Kessler v. United States

514 F. Supp. 1320, 1981 U.S. Dist. LEXIS 12345
CourtDistrict Court, D. South Carolina
DecidedMay 29, 1981
DocketCiv. A. No. 80-2002-8
StatusPublished
Cited by3 cases

This text of 514 F. Supp. 1320 (Kessler v. United States) is published on Counsel Stack Legal Research, covering District Court, D. South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kessler v. United States, 514 F. Supp. 1320, 1981 U.S. Dist. LEXIS 12345 (D.S.C. 1981).

Opinion

ORDER

BLATT, District Judge.

This matter is before the court on defendant’s motion to dismiss, under Fed.R. Civ.Pro. 12(b)(6), for failure to state a claim upon which relief can be granted, which has been converted into a motion for summary judgment pursuant to Fed.R.Civ.Pro. 12(b) and 56(b). Defendant asserts that any injuries suffered by plaintiff were incident to his military service and, therefore, fall outside the ambit of the United States’ limited waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. §§ 1346,2671-80, as defined by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Generally speaking, the so-called “Feres doctrine” precludes a finding of liability on the part of the federal government “for injuries to servicemen where the injuries arise out of or in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159. Thus, the question posed to this court by defendant’s motion is whether the particular facts of the case at bar render plaintiff’s injuries “incident to [his] service,” id., or, conversely, whether those “injuries [were] not caused by [his] service except in the sense that all human events depend upon what has already transpired.” Brooks v. United States, 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200 (1949), reversing United States v. Brooks, 169 F.2d 840 (4th Cir. 1948).

FINDINGS OF FACT

The facts essential to this court’s inquiry under Feres have been admitted by the parties and are not subject to serious controversy, except in their ultimate effect. On August 5, 1979, plaintiff, an enlisted man assigned to the 437th Field Maintenance Squadron at the Charleston Air Force Base, was on active duty with the United States Air Force. According to the affida[1321]*1321vit of Master Sergeant John J. Johnson, Jr., plaintiff’s supervisor in the Jet Flight Line Maintenance Section, plaintiff was due to work the graveyard shift that evening, with duty hours between 11:45 P.M. and 7:30 A.M.; although plaintiff did not have to report to his duty station until 11:45 P.M., he was on active duty status, meaning that his service was not subject to any authorized leave, liberty, pass, or other furlough status. At approximately 10:25 P.M., plaintiff, while driving his automobile, was involved in an accident with another vehicle operated by an enlisted man on Arthur Drive, within the boundaries of the Charleston Air Force Base. In his affidavit, plaintiff asserts:

I was returning to Charleston A.F.B. from Summerville, South Carolina where I had just dropped off my girlfriend so that I would be able to complete several letters that I needed to have in the mail the following day. I had to report to my duty station ... at 11:45 that evening and I was enroute to my barracks ... at approximately 10:00 that evening so that I would have plenty of time to finish these documents and rest up some before reporting to my duty station. Unfortunately, I never reached my destination.

It is, therefore, incumbent upon this court to determine whether these facts compel, as a matter of law, the finding that plaintiff’s injuries “arise out of or are in the course of activity incident to military service,” Feres v. United States, 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950), thereby precluding liability under the Federal Tort Claims Act.

CONCLUSIONS OF LAW

The basic scope of the Feres doctrine was defined in three Supreme Court opinions filed between 1949 and 1954. United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954); Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). In Brooks, the Court held that the United States was liable for damages under the Federal Tort Claims Act when injuries suffered by military personnel were “not incident to their service.” Brooks v. United States, 337 U.S. 49, 50, 69 S.Ct. 918, 919, 93 L.Ed. 1200 (1949). That case is clearly distinguishable from the present one, however, since the injuries were sustained by two servicemen on furlough when the privately owned automobile in which they were riding upon a public highway was struck by a United States Army truck being operated in a negligent manner by a civilian employee of the government. Id. at 50, 52, 69 S.Ct. at 919, 920. See also, United States v. Brooks, 169 F.2d 840 (4th Cir. 1948). In Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), the court was confronted with the question of injuries sustained incident to service, which was expressly reserved in Brooks, 337 U.S. at 52, 69 S.Ct. at 920. In Feres, which involved injuries incurred “while on active duty and not on furlough,” 340 U.S. at 138, 71 S.Ct. at 155, the Court reviewed the language and legislative history of the Federal Tort Claims Act, as well as the history of sovereign immunity and service-connected torts in general, and concluded “that the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” Id. at 146, 71 S.Ct. at 159. The Court carefully distinguished its previous decision in Brooks, pointing out that the plaintiffs there were “on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission.... [Their] relationship while on leave was not analogous to that of a soldier injured while performing duties under orders.” Id. In United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), the Supreme Court endeavored to dispel any remaining doubt concerning the scope of Brooks and Feres, while “adherpng] ... to the line drawn in the Feres case between injuries that did and injuries that did not arise out of or in the course of military duty.” Id. at 113, 75 S.Ct. at 143. The Court in Brown noted that “[t]he injury for which suit was brought was not incurred while respondent [1322]*1322was on active duty or subject to military discipline,” id. at 112, 75 S.Ct. at 143, and held that the situation was governed by Brooks, thereby rendering the federal government potentially liable under the Federal Tort Claims Act.

The Feres doctrine has been the source of an extensive body of decisional law, including a number of cases in this Circuit. E. g., Mariano v. United States,

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Cite This Page — Counsel Stack

Bluebook (online)
514 F. Supp. 1320, 1981 U.S. Dist. LEXIS 12345, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kessler-v-united-states-scd-1981.