Opinion
Civil Action No. 01-0527 SECTION "C" (4)
October 17, 2002
ORDER AND REASONS
I. Introduction
Plaintiffs, Kelli Slater Larkin ("Larkin"), et al, filed this personal injury suit against the government arising out of an injury at a softball game. Plaintiffs allege that on May 21, 1999, Larkin was severely injured when struck by a bat negligently thrown by naval serviceman David Campbell ("Campbell") in a Navy-sponsored softball game. On July 26, 2000, Plaintiffs filed an administrative claim with the Navy pursuant to the federal Torts Claims Act ("FTCA"), 28 U.S.C. § 2671-2680. After six months had elapsed, Plaintiffs treated the administrative claim as denied and, on March 1, 2001, filed this action pursuant to 28 U.S.C. § 1346 (b).
In its initial answer, the government admitted that Campbell was acting in the course and scope of his employment at the time of the injury. With leave of the Court granted over Plaintiffs' objection, the government amended its answer to deny that Campbell was acting in the course and scope of his employment at the time of the accident.
Presently before the Court is Plaintiffs' Motion for Partial Summary Judgment pursuant to Fed.R.Civ.P. 56(c) and Defendant's Motion to Dismiss or for Summary Judgment pursuant to Fed.R.Civ.P. 12(b)(1) and 56(c) respectively. Both motions are opposed. The sole issue for consideration in either motion is whether the tortfeasor, Campbell was acting within the "course and scope of employment" during the Captain's Cup Softball game at the time of the injury to Larkin.
Both parties agree that scope of employment is a fundamental jurisdictional issue under 28 U.S.C. § 1346 (b) and 18 U.S.C. § 2671, which states that "[a]cting within the scope of his office or employment, in the case of a member of the military or naval forces or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty." Id. Further, both parties agree that "acting in the line of duty" is equated with "scope of employment" and therefore, a question of state law. See Bettis v. United States, 635 F.2d 1144, 1147 (5th Cir. 1981). Finally, both parties agree that the controlling Louisiana statute for vicarious liability is La. Civ. Code art. 2320, which states in relevant part:
Masters and employers are answerable for the damage occasioned by their servants and overseers, in the exercise of the functions in which they are employed.Id. Thus, whether Campbell was acting within the "course and scope of employment" during the Captain's Cup Softball game is a decisive threshold issue in this case.
II. Standard of Review
A district court can grant a motion for summary judgment only when the "`pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P. 56(c)). When considering a motion for summary judgment, the district court "will review the facts drawing all inferences most favorable to the party opposing the motion." Reid v. State Farm Mutual Automobile Ins. Co., 784 F.2d 577, 578 (5th Cir. 1986). The court must find "[a] factual dispute . . . [to be] `genuine' if the evidence is such that a reasonable jury could return a verdict for the nonmoving party . . . [and a] fact . . . [to be] `material' if it might affect the outcome of the suit under the governing substantive law." Beck v. Somerset Technologies, Inc., 882 F.2d 993, 996 (5th Cir. 1989) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)).
"If the moving party meets the initial burden of showing that there is no genuine issue of material fact, the burden shifts to the non-moving party to produce evidence or designate specific facts showing the existence of a genuine issue for trial." Engstrom v. First National Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir. 1995) (citing Celotex, 477 U.S. at 322-24, 106 S.Ct. at 2552-53, and Fed.R.Civ.P. 56(e)). The mere argued existence of a factual dispute will not defeat an otherwise properly supported motion. See Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. "If the evidence is merely colorable, or is not significantly probative," summary judgment is appropriate. Id. at 249-50, 106 S.Ct. at 2511 (citations omitted).
III. Discussion A. Factual Analysis
The softball game was sponsored by the Navy. It is part of a "Captain's Cup" competition, a program sponsored by the Morale, Welfare and Recreation Department of the Navy ("MWR"). The game took place at the Belle Chase Air Naval Base, which is U.S. military property. The Navy argues that David Campbell, whose errant bat allegedly struck the plaintiff, was not acting in the scope of his duties while playing in the ball game.
Rec. Doc. No. 84, Ex. D, Request for Admission No. 2
Id., Ex. N, pp. 15-17; Rec. Doc. No. 81, Statement of Uncontested Material Facts, Nos. 7, 18-19
Rec. Doc. No. 84, Ex. D, Interrog. No. 1
The Navy claims that the mission of the Navy is to protect and defend the United States and the U.S. Constitution, while "(s)eparate and apart" from that mission is that of the MWR, which provides for recreation and physical fitness activities. The Navy relies heavily on the testimony of Captain Richard B. Southworth who was the Commanding Officer at the Naval Air Station in 1999. His affidavit in part states as follows:
Rec. Doc. No. 81, Statement of Uncontested Material Facts, No. 3
"Captain's Cup" or intramural softball play is but one of the many optional recreational activities sponsored by the MWR. Captain's Cup is a voluntary after-hours activity available to all commands/units assigned to the base. It is a slow pitch softball league, intended as a very relaxed, informal means of recreation and fun activity for military personnel and their families.
Participation in Captain's Cup softball play is strictly voluntary, for no pay or compensation. Softball participation is not mandated, expected or encouraged by the Navy. It is strictly an optional after-hours informal activity offered for the enjoyment of those who wish to participate.
Captain's Cup softball . . . is not an activity intended to promote physical fitness, training, morale, or teamwork among naval personnel. Whether the Navy could possibly receive some indirect benefit in this regard, is not established, and is at best tenuous.
Id., Ex. A, Nos. 6, 7, 9.
Capt. Southworth's affidavit, however, is contradicted in key parts by his own subsequently given deposition testimony. In his deposition, given just a few weeks ago, he acknowledged as correct the following:
1. "Teamwork," "high morale," "esprit de corps" and "physical and mental fitness" were all "core values of the Navy;"
2. The purpose of the MWR program is to try to help servicemen "maintain their morale;"
3. The Captain's Cup athletics are "intended to promote physical and mental fitness and esprit de corps;"
4. Participation in the Captain's Cup athletics "increases the servicemen's morale;"
5. The team members come from the same squadrons and when they participate in the Captain's Cup "they are operating together to achieve a goal and that would in turn help develop esprit de corps."
Rec. Doc. No. 102, Ex. R, pp. 8-13.
Id., pp. 21-23.
Id., p. 28.
Id.
Id., pp. 28-29.
The characterization of the Captain's Cup competition by the Navy in its memoranda on summary judgment is likewise contradicted by the documents issued by the Navy establishing the Captain's Cup competition. Given that those documents were created independently of any anticipated law suit, and their contents cannot be disputed, the Court finds that them particularly persuasive.
The most informative document is the "NAS JRB New Orleans Instruction 1710. 20A" ("Instruction"), a multi-page document promulgated by the Department of the Navy in New Orleans, setting forth in meticulous detail the rules and procedures for the Captain's Cup competition. Six individual sports are involved in the year-long competition: bowling, flag football, basketball, volleyball, golf and softball. The season runs from September to September. The elaborate set of rules and the year-long length of the competition are indications that the Navy considers the Captain's Cup competition to be an important program. The reason why is set forth in the "Background" section:
Rec. Doc. No. 84, Ex. A. The Navy does not dispute the authenticity of this document. To the extent the document is alleged to be hearsay, it constitutes an admission by a party-opponent and is therefore not hearsay. Federal Rules of Evidence 801(d)(2).
Captain's Cup athletics are intended to promote physical and mental fitness and "esprit de corps" by providing NAS, JRB, New Orleans, and tenant command personnel the opportunity to participate in competitive sports on a voluntary basis. Commanding Officers/Department Heads are requested to encourage participation in the program.
Id., No. 3
As Captain Southworth testified in his deposition, physical and mental fitness and "esprit de corps" are "core values" of the Navy. In an address at the United States Naval Academy, then Secretary of the Navy John Dalton made note of the "esprit de corps that is essential to the teamwork required for combat." As part of the promotional material to encourage participation in the Captain's Cup competition, the Navy distributed a flyer entitled "Pride in the Past — Faith in the Future," which boasts of its "teamwork, honesty, respect, trust, loyalty and fairness" and claims that the "success" of its programs "is evidence in increased productivity, cooperative performance throughout the station." The Navy acknowledges in the Request for Admissions in this case, that one of the purposes of the competition is to "maintain and improve morale among service personnel."
Id., Ex. I
Id., Ex. F; see also Ex. N, p. 51
Id., Ex. C, Request for Admission Nos. 6 7
While the Instruction declares participation to be voluntary, a point that is repeatedly emphasized by the Navy in their pleadings, at the same time the directive requests the Commanding Officers and Department Heads to "encourage participation" in the program. In as hierarchical a structure as the military, a suggestion from a commanding officer to a lesser rank is unlikely to be considered a mere request. Furthermore, participation in the Captain's Cup is a basis for favorable comment on a serviceman's regular performance evaluations.
See, e.g., Rec. Doc. No. 90, pp. 5, 6, 9, 12
See Rec. Doc. Nos. 84, 89 102, Exs. G H
In the Instruction, following the declaration as to the purpose of the Captain's Cup competition, is an explanation of the chain of command for the competition, from the overall Athletic Director down through the Commanding Officers and Department Heads. The latter in turn are responsible for appointing coaches, submitting rosters, collecting fees, handling the sports equipment and "(p)romot(ing) sportsmanlike conduct from players at all times." The Navy also promises "top quality equipment" for all teams. Again, this attention to detail, control and high standards clearly indicates that this program is important to the Navy command.
See Rec. Doc. No. 89, Ex. A, No. 4b(7); and generally, Nos. 1-8. Noteworthy too is that the regulations call from a "Hold Harmless" statement from team members, excepting Active Duty personnel, which would indicate some acknowledgment of potential legal liability as to team members.
Id., No. 13
The eligibility to play is also of significance. Only military related personnel are permitted to participate. In the event a player is discharged from the service during the season, that person is no longer eligible to participate in the games. Were this a purely recreational program, of no significance to the Navy mission, the Navy would seemingly have no interest in whether civilians or discharged military personnel participated. Furthermore, the players "must be attached to the activity they are representing" In other words, the players cannot pick their own team or teammates — they are required to play on a team made up of their regular work colleagues.
Id., Nos. 5a(1) (3)
Id., No. 5a(1)
Elmer Gowing, Athletic Director at the base, agreed in connection with this requirement that one of the purposes of the program is "to promote teamwork, not only in sports, but in what the government's objective is in defending the country." MWR head, Jack Lewis, testified that "one of the things you want to do in a sports program like this is to create some cohesiveness between the units. Your work together. You got out and play together . . . and the people who know each other and respect each other can work better together." This control of team membership furthers the stated goal of promoting "esprit de corps" within the command units, and is again a restriction that would unlikely be imposed upon a purely recreational program.
See Rec. Doc. No. 90, Ex. N, p. 34. The Navy in its motion attaches an affidavit in which Gowing claimed that the Navy receives "no direct or indirect benefit from participation in intramural softball." Rec. Doc. No. 81, Ex. B, No. 4. This affidavit predated the live testimony quoted above.
See Rec. Doc. No. 90, Ex. O, p. 43-44
The regulations then set forth details regarding team rosters and forfeiture of games in the event an "ineligible player" participates. Elaborate procedures are set out in the event of an "infraction resulting in a protest." Games will be postponed "only for emergency reasons or military commitments, or as determined by the Athletic Director." Finally, the documents explain a complex point system, ranging from 1 to 20 points depending on placement in each sport of the competition and the subsequent playoffs. The standings of the teams is publicly posted and is "periodically listed by MWR Marketing in local news media." Trophies are awarded at the conclusion of each of the individual sports seasons and play-offs, with an "appropriate ceremony" at the end of the sports year for the winner of the overall Captain's Cup Championship Trophy. Clearly the games are considered important competitions, with rewards for successful team play. These are hardly after hours pick-up games of no significance to the Navy command.
See Rec. Doc. No. 89, Ex. A, No. 6b
Id., No. 14
Id., No. 8
Id., No. 15b
Id., No. 16
Id., No. 17
Another Navy document, entitled "SPORTS PROGRAM," elaborates further on the importance of the sponsored athletic events. It states that the overall athletic programs are conducted "for the purpose of promoting physical and mental fitness, `esprit de corps' within units and development of leadership and confidence." It is difficult to conjure up any attributes more important to the military mission than those delineated here. This fact is underscored by the next sentence: "Every effort should be made to promote participation on an `all hands' basis." With respect to the intramural programs in particular, of which the Captain's Cup competition is the centerpiece, again the directive is that "Commanding Officers are expected to encourage all-hands participation in such programs." Again, if this is mere playtime for after hours, why does the Navy care if anyone participates, much less on an "all hands" basis?
Id., Ex. B
The Navy denies that one of its goals in sponsoring the softball league is to instill a "sense of teamwork among Naval employees." Rec. Doc. No. 84, Ex. C, Request for Admission No. 8. One wonders then what "`esprit de corps' within units" is supposed to mean.
Id., No. 1a
Id.
Id., No. 2b
For the above reasons, the Court finds that the uncontested evidence establishes that the Captain's Cup program is an integral part of the Navy's mission of training its personnel.
Even if the Navy's abbreviated version of the facts were accepted as true, the evidence would still be sufficient to find that the Captain's Cup is part and parcel of the Navy mission of producing prepared military personnel. The Navy's "uncontested material facts," which are drawn largely from the pre-deposition affidavit of Capt. Southworth, confirms the following: (1) The MWR is a Navy Department that provides recreational program for military personnel; (2) the MWR sponsored the Captain's Cup competition; (3) the competition was announced on the base and all military personnel were invited to participate; (4) registration forms and rosters were received by the Athletic Director and then a schedule of play was devised; (5) games were scheduled at a set time and each lasted for one hour; (6) the games were played on the base; (7) participation in the intramural competition may be listed in extracurricular activities on an employee's job performance evaluation; (8) David Campbell was serving in the Navy and worked in the Airfield Maintenance Department ("AIMD"); (9) on Friday, May 21, 1999, Campbell was playing on an AIMD softball team, the "Brewhounds," in the Captain's Cup competition; and (10) Larkin was injured while attending the game, allegedly by a bat tossed aside by Campbell as the game ended.
Rec. Doc. No. 81, Statement of Uncontested Material Facts
B. Legal Analysis
Plaintiffs' principle theory of the case rests on the idea that the Captain's Cup Softball Game was within the ambit of serviceman Campbell's duties, because it advanced the core interests of the Navy by promoting "physical and mental fitness, unit cohesiveness, morale, and `esprit de corps' among service personnel." The Navy moves to dismiss the case pursuant to Fed.R.Civ.P. 12(b)(1) or alternatively for summary judgment under Fed.R.Civ.P. 56(c), arguing that these benefits are at best incidental and unrelated to the "course and scope of employment."
Rec. Doc. No. 90, p. 12; see e.g., Rec. Doc. No. 84, p. 3.
The Louisiana Supreme Court has held that a determination of whether an employee was acting in the course and scope of his employment must be made using general rules. Orgeron on Behalf of Orgeron v. McDonald, 639 So.2d 224, 226 (La. 1994) (finding that "the unending contexts in which the question may arise" necessitates this general approach); see also, Ermert v. Hartford Ins. Co., 559 So.2d 467, 479 (La. 1990) ("In determining vicarious liability, the focus is on the employee's general activities at the time of the accident rather than on the specific tortious act"). "An employer is responsible for the negligent acts of its employee when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business." Orgeron, 639 So.2d at 227, citing, LeBrane v. Lewis, 292 So.2d 216 (La. 1974); see also, Baumeister v. Plunkett, 673 So.2d 994, 996 (La. 1996) ("Vicarious liability will attach only if the employee is acting within the ambit of his assigned duties and the employer's objective.").
The Navy and Plaintiffs argue that Louisiana jurisprudence dictates application of different tests to determine whether vicarious liability exists in this situation. The Navy argues in favor of the Baumeister/LeBrane standard and Plaintiffs argue in favor of the Orgeron standard. Specifically, Plaintiffs contend that Baumeister/LeBrane applies only to intentional torts and that Orgeron is tailored to apply to situations involving negligence. See Wright v. Skate Country, Inc., 734 So.2d 874 (La.App. 4th Cir. 1999).
The Court recognizes that the opinion in Wright is novel and may express the emergent trend in this area of Louisiana jurisprudence ( compare with, Hanson v. Benelli, 719 So.2d 627, 643-653 (La.App. 4th Cir. 1998) (Plotkin, J. dissenting) (One year later Judge Plotkin wrote the majority opinion in Wright), however, the Court need not enter the fray and encumber itself with a debate of evolving in Louisiana State law, because in this case, under either standard the result is the same.
1. Baumeister/LeBrane and Orgeron
Baumeister adheres to the 4-part test enumerated in LeBrane v. Lewis, 292 So.2d 216, 218 (La. 1974) that set forth determinative factors for the vicarious liability of an employer:
(1) whether the act was primarily employment rooted;
(2) whether the violence was reasonably incidental to performance of the employee's duties;
(3) whether the act occurred on the employer's premises; and
(4) whether the act occurred during hours of employment.
Baumeister, 673 So.2d at 996-97 citing LeBrane, 292 So.2d at 218; see also, Paul v. AFC Ent., Inc., No. 99-2168, 2000 WL 1760686, *2 (E.D. La. Nov. 29, 2000) (Berrigan, J.) (granting summary judgment upon a finding that the LeBrane factors were not met). Yet, it should be noted that all four of these factors need not be met before liability may be found. See Miller v. Keating, 349 So.2d 265, 268 (La. 1977).
Applying the LeBrane factors, the Court finds that the Captain's Cup Softball Game was within the course and scope of employment. First, the Court finds the Captain's Cup Softball Game to be significantly related to naval employment. The Navy emphasizes the "voluntary nature" of participation and offers that as a "relaxed, informal form of recreation" it did not further the Navy's interests in protecting and defending the Nation and the Constitution. Further, the Navy offers that mention of participation was not required on employee evaluation forms, nor were the games "intended to promote physical fitness, training, morale, or teamwork among naval personnel." The Navy contends that Campbell's job duties involved radio repairs and that softball fails to benefit that position. Finally, the Navy offers that if a game conflicted with work duties that work duties trumped the game play.
Although technically voluntary, the competition is strongly encouraged. It is not simply relaxation, but a highly organized, multi-faceted year long competition culminating in the winning of a championship cup. This developed program furthers the Navy's interest in fostering team spirit, morale, leadership. Although mention of participation on employee evaluations is optional, mention is apparently made. The games are intended to promote morale and teamwork, and although work duties trumped game play, games are scheduled to avoid conflict. Further, those servicemen who work together must play on the same team, thereby, promoting their "esprit de corps" as a work unit.
Second, the violence was reasonably incidental to performance of the employee's duties. The Navy primarily reargues that softball is not incidental to Campbell's duties as an Aviation Electronic Technician and reargues the points above. Yet, if the competition itself is part of the course and scope of employment, then someone being struck by an errant bat is reasonably incidental.
Third, the act occurred on the employer's premises. The Navy argues that this factor refers to the place of "regular employment." The Navy contends that even though the act of tossing the bat did, in fact, occur on the softball field, located on the base, that the base and softball field are: (1) not under the exclusive control of the Navy and are shared by other services branches; and (2) that the softball field is not in close proximity to where Campbell regularly performed his duties.
Rec. Doc. No. 90, p. 8
This argument is fatuous. The act clearly occurred on the employer's premises. Additionally, it occurred during a military sanctioned event that was set to occur on the base. That it happened on the premises was not even accidental or fortuitous.
Fourth, is whether the act occurred during hours of employment. The Navy argues that the act occurred after normal hours of employment. Plaintiffs offer that military personnel are on duty twenty-four hours a day, seven days a week. The Court finds that this prong of the test yields the least certain result. Granted, the softball game and the accident occurred after the employees' normal work hours, but it also occurred as part of a military sponsored event, in which participation was strongly urged.
Accordingly, the Court finds that application of the LeBrane factors to the facts of the case indicates that the Captain's Cup Softball Game and thus the tossing of the bat were within the course and scope of serviceman, Campbell's employment.
Under Orgeron the same result is reached. The factors listed in Orgeron are as follows:
The Court only applies the facts and addresses the Baumeister/LeBrane test in depth, because: (1) it is the test relied on by the Navy to argue that liability does not exist; (2) Plaintiffs urge that their burden under Baumeister/LeBrane is more difficult than under Orgeron; (3) the Court finds that liability does exist under the more stringent Baumeister/LeBrane test; and (4) the analysis under the 8-part Orgeron test is duplicative.
(1) payment of wages by the employer,
(2) the employer's power of control,
(3) the employee's duty to perform the particular act,
(4) the time place and purpose of the act in relation to service of the employer,
(5) the relationship between the employee's act and the employer's business,
(6) the benefits received by the employer from the act,
(7) the motivation of the employee for performing the act, and
(8) the reasonable expectation of the employer that the employee would perform the act.
( Id., 639 So.2d at 227).
2. Whether the Benefit was Only Incidental
The Navy also contends that Louisiana jurisprudence holds that the intangible benefits upon which Plaintiffs rely are insufficient to bring Campbell's activity within the scope of his official duties. Accordingly, the Navy insists that the benefits must be substantial. To support this proposition, the government cites several Workmen's Compensation cases that involve recreation-type activities where the nexus between the activity and employment was found to be insufficient. See Winkler v. Wadleigh Offshore, Inc., 817 So.2d 313 (La.App. 4th Cir 2002) (applying 3 factors enumerated in Jackson v. American Ins. Co., 404 So.2d 218, 219 (La. 1981) from Larson's treatise on Workmen's Compensation, vol 1A, § 22 (Desk Ed. 1977), from which these factors are derived: "(1) [did] [t]hey occur on the premises during a lunch or recreation period as a regular incident of the employment; or (2) [did] [t]he employer, by expressly or impliedly requiring participation, or by making the activity part of the services of an employee, brings the activity within the orbit of the employment; or (3) [did] [t]he employer derive substantial direct benefit from the activity beyond the intangible value of improvement in employee health and morale that is common to all kinds of recreation and social life."); see also, Lexington House v. Gleason, 733 So.2d 123 (La.App. 3rd Cir. 1999) (applying the Jackson test to an employer sponsored weekend softball game for the purpose of boosting moral and facilitating relations between employees); Malveaux v. Am. Manufacturing Co., 597 So.2d 1192 (La.App. 3rd Cir. 1992) (denying worker's compensation benefits for an injury suffered while playing on a company softball team); and Palermo v. Reliance Ins. Co., 501 So.2d 333, 341 (La.App. 3rd Cir.) writ denied, 503 So.2d 19 (La. 1987).
Rec Doc. No. 90 at 12 (emphasis added).
The Court finds these Workman's Compensation cases relied on by the government to be distinguishable. First, this is not a Workman's Compensation case. Second, as discussed in Part IIIA, the Captain's Cup Softball Game was not simply a recreation-type employer sponsored after work or lunchtime activity to benefit morale. It was part of a highly structured, articulated and organized program to engender teamwork, unit cohesiveness and "esprit de corps." In the context of the military, mere morale boosting is a significantly different employer benefit than that generated by the civilian company picnic, after work league-play or the lunch time pick-up game. The case law relied on by the government all dealt with non-military circumstances. The military need for leadership, teamwork and morale is more compelling than in the civilian workplace. Finally, the Court finds that the nexus between the Captain's Cup Softball Game and the employment duties of the participants to be sufficient, thus, the substantial benefit test as applied in Jackson is equally satisfied.
See Part IIIA for a detailed analysis of the benefits received by the Navy.
Other case law sheds light on the matter. The Louisiana Supreme Court has found apparently attenuated benefits to be substantially related to employer interest. See Ermert v. Hartford, 559 So.2d 467, 469 (La. 1990) ("[N]egligent hunter was acting within the scope of his employment because as chief executive and majority stockholder of his corporate business he had established the practice of using the camp and his relationship with his hunting friends for the purpose of furthering his employer's business interests."). Vicarious liability was found in automobile accident in Louisiana involving a Navy serviceman ordered to report to duty in Texas. See Verges v. United States, No. 94-0973, 1994 WL 532576 (E.D. La. 1994) (considering act within course and scope, because he was on route to report to active duty and/or he was paid a per diem for the duration of the trip).
In Murphy v. United States, 179 F.2d 743 (9th Cir. 1950) soldiers were encamped near town of Klamath in northern California. A truck was provided to the men to allow nightly visits to Klamath for entertainment, movies, etc. Several soldiers, with dates, took the truck to Klamath and on the way they negligently came onto a bridge where civilians were walking, causing one to fall off the bridge and be killed. The issue was whether driver was acting within course and scope of employment. The Ninth Circuit affirmatively answered, yes. "[I]t was within Sergeant Brander's line of duty to seek recreation in the town of Klamath. He was authorized by his commanding officer to drive the truck for `pleasure' . . ." Id. 179 F.2d at 745.
Case law where military personnel have been the injured plaintiffs set out similar if not identical standards. In Warner v. United States, 720 F.2d 837, 838 (5th Cir. 1983) a serviceman with permission to conduct private business during normal duty hours was injured on a military base. The injury was found to be "incident[al] to his military service. . . ." Id. Warner relied on a Georgia district court case, Watkins v. United States, 462 F. Supp. 980 (S.D. Ga. 1977), aff'd 587 F.2d 279 (5th Cir. 1979) ("a serviceman who was fatally injured on a military base after he had left an Army softball practice was acting incident to service because he was an active-duty serviceman and on the military base at the time of his injury."). Warner also notes that even though the serviceman was attending to personal business, he was "still on active duty" and "his presence on the military base was by virtue of his military status." Warner, 720 F.2d at 839.
Another case involving and active duty serviceman is Bon v. United States, 802 F.2d 1092 (9th Cir. 1986). In that case the serviceman rented a canoe from the military's Special Services Center, and was hit in the water by a motor boat also rented from the Center and driven by another service member. Both of servicemen were on authorized liberty and not engaged in official duties. The Ninth Circuit pointed out that the Center's purpose was to provide Navy personnel with "wholesome and constructive off-duty leisure and recreation activities that will effectively contribute to the mental and physical well being of the participants." Bon, 802 F.2d at 1093. Use of the Center was restricted to military personnel, their guests and dependents and the activity was provided for the benefit of their military service. Id. at 1095. Further, "the nature of the activity was such that its entire scope was subject to military orders and discipline." Id. Finally, the Bon Court found that "[t]he benefits accruing to plaintiff because of her status as a member of the military and the nature of her activities at the time of the negligent act clearly indicate that the activity was incident to military service." Id.
These military cases all impose liability on the military for injuries to service personnel during non-ordinary and/or off-duty activities. Like the accident in Bon, this case involves a Navy program or service that is available to personnel and their families. The Court finds no meaningful rationale for imposing liability on the military based on course and scope of employment for injuries occurring to military personnel during the course of such activities, but at the same time failing to impose liability when the injury is sustained by a serviceman's spouse or invited guest. The activity is either in the course and scope of employment or it is not. The status of the injured victim should have no bearing on the imposition of liability.
IV. Conclusion
Plaintiffs have satisfied their burden that Navy serviceman David Campbell was acting "within the course and scope of his employment" during the Captain's Cup Softball Game. The Navy has failed to adequately raise a genuine issue of material fact to sufficiently refute liability. Thus, the threshold jurisdictional requirements of 28 U.S.C. § 1346 (b) and 18 U.S.C. § 2671 have been met. Further, the imposition of vicarious liability on the Navy is satisfied under the "course and scope" requirements of La. Civ. Code art. 2320 and applicable case law from the State of Louisiana. Therefore, on the issue of whether the Navy is Plaintiffs, Kelli Slater Larkin, et al, are entitled to judgment as a matter of law. Accordingly, IT IS ORDERED that Plaintiffs' Motion for Partial Summary Judgment is hereby GRANTED and Defendant's Motion to Dismiss or for Summary Judgment is DENIED.