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Shearer, Louise Ind. v. United States

decided: December 19, 1983.

SHEARER, LOUISE, IND. AND AS ADMINISTRATRIX OF THE ESTATE OF SHEARER, VERNON, DECEASED, APPELLANT,
v.
UNITED STATES OF AMERICA C/O PETER F. VAIRA, U.S. ATTORNEY, APPELLEE



On Appeal from the United States District Court for the Eastern District of Pennsylvania.

Gibbons, Garth and Higginbotham, Circuit Judges. Garth, J., dissenting.

Author: Higginbotham

Opinion OF THE COURT

HIGGINBOTHAM, A. LEON, JR., Circuit Judge

Once again, we are asked to decide the rights of a serviceman who, while on authorized leave and off base, suffered a fatal injury because of, inter alia, the alleged negligence of persons within the command hierarchy of the United States Army ("Army"). We are confronted with the traditional defenses of the Feres*fn1 doctrine and a claim of the inapplicability of the Federal Tort Claims Act.

Plaintiff-appellant Louise Shearer brought this action against defendant-appellee, the United States, under the Federal Torts Claim Act ("FTCA"), 28 U.S.C. Sections 1346(b), 2671-2680, claiming that the negligence of the Army caused the murder of her son Private Vernon Shearer. Relying on the Feres doctrine, the district court granted the government's motion for summary judgment. Appellant challenges the district court's decision presenting two issues for consideration on this appeal: whether either the Feres doctrine or the intentional tort exception to the FTCA bars appellant's action.

We hold that neither the Feres doctrine nor the intentional tort exception to the FTCA bars appellant's claim. We therefore will reverse the district court's order granting summary judgment to the United States and will remand this case to the district court.

I.

For the purposes of this appeal, we must accept as true the following facts pleaded by appellant -- the party against whom summary judgment has been ordered: the decedent, Vernon Shearer, was an eighteen-year old private in the Army stationed at Fort Bliss, Texas. Having been in the Army barely four months, on June 2, 1979, while off the military reservation on an authorized leave from his unit, Shearer was "kidnapped at point of gun and shot to death" in New Mexico by Private Andrew Heard. Heard was also off-duty.*fn2 Three years before, while stationed in Germany, Heard also had been prosecuted for what was alleged to be a gruesome murder of a German woman. The indictment alleged that he had "inflicted serious head injuries on the 38-year-old Margarete Hess on the occasion of sexual actions by means of a wrench and a lifting jack." Appendix ("App.") at 13a. Heard served three years of a four year sentence in Germany. His attack on Shearer occurred less than four months after his release from prison for the murder of Margarete Hess.

At the time of the kidnapping and murder of Shearer, the Army was well aware of Heard's record of violence, but had disregarded three of Heard's superiors who recommended that "Heard be eliminated from the Service under Chapter 14, Army Regulations 635-200." App. at 14a. His Battalion Commander in Germany, Lieutenant Colonel Rayburn C. Storvall, on December 7, 1978 had declared that "Private Heard is unsuitable for military service as his record discloses." Id. at 15a. That same day Lieutenant Colonel Storvall's recommendation was adopted by two other superiors of Heard, Colonel Donald E. Eckelbarger and Brigadier General Charles E. Canidy. Indeed, once Colonel Eckelbarger wrote that Heard's discharge "would be in the best interest of Private Heard and the United States Army." Id.

Despite the precise and unequivocal recommendations, the Army failed to make a "final determination" on Heard's discharge. More important, not until after Heard had murdered Shearer did the Army even bother to conduct a mental evaluation of Heard. Id.

Appellant argued that the Army was negligent in failing to discharge Heard from the Army, in failing to warn other enlisted personnel of Heard's violent propensities, and in failing to restrict Heard. Appellant's arguments concluded that the Army's failure in these regards proximately caused Shearer's death.

The United States responded to appellant's allegations by moving to dismiss Shearer's complaint on two grounds: Shearer's injury was "incident to military service" and therefore barred under the Feres doctrine. In the alternative, the United States argued that appellant's claim was one "arising out of assault and battery" and thus barred by the intentional tort exception of the FTCA.

The district court granted the United States' motion for summary judgment based on the Feres doctrine. The court did not decide the issue of the intentional tort exception to the FTCA.

II.

The FTCA permits suits against the United States for the "negligent or wrongful act" of a government employee. 28 U.S.C. ยงยง 1346, 2674. The scope of the FTCA, as it applies to the military, has been narrowed in a series of decisions which together comprise the Feres doctrine. The thrust of the Feres doctrine prevents an action against the government for "injuries to servicemen where the injuries arise out of or are in the course of activity incident to service." U.S. v. Brown, 348 U.S. 110, 112, 99 L. Ed. 139, 75 S. Ct. 141 (1954); Feres v. U.S., 340 U.S. 135, 146, 95 L. Ed. 152, 71 S. Ct. 153 (1950); Jaffee v. U.S., 663 F.2d 1226, 1227 (3d Cir. 1981), cert. denied, 456 U.S. 972, 72 L. Ed. 2d 845, 102 S. Ct. 2234 (1982); See Brooks v. U.S., 337 U.S. 49, 52, 93 L. Ed. 1200, 69 S. Ct. 918 (1949).

The principle underlying this judicially created exemption is that the FTCA mandates minimum judicial interference with the "peculiar and special relationship of the soldier to his superiors . . . ." Stencel Aero Engineering Corp. v. U.S., 431 U.S. 666, 671, 52 L. Ed. 2d 665, 97 S. Ct. 2054 (1977); U.S. v. Brown, 348 U.S. at 112. Accordingly, Feres insulates the military from FTCA suits arising out of "negligent orders given or negligent acts committed in the course of" an injured serviceman's military duty. Stencel Aero Engineering Corp. v. U.S., 431 U.S. at 671; U.S. v. Brown, 348 U.S. at 112. The pivotal question under the Feres analysis is whether the serviceman sustained the injury either in the "course of" or "incident to" his military service. U.S. v. Brown, 348 U.S. at 112; Feres v. U.S., 340 U.S. at 146; Jaffee v. U.S., 663 F.2d at 1233.

These terms "in the course of" and "incident to," however, are not self-evident truths that leap out to illuminate any factual situation. Consequently, courts must probe beneath these conclusionary statements and must identify more specific facts to determine whether an injury or death was sustained in the "course of" or "incident to" one's military service. Application of the doctrine focuses on the relationship between the serviceman and the military at the time and place the injury was sustained. The status and activity of the injured serviceman often seem to be the controlling factors.

The important distinguishing factors accounting for the different outcomes in these two cases are: the status of the injured soldier at the time of injury, the place of the injury, and the nature of the activity engaged in, and whether the injured party was acting under orders or compulsion. These factors control Feres doctrine cases. U.S. v. Brown, 348 U.S. at 112; Feres v. U.S., 340 U.S. at 146; Jaffee v. U.S., 663 F.2d at 1232. See Parker v. U.S., 611 F.2d 1007, 1013-15 (5th Cir. 1980); Woodside v. U.S., 606 F.2d 134, 138-42 (6th Cir. 1979), cert. denied, 445 U.S. 904, 63 L. Ed. 2d 320, 100 S. Ct. 1080 (1980); Harten v. Coons, 502 F.2d 1363, 1365 (10th Cir. 1974), cert. denied, 420 U.S. 963, 95 S. Ct. 1354, 43 L. Ed. 2d 441 (1975).

Generally, an off-duty serviceman not on the military base and not engaged in military activity at the time of injury, can recover under FTCA; an on-duty serviceman, however, is usually barred from recovery. In Brooks, an off-duty serviceman hit by a military vehicle while he was engaged in personal business recovered under FTCA. U.S. v. Brooks, 337 U.S. at 50-52. In Feres, on the other hand, an on-duty serviceman killed in an on-base fire was barred from recovery. Feres v. U.S., 340 U.S. at 136-38, 146.

In this case, appellant argues that the district court improperly applied the Feres doctrine to their claim. Specifically, they argue that the court neglected to focus on Shearer's activity and status at the time and place of his injury. On review, the record indicates that Shearer was not engaged in or acting incident to any military activity at the time of his murder. To the contrary, Shearer was on leave in another state (New Mexico) when he was kidnapped. The United States does not dispute that Shearer was on authorized leave and off the base at the time of his murder.

The district court's error stems from its singular focus on the status and activity of the allegedly negligent parties (i.e. Heard's superior officers) without considering the status and activity of the injured party. Consequently, the district court improperly concluded that appellant's "allegations relate directly to decisions of military personnel made in ...


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