Yeary v. US
| Decision Date | 21 March 1996 |
| Docket Number | No. IP 93-1581-CH/G.,IP 93-1581-CH/G. |
| Citation | 921 F. Supp. 549 |
| Parties | Laymon YEARY and Emma Yeary, Plaintiffs, v. UNITED STATES of America, Department of the Army, State of Indiana, and Indiana National Guard, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
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Michael E. Morken and Bruce Jones, Austin Jones & Morken, Indianapolis, Indiana, for plaintiffs.
Thomas E. Kieper, Office of the United States Attorney, Indianapolis, Indiana, for defendant United States of America, Department of the Army.
David F. Hurley and Michelle Larock, Office of the Attorney General, for defendants State of Indiana and the Indiana National Guard.
ENTRY ON DEFENDANT'S SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT
Plaintiff Laymon Yeary and his wife Emma Yeary brought this action seeking damages for injuries resulting from a fall that Mr. Yeary suffered while undergoing police training at Camp Atterbury in Indiana. Camp Atterbury is owned by the United States but has been licensed to the State of Indiana for many years. Plaintiffs originally sued both the United States and the State of Indiana for negligence. The United States moved for summary judgment on the ground that it and its employees had no control over the allegedly dangerous premises. The State of Indiana moved for judgment on the pleadings based on the Eleventh Amendment to the United States Constitution. On July 12, 1995, this court issued an opinion dismissing for lack of subject matter jurisdiction the plaintiffs' claims against the State of Indiana. The Eleventh Amendment bars this court from exercising jurisdiction over those claims. In the same opinion, the court denied the motion for summary judgment filed by the United States. The United States then filed a supplemental motion for summary judgment raising an issue that had not been raised directly in briefing on the original motion. The supplemental motion does not rely on any evidence in addition to that submitted on the original motion. For the sake of clarity, the court will include some portions of its prior decision on the United States' earlier motion for summary judgment.
For purposes of both the original and supplemental motions for summary judgment, the following facts are undisputed except where indicated otherwise. Plaintiff Laymon Yeary was a member of the Indianapolis Police Department (IPD). On December 8, 1992, he attended a training program for members of IPD's Special Weapons And Tactics team (SWAT) at Camp Atterbury in Johnson County, Indiana. Mr. Yeary was injured when he fell from the concrete landing and steps of Building 511 at Camp Atterbury after attending a SWAT team instructional session. Mr. Yeary's complaint alleges that the concrete landing and steps at the north door of Building 511 were negligently designed, built, and/or maintained.
Plaintiffs and the United States dispute whether plaintiffs can establish that the United States had "control" over the premises on December 8, 1992, for purposes of Indiana law of premises liability. The United States owns Camp Atterbury. Under a series of license agreements, the first of which took effect on April 1, 1969, the United States has licensed the premises to the State of Indiana for use by the Indiana National Guard. The operative paragraph of the license in effect on December 8, 1992, states:
The SECRETARY OF THE ARMY hereby grants to the State of Indiana, hereinafter referred to as the licensee, a license for an indefinite period beginning 1 December 1988 but revocable at will by the Secretary of the Army, to use and occupy for year-round training and support of the Indiana National Guard, certain land and improvements comprising a portion of Atterbury Reserve Training Area MILITARY RESERVATION, Indiana....
The license then includes several conditions that are central to the parties' respective arguments. The United States focuses on Paragraph 2, which imposes on Indiana the duty to "maintain and keep in good repair and condition the premises...." Plaintiffs focus on several provisions in which the United States reserved certain rights. Paragraph 1 states that Indiana's use and occupancy "shall be under the general supervision and subject to the approval of the Secretary of the Army or his duly authorized representative and subject also to such rules and regulations as he may from time to time prescribe." In Paragraph 3, the United States reserves the right to use the property where deemed "necessary in the interest of national defense." Paragraph 6 states that "no addition to or alteration or improvement of the premises shall be made without prior written authorization from the Secretary of the Army or his duly authorized representative," but that all "additions, alterations and improvements so authorized shall be maintained by the licensee in good repair and condition." Paragraph 8 refers to a joint survey of the property undertaken by representatives of both the United States and Indiana. Paragraph 12 permits Indiana to issue licenses to "nonprofit community service type activities" to use the premises "upon concurrence of the Director" of the National Guard Bureau, which is a federal agency.
The concrete steps and landing at Building 511 had been cast in place in 1977. Renovations to the concrete steps and doorway were done in March 1991. The renovations were done by agents of the State of Indiana and at State expense. The undisputed facts show that the United States did not authorize any modifications to Building 511 and that no personnel under the command of the federal government had an active role of any kind in the renovation project.
In December 1992, the Indiana National Guard was not in national service and was under the command and control of the Adjutant General of Indiana and ultimately the Governor of the State of Indiana. The Indianapolis Police Department was allowed to use Camp Atterbury facilities for the training Mr. Yeary attended pursuant to a permit issued exclusively by the Military Department of the State of Indiana. There is no evidence that the United States was involved in approving the permit for IPD to use the facility.
To counter the defendants' evidence tending to show the United States lacked control over the premises, plaintiffs have offered evidence concerning the role of federal funds and federally funded employees in the Indiana National Guard. For example, the Adjutant General of Indiana testified that he considers the Indiana National Guard to be part of the federal government, at least in the sense that its soldiers are paid through federal funds when they are being trained. The federal government provides approximately 94 percent of the funds for the Indiana National Guard. Construction and maintenance costs for Camp Atterbury are ultimately reimbursed by the United States.
Some Indiana National Guard personnel are "technicians," who are employees of the United States under 32 U.S.C. § 709, or Active Guard Reserves. The working group responsible for maintenance at Camp Atterbury included at least a Major McGowen, Captain Kenneth Newlin, Lieutenant Carl Farley, and a Master Sergeant Erck. The group also may have included a Colonel Oshner, a Lieutenant Colonel Fowler, and/or a Major Liebrandt. McGowen, Newlin, Liebrandt, and Farley were "technicians." Oschner, Fowler, and Erck were Active Guard Reserves. However, at all times relevant here, all such personnel were under the command of the Adjutant General, who reports to the Governor of Indiana unless and until the President of the United States activates the Indiana National Guard for national service.
Plaintiffs offer evidence that Dan Yelch, an employee of the United States Army Corps of Engineers, had responsibility for Camp Atterbury. Mr. Yelch was the Army representative who participated in the 1988 joint survey of the property reflected in Paragraph 8 of the license. Plaintiffs also rely on various forms of federal oversight of the Indiana National Guard through the federal National Guard Bureau, which conducts inspections and promulgates various building codes and other regulations.
Plaintiffs also contend that the United States derives a financial benefit when outside groups, like the IPD, use the facilities at Camp Atterbury. They rely on an affidavit from an accountant for the City of Indianapolis stating that the city made checks payable to the United States Treasury in order to pay for IPD's use of Camp Atterbury for the training session at which Mr. Yeary was hurt. The United States has responded with an affidavit from Carl H. Farley, a budget analyst for the Indiana National Guard, explaining that fees for non-military uses of the facilities are paid to the United States Treasury (through the National Guard Bureau) and are then paid back to the Indiana National Guard through the Indiana National Guard Camp Atterbury budget allotment.
The Federal Tort Claims Act provides for tort liability against the United States "in the same manner and to the same extent as a private individual under like circumstances...." 28 U.S.C. § 2674. The relevant jurisdictional statute provides that the government may be held liable for injuries arising from the "negligent or wrongful act or omission of any employee of the Government ... 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." 28 U.S.C. § 1346(b). Mr. Yeary's fall and the alleged negligence occurred in Indiana, so Indiana tort law applies to this case. Davis v. United States, 716 F.2d 418, 423 (7th Cir.1983).
Under Indiana law, whether a defendant is liable for injuries resulting from the condition of premises depends on the degree of the defendant's control of the premises. McFeely v. United States, 700 F.Supp. 414, 421 (S.D.In...
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