United States Court of Appeals,
Eleventh Circuit.
No. 95-9262.
Sharon BENNETT, Plaintiff-Appellant,
v.
UNITED STATES of America, Defendant-Appellee.
Dec. 30, 1996.
Appeal from the United States District Court for the Southern District of Georgia. (No. CV194-083), Dudley H. Bowen, Jr., Judge.
Before DUBINA and BLACK, Circuit Judges, and MARCUS*, District Judge.
MARCUS, District Judge:
Plaintiff-Appellant Sharon Bennett appeals the district
court's grant of summary judgment in favor of the Defendant-
Appellee United States of America. Bennett brought this action
under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)
and 2671, et seq., alleging that she suffered permanent injuries
due to the negligent conduct of a United States Army soldier
stationed at Fort Gordon in Augusta, Georgia. Bennett's injuries
resulted from the soldier's discharge of a handgun that, in
violation of base regulations concerning privately-owned weapons,
had not been registered with the base Provost Marshal's office.
The United States moved for summary judgment, arguing, among other
things, that the soldier was not acting within the scope of his
employment at the time of the incident, and therefore no liability
could be imposed under the FTCA. The district court agreed that
* Honorable Stanley Marcus, U.S. District Judge for the Southern District of Florida, sitting by designation. the soldier had not acted within the scope of his employment.
Bennett insists that the district court erred in reaching this and
other conclusions concerning her negligence claim. For the reasons
detailed below, we affirm.
I. Background
This case arises out of an accidental shooting on the night of
January 14, 1993. Early in the evening, David Williams, a soldier
assigned to Company A of the 551st Signal Battalion at Fort Gordon
and residing on the base, attended the rehearsal of a band of which
he was a member. During the rehearsal, Williams told a fellow
soldier and band member, Adrian Risby, that he planned to visit a
local dance club later that night. Risby indicated that he would
like to go, and the two servicemen arranged to meet at Risby's
barracks room. Shortly after 11:00 p.m., Williams, off-duty at the
time, left his residence to meet Risby. When he arrived at Risby's
quarters, Williams was carrying a black nylon bag that concealed a
personal .380 caliber semi-automatic pistol. Bennett, an
acquaintance of both soldiers and a guest of Risby's, was in the
room along with Risby when Williams arrived. The trio discussed
which night club to visit and other plans for the evening. At some
point during the conversation, Williams removed the pistol from his
bag and inadvertently fired it. The bullet struck Bennett in the
back and severed her spinal cord, causing permanent paralysis below
her upper waist. Williams subsequently pled guilty at a court
martial in June, 1993 to charges of assault with a dangerous
weapon, negligent discharge of a loaded firearm and carrying a
concealed weapon. Seeking to recover money damages for her injuries, Bennett
submitted an administrative claim to the Department of the Army.
After the Army denied her claim, she filed the instant FTCA lawsuit
against the United States on May 18, 1994. In her complaint,
Bennett alleges that the negligent acts of Williams may be
attributed to the United States on a theory of vicarious liability,
since Williams acted within the scope of his employment as a United
States Army soldier. Bennett also alleges that the Government was
liable for failing to adequately supervise the dormitory where she
suffered her injuries, and that Williams and other Government
employees exacerbated her injuries by moving her immediately after
the accident. The United States answered the complaint, and
thereafter moved to dismiss or in the alternative for summary
judgment. In an Order dated September 29, 1995, the district court
assumed that Williams' negligence caused Bennett's injuries, but
accepted the Government's argument that Williams had not been
acting within the scope of his employment at the time of the
shooting. The district court also concluded that the Army did not
willfully or wantonly fail to supervise the barracks. In a
subsequent Order, the court rejected as a matter of law Bennett's
claim that Army employees aggravated her condition, since neither
Williams nor Risby acted within the scope of their employment and
no evidence had been produced to show that any other employees
improperly moved her after the shooting. Bennett appeals the
district court's findings on these issues.
II. Standard of Review
The district court construed the Government's motion as an application for summary judgment.1 We review the district court's
grant of summary judgment de novo. Forbus v. Sears Roebuck & Co.,
30 F.3d 1402, 1404 (11th Cir.1994), cert. denied, --- U.S. ----,
115 S.Ct. 906, 130 L.Ed.2d 788 (1995). A summary judgment motion
should be granted when "the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue of material
fact and that the moving party is entitled to summary judgment as
a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986);
Everett v. Napper, 833 F.2d 1507, 1510 (11th Cir.1987). An issue
of fact is "genuine" if the record as a whole could lead a rational
trier of fact to find for the non-moving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91
L.Ed.2d 202 (1986). An issue is "material" if it might affect the
outcome of the case under the governing law. Id. Like the
district court, we review the evidence in a light most favorable to
the non-moving party. Griesel v. Hamlin, 963 F.2d 338, 341 (11th
Cir.1992).
1 The FTCA operates as a limited waiver of the United States' sovereign immunity. See, e.g., Lawrence v. Dunbar, 919 F.2d 1525, 1528 (11th Cir.1990). Unless the United States may be held liable pursuant to the terms of the statute, the sovereign's immunity remains intact, and no subject matter jurisdiction exists. Id. Rule 12(b)(1) of the Federal Rules of Civil Procedure provides a vehicle for the dismissal of actions for lack of subject matter jurisdiction. Nevertheless, where—as here—the existence of subject matter jurisdiction is inextricably intertwined with material facts affecting the merits of the claim, a district court must be guided by the standard for summary judgment motions under Fed.R.Civ.P. 56. Id. at 1528-30; Green v. Hill, 954 F.2d 694, 697-98 (11th Cir.), withdrawn and superseded in part on reh'g, 968 F.2d 1098 (1992); Eaton v. Dorchester Dev., Inc., 692 F.2d 727, 734 (11th Cir.1982). III. Discussion
The principal question presented in this appeal concerns
language in the FTCA that makes the United States' vicarious
liability for the negligence of its employees contingent on whether
the employee acted in the "line of duty." The FTCA waives the
Government's sovereign immunity for civil damages lawsuits against
the United States for "injury or loss of property, or personal
injury or death caused by the negligent or wrongful act or omission
of any employee of the Government 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 where the act or omission
occurred." 28 U.S.C. § 1346(b). The statute defines "employee of
the government" as including "members of the military or naval
forces of the United States." For military personnel, "[a]cting
within the scope of ... employment" means acting in "line of duty."
Id. "Line of duty," in turn, draws its meaning from the applicable
state law of respondeat superior, Williams v. United States, 350
U.S. 857, 76 S.Ct. 100, 100 L.Ed. 761 (1955) (per curiam), taking
into account the special factors and characteristics of military
activity and discipline. See, e.g., Bettis v. United States, 635
F.2d 1144, 1147 (5th Cir. Unit B 1981); Hinson v. United States,
257 F.2d 178, 181 (5th Cir.1958).2
2 In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit Court of Appeals handed down prior to October 1, 1981. This Circuit also regards as binding precedent all decisions of Unit B of the former Fifth Circuit. Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir.1982). Since Williams' alleged negligence occurred in Georgia, we
look to Georgia's law of respondeat superior. While respondeat
superior is a slippery concept that eludes precise, universal
definition, Georgia courts will hold an employer responsible for
the conduct of its employee if the employee acted in the course of
the employer's business and with a desire to benefit the employer.
See Green, 954 F.2d at 698 (noting that, under Georgia law, "[t]he
tort of an employee is within the scope of his employment if it is
done in furtherance of his employer's business"); Wallace v. ARA
Servs., Inc., 365 S.E.2d 461, 463 (Ga.Ct.App.1988); Wittig v. Spa
Lady, Inc., 356 S.E.2d 665, 666 (Ga.Ct.App.1987); Southern Bell
Tel & Tel Co. v. Sharara, 167 Ga.App. 665, 307 S.E.2d 129, 131
(1983). By contrast, when an employee undertakes an act purely
personal in nature, no respondeat superior liability may be
imposed. Green, 954 F.2d at 698; see Worstell Parking, Inc. v.
Aisida, 212 Ga.App. 605, 442 S.E.2d 469, 470-71 (1994) (refusing to
hold employer liable for acts of a parking attendant who struck a
customer with a stick, and concluding that the employee's
"altercation with plaintiff and her boyfriend appears to have been
purely personal and not for any purpose beneficial to defendant");
Wallace, 365 S.E.2d at 463 (refusing to hold employer liable for
injuries resulting from an employee's unauthorized use of a company
van for personal errands); Wittig, 356 S.E.2d at 666 (finding that
employee who forged a purported customer's signature on a company
contract acted outside the scope of her employment). The question
of whether a given act falls within the scope of employment is
highly fact-specific, and turns on the unique circumstances of the case at bar. See, e.g., Wallace, 365 S.E.2d at 463.
At the outset, Bennett seems to suggest that each and every
act by a military employee in or around military housing
necessarily falls within the scope of a soldier's employment. She
describes a military base as a "special type of business locale"
that is "open for business" at all times. She further maintains
that since soldiers may be called to duty on a moment's notice, all
of their activities relate to or are limited by their employer's
purpose. These arguments are unpersuasive.
We are aware of no case law from this Circuit or elsewhere to
support so sweeping an application of respondeat superior under the
FTCA. To begin with, a great many acts by military personnel who
reside on base may be sufficiently outside the scope of their
employment to preclude vicarious liability on the part of the
Government. In Bettis v. United States, for example, the former
Fifth Circuit held that an off-duty Army soldier who caused an
accident while driving an Army vehicle off-base was not acting
within the scope of his employment. The soldier had driven the
vehicle to a nearby party. A superior officer attending the party
gave the soldier permission to drive the vehicle back to his
barracks. The soldier understood, however, that he was not
permitted to take the vehicle off base at any time without
permission. Nevertheless, after returning to his quarters, he used
the vehicle to drive to a neighboring town to see a girlfriend.
The accident occurred during this frolic. The district court
entered summary judgment in favor of the Government, holding that
the soldier had used the vehicle without authority and for his own personal reasons. The former Fifth Circuit affirmed, holding that
since the soldier's "trip from beginning to end was totally
unauthorized, he was not acting in the scope of his employment."
Id. at 1148. As Bettis suggests, evidence that a negligent act is
attributable to a soldier who lives in military housing may be
insufficient to support the imposition of respondeat superior
liability.
Dictum from the United States Supreme Court's opinion in
Sheridan v. United States, 487 U.S. 392, 108 S.Ct. 2449, 101
L.Ed.2d 352 (1988) underscores this conclusion. Sheridan concerned
a serviceman who impermissibly kept a rifle and ammunition in his
barracks at a Navy medical center. After becoming intoxicated, the
serviceman walked to the edge of the base and began shooting at
passing vehicles on a public street. In the course of its opinion,
the Court remarked that the serviceman's conduct, standing alone,
did not provide a basis for imposing liability on the United
States, even though the tortfeasor lived in military housing and
committed his tortious acts while on base property. The Court
stressed that the "tortious conduct of an off-duty serviceman, not
acting within the scope of his employment, does not in itself give
rise to Government liability...." Id. at 401, 108 S.Ct. at 2455.
Sheridan, like Bettis, suggests that even if the alleged tortfeasor
is a member of the military, and commits the allegedly negligent
act on base property, it may not follow that the soldier has acted
within the scope of his employment.3
3 Bennett cites the Second Circuit's opinion in Taber v. Maine, 67 F.3d 1029 (2nd Cir.1995), for the proposition that the military's pervasive control over the activities of its personnel There is no dispute that Williams was off-duty at the time of
the alleged incident. There is also no dispute that Williams
visited Risby's quarters on the night of January 14, 1993 for
purely personal reasons unrelated to his responsibilities as a
soldier. As the district court observed, Williams' subsequent
discussions with Risby and Bennett about which night club to visit
"fail to bear even the faintest connection with his duties as an
employee of the United States Army." Nor can Williams' possession
or concealment of the firearm prior to or during the night of January 14th be linked in any way to his duties as a member of the
armed forces. In a statement given to military authorities,
Williams acknowledged that he carried the gun "just for common
practice. With all the things going on you never know who or what
supports a broad application of respondeat superior. Taber, an FTCA case arising under Guam and California law, involved an off-duty soldier who became intoxicated after drinking alcoholic beverages at several base parties and on-base recreation centers. The soldier subsequently struck and injured another soldier while driving a vehicle off-base in search of a late-night snack. In reversing the district court's finding that the intoxicated soldier had not been acting within the scope of his employment at the time of the accident, the Second Circuit explained that, under California law, respondeat superior liability is proper whenever the employee's "conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Id. at 1036-37 (citation and emphasis omitted). The panel treated the damage resulting from the intoxicated soldier's conduct as one of the "costs of base operations" properly allocable to the Government, especially since the military's "fairly lenient on-base drinking policies" benefitted its interest in boosting soldiers' morale. Id. at 1037. Taber acknowledges the expansive nature of California's respondeat superior law. Id. at 1034-35. But even if we were to assume that the standard applied in Taber could be squared with the more limited reach of the doctrine in Georgia, the Second Circuit's opinion provides little guidance on the issue before us. In particular, the Army did not provide Williams with the weapon used to injure Bennett, or in any way encourage or facilitate his acquisition, retention or concealment of the gun. you are going to run into." R3-Exh. 1. Quite simply, none of
Williams' acts on the evening of the shooting furthered, or were
intended to further, his employer's purpose.
Bennett nevertheless argues that since Williams' possession
of the handgun implicated a base regulation that imposed certain
affirmative duties on him, his obligation to discharge those duties
may be considered within the scope of his employment. Bennett
contends that the United States' "employee's actions, in
possessing, carrying and concealing a personal firearm, were in
violation of Fort Gordon security regulations.... [and] suggests
the existence of vicarious liability." Appellant's Br. at 12.
Fort Gordon regulation 210-13, which relates to the "Control of
Firearms, Ammunition, and Other Dangerous Weapons," expressly
limits the kind of weapons that may be brought onto the
installation. Among other things, the regulation requires that all
privately-owned weapons be registered with the Provost Marshal's
office within three days after arrival on the base, subject to
certain exceptions not applicable here. R3-Exh. 4. The regulation
also forbids the carrying of concealed weapons. Violators of the
regulation are subject to military punishment.
As support for her position, Bennett places great emphasis on
the Ninth Circuit's analysis in Lutz v. United States, 685 F.2d
1178 (9th Cir.1982). In Lutz, the plaintiffs sought to hold the
Government liable for injuries attributable to an Air Force soldier
who failed to properly control his dog. Soldiers living in base
housing were permitted to own pets, but were required to comply
with a base regulation that directed pet owners to control their animals. The Plaintiffs alleged that the soldier's negligent
handling of his dog allowed the dog to attack a small girl playing
in a nearby yard. The district court found that, by bringing his
pet on base, the soldier did not act in the line of duty, but
rather for his own benefit. As a result, the court concluded, no
respondeat superior liability could be imposed under the FTCA. On
appeal, the Ninth Circuit reversed, holding that since the soldier
"was delegated a specific military duty, the performance of which
furthered the interests of the Air Force," he acted in the line of
duty and within the scope of his employment. Id. at 1183. In
reaching this conclusion, the Ninth Circuit acknowledged that not
"every act of a base resident is within the scope of his
employment." Id. It nevertheless suggested that "[m]ilitary
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." Id.
The holding in Lutz has been rejected by three of our sister
Circuits and several district courts. See Chancellor v. United
States, 1 F.3d 438 (6th Cir.1993); Piper v. United States, 887
F.2d 861 (8th Cir.1989); Nelson v. United States, 838 F.2d 1280
(D.C.Cir.1988); Stanley v. United States, 894 F.Supp. 636
(W.D.N.Y.1995); Brotko v. United States, 727 F.Supp. 78
(D.R.I.1989). These opinions recognize that some regulations
governing the conduct of military personnel simply do not impose
requirements within a soldier's "scope of employment." In Nelson,
for example, the court considered a regulation almost identical to the one at issue in Lutz. The regulation required pet owners to
control the animals they kept on the base. Plaintiffs alleged that
an Air Force soldier living on the base failed to prevent his dog
from attacking a neighboring child. The district court entered
judgment against the Government, partly on a theory of respondeat
superior and relying heavily on Lutz. The Court of Appeals
affirmed the judgment, but rejected the district court's respondeat
superior analysis. In so doing, it criticized the Ninth Circuit's
reasoning:
Under Lutz, all duties imposed by military regulation, no matter how trivial, could fall within the employer-employee relationship. In the unique context of life on a military base, however, the government is much like an old-fashioned "company town." Within this multi-faceted relationship, the military imposes duties on personnel, not all of which are plausibly viewed as imposed by the government in its role as employer.... Because such duties, although established by military regulations, do not run to the benefit of the employer and are linked only incidentally with the employment relationship, they cannot be said to be discharged within the scope of employment.
Id. at 1283-84. The court added that the Ninth Circuit's opinion
provided no limiting principle on the Government's vicarious
liability, effectively making the United States an insurer for an
entire universe of bizarre accidents that might occur on a military
installation:
Military regulations typically govern a wide range of base residents' activities, touching most aspects of private and public life. To hold the government potentially liable for all damage done 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 relinquishment of sovereign immunity.
Id. at 1284.
To the extent that Lutz can be read to suggest that every duty
imposed by base regulations falls within the employer-employee relationship as a consequence of the military's pervasive interest
in fostering order and discipline, we think the Ninth Circuit's
opinion sweeps too broadly. Lutz imposes on the United States a
risk of respondeat superior liability far beyond that of its
private employer counterparts. We need not equate military housing
with a "company town" to recognize that while providing on-site
residences for soldiers may foster camaraderie, encourage
discipline and facilitate rapid mobilization in the event of a
crisis, it does not draw the entire panoply of soldiers' on-base
activities within the ambit of the employment relationship. The
connection between military service and trivial or housekeeping
regulations that benefit the military's purpose only in an indirect
sense may be far too tenuous to trigger vicarious liability under
the FTCA. And while Bettis, Hinson and other Circuit precedents do
suggest that the concept of "scope of employment" must be tailored
to the "special factors and characteristics of military activity
and discipline," these opinions nevertheless confirm that Congress,
when it waived the United States' sovereign immunity for FTCA
lawsuits, did not intend to sever the concept of respondeat
superior liability from its common law moorings. See 28 U.S.C. §
2674 (providing that the "United States shall be liable ... in the
same manner and to the same extent as a private individual under
like circumstances").
It follows that the existence of a base regulation governing
the manner and method of Williams' personal possession of the
handgun does not draw compliance with that regulation within the
scope of his employment. The regulation at issue in this case, which pertains to private weapons that individuals may elect to
bring onto the base, bears a highly attenuated relationship to the
Army's purpose. Notably, the regulation applies not just to
soldiers, but rather to all individuals on the premises of Fort
Gordon. At the same time, the regulation does not apply to
servicemen who keep weapons off-base. The existence of the
regulation cannot, standing alone, convert a soldier's private act
of carrying a personal firearm into conduct somehow designed to
further or benefit his employer's purpose.
Our conclusion is not inconsistent with the former Fifth
Circuit's opinion in Craft v. United States, 542 F.2d 1250 (5th
Cir.), reh'g denied, 546 F.2d 906 (1977). Craft concerned an Army
soldier who inadvertently injured the child of a neighboring family
while mowing the lawn surrounding his assigned residence at a
military installation in Alabama. The soldier had been given
on-post housing in a multi-unit complex where the child lived with
his parents. Upon taking up residence, the soldier was advised
that he would be required to maintain the grounds immediately
surrounding his apartment. Base regulations governed the manner
and method by which the soldier was expected to maintain the lawn.
The soldier was given verbal and written instructions regarding
lawn care, and his yard work was inspected by Army officials. It
was in the midst of cutting his assigned portion of the lawn that
the soldier struck the child with the lawn mower.
The child and her parents thereafter filed suit against the
Government under the FTCA. The Government moved for summary
judgment, arguing that the soldier was not acting in the "line of duty" at the time of his allegedly negligent conduct. The district
court agreed, and entered judgment in favor of the United States.
On appeal, however, the former Fifth Circuit reversed, holding that
the soldier was acting within the scope of his employment. The
panel explained that, under Alabama law, an employer may be liable
for acts committed "in or about the business or duties assigned to
him by his employer." Id. at 1254 (citing Wells v. Henderson Land
& Lumber Co., 200 Ala. 262, 76 So. 28, 29 (1917)). The court then
reiterated that the soldier undertook the task of mowing the lawn
pursuant to the command of base regulations and his superior
officers:
At the time of Child's injury, Soldier was performing a specific duty which had been assigned to him—to cut his portion of the lawn, was receiving a Governmental subsidy through his living quarters, was subject to military discipline, and was not on leave. Soldier's only choice was the immaterial one of which type of Government permitted mowing device he would use. Under Alabama law, once it is recognized that Soldier was performing a duty specifically assigned to him, the necessary conclusion is, and we hold as a matter of law, that Soldier was acting within the scope of his employment.
Id. at 1256.
The critical difference here is that, unlike the soldier in
Craft, who was required by specific regulation to mow the lawn
surrounding his quarters, Williams was not compelled in any sense
to own or bring onto the base a private weapon. Williams made a
voluntary decision to subject himself to the strictures of the
regulation; his employer took no part in this choice. It is the
absence of any specific requirement to perform the underlying
act—the soldier's threshold decision to possess a handgun—that distinguishes this case from Craft.4 More to the point, the
absence of compulsion is powerful evidence that the Army did not
think its purpose furthered by the soldier's possession of a
private handgun. The fact that Fort Gordon officials thought it
advisable to promulgate certain regulations governing those
soldiers who did choose to bring approved weapons onto the base
does not convert a personal choice to bear a personal firearm while
off-duty into an act designed to further the employer's business.5
Still another former Fifth Circuit case illustrates this
principle in an analogous context. In Hinson v. United States, an
Army medical officer, while driving his personal automobile en
route to his first duty assignment, collided with another
automobile off the premises of the base, and injured that car's
passengers. The victims sued the United States under the FTCA.
The district court granted the Government's motion for summary
judgment, holding that the soldier was not acting within the scope
of his employment at the time of the accident. The Court of
4 In a narrow sense, the soldier in Craft did have a measure of choice. He was not required to accept the on-post living quarters assigned to him. If he declined the offer, however, he would have forfeited the monthly housing allowance given to armed forces members residing in non-governmental housing. 542 F.2d at 1252. In other words, the soldier "would have no on-base housing and no [allowance] for an off-base residence.... [T]his is truly a Hobson's choice." Id. at n. 5. At Fort Gordon, by contrast, the Army did not offer privileges to those soldiers who brought privately-owned weapons on base. Nor did it threaten to penalize those soldiers who declined to bring otherwise permissible weapons onto the base. It is this kind of freedom of choice that separates Craft from the case at bar. 5 This logic underscores our difficulty with the Ninth Circuit's analysis in Lutz. Since no soldier was compelled to bring a dog or other animal onto the base, it is difficult to conceive how the regulation requiring pet owners to control their pets created duties within the soldier's "line of duty." Appeals reached the opposite conclusion, and reversed. In so
doing, the panel stressed that the soldier was executing an
unequivocal order that commanded him to travel to the site of his
first assignment. "He was not going to work," the court explained,
"he was [instead] engaged in the performance of one of the very
duties specifically assigned to him, receiving Army pay, subject to
military discipline and not on leave. His only choice was the
immaterial one of route and means of travel." Id. at 182. For
these reasons, the court concluded that, under Georgia law, the
soldier had acted within the scope of his employment. Id. at 183.
In Hinson, as in Craft, the United States was exposed to respondeat
superior liability precisely because the act giving rise to the
alleged negligence had been undertaken not at the discretion of the
soldier, but rather at the command of the military in order to
further its purposes. See also Hallberg v. Hilburn, 434 F.2d 90,
92-93 (5th Cir.1970) (finding that soldier acted within the line of
duty while traveling on the last leg of his journey to report to a
new assignment, even though he had taken the previous several days
off); United States v. Culp, 346 F.2d 35, 36 (5th Cir.1965) (per
curiam) (following Hinson ).
IV. Conclusion
The scope of employment doctrine, in Georgia as elsewhere,
turns on whether the employee has acted to benefit his employer's
purpose. Simply put, the existence of a base regulation implicated
by a soldier's alleged negligence does not invariably transform an
act otherwise outside the soldier's line of duty into one for which
the United States may be deemed responsible under the FTCA. The key inquiry remains whether the regulation imposes duties that
directly and substantially serve the military's purpose. We
conclude, therefore, that the district court properly held that
Williams' conduct on the night of January 14, 1993 cannot be the
basis for vicarious liability under Georgia's law of respondeat
superior. Williams' activities on that evening were unrelated to
any employment relationship with the military, and were not
undertaken to further his employer's business. Since the district
court did not err in rejecting the other theories that Bennett proffered in support of her claim, the decision below is
AFFIRMED.6
6 Bennett's suggestion that the Army's failure to "properly enforce the regulations constitutes negligence" and is "at the very least, [a] question[ ] of fact for a jury," Appellant's Br. at 19-20, is unpersuasive. There is no evidence in the record tending to establish that the Government failed to enforce the registration requirement, let alone that it knew prior to the night of the shooting that Williams possessed an unregistered weapon. There is no evidence suggesting that the Government was negligent in its supervision of Risby's barracks on the night in question. And there is no evidence on which a reasonable jury could hold the Government vicariously liable for acts of Risby and Williams immediately after the shooting that inadvertently may have exacerbated Bennett's condition.
In her brief, Bennett argues that Williams' violation of regulation 210-13 constituted negligence per se under Georgia law. Since we find that the district court properly concluded that the United States cannot be held directly or vicariously liable to her under the FTCA, we need not address whether Williams' conduct was negligent within the meaning of the Act.