Petition for Writ of Certiorari — United States v. Washington

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g9-482 J diese

SEP 21 1989

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vUPre my Court, U.S, oS

No. JOSEPH F. 38 ANIOL, JR. . é

ORK i

In the Supreme Court of the United States

OCTOBER TERM, 1989

UNITED STATES OF AMERICA, PETITIONER

v.

BARBARA ANN WASHINGTON, AS GUARDIAN AD

LITEM FOR CHRISTA M. WASHINGTON, A MINOR

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

DAvip L. SHAPIRO

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARC RICHMAN

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

In this case, the court of appeals held that while

two off-duty servicemen on a military base were

working on a car owned by one of them, they were

acting “within the scope of [their] * * * employ-

ment” within the meaning of the Federal Tort Claims

Act, 28 U.S.C. 1846(b». The question presented is

whether, in grounding this determination on the as-

sertedly “unique” character of a military base, the

court of appeals erroneously failed to determine

whether under state law an analogous private em-

ployer would be liable under similar circumstances.

(I)

TABLE OF CONTENTS

Page

I a cemeunttncinn sasemppenanh 1

CE 1

Statutory provisions involved .....................-.--...----see--00-- 2

EEL LESS 3

Reasons for granting the petition —......0...0... ee. 6

ESE EES SE 1l

EEE Ee eS la

ESE ESA ee ee a Oe 8a

REESE Er RESIS CEE at ee Ce 16a

TABLE OF AUTHORITIES

Cases:

Doggett v. United States, 875 F.2d 684 (9th Cir.

EES REE AENEAN ee Oe 6,7

Jeffrey Scott E. v. Central Baptist Church, 197

Cal. App. 3d 718, 248 Cal. Rptr. 128 (1988) .... 7

Lutz v. United States, 685 F.2d 1178 (9th Cir.

EES TE RE eS AE 5, 7, 10

Martinez v. Hagopian, 182 Cal. App. 3d 1228, 227

I ID ns cs ccccnnnnasecccnceccecees 7

Merritt v. United States, 382 F.2d 397 (1st Cir.

ES EN ESS TES FALE ae a ee ee 10

Nelson v. United States, 888 F.2d 1280 (D.C. Cir.

NSS PUSS LR ST SR ea 9,10, 11

Piper v. United States, 694 F. Supp. 614 (E.D.

Ark. 1988), appeal pending, No. 88-2612 (8th

SEES LSE SC, SE ee 10

Williams v. United States, 350 U.S. 857 (1955)... 4,8

Statutes :

Federal Tort Claims Act:

Oo caw sceccnnesanctensennse 2,3

a cseunenetsenannne 2,8

I... nnsennenconsenecenssenns 3

os scinnnibemman 2,7

(111)

Iu the Supreme Court of the United States

OCTOBER TERM, 1989

/

No.

UNITED STATES OF AMERICA, PETITIONER

Vv.

BARBARA ANN WASHINGTON, AS GUARDIAN AD

LITEM FOR CHRISTA M. WASHINGTON, A MINOR

PETITION FOR A WRIT OF CERTICRARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

The Solicitor General, on behalf of the United

States, petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals for

the Ninth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-7a) is reported at 868 F.2d 332. The opinion of

the district court (App., infra, 8a-15a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered

on February 21, 1989. A petition for rehearing was

(1)

2

denied on June 9, 1989 (App., infra, 16a). On Sep-

tember 5, 1989, Justice O’Connor extended the time

for filing a petition for a writ of certiorari to and

including September 21, 1989. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

Section 1346(b) (28 U.S.C.) provides, in pertinent

part:

[T}he district courts * * * shall have exclu-

sive jurisdiction of civil actions on claims against

the United States, for money damages * * * for

* * * personal injury * * caused by the negli-

gent or wrongful act or omission of any em-

ployee of the Government while acting within

the scope of his office or employment, under cir-

cumstances where the United States, if a private

person, would be liable to the claimant in ac-

cordance with the law of the place where the

act or omission occurred.

Section 2671 (28 U.S.C.) provides, in pertinent

part:

“Acting within the scope of his office or em-

ployment,” in the case of a member of the mili-

tary or naval forces of the United States * * *,

means acting in line of duty.

Section 2674 (28 U.S.C.) provides, in pertinent

part:

The United States shall be liable, respecting

the provisions of this title relating to tort claims,

in the same manner and to the same extent as a

private individual under like circumstances

e

3

STATEMENT _

The facts are not disputed. On the evening of Sep-

tember 19, 1980, Larry Bartole and Neil Cleaves

were in the garage of Cleaves’ residence on the Point

Mugu, California, naval base, attempting to start the

engine of Cleaves’ 1964 Rambler. Both men were

active-duty members of the Navy on authorized lib-

erty status, having completed their work for the day.

In attempting to start the car, “neither Mr. Bartole

nor Mr. Cleaves [was] performing any action con-

nected with any of their official United States Navy

duties.” App., infra, 9a; see id. at 2a-3a; Tr. 25-26

(Pitf. Stip.)). When Bartole poured gasoline from

a coffee can into the carburetor in an attempt to

prime it, the engine backfired. Flames shot from the

carburetor, igniting the gasoline in the can Bartole

was holding. Gasoline spilled as Bartole jerked the

ean back, and his hand caught fire. Bartole then

turned toward the side door of the garage, tripped,

and spilled the can of flaming gasoline out of the door.

Ten-year-old Christa Washington was just outside

the door playing in the adjacent yard. She was struck

by the flaming gasoline and was seriously burned.

App., infra, 2a-3a, 9a-10a.

Suit to recover for Christa Washington’s injuries

was brought against the United States under the

Federal Tort Claims Act (FTCA), 28 U.S.C, 1346

(b), 2671 et seg. That Act provides, in Section

1346(b), that the United States is liable for “per-

sonal injury * * * caused by the negligent or wrong-

ful act or omission of any employee of the Govern-

ment while acting within the scope of his office or

employment, under circumstances where the United

States, if a private person, would be liable to the

claimant in accordance with the law of the place

a

where the act or omission occurred.” Following a

trial, the district court held that “[nJo act or omis-

sion of any employee of the United States of Amer-

ica, while acting within the course and scope of his

office or employment, caused, or in any way contrib-

uted to, the accident.” App., infra, 15a. The court

first noted that “[s]cope of employment for an ac-

tive duty military employee means ‘acting in the line

of duty.’ See 28 U.S.C. § 2671. The phrase ‘line of

duty,’ in turn, is defined by the applicable state law

of respondeat superior.” Id. at 12a (citing Williams

v. United States, 350 U.S. 857 (1955)). It then

concluded that, “[u]nder the principles of respondeat

superior, in California, the acts of Mr. Bartole and

Mr. Cleaves herein, in attempting to start the pri-

vately owned Rambler automobile in their off-duty

hours, were clearly their own, and done for personal

purposes, totally unrelated to any United States

Navy job or duty[,] * * * [and] thus [were] not

within’ the course and scope of the employment of

Mr. Bartele and Mr. Cleaves with the United

States.” App., infra, 12a. The district court added:

“The imposition of respondeat swperior liability upon

the United States in this case would clearly be an im-

position upon the military of a liability far broader

than that of a private employer, and would be clearly

contrary to the limited waiver of sovereign immunity

attended by the Federal Tort Claims Act.” Jd. at

13a."

1 The district court also held that the United States was not

liable under California law as Christa Washington’s landlord

or as the owner of the land on which she was injured, because

it “had no knowledge of the danger, [and did not] participate

in any way in creating it.” App., infra, 15a.

5

The court of appeals reversed. App., infra, 1la-7a.

It noted that base regulations in effect at the time

of the accident provided that residents were not to

conduct “ ‘Fire Hazardous Operations * * * prior to

the establishment of adequate fire prevention meas-

ures.’” Id, at 4a.2 The court then added that, in

Lutz v. United States, 685 F.2d 1178, 1183 (9th Cir.

1982), it had concluded that “[m)ilitary housing

presents a unique situation’” (App., infra, 5a), and

in that case found that “the control of a serviceman’s

dog was * * * a military duty imposed for the benefit

of the Air Force by Air Force regulations on the

dog’s owner who was in base housing” (id. at 6a).

The court here held: “In our case the duty to adhere

to fire regulations and not to engage in fire hazard-

ous operations without the establishment of adequate

fire prevention measures was a military duty im-

posed for the benefit of the Navy by Navy regula-

tions * * *. The Navy is therefore responsible for

[Bartole’s and Cleaves’] actions.” Jbid. After con-

cluding that Bartole and Cleaves had negligently vio-

lated the regulations, the court remanded “for the

limited _purpose of determining” the amount of re-

spondent’s damages. Jd. at 7a.

2The court also referred to a regulation providing that

“ ‘only repairs of a minor nature * * * may be accomplished

in public quarters, garages, or the hobby shop spaces’ ”’ (App.,

infra, 3a), and noted that the regulations further stated:

“‘«'T}he prevention of fire in administrative and quarters

areas is a moral and legal responsibility of all personnel, re-

quiring alertness, strict adherence to fire regulations, and in-

telligent application of fire prevention safeguards. Fire haz-

ards are not acceptable within the naval establishment. The

goal of fire prevention and protection programs is the total

prevention of loss of life and property by fire.’” Jd. at 3a-4a.

6

REASONS FOR GRANTING THE PETITION

In three recent cases, including this one, the Ninth

Circuit has expanded the liability of the United

States by making the government responsible when-

ever damage results from conduct that violates a base

regulation. In each instance, the court reversed a

district court dismissal of the action based on a de-

termination that an analogous private employer

would not be liable under state law. Here, the court

concluded that two servicemen working on a personal

car on their own time were acting within the scope of

their employment because a base regulation governed

“fire hazardous operations.” In Lutz, on which the

court here relied, it concluded that a base regulation

governing the control of privately owned pets made

an airman’s failure to control his dog an activity

performed within the scope of his employment. And

in Doggett v. United States, 875 F.2d 684, 688 (9th

Cir. 1989), the court, also relying on Lutz, concluded

that servicemen drinking in a tavern on a naval base

were acting within the scope of their employment

when they failed to detain an intoxicated companion,

as authorized by a base regulation. These decisions,

which contrast sharply with the approach followed

in other circuits, have the effect of turning the

United States into a virtual insurer of the conduct

of members of the service on military bases. They

ignore the vital distinction between, on the one hand,

housekeeping and safety regulations—regulations re-

sulting from the fact that many people not only work

on a military base but also live there (often with

their families)—and, on the other hand, rules gov-

erning the conduct of service members on the job.

1. In each of these cases, the Ninth Circuit has

erred, as a matter of federal law, by failing to con-

7

sider whether an analogous private employer would

be liable under state law. The FTCA provides that

“(t]he United States shall be liable * * * in the same

manner and to the same extent as a private individ-

ual under like circumstances.” 28 U.S.C. 2674. How-

ever, rather than analyzing the case under state law,

the court in Lutz stated that “[mlilitary housing

presents a unique situation.” 685 F.2d at 1183. The

court repeated that statement in this case. App.,

infra, 5a. In Doggett, also relying on Lutz, the court

“emphasize[d] that the regulation governs conduct

only on the military base.” 875 F.2d at-688. Having

concluded that military bases are “unique,” in none

of the three cases did the court of appeals satisfy

the requirement of the FTCA by determining

whether a state court would hold a private employer

liable in similar circumstances.’

Military bases are not unique in the respects noted

by the court of appeals. Private employers likewise

own property and make rules to govern the conduct

of employees while on that property, even when they

are not-on duty; indeed, private employers sometimes

house employees (and their families) on company

property.* The court of appeals should therefore have

8 In this case, the only citation to state law in the court of

appeals’ opinion is to a case stating a general proposition of

California law. App., infra, 5a (citing Jeffrey Scott E. v.

Central Baptist Church, 197 Cal. App. 3d 718, 243 Cal. Rptr.

128 (1988) ).

4 See, e.g., Martinez v. Hagopian, 182 Cal. App. 3d 1223,

1230, 227 Cal. Rptr. 763, 767 (Cal. App. 1986) (refusing to

hold an employer liable for a tort caused by a farmworker,

since “[t]o hold otherwise would be to essentially impose a

theory of strict liability on the employer for all employee torts

during after-hours social activities on the employer’s prem-

ises, a result not permitted under settled law’’).

8

considered whether a private employer in California

would be liable if an employee, while off duty and

engaged in personal affairs on the employer’s prop-

erty, caused an injury because he did not take ade-

quate safety precautions as required by the employ-

er’s regulations. Here, the district court judge, who

formerly sat on the California Superior Court and

the California Municipal Court, stated that “[t]he

imposition of respondeat superior liability upon the

United States in this case would clearly be an im-

position upon the military of a liability far broader

than that of a private employer” under California

law. App., infra, 13a.°

2. In addition, the Ninth Circuit’s repeated reli-

ance on base regulations is misplaced. Servicemen

cannot be said to be acting within the scope of their

employment merely because they reside on a base and

are subject to base regulations. That the Navy was

not acting as Bartole’s and Cleaves’ employer in issu-

ing the regulations-on—-which the Ninth Circuit relied

is made clear in this case by the fact that the fire

regulations are not directed solely to employees but

5 As the district court in this case recognized (App., infra,

12a), the significance of the distinction between a service

member’s on-duty and off-duty activities is underscored by

28 U.S.C. 2671, which limits “scope of his office or employ-

ment” for active duty military employees to actions “in [the]

line of duty.” For the relevance of state law to this deter-

mination, see Williams v. United States, 350 U.S. 857 (1955).

6 We are not asking the Court to decide whether the dis-

trict court’s understanding of state law is correct. Rather,

since we contend that the court of appeals erroneously failed

to determine whether an analogous private employer would

be liable under state law, we ask the Court to reverse and

remand with instructions that the court of appeals make that

determination.

9

to all “Public Quarters Residents.” C.A, E.R., Exh.

D, at 3. Surely, a service member’s spouse or child

who violates a fire regulation while trying to fix the

family car could not be held on that basis to have

been acting within the scope of anyone’s employment.

In a case very much like Lutz, involving an attack

by a dog owned by a serviceman, the District of Co-

lumbia Circuit understood the difference between

regulations governing employees and regulations gov-

erning residents. After noting that, in addition to

pet-control requirements, the base regulations “‘re-

quire[d] base residents to use certain size pots and

pans, to replace electrical fuses, and to refrain from

smoking in bed,” the court stated that “[t]hese du-

ties are not imposed by the military in its role as an

employer and they do not run to the employer’s bene-

fit.” Nelson v. United States, 838 F.2d 1280, 1283-

1284 (D.C. Cir. 1988). The District of Columbia

Circuit expressly disagreed with the approach taken

by the Ninth Circuit. It stated: “There seems * * *

to be no principled limit to the reasoning in Lutz,

so that the case would seem to make the government

an insurer as to all manner of bizarre incidents. * * *

To hold the government potentially liable for all dam-

age done by conduct on a military base that violates

any one of the many base regulations would expand

liability in ways inconsistent with the idea that the

FTCA must be strictly interpreted as a limited relin-

quishment of sovereign immunity.” Jd. at 1284.°

7 The court in Nelson went on to hold that the government

was liable as landowner for failure to remove or control a dog

that responsible officials knew was dangerous. 838 F.2d at

1285-1286.

8In criticizing the Ninth Circuit’s approach, the District

of Columbia Circuit noted that “whether a breach of military

10

Thus, there is an express conflict in the circuits on

the question presented.°

Although ihe Ninth Circuit stated in Lutz that it

was “not suggest[ing] that every act of a base resi-

dent is within the scope of his employment” (685

F.2d at 1183), that suggestion is contradicted by the

decisions here and in Doggett. At least when there

is a relevant base regulation governing the conduct

of those on base property, the prediction of the D.C.

Circuit in Nelson (838 F.2d at 1284) is being ful-

filled: in the Ninth Circuit, the government has be-

come “an insurer as to all manner of bizarre inci-

dents” occurring on military bases.*° Indeed, under

Lutz, this development was almost inevitable, since

“Tm lJilitary regulations typically govern a wide range

of base residents’ activities, touching most aspects of

regulations subjects the government to tort liability must

depend upon whether analogous duties exist under local tort

law.” 8388 F.2d at 1284. It thus rejected the notion that

military bases are unique, so that state law need not be con-

sulted in determining whether the United States is liable

under the FTCA.

®In Piper v. United States, 694 F. Supp. 614, 618 (E.D.

Ark. 1988), another case involving injuries caused by a dog,

the court concluded that since a base regulation governed

control of pets, “[t]he analysis by the Ninth Circuit Court

of Appeals in Lutz * * * is applicable to the facts developed.” ~

The court added, “but compare, Nelson v. U.S.” Ibid. Piper .

is currently pending on appeal in the Eighth Circuit. No.

88-2612 (argued June 16, 1989).

1 The First Circuit long ago rejected the argument that

“anything [a serviceman] was doing in the residence was in

the scope of his employment.” Merritt v. United States, 332

F.2d 397, 399 (1964). In that case, a fire was caused by a

serviceman who was smoking in bed.

11

private and public life.” 838 F.2d at 1284." The

Ninth Circuit’s unwarranted expansion of the fed-

eral government’s waiver of sovereign immunity re-

quires correction by this Court.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

DAVID L. SHAPIRO

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

ROBERT S. GREENSPAN

MARC RICHMAN

Attorneys

SEPTEMBER 1989

11 The base regulations in this case confirm the District of

Columbia Circuit’s statement. For example, regulations at

the Point Mugu Naval Base prohibit the attachment of ex-

tension cords to coffeemakers, require lint traps in clothes

dryers to be cleaned often, and warn residents to “religiously”

observe speed limits on the base. C.A. E.R., Exh. B, at 34, 35.

n

'

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-5728

D.C. No.

CV-83-2332-RSWL

BARBARA ANN WS&SHINGTON, individually, and as

Guardian Ad Litem for: CHRISTA M. WASHINGTON,

a minor, PLAINTIFF-APPELLANT

V.

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

Appeal from the United States District Court

for the Central District of California

Ronald 8.W. Lew, District Judge, Presiding

[Filed Feb. 21, 1989]

OPINION

Before: JAMES R. BROWNING, MARY M. SCHROEDER

and JOHN T. NOONAN, JR., Circuit Judges.

(la)

2a

OPINION

NoonaN, Circuit Judge:

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 Bar-

tole 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. § 2671 et seq. The mother’s

claim was dismissed for lack of subject matter juris-

diction because she had not filed an administrative

tort claim with the Navy, 38 U.S.C. § 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.

FACTS~

At 6:40 p.m., September 19, 1980, in the base

housing facilities of the Navy at Point Mugu, Cal-

ifornia, 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.

3a

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 se-

verely 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 adjust-

ments and oil changes may be accomplished in public

quarters, garages or the hobby shop spaces.’”’ A book-

let 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 assist-

ance and guidance throughout your stay in govern-

ment 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 pro-

vided that “the prevention of fire in administrative

and quarters area is a moral and legal responsibility

4a

of all personnel, requiring alertness, strict adherence

to fire regulations, and intelligent application of fire

prevention safeguards. Fire hazards are not accept-

able within the naval establishment. The goal of fire

prevention and protection programs is the total pre-

vention of loss of life and property by fire” (em-

phasis 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 accom-

panied this regulation stated: “Fire Hazardous Op-

erations 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 “[ajn accepted

primer spray should have been used rather than gas-

oline to prime the carburetor .. . [U]sing an open

coffee can to pour the gas was a contributing factor

in the accident;” and that “using gasoline to prime

the carburetor is not a safe practice but is relatively

common.”

ANALYSIS

The Federal Tort Claims Act waives the govern-

ment’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. § 1346(b). The scope of employment of

a military member “means acting in line of duty.”

28 U.S.C. § 2671. The military “line of duty” is

defined by the applicable state law of respondeat

superior. United States v. Lutz, 685 F.2d 1178,

1182 (9th Cir. 1982). Where as here, the facts of

5a

the incident are not in dispute, the determination of

the scope of employment is a question of law, review-

able de novo. Jd. In this case California law ap-

plies. California defines “scope of employment” very

broadly. Doggett v. United States, No. 86-6109, slip

op. at 12432 ($th Cir. Oct. 3, 1988). The California

test for determining scope of employment “turns on

whether ‘(1) the act performed was either required

or “incident to his duties” ..., or (2) the em-

ployee’s misconduct could be reasonably foreseen by

the employer in any event.’” Jd. (quoting Jeffrey

Scott E. v. Central Baptist Church, 197 Cal. App.3d

718, 243 Cal. Rptr. 128, 129 (1988).

The United States invokes Hartzell v. United

States, 786 F.2d 964 (9th Cir. 1986), in which the

negligent driving of an Air Force sergeant on vaca-

tion but en route to a new assignment was held not

to be within the scope of her employment by the Air

Force. Under the applicable state law, that of Ari-

zona, this result was mandated. Moreover, as this

court observed, it would be inconsistent with the lim-

ited waiver of immunity intended by the Federal

Tort Claims Act to make the United States liable

for “virtually any tort committed by a serviceman.” —

Id. at 969. Hartzell, however, did not address the

extent of military duty to assure security in military

housing.

Our case involves the same considerations that

governed the court in deciding Lutz, supra. In that

case we said:

Military housing presents a unique situation.

Unlike employees and residents of cities and

towns, the employment relationship of residents

of military bases continues even during the off-

duty at-home hours. We do not suggest that

-6a

every act of a base resident is within the scope

of his employment. Such a rule would impose

upon the military a liability far broader than

that of a private employer, contrary to the lim-

ited waiver intended by the FTCA. However,

we agree with the Fifth Circuit that claims in-

volving base residents require close examination

of the employee’s actions and the employer’s

interest in them.

Id. at 1183 (citations omitted).

In Lutz the control of a serviceman’s dog was

found to be a military duty imposed for the benefit

of the Air Force by Air Force regulations on the

dog’s owner who was in base housing. In our case

the duty to adhere to fire regulations and not to en-

gage in fire hazardous operations without the estab-

lishment of adequate fire prevention measures was

a military duty imposed for the benefit of the Navy

by Navy regulations on servicemen in the Point

Mugu naval housing. It is difficult to think of an -

older or more critical military duty imperative than

the prevention of fire in camps or quarters. At all

times on the housing base Bartole and Cleaves had

the duty to act in conformity with the regulations

designed to prevent fire. Their liberty status did not

relieve them of the continuing duty to comply with

the fire regulations governing military personnel who

were “Public Quarters Residents.” The Navy is

therefore responsible for their actions in securing the

base against fire hazards.

Bartole and Cleaves in fact violated the regula-

tions and did so by employing a reckless method of

priming the engine. Their negligence endangered all

Ta

within a short radius of their activity. Christa Wash-

ington was within that range and was injured as a

proximate result of their negligent acts. Accord- .

ingly we reverse the judgment in favor of the United

States and remand for the limited purpose of deter-

mining her damages.

REVERSED AND REMANDED.

8a

APPENDIX B

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. CV 83-2332-RSWL

BARBARA ANN WASHINGTON, ETC., ET AL., PLAINTIFFS

Vv.

UNITED STATES OF AMERICA, DEFENDANT

[Filed Dec. 11, 1987; Entered Dec. 14, 1987]

FINDINGS OF FACT AND |

CONCLUSIONS OF LAW

FINDINGS OF FACT

1. This Federal Tort Claims Act action arises out

of an incident which occurred on September 19, 1980,

at approximately 6:40 P.M., in base housing facili-

ties provided by the United States Navy at Point

Mugu, California.

2. On September 19, 1980, at approxinately 6:40

P.M., Messrs. Larry Bartole and Neil Cleaves were

attempting to start the engine of Mr. Cleaves’ 1964

Rambler automobile in Mr. Cleaves’ garage, which

9a

was located in base housing facilities at Point Mugu.

At the time of the incident, Messrs. Bartole and

Cleaves were attempting to start the engine of the

Rambler, and in attempting to do so were pouring

gasoline into the carburetor thereof from a coffee

can.

3. At the time of the incident, Mr. Bartole was

an active duty member of the United States Navy

assigned to the Air Test and Evaluation Squadron

4 (VX-4), Pacific Missile Test Center, Point Mugu,

California. At the time of the incident, Mr. Bartole

was in authorized liberty status, having completed

his work for the United States Navy for the day.

4. At the time of the incident giving rise to this

suit, Mr. Neil Cleaves was also an active duty mem-

ber of the United States Navy, and was assigned to

the VXE-6 Squadron at Point Mugu Pacific Missile

Test Center. At 6:40 P.M. on September 19, 1980,

Mr. Cleaves was also in authorized liberty status,

having completed his assigned work that day for the

Navy.

5. In attempting to start the engine of the 1964

Rambler automobile, neither Mr. Bartole nor Mr.

Cleaves were performing any action connected with

any of their official United States Navy duties. The

act of attempting to start the automobile by pouring

gasoline into the carburetor was done purely for the

private benefit of these individuals, and were purely

private purposes, unrelated to any official military

activity.

6. After Mr. Bartole poured gasoline into the car-

buretor of Mr. Cleaves’ Rambler, attempting to prime

it so that the engine would start, the engine back-

fired, and the flame from the carburetor ignited the

gasoline held in the coffee can in Mr. Bartole’s hand.

10a

Mr. Bartole’s hand caught fire from the gasoline

when he jerked the can back and spilled gasoline

over it. Mr. Bartole then pivoted toward the side

door of the garage, tripped over something, thereby

spilling the flaming can of gasoline out of the side

garage door. The plaintiff, Christa M. Washington,

a minor at the time, was just outsids this side door

playing in the yard adjacent to the garage, and was

struck by the flaming gasoline.

7. The gasoline contained in the coffee can which

Mr. Bartole was utilizing to prime-the carburetor of

the vehicle had, immediately prior to the incident,

been properly stored in a one-galion gasoline storage

container. Immediately prior to the incident, a small

portion of the gasoline was poured from this storage

container into the coffee can. The aforesaid fire re-

sulted from the use of the gasoline to prime the car-

buretor, and not from any act of er storage

of the gasoline.

8. Plaintiff Barbara A. Washington never filed an

administrative tort claim with the United States

Navy.

9. The above-described act of Messrs. Bartole and

Cleaves in priming the carburetor with gasoline in

their attempt to start the engine of the automobile

did not constitute a repair of the automobile.

10. Even assuming, arguendo, that the aforesaid

act of priming the carburetor of the automobile could

be said to constitute a repair thereof, said act did

not constitute a “major repair,” as contemplated by

applicable Navy regulations.

11. Neither Mr. Bartole nor Mr. Cleaves was act-

ing within the course and scope of his employment

with the United States Navy at the time of, or with

respect to, the incident giving rise to this suit.

lla

12. In connection with the incident giving rise to

this suit, there was absolutely no assignment by the

United States Navy to either Mr. Bartole and/or

Mr. Cleaves, through regulation or otherwise, of a

specific military duty in re the starting of the

Rambler automobile engine, the performance of which

furthered the interests of the United States Navy.

13. The incident giving rise to this suit did not

result from a dangerous condition of which the United

States had knowledge, nor did any “condition” herein

(i.e. the use of gasoline to prime the carburetor of

the engine) exist for such a long time that if the

United States had exercised reasonable care in in-

specting the premises, it would have discovered the

condition in time to remedy it, or to give warning

before any injury occurred. No employee of the

United States was aware of the actions of Mr. Bar-

tole and Mr. Cleaves in priming the carburetor of

the Rambler with gasoline in an attempt to start it.

Indeed, because the facts adduced demonstrate that

the outside garage door was closed at the time of the

incident, the United States was incapable of seeing

the actions of these gentlemen, or of taking any

steps to prevent such actions.

14. Because plaintiff Christa M. Washington is

the dependent daughter of an active duty enlisted

member of the United States Navy, her medical bills

have, in large part, been paid by the United States

pursuant to the Civilian Health and Medical Pro-

gram of the Uniformed Services (CHAMPUS),

Chapter 55, Title 10, United States Code, §§ 1071

through 1089. As of the date of trial, a total of

$237,983.43 has been paid by CHAMPUS for med-

ical bills for Christa Washington arising out of the

incident giving rise to this suit.

12a

15. No negligent or wrongful act of any employee

of the United States of America while acting within

the course and scope of his office or employment

caused, or in any way contributed to, the damage

alleged by plaintiffs.

16. Any of the foregoing Findings of Fact deemed

to be Conclusions of Law are hereby incorporated

into the Conclusions of Law.

CONCLUSIONS OF LAW

1. The Federal Tort Claims Act constitutes a

waiver of the government’s immunity to suit only as

to personal injuries caused by “an employee of the

government while acting within the scope of his office

or employment... .” See 28 U.S.C. § 1346(b). Scope

of employment for an active duty military employee

means “acting in the line of duty.” See 28 U.S.C.

§ 1346(b). Scope of employment for an active duty

military employee means “acting in the line of duty.”

See 28 U.S.C. § 2671. The phrase “line of duty,” in

turn, is defined by the applicable state law of re-

spondeat superior. Williams v. United States, 350

U.S. 857 (1955); Dornan v. United States, 460 F.2d

425, 427 (9th Cir. 1972).

2. Under the principles of respondeat superior, in

California, the acts of Mr. Bartole and Mr. Cleaves

herein, in attempting to start the privately owned

Rambler automobile in their off-duty hours, were

clearly their own, and done for personal purposes,

totally unrelated to any United States Navy job or

duty. The act of attempting to start the vehicle by

priming its carburetor was thus not within the course

and scope of the employment of Mr. Bartole and Mr.

Cleaves with the United States. Proietti v. Levi, 530

F.2d 836, 840 (9th Cir. 1976); Obst v. United States

13a

Postal Service, 427 F. Supp. 696, 698 (N.D. Cal.

1977); Kish v. California State Auto Association,

190 Cal. 256, 212 P. 27 (1922).

3. The reliance by plaintiffs upon the rationale

embodied in Lutz v. United States, 685 F.2d 1178

(9th Cir. 1982) to establish liability on the part of

the United States herein is misplaced. Where, as

here, the conduct of Mr. Bartole and Mr. Cleaves did

not involve a regular and specific military activity,

the special characteristics of military employment do

not bring their act of priming this private automobile

with gasoline within the course and scope of their

United States Naval employment for purposes of the

Federal Tort Claims Act. This case is distinguishable

from Lutz because the priming of the carburetor of

the automobile in an attempt to start it did not vio-

late any applicable Naval regulation. Moreover, even

if said act did violate some applicable regulation,

planitiffs have failed to show that any such regula-

tion involved delegations to Cleaves and Bartole of

specific military duties, the performance of which

furthered the interests of the United States Navy.

The imposition of respondeat superior liability upon

the United States in this case would clearly be an

imposition upon the military of a liability far

broader than that of a private employer, and would

be clearly contrary to the limited waiver of sovereign

immunity attended by the Federal Tort Claims Act.

4. The defendant, United States of America, is not

liable under respondeat superior based upon the “risk

of the enterprise” doctrine because there is not a suffi-

cient nexus between the employment of Cleaves and

Bartole and their act of priming the carburetor

which resulted in the injury to Christa Washington.

A sufficient nexus cannot be found to exist under

i4a

these facts because the act of priming the carburetor

was not foreseeable in light of the duties Cleaves and

Bartole were hired to perform. Martinez v. Hago-

pian, 182 Cal. App. 3d 1223, 227 Cal. Rptr. 763

(1986).

5. The defendant, United States of America, is

not liable hereir on any theory of direct liability.

This defendant, as a landlord, with respect to the

government provided housing herein, is under a duty

to exercise ordinary care in the use, maintenance, or

management of such premises in order to avoid ex-

posing parties to an unreasonable risk of harm. This -

duty of care, however, is owed only to such persons

as the landlord, as a reasonably prudent person, under

the same or similar circumstances, should have fore-

seen would be exposed to such a risk of harm. Addi-

tionally, the United States herein, as landlord, is not

liable for an injury suffered by a person on its prem-

ises which resulted from a dangerous condition of

which the landlord had no knowledge, unless the con-

dition existed for such a long time that if the land-

lord had exercised reasonable care in inspecting the

premises it would have discovered the condition in

time to remedy it or to give warning before the in-

jury occurred. Bridgman v. Safeway Stores, Inc., 2

Cal. Rptr. 146; see also BAJI 8.20 (1977 Rev.). The

facts of this case demonstrate that the United States

had no knowledge of the act of priming the carbure-

tor, giving rise to this suit, and, further, that said

act did not exist for such a_long time that, in the

exercise of reasonable care in inspecting the premises,

the United States would have discovered it.

6. The United States herein is also not subject to

liability to plaintiff for physical harm caused by any

dangerous condition which came into existence (as

l5a

here) after the lessee had taken possession, where

the United States had-no knowledge of the danger or

participated in any way in creating it. See Thompson

v. United States, 592 F.2d 1104 (9th Cir. 1979).

7. The claims of plaintiff Barbara Washington

herein must be dismissed for want of subject matter

jurisdiction. This plaintiff did not file an administra-

tive tort claim, which is an absolute prerequisite to

the subject matter jurisdiction of this Court against

the United States under the Federal Tort Claims Act.

See Caton v. United States, 495 F.2d 635 (9th Cir.

1974).

8. No act or omission of any employee of the

United States of America, while acting within the

course and scope of his office or employment, caused,

or in any way contributed to, the accident and the

injuries alleged herein. Accordingly, judgment should

be rendered herein in favor of the United States of .

America.

9. Any of the foregoing Conclusion [sic] of Law

deemed to be Findings of Fact are hereby incorpo-

rated into the Findings of Fact.

DATED: December 10, 1987.

/s/ Ronald S. W. Lew

RONALD 8. W. LEw

United States District Judge

16a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 88-5728

DC# CV-83-2332-RSWL

BARBARA ANN WASHINGTON, individually, and as

Guardian Ad Litem for: CHRISTA M. WASHINGTON,

a minor, PLAINTIFF-APPELLANT

vs.

UNITED STATES OF AMERICA, DEFENDANT-APPELLEE

[Filed June 9, 1989]

ORDER

Before: BROWNING, SCHROEDER, and NOONAN, Cir-

cuit Judges

The panel as constituted in the above case has

voted to deny the petition for rehearing and to re-

ject the suggestion for rehearing en banc.

The full court has been advised of the suggestion

for en banc rehearing, and no judge of the court has

requested a vote on the suggestion for rehearing en

bane. Fed. R. App. P. 35(b).

The petition for rehearing is denied, and the sug-

gestion for a rehearing-en banc is rejected.

W ov. S. GOVERNMENT PRINTING orrice, 1989 241699 00505