for the day for the Navy. Christa, aged ten, was the daughter of a serviceman residing in a naval housing unit at Point Mugu. Her family's unit was directly across from Cleaves'. The great majority of the 567 housing units at the base were occupied by families with more than one child.
A Navy regulation provided that "only repairs of a minor nature, such as basic tune-up, lube adjustments and oil changes may be accomplished in public quarters, garages or the hobby shop spaces." A booklet issued to all servicemen housed on the base carried an introductory message from Captain James E. Webb, commanding officer of the Naval Air Station. Captain Webb stated: "This brochure provides ... the necessary regulations and rules for your assistance and guidance throughout your stay in government quarters." Within this booklet a section was entitled, "Fire, Safety and Police Regulations" and contained directions on the storage of gasoline but nothing specifically on the use of gasoline to prime carburetors.
Other regulations issued on January 5, 1979 and in effect at the time of the incident were explicitly directed to fire prevention. These regulations provided that (emphasis in original). These regulations specified that "Public Quarters Residents" were responsible for "compliance with Fire Regulations" and "application of fire prevention safeguards in Quarters, housing, and facilities." The Fire Regulations that accompanied this regulation stated: "Fire Hazardous Operations shall not be conducted prior to establishment of adequate fire prevention measures and approved by the Fire Chief." (emphasis in original).
A report to the navy on the accident by Ensign David M. Anderson, Jr. stated that and that "using gasoline to prime the carburetor is not a safe practice but is relatively common."
The Federal Tort Claims Act waives the government's immunity to a suit for personal injuries caused by an "employee of the Government while acting within the scope of his office or employment...." 28 U.S.C. Sec. 1346(b). The scope of employment of a military member "means acting in line of duty." 28 U.S.C Sec. 2671. The military "line...
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