# Clara Louie, Representative for Wayne Louie, Deceased v. United States

> Court of Appeals for the Ninth Circuit · November 13, 1985 · 776 F.2d 819

URL: https://www.frixlaw.com/law-library/cases/9474187

## Case

- **Full name:** Clara LOUIE, Representative for Wayne Louie, Deceased, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** November 13, 1985
- **Citations:** 776 F.2d 819; 1985 U.S. App. LEXIS 23968
- **Precedential status:** Published
- **Opinion:** Dissent by Pregerson
- **Judges:** Pregerson, Wright, Pre-Gerson, Alarcon
- **Cited by:** 81 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9474187

## How later opinions describe it (automated extraction)

- rejecting plaintiffs claim that Army had special relationship with off-duty drunken soldier, where claim was based on “the military’s alleged power to exert complete authority over off-duty servicemen”.

## Opinion text

PREGERSON, Judge,
dissenting: I dissent.
I do not agree with the majority that the policy underlying Feres v. United States, 340 U.S. 135 , 71 S.Ct. 153 , 95 L.Ed. 152 (1950), and its progeny requires us to refrain from finding the Army liable for negligence under the Federal Tort Claims Act (“FTCA”) in this case. Feres is not implicated because a reasonable factfinder could conclude that the negligence of Army personnel was a proximate cause of Wayne Louie’s death without making the sort of intrusive inquiry into matters of military structure, supervision, or discipline proscribed by Chappell v. Wallace, 462 U.S. 296 , 103 S.Ct. 2362 , 76 L.Ed.2d 586 (1983) and United States v. Shearer, - U.S. -, 105 S.Ct. 3039 , 87 L.Ed.2d 38 (1985).
Here, civilian police authorities returned a soldier to Army custody in an intoxicated state after he had been arrested for violating Washington law by driving while under the influence of alcohol (“DWI”). In my view, under Washington tort law a “special relationship” was created once the military police accepted custody of the intoxicated soldier from civilian authorities at the gate to Fort Lewis. In Petersen v. State, 100 Wash.2d 421 , 671 P.2d 230 (1983), the Washington Supreme Court adopted Restatement of Torts § 315, which creates two .exceptions to the general rule that there is no duty to control the conduct of a third person to prevent him from causing physical harm to another. One exception *828 applies in instances where a “special relationship” exists between the actor (here the Army) and the third person (here the intoxicated soldier). The majority suggests that because the soldier’s behavior at this time was unremarkable, no duty arose on the part of the Army to restrain him. But the intoxicated soldier’s orderly behavior while he was in Army custody should not excuse the Army’s failure to act on the knowledge that the soldier was still under the influence of alcohol and had driven his car on the highway while seriously impaired only a short time before.
Because the Army accepted custody of the soldier and undertook to control him, I would hold that a duty arose to exercise reasonable care to prevent him from endangering himself and others until the effects of the alcohol in his bloodstream had dissipated. I would also conclude that the military police breached that duty by releasing the soldier in front of his barracks without further supervision. 1 Thus, the Army, having accepted custody of the soldier from civilian authorities, was negligent in failing to exercise reasonable care to control him until the effects of the alcohol wore off. See Hartley v. State, 103 Wash.2d 768 , 698 P.2d 77, 86-87 (1985) (where governmental authorities have full control over a dangerous individual and wrongly release him, the government is deemed to have a special relationship with that individual justifying imposition of tort liability).
Holding the military liable where it had actual supervisory control over the intoxicated soldier requires no inquiry into military command supervision, structure, or discipline. A finding of negligence in the circumstances of this case does not imply a duty to maintain any individual soldier’s sobriety indefinitely. The duty on the part of the military to exercise reasonable care to control the intoxicated soldier arose only when he was delivered to military authorities by civilian authorities following his arrest for DWI.
In these circumstances, I would hold that the United States is subject to tort liability under Washington law, that the district court had jurisdiction of this action under the FTCA, and that the matter should be remanded to determine the amount of damages.
. The record shows that the Army itself recognized that it had an important responsibility in this type of situation. After the fatal accident, the commanding officer of Fort Lewis issued a directive instituting procedures to control closely off-post DWI offenders who are released to military authorities by civilian police.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9474187. Public record. Not legal advice.