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MILLER v. UNITED STATES

April 15, 1983

LINDA J. MILLER
v.
UNITED STATES OF AMERICA



The opinion of the court was delivered by: LORD

 Defendant, the United States of America, has moved for summary judgment under Federal Rule of Civil Procedure 56 in this action brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq.1

 As to plaintiff Bruce Johnston, Jr., I will deny defendant's motion for summary judgment. Because there was no duty owed to Robin Miller as a matter of law, and the facts when viewed in the light most favorable to the plaintiff do not establish that the defendant undertook to protect Robin Miller, I will grant defendant's motion for summary judgment as to Linda Miller, the Administratrix of Robin's estate.

 I. Facts

 The evidence, when taken in the light most favorable to the plaintiff, establishes the following facts: Sometime between May of 1978 and August 25, 1978, plaintiff, Bruce Johnston, Jr. (Bruce Jr.) an inmate at Chester County Prison, began to cooperate with the FBI and Pennsylvania State Troopers in an investigation into a series of burglaries and thefts committed by members of Bruce Jr.'s family and their associates (Johnston gang).

 Several times in August, 1978, Bruce Jr. accompanied FBI Special Agent David Richter and State Police Officer, Thomas Cloud to identify sites of robberies conducted by the Johnston gang.

 In early August, 1978, Bruce Jr. testified before the Federal Grand Jury about the criminal activities of his father, Bruce A. Johnston, Sr. (Bruce Sr.) and his associates.

 Between May of 1978 and August 25, 1978, Bruce Jr. met approximately two dozen times with state and federal law enforcement officers. At the initial meeting, Bruce Jr. discussed protection with the officers and told them that he did not want protection. FBI Agent Richter was present at the meeting. At some of the later meetings, Cloud, Richter, and Bruce Johnston, Jr. discussed protection again. Richter told Bruce Jr. more than once that if Bruce Jr. changed his mind, that he should call Cloud who would in turn contact Richter to arrange Bruce Jr.'s protection (Bruce Jr.'s deposition at 12).

 On August 17, 1978, in order to assure Bruce Jr.'s protection, he was transferred from Chester County Prison to Lancaster County Prison. He was released on August 25, 1978. From the date of his release until August 30, 1978, Bruce Jr. lived with Robin Miller in plaintiff Linda Miller's home. During that time, Bruce Sr. called the Miller household several times in search of his son, Bruce Jr. Bruce Jr. feared for his life. Following Bruce Jr.'s instructions, Robin Miller repeatedly told Bruce Sr. that Bruce Jr. was still in jail. Between August 26, 1978 and August 29, 1978, Bruce Jr. called Cloud four times to ask for protection. On one of these occasions, Bruce Jr. spoke directly with FBI Special Agent Richter, who was at the State Police Barracks with Cloud when Bruce Jr. called. Bruce Jr. told both Richter and Cloud that he was afraid that his life was in danger.

 On August 30, 1978, Bruce Jr. and Robin Miller were ambushed. Robin was killed and Bruce Jr. was injured.

 The questions that I must decide in determining whether summary judgment is appropriate in this case are: (1) when viewed in the light most favorable to the plaintiffs, do the facts support plaintiffs' allegations that the federal government undertook *fn2" to protect Bruce Jr. and Robin Miller and performed the undertaking negligently; and (2) in the absence of a specific undertaking to protect, is there a duty to protect Bruce Jr. and Robin Miller?

 II. Applicable Law

 The FTCA requires that I look to state law to determine whether the government should be liable in this case. 28 U.S.C. § 1346(b) states:

 
The district courts, . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 The federal government argues, however, that the Witness Protection Program, established by Title V of the Organized Crime Control Act of 1970, 84 Stat. 922 et seq., is the only possible source of a duty to protect a federal witness. I cannot accept the government's argument. *fn3"

 There is no indication anywhere in the legislative history of the FTCA that the Congress intended to exclude suits by federal witnesses against the federal government where the state law would impose a duty on state law enforcement authorities. *fn4" Moreover, neither the simple language of Title V of the Organized Crime Control Act of 1970 *fn5" nor any of its legislative history states or even implies that Congress by its enactment intended to limit the waiver of sovereign immunity granted under the FTCA. Furthermore, the Organized Crime Control Act does not create any independent private right of action against the federal government. Garcia v. United States, 666 F.2d 960 (5th Cir.), cert. denied, 459 U.S. 832, 103 S. Ct. 73, 74 L. Ed. 2d 72 (1982). Leonhard v. United States, 633 F.2d 599 (2d Cir.) cert. denied, 451 U.S. 908, 68 L. Ed. 2d 295, 101 S. Ct. 1975 (1908). A federal witness, however, may bring a suit under the FTCA, alleging that the government negligently failed to provide adequate protection if the government has undertaken to protect the individual and done so negligently or if a duty to protect exists under state law. Leonhard, 633 F.2d at 623 n. 35.

 III. Good Samaritan Rule

 The first question I must address is whether the facts when viewed in the light most favorable to the plaintiffs support the position that the FBI had undertaken under the Good Samaritan test to protect Bruce Jr. and Robin Miller. If so, the Good Samaritan Rule as set forth in § 323 of the Restatement (Second) of Torts and adopted by the Pennsylvania courts, De Jesus v. Liberty Mutual Insurance Company, 423 Pa. 198, 223 A.2d 849 (1966), would subject the government to liability if the government's failure to exercise reasonable care increased the risk of harm to Bruce Jr. and Robin Miller or the plaintiffs suffered the harm because they relied upon Richter's undertaking. Section 323 states:

 
Negligent Performance of Undertaking to Render Services. One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

 There is no evidence whatsoever in the record indicating that Richter performed any action or made any decision to protect Bruce Jr. and Robin Miller.

 The only remaining question under the Good Samaritan Rule analysis is whether Richter's comments to Bruce Jr. constitute an "undertaking" sufficient to create liability under the Good Samaritan Rule as adopted by Pennsylvania law. In the Reporter's notes following section 323 of the Restatement (Second) of Torts, the American Law Institute expresses a caveat. The caveat states:

 
The Institute expresses no opinion as to whether: (1) the making of a contract or a gratuitous promise, without in any way entering upon performance, is a sufficient undertaking to result in ...

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