DocketNumber： 91-2224
Filed Date： 7/13/1992
Status： Precedential
Modified Date： 9/21/2015
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
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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).
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After a discussion of the policy reasons applicable to
military personnel the Feres court "conclude[d] that the
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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
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importance of having military discipline unreviewable by
courts. Mills v. Tucker, 499 F.2d 866 (9th Cir. 1974).
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Conduct of the military, however, goes far beyond discipline
in the narrow sense. In United States v. Shearer, 473 U.S.
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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.
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3. (...continued)
Webster's Third Internat. Dict.
Compare,
incidental: likely to happen or
naturally appertaining (usually followed
by to).
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Random House Dict.
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United States, 813 F.2d 349 (11th Cir. 1987); the question of
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whether to light a highway is a military decision. Morey is
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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
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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
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(9th Cir. 1972) (per curiam affirming on opinion below). We
do not believe such control to be the Feres test, see
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Shearer, ante, as we demonstrated in Morey, although actually
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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,
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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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