Weaver v. US Coast Guard

• Decision Date: 30 June 1994
• Docket Number: No. G-93-128.,G-93-128.
• Citation: 857 F. Supp. 539
• Parties: Robert WEAVER, et al. v. The UNITED STATES COAST GUARD and the United States of America.
• Court: U.S. District Court — Southern District of Texas

857 F. Supp. 539

Robert WEAVER, et al. v. The UNITED STATES COAST GUARD and the United States of America.

No. G-93-128.

United States District Court, S.D. Texas, Galveston Division.

June 30, 1994.

COPYRIGHT MATERIAL OMITTED

Ralph D. Huston, Richard Lee Melancon, Schechter & Associates, Galveston, TX, for Robert Weaver, Lucille Weaver, Kenneth Weaver, Donna Weaver.

Daniel David Hu, U.S. Attys. Office, Houston, TX, for U.S.

George P. Pappas, McLeod Alexander Powel & Apffel, Galveston, TX, for Mini Inc.

ORDER GRANTING SUMMARY JUDGMENT

KENT, District Judge.

Before the Court is the Defendant United States of America's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1) or for summary judgment under Rule 56(c). This action is brought under the Federal Torts Claims Act (FTCA), 28 U.S.C. §§ 2671-2680, for damages arising out of a tragic automobile accident caused by drunken Coast Guardsman Mark David Brown. The seminal issue is whether Brown was acting within the scope of his employment at the time of the accident. Because the viability of the Plaintiffs' claims that are based upon this seminal issue is inextricably bound with the issue of subject matter jurisdiction, the Court must treat the corresponding portion of the Government's motion as one for summary judgment. Tindall v. United States, 901 F.2d 53, 55 n. 5 (5th Cir.1990) (per curiam). So is it for the remaining issue of whether the Government is liable for the negligent omissions of Coast Guardsman Michael A. Bray in failing to prevent Brown's actions. For the reasons stated below, the Court resolves both issues in the negative and consequently GRANTS the Government's motion.¹

I. SUMMARY JUDGMENT

Summary judgment is appropriate if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. A fact is material if its resolution in favor of one party might affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A genuine issue of material fact exists if there is an authentic issue for trial that must be decided by the trier of fact. In other words, summary judgment should not be granted if the evidence indicates that a reasonable fact finder could decide in favor of the nonmoving party. Id.; see also Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986).

In ruling on a motion for summary judgment, the Court must accept the evidence of the nonmoving party and draw all justifiable inferences in its favor. Credibility determinations, the weighing of evidence, and the drawing of reasonable inferences are all left to the trier of fact. Anderson, 477 U.S. at 255, 106 S.Ct. at 2513.

Under Federal Rule of Civil Procedure 56(c), the moving party bears the initial burden of "informing the district court of the basis for its motion, and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). Once this burden is met, the burden shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita, 475 U.S. at 585-87, 106 S.Ct. at 1355-56; Leonard v. Dixie Well Serv. & Supply, Inc., 828 F.2d 291, 294 (5th Cir.1987).

Where the moving party has met its Rule 56(c) burden, the nonmovant "must do more than simply show that there is some metaphysical doubt as to the material facts.... The nonmoving party must come forward with `specific facts showing that there is a genuine issue for trial.' Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 586-87, 106 S.Ct. at 1356 (quoting Fed.R.Civ.P. 56(c)) (emphasis original).

II. FACTS

Machinery Technicians First Class Mark David Brown and Michael A. Bray were assigned to the USCGC Buttonwood, which had been engaged in a ten- to fourteen-day stressful and vigorous oil containment operation before it returned to home port in Galveston, Texas, during the late hours of June 20, 1990. Brown asserts that he remained on board that night, although Bray testified that Brown went out.² Bray also testified that Brown reported late to muster on the morning of June 21 and was tired and smelled strongly of alcohol.

Around 2:00 p.m. on June 21, the men aboard the Buttonwood were given four hours to run personal errands. They were admonished to return to the ship sharply at 6:00 p.m., when it would set sail for its next potentially lengthy assignment. Brown and Bray promptly departed from the Buttonwood and bought two six packs of beer at the base exchange. They began drinking the beer immediately after they left the base, as Brown drove Bray and two other men in his truck to take care of their personal business. The men consumed several more drinks at Bray's home before traveling to Porky's Cabaret where they consumed even more alcohol. By the time he began his return trip to the Buttonwood at about 5:30 p.m., Brown had consumed approximately 6 beers and possibly one mixed drink. Then, at 6:00 p.m. as he hastily drove himself and Bray back to the Buttonwood, Brown collided into the Plaintiffs' decedents' car, killing all three family members inside.

Brown is currently incarcerated after pleading nolo-contendere to three counts of involuntary manslaughter and two counts of aggravated assault.

III. DISCUSSION

The Plaintiffs assert several theories of liability. First, they assert that the Government is liable for Brown's negligent acts because he was acting in the scope of his office or employment when the accident occurred: either during the entire four-hour liberty or at least when he was returning to the Buttonwood pursuant to orders. Second, the Plaintiffs assert that the Government is liable for Brown's acts because he was on a special mission for the Government. Third, the Plaintiffs assert that the Government is liable because Bray acted negligently.³

A. NEGLIGENCE OF BROWN

When the United States is sued under the FTCA for the negligent acts of military personnel, it is only liable for acts committed in the "line of duty." 28 U.S.C. §§ 1346(b), 2671. This line-of-duty determination is governed by state respondeat-superior laws, Williams v. United States, 350 U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam); Skipper v. United States, 1 F.3d 349, 352 (5th Cir.1993), cert. denied, ___ U.S. ___, 114 S.Ct. 1220, 127 L.Ed.2d 566 (1994); Garza v. United States, 809 F.2d 1170, 1171 (5th Cir.1987), but considered in light of the "special factors characteristic of military activity and discipline." Bettis v. United States, 635 F.2d 1144, 1147 (5th Cir. 1981); Hinson v. United States, 257 F.2d 178, 181 (5th Cir.1958); contra Brotko v. United States, 727 F.Supp. 78, 80-81 (D.R.I. 1989) (noting that several circuits other than the Fifth have declined to consider the special factors characteristic of military employment in determining the scope of employment under the FTCA).⁴

In Texas,

the test ... for determining a master's liability for the negligent acts of his servant is "whether on the occasion in question, the master has the right and power to direct and control the servant in the performance of the causal act or omission at the very instance of its occurrence." To show the requisite degree of control, the act must be "done within the general authority of the master in furtherance of the master's business, and for the accomplishment of the object for which the servant is employed."

Chevron, U.S.A., Inc. v. Lee, 847 S.W.2d 354, 355 (Tex.App. — El Paso 1993, no writ) (quoting first Wilson v. H.E. Butt Grocery Co., 758 S.W.2d 904, 907 (Tex.App. — Corpus Christi 1988, no writ) and Parmlee v. Texas & New Orleans R.R., 381 S.W.2d 90, 93 (Tex.Civ.App. — Tyler 1964, writ ref'd n.r.e.) and quoting second London v. Texas Power & Light Co., 620 S.W.2d 718, 719-20 (Tex. Civ.App. — Dallas 1981, no writ)).

As for the special factors characteristic to military service, one factor which could be determinative of the scope-of-employment issue is whether the servicemember was traveling pursuant to specific orders when the negligent act was committed. See Hallberg v. Hilburn, 434 F.2d 90 (5th Cir.1970) (finding a soldier in the line of duty when he began the last leg of his journey to report for duty at a new permanent station under orders, had his orders in hand, was dressed in uniform, and had adequate military clothing to perform any duties which might be required by reason of his permanent station change, even though the soldier had taken off the previous several days to settle into his new home with his family); United States v. Culp, 346 F.2d 35 (5th Cir.1965) (per curiam) (finding a soldier in the line of duty when he was traveling under orders for a permanent change of station, was compensated for his travel time, was paid travel allowance in advance, and was even allowed to travel by private conveyance); Hinson v. United States, 257 F.2d 178 (5th Cir.1958) (finding a soldier in the line of duty under Georgia law when he was traveling to his first assignment pursuant to orders which specified that he proceed immediately from his home to the assignment location).

Another factor is whether the servicemember was governed by specific military regulations, enforceable by military punishment and designed precisely to govern the conduct in which the servicemember was engaged at the time of the accident. See Craft v. United States, 542 F.2d 1250 (5th Cir.1976) (finding a soldier in the line of duty when he injured a child while mowing the lawn around his base housing pursuant to orders which assigned specific duties to all base residents to assist in maintaining the housing units); Washington v. United States, 868 F.2d 332 (9th...