“[I]t is unnecessary, in order to recover from the employer, for the plaintiff to establish just which employee was at fault, and in what specific respect.”
How later courts described this case
- “[I]t is unnecessary, in order to recover from the employer, for the plaintiff to establish just which employee was at fault, and in what specific respect.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
FAITH MAKELY, )
)
Plaintiff, )
)
v. )
) Case No. CIV-22-785-PRW
UNITED STATES OF AMERICA ex rel. )
UNITED STATES AIR FORCE, )
)
Defendant. )
ORDER
Before the Court is the United States’s Motion to Dismiss Plaintiff’s Complaint
(Dkt. 9). The matter is fully briefed, and for the reasons discussed below the Motion (Dkt.
9) is GRANTED.
Background
Plaintiff Faith Makely brings this tort action against the United States for injuries
sustained at a Tinker Air Force Base gymnasium. Plaintiff alleges that on January 24, 2019,
she went to the Gerrity Annex Gymnasium to exercise. While there, a metal box containing
exercise equipment detached from the wall, striking and injuring Plaintiff. Plaintiff alleges
that the box was within the exclusive control of Defendant, by and through its agents,
employees, and/or servants. She further alleges that Defendant’s failure to either maintain
a safe premises, or to warn her of dangers on the premises, were negligent actions that
caused her injury. Plaintiff filed her Complaint (Dkt. 1) in September 2022, seeking
damages in excess of $75,000. The United States filed its Motion (Dkt 9) in April 2023,
seeking dismissal under Rules 12(b)(1) and 12(b)(6).
Legal Standard
In reviewing a Fed. R. Civ. P. 12(b) motion to dismiss, all well-pleaded allegations
in the complaint must be accepted as true and viewed “in the light most favorable to the
plaintiff.”1 While factual allegations are taken as true, a court need not accept legal
conclusions involved in the complaint.2 The pleaded facts must establish that the claim is
not merely conceivable, but plausible.3 The elements of each alleged cause of action may
serve as a guide to determine whether a plaintiff has set forth a plausible claim.4 “Labels
and conclusions” or “a formulaic recitation of the elements of a cause of action” are not
enough.5
Analysis
Plaintiff’s negligence action against the United States is grounded in the Federal
Tort Claims Act (“FTCA”).6 As the parties agree, an actionable FTCA claim must allege
the six elements found at 28 U.S.C. § 1346(b): the claim must be (1) against the United
States; (2) for money damages; (3) for injury or loss of property, or personal injury or
1 Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210, 1215 (10th Cir. 2007) (quoting David v.
City & Cnty. of Denver, 101 F.3d 1344, 1352 (10th Cir. 1996)).
2 Khalik v. United Air Lines, 671 F.3d 1188, 1190–91 (10th Cir. 2012).
3 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
4 Khalik, 671 F.3d at 1192.
5 Twombly, 550 U.S. at 555.
6 28 U.S.C. § 2674.
death; (4) caused by the negligent or wrongful act or omission of any employee of the
Government; (5) while acting within the scope of his office or employment; (6) under
circumstances where the United States, if a private person, would be liable to a claimant in
accordance with the law of the place where the act or omission occurred.7
In support of its Motion, Defendant highlights several discrepancies throughout the
Complaint. For example, Plaintiff styles her action as being against “The United States of
America ex rel. United States Air Force,” rather than against the United States itself.8
Although Plaintiff cites to the FTCA, she several times references the Governmental Tort
Claims Act, the Oklahoma state equivalent of the FTCA.9 Plaintiff uses the word
“malfunction,” which Defendant takes to suggest a products liability claim against the box
manufacturer, rather than a premises liability tort for negligence on behalf of the United
States.10 And Plaintiff seeks personal injury and property damages but alleges no damage
to property.11
Plaintiff brushes over some of these critiques in her Response (Dkt. 11), adopting a
more favorable interpretation of her positions. The Court agrees that the above instances
of inartful drafting, viewed in the context of other factual allegations, and taken in the light
most favorable to Plaintiff, do not themselves undercut the plausibility of Plaintiff’s claim
7 28 U.S.C. § 1346(b); Brownback v. King, 141 S. Ct. 740, 746 (2021).
8 See 28 U.S.C. § 2679.
9 Okla. Stat. tit. 51, §§ 151–200.
10 Compl. (Dkt. 1), ¶¶ 15, 17; Mot. Dismiss (Dkt. 9), at 7–9.
11 Compl. (Dkt. 1), ¶ 20; Mot. Dismiss (Dkt. 9), at 13–14.
or the Court’s jurisdiction. However, Defendant raises more serious challenges to the
sufficiency of Plaintiff’s factual allegations along several lines.
As to the fourth element, Defendant argues that Plaintiff’s allegations regarding
causation by a federal employee are conclusory. Plaintiff alleges that “Defendant, by and
through its agents, employees, and/or servants, negligently failed to maintain safe premises
and to warn of any dangers to the Plaintiff.” Defendant faults Plaintiff for failing to name
specific government employees whose actions or inactions allegedly caused her injury.
This failure, according to Defendant, prevents it from investigating the incident and
preparing a defense.
As Defendant concedes, “[l]iability may be established without alleging or proving
the identity of the specific tortfeasor who committed the wrongful or negligent act or
omission.”12 Indeed, “[s]pecific facts are not necessary” to meet the pleading standard so
long as the statement “give[s] the defendant fair notice of what the . . . claim is and the
grounds upon which it rests.”13 Plaintiff alleges, and Defendant does not dispute, that
Gerrity Annex Gymnasium is operated by a Federal agency, the United States Air Force.
Despite not identifying specific federal employees, the Court finds that Plaintiff has
pleaded enough to plausibly allege that any tortfeasor was a federal employee or agent.
12 Mot. Dismiss (Dkt. 9), at 10–11; see United States v. Hull, 195 F.2d 64, 66 (1st Cir.
1952) (“[I]t is unnecessary, in order to recover from the employer, for the plaintiff to
establish just which employee was at fault, and in what specific respect.”).
13 Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555)).
Those allegations, including the time and place of the injury, are enough to give Defendant
fair notice of the claim, and provide the basis for fleshing out details in discovery.
For the sixth element, Plaintiff proffers two negligence theories: (1) premises
liability; and (2) res ipsa loquitur. Under Oklahoma law, premises owners owe different
duties to individuals present on their property based on the status of those individuals.14 In
her Complaint, Plaintiff alleges that she was a business invitee, and therefore was owed a
duty of reasonable care. Defendant notes that the Court need not accept Plaintiff’s legal
conclusion as to her status and argues that Plaintiff failed to allege facts that would support
a finding that she was a business invitee, such as the common interest or mutual advantage
stemming from her visit.15 In her Response, Plaintiff argues that she pleaded sufficient
facts to establish a status of either business invitee or licensee. A licensee is owed a duty
of ordinary care, which requires an owner to disclose dangerous defects known to him that
are unlikely to be discovered by a licensee.16
The Court agrees with Defendant that the pleadings fall short of stating a premises
liability claim. Plaintiff has not alleged sufficient facts to suggest that she was a business
invitee—i.e., that she was at Gerrity Annex Gymnasium to conduct business. And under a
licensee theory, Plaintiff has not pleaded any facts suggesting that federal employees at the
gym were aware of the dangerous condition of the metal box.
14 See Brown v. Nicholson, 935 P.2d 319, 321–22 (Okla. 1997).
15 See id.
16 See id.
Though not a separate negligence ground, the doctrine of res ipsa loquitur is a form
of proving a negligence claim where direct evidence of causation is unavailable.17 Where
a defendant had exclusive control over the instrumentality causing the plaintiff’s injury,
and the injury is of a kind that ordinarily does not occur absent negligence, that
circumstantial evidence can suffice to prove negligence. Plaintiff alleges that Defendant
was responsible for the condition of the gymnasium, and that it had exclusive control of
the metal box. However, this latter allegation is effectively a recitation of one element of
the res ipsa loquitur theory. Per Plaintiff’s other factual assertions, the incident occurred
in a gym presumably open to other Tinker Air Force Base employees who could have
accessed the box. Indeed, Plaintiff’s Response suggests that she herself accessed the box
to remove exercise equipment just prior to the incident. The reasonable inferences from
these factual allegations cut sharply against the claim that gymnasium staff were able to
exercise exclusive control over the metal box. In the face of those facts, Plaintiff’s
conclusory recitation to the contrary is not enough.
Conclusion
The Court finds that, as written, Plaintiff’s Complaint falls short of stating a
plausible claim for negligence against the United States. However, the Court finds that
amendment of the Complaint to fill in the gaps with additional factual allegations would
not be futile. Accordingly, Defendant’s Motion (Dkt. 9) is GRANTED. If Plaintiff wishes,
17 See Deweese v. Patterson UTI Drilling Co., 229 P.3d 540, 543–44 (Okla. 2010).
she may move to file an amended complaint, in accordance with LCvR15.1, within 45 days
of this Order. If Plaintiff does not so move, this action will be dismissed without prejudice.
IT IS SO ORDERED this 9th day of February 2024.
PATRICK R. WYRICK
UNITED STATES DISTRICT JUDGE