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SHEARER v. UNITED STATES

December 27, 1982

Louis SHEARER, Individually, and as Administratrix of the Estate of Vernon Shearer, Deceased
v.
UNITED STATES of America



The opinion of the court was delivered by: HANNUM

 HANNUM, District Judge.

 Presently before the Court in this civil action is Defendant's Motion For Summary Judgment. This case is brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. ยงยง 1346(b), 2671 et seq.

 The facts relevant to defendant's motion are essentially undisputed. Plaintiff is the mother and administratrix of the estate of Vernon Shearer. Vernon Shearer was a private in the United States Army in June of 1978, stationed at Fort Bliss, Texas. On June 2, 1978, while Vernon Shearer was on authorized absence from Fort Bliss, he was shot and killed by another off-duty Army private, Andrew Heard. This incident took place off-base in Otero County, New Mexico.

 On January 7, 1982, plaintiff filed suit in this Court alleging that the United States had been negligent in failing to exercise proper supervision and control over Private Heard, and that this negligence had been the cause of decedent's being murdered. It was further alleged that Private Heard had been convicted of a previous homicide while in the Army in Germany and that, because of this fact, among others, the Army should have known of Private Heard's dangerous propensities and should have taken steps to prevent him from harming others.

 Defendant states two bases in support of its motion for summary judgment: (1) Plaintiff's cause of action is barred by the Feres doctrine; (2) Plaintiff's cause of action is barred by the intentional tort exception to the Federal Tort Claims Act.

 The so-called " Feres doctrine" emanated from the United States Supreme Court's holding in Feres v. United States, 340 U.S. 135, 71 S. Ct. 153, 95 L. Ed. 152 (1950):

 
The government is not liable under the Federal Tort Claims Act for injuries to servicement where the injuries arise out of or are in the course of activity incident to service.

 This Court is not persuaded by plaintiff's argument. The ultimate question is not whether decedent was engaged in activity incident to military service when he incurred his injuries. Rather, the "focus . . . is upon when and how the negligent act occurs " and whether the negligent act was a part of activity incident to service. Henning v. United States, 446 F.2d 774, 777 (3d Cir.1971) (emphasis added), cert. denied, 404 U.S. 1016, 92 S. Ct. 676, 30 L. Ed. 2d 664 (1972). *fn2"

 Upon application of the Henning analysis, this Court finds that plaintiff's action is barred by the Feres doctrine. The negligence alleged by plaintiff relates to activity of the United States Army incident to military service. Plaintiff alleges that the Army was negligent in failing to exert reasonable control over decedent's assailant, Private Heard, despite the fact that it had knowledge of Heard's dangerous propensities. We find that these allegations relate directly to decisions of military personnel made in the course of the performance of their military duty and, therefore, are barred by Feres and Henning.3 See Johnson v. United States, 631 F.2d 34 (5th Cir.1980), cert. denied, 451 U.S. 1018, 101 S. Ct. 3007, 69 L. Ed. 2d 389 (1981).

 Furthermore, the Court notes that its finding herein that Feres is a bar to plaintiff's claim does not leave plaintiff without remedy. A second basis of Feres is the existence of a no fault compensation scheme pursuant to the Veteran's Benefit Act. Jaffee v. United States, 663 F.2d 1226, 1235-38 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S. Ct. 2234, 72 L. Ed. 2d 845 (1982). The compensation scheme provided for in the Veteran's Benefit Act is the sole remedy for "service connected injuries." Id. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S. Ct. 2054, 2058, 52 L. Ed. 2d 665 (1977), in which the Court held as follows:

 
A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift, efficient remedy for the injured serviceman, but it also clothes the Government in the "protective mantle of the Act's limitation-of-liability provisions." See Cooper Stevedoring Co. v. Kopke, Inc., 417 U.S. 106, 115 [94 S. Ct. 2174, 2179, 40 L. Ed. 2d 694] (1974). Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, see Feres, 340 U.S., at 142-143 [71 S. Ct., at 157], the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefit Act. As we stated in a somewhat different context concerning the Tort Claims Act: "To permit [petitioner] to proceed . . . here would be to judicially admit at the back door that which has been legislatively turned away at the front door. We do not believe that the [Federal Tort Claims] Act permits such a result." Laird v. Nelms, 406 U.S. 797, 802 [92 S. Ct. 1899, 1902, 32 L. Ed. 2d 499] (1972).

 See also, Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 464-65, 100 S. Ct. 647, 650, 62 L. Ed. 2d 614 (1980), in ...


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