Lauer v. United States

• Court: Court of Appeals for the First Circuit
• Decided: July 13, 1992
• Docket: 91-2224
• Status: Published

Opinion

USCA1 Opinion

July 13, 1992            ____________________

        No. 91-2224

                                  STEPHEN P. LAUER,

                                 Plaintiff, Appellee,

                                          v.

                              UNITED STATES OF AMERICA,

                                Defendant, Appellant.

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APPEAL FROM THE UNITED STATES DISTRICT COURT

                           FOR THE DISTRICT OF PUERTO RICO

[Hon. Jaime Pieras, Jr., U.S. District Judge]
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                                 ____________________

Before

                                 Breyer, Chief Judge,
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                      Aldrich and Coffin, Senior Circuit Judges.
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                                 ____________________

Lowell  V.   Sturgill,  Jr.,  Appellate   Staff,  Civil  Division,
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        Department of Justice,  with whom Stuart M. Gerson, Assistant Attorney
                                          ________________
        General, Daniel F.  Lopez-Romo, United States Attorney,  and Robert S.
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        Greenspan,  Appellate Staff,  Civil Division,  Department of  Justice,
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        were on brief for appellant.
            Mark B.  Frost  with  whom Herbert  W.  Brown  was  on  brief  for
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        appellee.

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ALDRICH,   Senior   Circuit  Judge.      On  Friday
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            afternoon,  October 31,  1986,  Federal Tort  Claims Act,  28

            U.S.C.   2674,  plaintiff Stephen P. Lauer,  a Naval enlistee

            stationed  at the  Roosevelt  Roads Naval  Station in  Puerto

            Rico, became at liberty until Monday morning.  He remained at

            the base, but in  the evening, after some beers, he  joined a

            number of others to take a bus, where he drank more, to No. 1

            Gate, and then set  out to walk to Don's Lighthouse, a public

            bar frequented by servicemen.   This meant a long  walk along

            Tarawa  Road,   an  asphalt  road   owned,  maintained,   and

            patrolled, by  the Navy because it  was a main access  to the

            base.   There was no  sidewalk, but a  grassy shoulder.   The

            shoulder  was uneven and sloping, so that it was customary to

            walk on the road.   Plaintiff was with a group, some  of whom

            walked ahead of him, but all were on the right side, with the

            flow  of traffic.  Rejecting  the testimony of  the driver of

            the  car  that ultimately  struck  plaintiff,  who said  that

            plaintiff was in the middle of the road, and of a  serviceman

            who said that  he had  three times called  to plaintiff,  who

            "had some difficulty walking," to leave the middle, the court

            found  that  plaintiff  was  on the  far  right.1    Wherever

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            1.  While the issue is not before us, the court also rejected
            the Navy's JAGMAN investigation findings of gross  negligence
            because of intoxication and "walking with the flow of traffic
            which   is  incorrect  for  pedestrian  traffic,"  and  found
            plaintiff not  guilty of contributory negligence.   It stated
            that  this was  plaintiff's first  time on  the road,  and he
            could not walk further  over due to the  fact that a  British
            sailor was on his right.

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plaintiff  was, the road was unlighted, and the driver of the

            automobile coming from behind  at a proper rate of  speed did

            not  see  him  soon  enough   to  avoid  a  serious  contact.

            Plaintiff blames this on the Navy's negligence in failing  to

            light the road.

                      The court  found negligence, and the  sole question

            on the government's appeal  is whether plaintiff's claim must

            fail in light of Feres v. United States, 340 U.S. 135 (1950).
                             _____    _____________

            After  a  discussion  of  the policy  reasons  applicable  to

            military  personnel the  Feres  court "conclude[d]  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."  340 U.S.

            at  146.     The  district  court,  noting  that  the  JAGMAN

            decision, n.1, ante,  had denied plaintiff Veterans  benefits

            because his  injuries  were  not incurred  "in  the  line  of

            duty,"2  equated   this  phrase  with   Feres'  "incident  to
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            service;"  viz., plaintiff  was not  service-barred.   773 F.

            Supp. 527, 533 (D.P.R. 1991).

                      Finding  this  equivalency  was  error,  the latter

            phrase is  manifestly more  inclusive.3   Also error  was the

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            2.  "5.   Due to his gross  negligence and intoxication, BUCA
            Lauer's  injuries were incurred not  in the line  of duty and
            due to his own misconduct."

            3.        incident:  occurring or likely  to occur,
                      esp.   as   a   minor    consequence   or
                      accompaniment;  associated  or  naturally
                      related.
                                                           (continued...)

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court's statement that we had held in Morey v. United States,
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            903 F.2d 880 (1st Cir.  1990), "that the act of  walking away

            from  one's  station  of   duty  while  on  liberty,  renders

            accidents which occur,  'not incident to  military service.'"

            773  F. Supp.  at 533.   We did  not.   Rather, we  held that

            "returning  to his ship was an  activity incident to military

            service,  despite  the  fact   that  he  was  returning  from

            nonmilitary  activity,"   903  F.2d  at  882,   and  made  no

            suggestion that  departing  for would  differ from  returning

            from.

                      Following   Feres,   courts   have   observed   the
                                  _____

            importance  of  having  military discipline  unreviewable  by

            courts.    Mills v.  Tucker, 499  F.2d  866 (9th  Cir. 1974).
                       _____     ______

            Conduct of the military,  however, goes far beyond discipline

            in the  narrow sense.  In United  States v. Shearer, 473 U.S.
                                      ______________    _______

            52,  57 (1985),  the Court  spoke against  "second guess[ing]

            military  decisions   and  whether  the   suit  might  impair
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            essential military discipline."   (Emphasis supplied).   This

            is  not a mere automobile accident case, see, e.g., Pierce v.
                                                     ___  ____  ______

____________________

            3.  (...continued)

            Webster's Third Internat. Dict.

            Compare,

                      incidental:      likely   to  happen   or
                      naturally appertaining (usually  followed
                      by to).
                         __

            Random House Dict.

                                         -5-

United States, 813 F.2d 349 (11th Cir. 1987); the question of
            _____________

            whether to  light a highway is a military decision.  Morey is
                                                                 _____

            directly in  point.  There  we held  barred a claim  that the

            Navy failed  to provide sufficient patrols around  a pier and

            hence  failed  to rescue  plaintiff  when  he fell  off  when

            returning to his ship.  We said, 903 F.2d at 882,

                      Morey's other contention,  that the  Navy
                      was negligent  or reckless in  failing to
                      provide  sufficient  security around  the
                      pier,  likewise  implicates questions  of
                      military  decision  making,  such as  the
                      proper allocation of security  forces and
                      the proper supervision of such forces.

                      To continue  with  incident  to  service,  and  the

            alleged  difference   between  leaving  for   recreation  and

            returning therefrom, liberty recreation is part of the normal

            everyday life of  a serviceman.  This does not  mean that all

            recreation  is incident  to service,  cf. Rodrigue  v. United
                                                  __  ________     ______

            States, decided this  day (swimming, 25 miles from base), but
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            traveling  for that purpose on a road appurtenant to the base

            was  exactly what the Navy anticipated and had decided how to

            provide for.   We  compare Mills  v. Tucker,  ante.  There  a
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            serviceman returning  to his base while  on furlough suffered

            an  automobile accident  allegedly  due to  a defective  road

            maintained by  the Navy.  The  road was used as  a public way

            and  served not  his  base, but  other  Naval property.    In

            holding  that his travel thereon was  not incident to service

            the  court  reasoned that  he  was not  "subject  to ultimate

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military control."  Using  this test the Ninth  Circuit would

            decide here on the basis of whether the serviceman was inside

            or outside the gate.  Coffey  v. United States, 455 F.2d 1380
                                  ______     _____________

            (9th  Cir. 1972) (per curiam affirming on opinion below).  We

            do  not  believe  such control  to  be  the  Feres test,  see
                                                         _____        ___

            Shearer, ante, as we demonstrated in Morey, although actually
            _______  ____                        _____

            we would have  reached the Mills result.   The Mills road was
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            independent  of the serviceman's base, and he was using it as

            a member of the general public.  Cf. Brooks v. United States,
                                             __  ______    _____________

            337  U.S. 49  (1949).   Here  the  court was  reviewing  what

            plaintiff  had been directly  supplied as a  serviceman.  Its

            adequacy was not for the court to measure.

                      Reversed.
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