Opposition Brief — United States v. Washington

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No. 89-482

es sPANIOL, JR.

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JC

CLERK

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,

Respondent.

,%

—

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

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RESPONDENT’S BRIEF IN OPPOSITION

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4

PATTERSON, RITNER, Lockwoop, GREINES, MARTIN, STEIN

ZANGHI & GARTNER & RICHLAND

JOHN ZANGHI MArtTIN STEIN

Grecory P. OrLAND* Kent L. RicHLAND

3580 Wilshire Boulevard, BARBARA W. Ravitz*

Suite 1500 9601 Wilshire Boulevard,

Los Angeles, CA 90010 Suite 544

Telephone: (213) 487-6240 Beverly Hills, CA

90210-5215

Telephone: (213) 859-7811

*Counsel of Record

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO, (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

The court of appeals determined that two servicemen

who negligently injured a young girl were within the

scope of their employment under California law so as to

subject the government to liablity under the Federal Tort

Claims Act for the severe injuries they caused. Is the

question whether the court sufficiently analyzed state law

“special and important” enough to merit certiorari review

by this Court? “

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED .......66..00cassenesenaes i

Ct 6 ok os ar ermnrenetersn cst yon ete a 2

DEAL MOREE GE LEED CABS, 0.55 ees iisxckasweneene 4

ee KB ee 4

wh «CDOIIIRE TEMOOEY. own io seis chee waeeen ene 6

REASONS WHY THE PETITION SHOULD BE

oo bat a we le ee Re ee eee 7

I. CONTRARY TO THE GOVERNMENT’S CON-

TENTION, THE COURT OF APPEALS DID

BASE ITS DECISION ON STATE LAW......... 7

II. THE COURT OF APPEALS’ DECISION IS COR-

RECT ON THREE DIFFERENT BASES UNDER

ere a Pee ete eT ee 12

A. Under The First Prong Of California’s

Respondeat Superior Test, The Servicemen

Were Within The Scope Of Their Employ-

ment At The Time Of The Accident Because

Their Employment Duties Included Com-

plying With Regulations Requiring Them To

Secure The Base Against Fire Hazards -

Regulations Enforced Through The Threat

OF Military DisCHEIAt. .. «5. civ scc candace 12

B. Under The Second Prong Of California’s

Respondeat Superior Test, The Servicemen

Were Within The Scope Of Their Employ-

ment At The Time Of The Accident Because

Their Negligent Acts Were Reasonably Fore-

seeable Risks Inherent In The Navy’s

“Enterprise” Of Providing Living Quarters

For Military Personnel. ..........05.00000. 16

iii

TABLE OF CONTENTS

Page

C. In Addition To Being Vicariously Liable For

Christa Washington’s Injuries On The Basis

Of Respondeat Superior, The United States

Was Directly Liable Under California Law

As A Landowner On Whose Property Dan-

gerous Activities Took Place With Its

ERS Sana 20

II. EVEN IF THERE WERE AN ACTUAL CON-

FLICT IN THE CIRCUIT COURTS ON THE

QUESTION PRESENTED - AND THERE IS

NONE - IT WOULD BE INAPPROPRIATE FOR

THIS COURT TO RESOLVE IT IN THE CON-_

TEXT OF THIS CASE AND PREMATURE IN

ET AP ees 5) keke ksh bees ke See o's 5s 22

naif Se vs ecs iiss sess veces 28

iv

TABLE OF AUTHORITIES

Page

Cases

Alma W. v. Oakland Unified School Dist., 123

Cal.App.3d 133, 176 Cal.Rptr. 287 (1981)........ 9, 12

American Motorists Ins. Co. v. Ind. Accident

Comm'n, 4 Cal.Comp. Cases 251 (1939)........... 15

Argonaut Ins. Co. v. Workmen’s Compensation

Appeals Bd., 247 Cal.App.2d 669, 55 Cal.Rptr.

ES A Oey he ee 14

Bigbee v. Pacific Tel. & Tel. Co., 34 Cal.3d 49, 665

Fam 9G7, 192 Catmpts, G57 (I9G5)...........0..... 21

Brown v. Glines, 444 U.S. 348 (1980)................ 17

Clark Equipment Co. v. Wheat, 92 Cal.App.3d 503,

Se ETE RE a 65 ks cnc kbnackaneeseexescs 9

Craft v. United States, 542 F.2d 1250 (5th Cir. 1976) .... 14

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

i ST eS ee ToT Pee E Ee ST eee 9, 10

Edwards v. Hollywood Canteen, 27 Cal.2d 802,

St Ee EE INS gn. hie 6 urd See A aoe eke a's 21

Hartzell v. United States, 786 F.2d 964 (9th Cir.

MENGE LG NGUNE RAs 540 VEG Kade kobe FORMS Aw A as 5 8

Henderson v. United States of America, 846 F.2d

pee RD eee ee ee eee 20

Hinman v. Westinghouse Elec. Co., 2 Cal.3d 956,

471 P.2d 988, 88 Cal.Rptr. 188 (1970)........... 15, 16

Isaacs v. Huntington Memorial Hosp., 38 Cal.3d

112, 695 P.2d 653, 211 Cal.Rptr. 356 (1985) ........ 21

John R. v. Oakland Unified School Dist., 48 Cal.3d

438, 769 P.2d 948, 256 Cal.Rptr. 766 (1989)

EET e TERETE ee ee LOOP eee ere rere 9, 17, 19

TABLE OF AUTHORITIES - Continued

Page

Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982)

Fcakane tC cee vishal ee 7, 9, 10, 14, 23, 24, 26

Martinez v. Hagopian, 182 Cal.App.3d 1223, 227

Colts. FED CIIOOR. 5 oon ce cee accu eesti nese eats 18

Matter of McLinn, 739 F.2d 1395 (9th Cir. 1984)..... 11

McCray v. New York, 461 U.S. 961 (1983)........... 27

Merritt v. United States, 332 F.2d 397 (1st Cir.

Musgrove v. Ambrose Properties, 87 Cal.App.3d

Ge, USO COLO. 220 CSTE) «so os use nas ces sinns 21

Nelson v. United States, 838 F.2d 1280 (D.C. Cir.

I cas uve cc bed ewe te ee 23, 24, 25, 26, 27

Pacific Gas & Elec. v. State Energy Resources Con-

serv. & Dev. Comm’n, 461 U.S. 190 (1983)......... 11

Perez v. Van Groningen & Sons, Inc., 41 Cal.3d

962, 719 P.2d 676, 227 Cal.Rptr. 106 (1986)..... 13, 47

Petray v. Keepie, 15 LA.C. G2 (1926)... 0. 60. cee, 15

Piper v. United States, - ~F2d ___ (8th Cir. 1989)

wc RKRUGSS OE RRNAE ONS AT ORE EESS DOE ROW OES 24, 25, 27

Rodgers v. Kemper Constr. Co., 50 Cal.App.3d

O0G, 126 Calpe. 165 (I97S)« . 6. ccc cis wees 14, 17

Ruhlin v. New York Life Ins. Co., 304 U.S. 202

fy Serer er yeere ry ree ee Tere rere Cr 24

Runyon v. McCrary, 427 U.S. 160 (1976)............. 11

Truck Ins. Exchange v. Ind. Accident Comm‘n, 27

Cal.2a S13, 167 Fad FOP CIDGG) «0.6 ec ceive sees es 15

vi

TABLE OF AUTHORITIES - Continued

U.S. v. S.A. Empresa De Viacao Aerea Rio Gran-

Gee, SEF US. 797 CISGE)... wees cesecees 1i

United States ex rel Toth v. Quarles, 350 U.S. 11

Gees es ew aeh itn ce 0k oS Gueed web weds 66-8 17

No. 89-482

,™

_

In The

Supreme Court of the United States

October Term, 1989

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vv

UNITED STATES OF AMERICA,

Petitioner,

BARBARA ANN WASHINGTON, as Guardian Ad

Litem for CHRISTA M. WASHINGTON, a Minor,

Respondent.

sa.

_

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

4

RESPONDENT’S BRIEF IN OPPOSITION

a

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Respondent Barbara Ann Washington, as Guardian

ad Litem for Christa M. Washington, a Minor, respectfully

requests that this Court deny the petition for writ of

certiorari seeking review of the Ninth Circuit’s opinion in

this case. That opinion is reported at 868 F.2d 332 (1989).!

a

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1 On October 12, 1989, the Clerk of the Court extended the

time for filing respondent's brief to and including November

14, 1989.

INTRODUCTION

In 1980 ten-year old Christa Washington suffered

severe burns Over much of her face and body due to the

conceded negligence of two Navy servicemen in the base

housing area of the Naval Air Station at Point Mugu,

California. The Court of Appeals for the Ninth Circuit

held the servicemen were acting within the scope of their

employment within the meaning of the Federal Tort

Claims Act when the incident happened and thus found

the government liable for Christa’s injuries on the basis of

respondeat superior.

In its sole Question Presented, the government claims

the court reached this conclusion without determining

whether an analogous private employer would be liable

under state law, as required by the FTCA. It asks this

Court to reverse and remand so the court of appeals can

make that determination. It seeks to ascribe to the Ninth

Circuit the view that the FTCA’s state law requirement

does not apply to torts occurring on military bases

because they are “unique.” But as we show, the Ninth

Circuit has never adopted that simplistic notion, and has

conscientiously applied state law in this case as in each of

its decisions in this area. Indeed, in the decision below,

the court states expressly, “In this case California law

applies,” and sets out California’s two-prong test for

respondeat superior liability. Washington v. United States,

Appendix to Petition for Certiorari, 5a.

The government's real complain* is that it does not

like the result reached by the court of appeals; no doubt it

is unhappy that “California defines ‘scope of employ-

ment’ very broadly” (id.) and that California law requires

respondeat superior liability in this case. Of course, the

government knows the futility of asking this Court to

review questions of state law; consequently, it has tried to

cast the issue as one of federal law. As we show below,

that issue is a false one, since the Ninth Circuit fully

complied with the requirements of the FTCA. And if the

court’s analysis of state law is less detailed or precise

than the government would have liked, that is hardly a

“special and important” reason to grant certiorari. In any

event, the court’s imposition of liability on the govern-

ment is supported by three different bases under Califor-

nia law.

Obviously aware of the shakiness of its ground, the

government seeks to increase its chances for review by

suggesting a conflict among the circuits. As we demon-

strate, there is no conflict between the Ninth Circuit's

decision in this case and the decision of any other circuit,

and any appearance of a conflict with respect to other

Ninth Circuit decisions is illusory.

Christa Washington has waited almost half her life to

be fairly compensated for the terrible injuries she

received. The government has raised no question qualify-

ing for review by this Court, and its petition should be

summarily denied so the district court can determine

Christa’s damages as the Ninth Circuit ordered.

7,

vv

STATEMENT OF THE CASE

A. Statement Of Facts.?

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

housing facilities of the Navy at Point Mugu, California,

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 operating 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 at

Bartole’s direction. Bartole tried to prime the carburetor

by pouring gasoline from a coffee can into the throat of

the carburetor. The engine backfired. Flames shot from

the carburetor. Bartole jerked the can back and spilled gas

over his hand. 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

playing with friends. She was struck by the fiery gas-

oline. It severely 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

2 This statement, with minor changes, is taken from the

court of appeals’ opinion. ,

567 housing units at the base were occupied by families

with more than one child. Cleaves’ home was a popular

place for neighborhood children to gather.

A Navy regulation provided that “only repairs of a

minor nature such as basic tune-up, brake adjustments

and oil changes may be accomplished in public quarters

garages or the Hobby Shop spaces.” A booklet issued to

all servicemen housed on the base carried an introduc-

tory 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 assistance and guidance throughout

your stay in government quarters.” Within this booklet a

section was entitled, “Fire, Safety and Police Regulations”

and contained directions on gasoline storage 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 proviced that “the

prevention of fire in administrative and quarters area is a

moral and legal responsibility of all personnel, requiring

alertness, strict adherence to fire regulations, and intel-

ligent 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.”

(emphasis in original). These regulations specified that

“Personnel” as well as “Public Quarters Residents” were

responsible for “compliance with Fire Regulations,” and

that “Public Quarters Residents” were responsible for

“application of fire prevention safeguards in Quarters

housing and facilities.” One of the Fire Regulations that

accompanied this regulation stated: “Fire Hazardous Oper-

ations shall not be conducted prior to establishment of

adequate fire prevention measures and approved by the

Fire Chief.” (emphasis in original).

These regulations were not intended as mere guide-

lines, but were duties with which all personnel and base

residents were obligated to comply at all times, even

when on “liberty” status. Navy personnel were subject to

military discipline for failing to comply with the

regulations.

A report to the Navy on the accident by Ensign

David M. Anderson, Jr. stated that “[g]asoline should

have been added to the gas tank rather than directly to

the carburetor, . . . [aJn accepted primer spray should

have been used rather than gasoline to prime the carbure-

tor,... [uJsing an open coffee can to prime the carburetor

was a contributing factor in the accident,” and “[uJsing

gasoline to prime the carburetor is not a safe practice but

is relatively common.”

B. Procedural History

Christa Washington, through her mother as guardian

ad litem, sued the United States under the Federal Tort

Claims Act (“FTCA”).3 Judgment was for the United

States. The district court concluded Bartole and Cleaves

3 Bartole and Cleaves were dismissed as defendants early

in the litigation. After contending at trial that the men were not

negligent, the government conceded their negligence in the

court of appeals.

were not acting within the course and scope of their

employment. It also concluded the men “did not violate

any applicable Naval regulation,” thus distinguishing the

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

1982). Appendix to Petition (“Pet. App.”), 13a.

The court of appeals, in an opinion by Judge Noonan,

reversed.4 The court held Bartole and Cleaves were acting

within the scope of their employment, as broadly defined

under California law, and remanded for the limited pur-

pose of determining damages. Pet. App., 7a.

The United States petitioned for rehearing with a

suggestion for rehearing en banc, on grounds similar to

those it now raises in the present petition. The panel

denied the petition and noted the full court had been

advised of the suggestion for en banc rehearing, and no

judge requested a vote on the matter. Id. at 16a.

,™

4

REASONS WHY THE PETITION SHOULD BE DENIED

I.

CONTRARY TO THE GOVERNMENT’S CONTEN-

TION, THE COURT OF APPEALS DID BASE ITS

DECISION ON STATE LAW.

The sole question presented in the petition asks

whether the “court of appeals erroneously failed to deter-

mine whether under state law an analogous private

employer would be liable under similar circumstances.”

4 We discuss the details of the court’s opinion in the body

of the brief.

The government claims the Ninth Circuit failed to con-

sider state law in this and two other FTCA cases. Pet., 6-7.

It states it is not asking this Court to determine California

law on the issue, but only “to reverse and remand with

instructions that the court of appeals make that deter-

mination.” Pet., 8, n. 6.

But the court of appeals has already done so, as is

clear from a reading of its entire opinion, not just the

portions excerpted in the government’s petition. After

setting out the applicable statutory framework linking

the scope of employment of a military member to the

state law of respondeat superior, the court states:

In this case California law applies. California

defines “scope of employment” very broadly.

Doggett v. United States, No. 86-6109, slip op. at

12432 (9th 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 employee’s misconduct couid be reasonably

foreseen by the employer in any event.’” Id.

(quoting Jeffrey Scott E. v. Central Baptist Church,

197 Cal.App.3d 718, 243 Cal.Rptr 128, 129

(1988)). Pet. App., 5a. (Emphasis added.)>

The government complains that this is “the only cita-

tion to state law in the court of appeals’ opinion... .”

Pet., 7, n. 3. But it is the only one needed, for it accurately

5 The court then distinguishes the case on which the gov-

ernment had relied, Hartzell v. United States, 786 F.2d 964 (9th

Cir. 1986), in part on the ground that its holding that the

service person. was not within the scope of her employment

was mandated by the applicable state law of Arizona. Pet.

App., 5a.

and succinctly sets out Califoria’s well-established two-

prong test for respondeat superior liability. See also, e.g.,

Clark Equipment Co. v. Wheat, 92 Cal.App.3d 503, 520, 154

Cal.Rptr. 874, 882 (1979); Alma W. v. Oakland Unified School

Dist., 123 Cal.App.3d 133, 138, 176 Cal.Rptr. 287, 289

(1981), cited with approval in John R. v. Oakland Unified

School Dist., 48 Cal.3d 438, 447, 769 P.2d 948, 256 Cal.Rptr.

766, 771-74 (1989). The court impliedly holds there is

respondeat superior liability under the first prong of the

test, i.e., an act performed incident to Bartole and

Cleaves’ duties — duties which the court holds included

the “military duty to assure security in military housing”

(Pet. App., 5a) and a “military duty [not to engage in fire

hazardous operations without the establishment of ade-

quate fire prevention measures] imposed for the benefit

of the Navy by Navy regulations. .. .” Pet. App., 6a.

There can be no doubt that in reaching the conclusion

that the government is vicariously liable for Bartole and

Cleaves’ negligence, the court of appeals applied state

law.® California’s law of respondeat superior was

exhaustively briefed by both parties and was squarely

before the court. Whether the court of appeals could have

cited more authority, or provided a more detailed anal-

_ysis, or stated its conclusions more directly simply are not

“special and important” questions that merit the expendi-

ture of this Court’s resources.

6 Similarly, the Ninth Circuit grounded its decision in state

law in the two other decisions which the government claims

contain no consideration of state law, Lutz v. United States, 685

F.2d 1178, 1183 (9th Cir. 1982) and Doggett v. United States, 875

F.2d 684, 688 (9th Cir. 1989).

(Continued on following page)

10

Despite the government's insistence that it seeks only

to have the court of appeals make a determination based

on state law, its real complaint is obvious — it disagrees

with the court’s conclusion regarding state law. The sub-

text of the government’s argument is that under a correct

application of California law, it could not be found liable

for Bartole and Cleaves’ negligence. Indeed, it Suggests

that the district court judge, who found no respondeat

superior liability, may have had a better understanding of

California law than the court of appeals judges by virtue

(Continued from previous page)

In Lutz, the court discusses Montana’s law of respondeat

superior at some length. 685 F.2d at 1182-83. According to the

court, the Montana test differentiates between an employee

who acts purely for his own benefit and one who is delegated a

task which furthers his employer’s interest. Id. at 1182. The

district court had found that the serviceman’s decision to own

a dog was purely for his own benefit, and thus concluded there

was no respondeat superior liability. But the court of appeals

held the scope of employment analysis must be applied, not to

the decision to own a dog, but to the “acts or omissions in

controlling the dog. . . .” Id. The government delegated to

servicemen who lived on base “a specific military duty” to

control their dogs, “the performance of which furthered the

interests of the Air Force. . . .” On that basis the court con-

cludes the serviceman “therefore acted in the line of duty and

within the scope of his employment.” Id. at 1183.

In Doggett, the court of appeals expressly states, “Under

the FTCA, the question of liability is determined with reference

to state law” (875 F.2d at 686), and goes on to discuss Califor-

nia’s broad test for scope of employment. Id. at 687. In fact, the

court observes that California’s principles of respondeat supe-

rior might support an even broader imposition of liability than

the plaintiff was seeking. Id. at 687. The case also contains an

extensive discussion of negligence principles under California

law. Id. at 688-94.

11

of having served as a municipal and superior court judge

in California. Pet., 8. But as the Ninth Circuit has noted,

consideration of such matters “is neither proper nor effi-

cient. It shifts the focus from the appropriate legal

authorities to the biography of the judge.” Matter of

McLinn, 739 F.2d 1395, 1400 (9th Cir. 1984) (en banc). The

Ninth Circuit properly gives no special deference to the

district court’s interpretation and application of state law

but reviews those questions de novo. Id. at 1397.

The government’s disingenuousness regarding the

true basis of its disagreement with the court of appeals is

understandable. This Court has made very clear its disin-

clination to review the correctness of determinations of

state law made by the courts of appeals. See, e.g., U.S. v.

S.A. Empresa De Viacao Aerea Rio Grandense, 467 U.S. 797,

816, n. 12 (1984) (“we generally accord great deference to

the interpretation and application of state law by the

Courts of Appeals”), Pacific Gas & Elec. v. State Energy

Resources Conserv. & Dev. Comm'n, 461 U.S. 190, 214 (1983)

(“Our general practice is to place considerable confidence

in the interpretations of state law reached by the federal

courts of appeals”), Runyon v. McCrary, 427 U.S. 160, 181

(1976) (“We are not disposed to displace the considered

judgment of the Court of Appeals on an issue whose

resolution is so heavily contingent upon an analysis of

state law. .. .”). So rather than claim the court of appeals

erred in determining state law, the government asserts it

erred “as a matter of federal law” in failing to consider

state law (Pet., 6-7) — an assertion belied by the opinion

itself.

The court of appeals’ consideration and treatment of

state law was proper and adequate. Since this is the only

12

question presented in the petition, the petition should be

denied for that reason alone.

II.

THE COURT OF APPEALS’ DECISION IS CORRECT

ON THREE DIFFERENT BASES UNDER CALIFORNIA

LAW.

Granting the government’s request to remand this

case to the court of appeals to consider state law would

accomplish nothing, since the result the court reached is

supported by at least three different theories under Cali-

fornia law, any one of which is sufficient to support its

ruling. All three bases were thoroughly briefed by both

sides. In light of this Court’s understandable reluctance

to involve itself in disputes concerning state law, we

summarize the applicable state law in the briefest fashion

to demonstrate not only the correctness of the court of

appeals’ decision but the futility of a remand.

A. Under The First Prong Of California’s Respondeat

Superior Test, The Servicemen Were Within The

Scope Of Their Employment At The Time Of The

Accident Because Their Employment Duties

Included Complying With Regulations Requiring

Them To Secure The Base Against Fire Hazards -

Regulations Enforced Through The Threat Of Mili-

tary Discipline.

California has a two-prong test to determine an

employer’s vicarious liability for its employee’s torts.

Under the first prong, liability is imposed if “the act

performed was either required or incident to his duties.”

Alma W. v. Oakland Unified School Dist., 123 Cal.App.3d

13

133, 139, 176 Cal.Rptr. 287, 289 (1981). Those “duties”

necessarily include all the requirements, rules and regula-

tions the employer imposes on the employee. If the

employee performs his duties negligently, and as a result

injures someone, the employer is vicariously liable.

In this case, Bartole and Cleaves’ employment duties

included complying with specific fire prevention regula-

tions in addition to performing their ordinary Navy jobs.”

The Navy considered those duties every bit as important

as satisfactory “job” performance. After all, they were

designed, in part, to protect the Navy’s own property and

employment force. The Navy promulgated the regula-

tions because “[f]ire hazards are not acceptable within the

naval establishment. The goal of fire prevention and pro-

tection programs is the total prevention of loss of life and

property by fire.” The Navy made clear that the regula-

tions were not mere guidelines but were mandatory

requirements enforced by threat of military discipline.

Military members were required to comply with the regu-

lations even when on “liberty” status. When Bartole and

Cleaves attempted to start a car in an exceedingly hazard-

ous way, they violated their naval employment duties just

as plainly as if they had negligently repaired a subma-

rine. As the Fifth Circuit has noted in this context, “Sol-

dier was a repair parts specialist and had a duty to mow a

? For example, one regulation provided:

Fire Hazardous Operations shall not be conducted

prior to establishment of adequate fire prevention

measures and approved by the Fire Chief.

This regulation was imposed on “Personnel” as well as

“Public Quarters Residents.” C.A. E.R., Exh. D, at 3.

14

portion of the lawn surrounding his quarters. Both were

duties assigned to soldier.” Craft v. United Siates, 542 F.2d

1250, 1255 (5th Cir. 1976).

It is in this context that the Ninth Circuit’s reference

to the “uniqueness” of military base housing incidents is

best understood: Washington v. United States, Pet. App.,

5a, quoting Lutz v. United States, 685 F.2d 1178, 1183 (9th

Cir. 1982). The court does not mean they are “unique” in

the sense that they are exempt from normal FTCA princi-

ples — the position the government seeks to ascribe to the

Ninth Circuit. Rather, when the military, as employer and

provider of housing, imposes duties on its employees that

continue even during their off-duty, at-home hours,

“claims involving base residents require close examina-

tion of the employee’s actions and the employer’s interest

in them.” Washington v. United States, Pet. App., 6a, quot-

ing Lutz, 685 F.2d at 1183. That sort of “close examina-

tion” animated the Ninth Circuit’s finding of liability in

this case, as in Lutz.

Further support for this conclusion is found in Cali-

fornia’s “bunkhouse rule” which provides that an

employee who lives on the employer’s premises may be

acting within the scope of his employment even while

engaged in leisure pursuits during off-duty hours if he is

making reasonable use of the employer’s premises. Argo-

naut Ins. Co. v. Workmen's Compensation Appeals Bd., 247

Cal.App.2d 669, 677-78, 55 Cal.Rptr. 810, 818-19 (1967);

Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 620, 124

15

Cal.Rptr. 143, 149-150 (1975).8 The California Supreme

Court has declared that the rule applies even when the

employee, while not required to live on the premises,

receives lodging as part of his compensation. Truck Ins.

Exchange v. Ind. Accident Comm'n, 27 Cal.2d 813, 816-17,

167 P.2d 707-08 (1946); see also Petray v. Keeble, 15 I.A.C.

62 (1928) (“normal activity connected with the use of

living quarters provided by the employer as a part of the

contract of hire is incidental to the employment, and

injury while engaged in such activity arises out of the

employment”).

On facts similar to those in this case, a laborer who

liyed in a cabin on his employer’s ranch was burned ona

Sunday as he stood on ranch premises watching his

employer’s brother attempt to start an automobile by

priming it with gasoline. The gasoline suddenly burst

into flames, and the brother threw it over his shoulder to

get rid of it; it struck the employee, burning him. The

Commission ruled the injury was compensable even

though the employee was dressed in his Sunday clothes

and was planning to go to town to spend the day as he

pleased. It found that the injury arose out of the employ-

ment, concluding “the risk from instrumentalities permit-

ted by the employer to be on the premises was a risk of

the employment.” American Motorists Ins. Co. v. Ind. Acci-

dent Comm’‘n, 4 Cal.Comp. Cases 251, 252 (1939). So, too,

the risk from the instrumentalities (automobiles and

8 California courts frequently rely on workers’ compensa-

tion cases in analyzing respondeat superior issues. Perez v. Van

Groningen & Sons, Inc., 41 Cal.3d 962, 967-68, 719 P.2d 676, 227

Cal.Rptr. 106, 108 (1986); Hinman v. Westinghouse Elec. Co., 2

Cal.3d 956, 960, 471 P.2d 988, 88 Cal.Rptr. 188, 190 (1970).

16

gasoline) permitted by the Navy to be in the base housing

area was an inherent risk of the employer’s operation.

Thus, the Ninth Circuit’s approach fully comports

with California law imposing vicarious liability on

employers for their employees’ torts occurring at a time

and place where the employee is subject | to the

employer’s regulations. Since an analogous private

employer could be found vicariously liable under Califor-

nia law, the Ninth Circuit’s decision was correct.

B. Under The Second Prong Of California’s

Respondeat Superior Test, The Servicemen

Were Within The Scope Of Their Employment

At The Time Of The Accident Because Their

Negligent Acts Were Reasonably Foreseeable

Risks Inherent In The Navy’s “Enterprise” Of

Providing Living Quarters For Military

Personnel.

California has long recognized that an employer’s

responsibility for the torts of its employees extends

beyond acts which are required or incident to their

employment duties, and includes acts which are “inher-

ent in or created by the enterprise.” Hinman v. Westing-

house Elec. Co., 2 Cal.3d at 960, 471 P.2d 988, 88 Cal.Rptr.

at 190 (1970).

One way [California courts] determine

whether a risk is inherent in, or created by, an

enterprise is to ask whether the actual occur-

rence was a generally foreseeable consequence

of the activity. However, “foreseeability” in this

context must be distinguished from “fore-

seeability” as a test for negligence. In the latter

sense “foreseeable” means a level of probability

which would lead a prudent person to take

17

effective precautions whereas “foreseeability” as

a test for respondeat superior merely means that

in the context of the particular enterprise an

employee's conduct is not so unusual or startling

that it would seem unfair to include the loss result-

ing from it among other costs of the employer's

business. [Citations.] In other words, where the

question is one of vicarious liability, the inquiry

sMould be whether the risk was one “that may

fairly be regarded as typical of or broadly inci-

dental” to the enterprise undertaken by the

employer. Rodgers v. Kemper Constr. Co., 50

Cal.App.3d at 618-19 (emphasis added).

Rodgers’ foreseeability test has been approved by the

California Supreme Court. John R. v. Oakland Unified

School Dist., 48 Cal.3d 438, 450, n. 9, 769 P.2d 948, 256

Cal.Rptr. 766, 773, n. 9 (1989); Perez v. Van Groningen &

Sons, Inc., 41 Cal.3d at 967-68, 719 P.2d 676, 227 Cal.Rptr.

at 107-08.

Applying the risks of the enterprise/foreseeability

test to the facts of this case leads to only one conclusion -

Bartole and Cleaves were within the scope of their

employment at the time of the accident.

The enterprise in question is the United States armed

services. The function of the armed services is to protect

and defend the United States at all times. United States ex

rel Toth v. Quarles, 350 U.S. 11, 17 (1955) (it is “the primary

business of armies and navies to fight or be ready to fight

wars should the occasion arise”); Brown v. Glines, 444 U.S.

348, 354 (1980) (“Military personnel must be ready to

perform their ducy whenever the occasion arises”). Pro-

Viaing, *"-base housing for military personnel and their

families is an integral part of carrying out the function of

protecting and defending the United States. It ensures

18

that personnel are nearby in case of emergency even

during off-duty hours. It is indisputable that the United

States (as well as its citizens) benefits immeasurably from

having a large contingent of personnel available 24 hours

a day all over the world to carry out its aims.

The question under California law is whether Bartole

and Cleaves’ actions were foreseeable —- were they so

“unusual or startling” that it would seem unfair to

include the loss resulting from them among other costs of

the employer’s business? Clearly not. When an employer

undertakes to provide housing accommodations — includ-

ing garages — for its employees and their families, and

permits them to bring private automobiles on the prop-

erty, to repair them and to store gasoline, it can hardly be

said to be unusual, startling, unreasonable or unforesee-

able for an accident such as befell Christa Washington to

occur.9

9 The government suggests a contrary result would obtain

under Martinez v. Hagopian, 182 Cal.App.3d 1223, 227 Cal.Rptr.

763 (1986). Pet., 7, n. 4. But as respondent demonstrated in the

Ninth Circuit, Martinez is completely distinguishable. Briefly,

in that case a worker killed a visitor during a drunken braw] at

a farm labor camp after working hours. The Court of Appeal

held the worker was not within the scope of his employment.

The only duties the employer imposed on his employees were

to harvest grapes and refrain from drinking during working

hours. 182 Cal.App.3d at 1226, 227 Cal.Rptr. at 765. Unlike the

employees in this case, the farm workers were under no duty

to maintain the security of the labor camp or prevent fights,

drinking, fires, or anything else. In fact, during off-duty hours,

laborers were “free to do ‘anything at the time the law per-

mit[s] them to do.’ ” Id. In contrast, Bartole and Cleaves were

obligated to comply with military regulations at all times, even

when on “liberty status.”

19

The California Supreme Court’s latest articulation of

the rationale underlying the respondeat superior doctrine

reinforces this conclusion. In John R. v. Oakland Unified

School Dist., 48 Cal.3d 438, 451, 769 P.2d 948, 256 Cal.Rptr

766, 773-74 (1989), the court noted three principal reasons

for imposing liability on an enterprise for the risks inci-

dent to it: (1) It tends to provide a spur toward accident

prevention; (2) it tends to provide greater assurance that

accident victims will be compensated (i.e., through insur-

ance); and (3) it tends to provide reasonable assurance

that, like other costs, accident losses will be broadly and

equitably distributed among the beneficiaries of the

enterprise. The issue in John R. was whether a school

district is liable when a teacher sexually molests a stu-

dent. Based on an analysis of the three factors, the court

found no respondeat superior liability.

All three considerations point toward liability in this

case. First, by imposing liability, the government would

have added impetus to attempt to prevent the kind of

accident that occurred here - for example, by forbidding

automobile repairs (especially those involving gasoline)

in base housing areas or, at a minimum, in unventilated

areas. Second, finding the government liable for Christa’s

injuries assures she would be compensated for them. This

factor is extremely important in this case, since - unlike

the sexual molestation in John R. - Bartole and Cleaves’

negligence in repairing the car was within “the normal

range of risks for which costs can be spread and insur-

ance sought.” John R., 48 Cal.3d at 451, 256 Cal.Rptr. at

774. Moreover, not only did the Navy not require or even

suggest service people should purchase homeowner’s or

renter’s liability insurance, it misled them into believing

20

they did not need it. The Navy recommended that, for ~

their own protection, base residents purchase insurance

for damages to personal household goods. “The Govern-

ment doesn’t assume responsibility for loss of your per-

sonal property through fire, theft, or other means.” C.A.

E.R., Exh. B at 34. It is unconscionable that the govern-

ment did not see fit to tell service people it also does not

assume responsibility for liability for their injuries to

human beings. Third, imposing liability for Christa’s inju-

ries on the government assures that the costs would be

spread among all the beneficiaries of the enterprise that is

the United States armed services (i.e., tax-payers) and not

fall solely on one wholly innocent victim.

Bartole and Cleaves were within their scope of

employment under the “foreseeability” prong of Califor-

nia’s respondeat superior test. The Ninth Circuit’s impo-

sition of liability on the United States was correct under

this aspect of California law.

C. In Addition To Being Vicariously Liable For

Christa Washington’s Injuries On The Basis Of

Respondeat Superior, The United States Was

Directly Liable Under California Law As A

Landowner On Whose Property Dangerous

Activities Took Place With Its Knowledge.

_—

A third theory supports the Ninth Circuit’s decision —

direct landowner liability.’° California has long imposed

10 The United States, as owner and operator of the naval

base, is liable to the extent a private party would be under

similar circumstances. State law determines such liability. Hen-

derson v. United States of America, 846 F.2d 1233, 1234 (9th Cir.

1988).

21

on landowners the duty to take appropriate measures to

restrain activity of which the landowner is or should be

aware, and which the landowner should realize is dan-

gerous. Edwards v. Hollywood Canteen, 27 Cal.2d 802, 810,

167 P.2d 729, 733 (1946). The landowner has a duty ” ‘to

take affirmative action to control the wrongful acts of

third persons which threaten invitees where the [owner]

has reasonable cause to anticipate such acts and the prob-

ability of injury resulting therefrom.’” Isaacs v. Hunt-

ington Memorial Hosp., 38 Cal.3d 112, 123, 695 P.2d 653,

211 Cal.Rptr. 356 (1985). Foreseeability of future harmful

activity may be established other than by evidence of

prior similar incidents on the premises. Id. at 129; Mus-

grove v. Ambrose Properties, 87 Cal.App.3d 44, 51, 150

Cal.Rptr. 722, 725 (1978) (shopping center owner found

liable when patron injured by bicycle; owner knew bicy-

cles were commonly ridden on the premises but had

never received a complaint before). In analyzing fore-

seeability, California courts follow “the well-settled rule

that ‘what is required to be foreseeable is the general

character of the event or harm... not its precise nature

or manner of occurrence.’ ” Isaacs v. Huntington Memorial

Hosp., 38 Cal.3d at 129; Bigbee v. Pacific Tel. & Tel. Co., 34

Cal.3d 49, 57-58, 665 P.2d 947, 192 Cal.Rptr. 857, 861-62

(1983).

Thus, the appropriate inquiry here is whether the

government had a duty to take appropriate measures to

restrain its personnel from priming carburetors by pour-

ing gasoline into them in the residential area, when the

evidence showed the Navy was aware that this practice,

while relatively common, was unsafe. Without a doubt,

there was such a duty.

22

As its regulations show, the Navy freely permitted

“minor mechanical repairs” of automobiles to be per-

formed in residents’ garages and carports without fully

defining what those were. Service people frequently did

tune-ups and more complicated repairs on their cars

there. RT 119. The Navy also permitted gasoline to be

stored in garages. RT 167. The Navy was aware that the

common practice of priming a carburetor by pouring

gasoline directly into it was unsafe, yet it took no steps to

directly restrain that practice. In its official investigatory

report following the accident, the Navy expressly

acknowledged that “using gasoline to prime the carburetor is

not a safe practice but is relatively common.” (emphasis

added).

Having the knowledge that priming a carburetor

with gasoline can be unsafe but is relatively common

imposed on the Navy a duty to make an attempt to stop

or regulate the activity. The Navy could have prohibited

the practice altogether, or required that it be performed

outdoors, or at the very least instructed service people

not to engage in it without making sure that no children

are playing nearby. The failure of the Navy to take such

simple steps to address this known problem demon-

strates a breach of its duty to maintain safe premises and

establishes its direct liability for Christa Washington's

injuries.

III.

EVEN IF THERE WERE AN ACTUAL CONFLICT IN

THE CIRCUIT COURTS ON THE QUESTION PRE-

SENTED - AND THERE IS NONE - IT WOULD BE

INAPPROPRIATE FOR THIS COURT TO RESOLVE IT

IN THE CONTEXT OF THIS CASE AND PREMATURE

IN ANY EVENT.

Buried in the middle of the government's petition is

the contention that “there is an express conflict in the

23

circuits on the question presented.” Pet., 10. Tne government

draws this conclusion from the District of Columbia Circuit’s

criticism of Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982)

in Nelson v. United States, 838 F.2d 1280, 1283 (D.C. Cir. 1988)

(“We doubt the adequacy of the Lutz rationale”). However,

upon closer examination, it becomes clear that no actual

conflict exists, particularly with respect to this case. And even

if a budding conflict could be postulated, it is far too early

for this Court to consider the matter.

Lutz and Nelson arose on virtually identical fact pat-

terns and came to different conclusions as to the govern-

ment’s respondeat superior liability for a serviceman’s

failure to control his dog, which bit a child. Yet despite

this seeming conflict, and despite the Nelson court’s

express criticism of Lutz, there is no actual conflict

because each circuit’s decision is based on local law. As

we explained earlier (see p. 10, n. 6), Lutz is expressly

based on Montana’s law of respondeat superior, which

imposes liability on an employer for the acts of an

employee which further the employer’s interest. 685 F.2d

at 1182. Citing Montana authority, the Ninth Circuit con-

cluded that the serviceman’s performance of his duty to

control his dog “furthered the interests of the Air Force,”

and thus held he acted within the scope of his employ-

ment. Id. at 1183. Similarly, Nelson is based on the law of

respondeat superior as applied by the District of Colum-

bia. And while the test is similar to Montana’s (whether

the employee was furthering his employer’s interest), the

Nelson court’s citation of District of Columbia authorities

indicates the test is narrowly applied there. Id. at 1282-83.

Thus, in grounding their decisions on local precedent,

both circuits satisfied the FTCA’s requirement that scope

24

of employment be defined by local law.'! “As to ques-

tions controlled by state law .. . , conflict among circuits

is not of itself a reason for granting a writ of certiorari.

The conflict may be merely corollary to a permissible

difference of opinion in the state courts.” Ruhlin v. New

York Life Ins. Co., 304 U.S. 202, 206 (1938).

There is a second reason that no real conflict exists

between Lutz and Nelson. The Nelson court’s discussion of

respondeat superior liability, with its criticism of Lutz, is

unnecessary to the court’s holding - which is that the

government was directly liable for the child’s injuries as a

landowner with knowledge that the dog was dangerous.

838 F.2d 1285-87.!2 The appellate court affirmed the district

court’s judgment of liability. Thus, the court of appeal’s

rejection of liability based on a respondeat superior the-

ory is by no means the holding of the case. There is

serious question whether any District of Columbia court

would be bound by it.

Third, even assuming a possible conflict between

Nelson and Piper on the one hand and Lutz on the other, it

11 The same is true of Piper v. United States, _ __ ~F.2d __

(8th Cir. 1989), decided by the Eighth Circuit after the petition

for certiorari was filed in this case. Piper is another dog bite

case, like Lutz and Nelson. The court held that a serviceman

who failed to control his dog was not acting within the scope

of his employment. Although the court states it “decline[s] to

follow” Lutz, and “adopt[s] the reasoning” of Nelson, it reaches

its conclusion by applying Arkansas principles of respondeat

superior.

12 By the same token, the Eighth Circuit in Piper remanded

the case to the district court to determine whether the govern-

ment might be liable under a similar theory.

25

does not follow a conflict exists between Nelson and Piper

and this case, which arose on very different facts. (Signifi-

cantly, the Piper court does not even cite Washington, even

though it was decided eight months previously.) Nelson,

Piper, and Lutz all involve a base regulation requiring

service people to control their dogs. The government (like

the Nelson and Piper courts) expresses the fear that impos-

ing liability for this and other such “housekeeping”

duties would make the government ” ‘an insurer as to all

manner of bizarre incidents’ occurring on military bases.”

Pet., 6, 10. Such language should not obscure what hap-

pened in this case: a child resident of a military base was

horribly and permanently injured by the admitted grossly

negligent conduct of two servicemen, conduct which vio-

lated fire prevention and base security regulations whose

express goal was “the total prevention of loss of life and

property by fire” because “fire hazards are not acceptable

within the naval establishment.” As the Ninth Circuit

observed, “It is difficult to think of an older or more

critical military duty imperative than the prevention of

fire in camps and quarters.” Washington v. United States,

Pet. App., 6a. This duty is far from trivial, and its viola-

tion resulted in a fire that was hardly “bizarre;” sadly, it

was all too predictable.

Moreover, it was a duty expressly imposed upon all

service personnel, not just base residents, and its breach

could give rise to military discipline. The government,

echoing Judge Bork’s reasoning in Nelson, attempts to

draw a distinction between regulations governing

employees and those governing base residents, contend-

ing that only the former can define a service person’s

scope of employment. Whether or not such a distinction

26

makes sense in the context of military life is not an issue

in this case, since the key regulations at issue here

expressly applied to all “Personnel”:

e. Personnel are responsible for (1) Compliance

with Fire Regulations. . . .C.A. E.R. Exh. D, at 3.

See also id. at 1 (“the prevention of fire in

administrative and quarters areas is a moral and

legal responsibility of all personnel. . . .”).

(Emphases added.)

That “Public Quarters Residents,” including spouses and

children, were also responsible for compliance with the

regulations does not change their status as separate and

independent duties imposed on employees.

Finally, even if Nelson (and now Piper) are seen to

conflict with the Ninth Circuit’s decisions, the govern-

ment exaggerates the extent of the conflict among the

circuits. The government hints at a conflict between the

Ninth and First Circuits, based on the First Circuit's

rejection of 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).” Pet., 10, n. 10. But of course the Ninth Circuit is

in complete agreement. “We do not suggest that 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

limited waiver intended by the FTCA.” Lutz, 685 F.2d at

1183.

27

In short, even if a conflict can be said to exist, the

lower courts have not yet had the opportunity to thor-

oughly flesh out the issues.13 As we suggest here, it is

possible to harmonize all the decisions as based on local

law; future litigation may develop that thesis further.

There is much to be said for letting early conflicts ripen,

subjecting them to the tests of time, thought, comment

and advocacy before this Court steps in to resolve them.

See McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens,

J.) (certiorari denied where “further consideration of the

substantive and procedural ramifications of the problem

by other courts will enable us to deal with the issue more

wisely at a later date”).

In view of the real doubt whether a conflict exists at

all (especially with respect to this case), and if, so,

whether the lower courts have had ample time and

opportunity to develop the issues, it is not surprising the

government buried its claim of conflict in the middle of

its petition, without highlighting it as a Question Pre-

sented. If even the government does not take its claim of

conflict seriously, there is hardly cause for this Court to

do so.

+

13 In Piper, the Eighth Circuit simply adopts the reasoning

and language of the Nelson decision.

28

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied. -

’ Respectfully submitted,

PATTERSON, RITNER, LOCKWOOD,

ZANGHI & GARTNER

JOHN ZANGHI

Grecory P. OrLAND*

3580 Wilshire Boulevard,

Suite 1500

Los Angeles, California 90010

Telephone: (213) 487-6240

GrEINES, MarTIN, STEIN & RICHLAND

MARTIN STEIN

Kent L. RicHLAND

BARBARA W. Ravitz*

9601 Wilshire Boulevard, Suite 544

Beverly Hills, California 90017

Telephone: (213) 859-7811

* Counsel of Record

yw

Counsel for Respondent