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SCHMID v. UNITED STATES

August 22, 1986

CHRISTIAN C. SCHMID, JR.
v.
THE UNITED STATES OF AMERICA



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 This is an action under the Federal Tort Claims Act to recover damages for personal injuries. Pending before the court is the Government's motion for summary judgment. For the reasons set forth below, the motion is granted.

 Plaintiff Christian C. Schmid, Jr. was a United States Government logistics management specialist. On June 14, 1982, he sustained the injuries that gave rise to this action while playing softball on property owned by the United States Department of the Navy, Aviation Supply Office ("ASO") in Philadelphia, Pennsylvania. Plaintiff claims that he stepped into a rut or depression on the playing field, fell and injured his shoulder and that his injuries were caused by the defendant's negligence.

 The softball game was an activity organized by the Compound Employees Recreation Association ("CERA"), an organization of government employees. The ASO sponsored, encouraged and partially funded the CERA and participated in the formation of its Constitution and By-Laws issued as Joint Instructions. There are three softball fields within the ASO compound. Use of these fields is controlled by the Command Support Activities Office; access to the compound is restricted and unauthorized persons using the fields are removed. The Command Support Activities Office does not charge for use of the ASO compound softball fields; as a result of this policy, the CERA softball teams did not pay for use of the Government fields in the summer of 1982.

 The Government earlier moved to dismiss this complaint or, in the alternative, for summary judgment on the ground that the Government owed no duty of care to persons using its property for a softball game. Upon consideration of plaintiff's response and oral argument, the court denied defendant's motion by Memorandum and Order of September 26, 1985.

 Thereafter, the Government filed this motion for summary judgment on the ground that since plaintiff's claim is compensable under the Federal Employees Compensation Act ("FECA"), he is barred from bringing any action under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq ("FTCA").

 Plaintiff sustained the injuries that gave rise to this action on June 14, 1982. Plaintiff filed a claim for FECA benefits on January 20, 1983; the Department of the Navy opposed the claim. On January 4, 1984, the Philadelphia Office of Worker's Compensation Program ("OWCP") denied the claim on the ground that plaintiff was not in the performance of duty when injured. Plaintiff timely requested a hearing on the denial of his claim. Before the hearing was scheduled, the Appellate OWCP vacated the Philadelphia OWCP order denying plaintiff compensation and remanded the case to the Philadelphia Office for a de novo decision. The Philadelphia OWCP then reversed its decision of January, 1984 and found on April 9, 1985 plaintiff was entitled to FECA benefits because he was in the performance of duty when injured. Meanwhile, plaintiff had instituted this action on March 1, 1985.

 Title 5 U.S.C. § 8102(a) provides:

 
(1) caused by the willful misconduct of the employee;
 
(2) caused by the employee's intention to bring about the injury or death of himself or of another; or
 
(3) proximately caused by the intoxication of the injured employee.

 Where FECA applies, it expressly precludes "all other liability of the United States" either "under a workmen's compensation statute or under a federal tort ...


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