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Zankel v. United States

March 25, 2008


The opinion of the court was delivered by: Conti, District Judge


Plaintiffs James Zankel, as administrator of the estate of Justin D. Zankel, deceased and James and Barbara Zankel in their own right ("plaintiffs") commenced this civil action as a wrongful death and survival action pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. ("FTCA"), against the United States of America (the "government") and Staff Sergeant William E. Dreyer, a military recruiter for the United States Marine Corps ("Dreyer").*fn1

Plaintiffs allege that twelve-year-old Justin Zankel was struck by a government-owned vehicle operated by Dreyer, and that Justin Zankel's death resulted from injuries sustained in that collision. Plaintiffs assert that Dreyer was negligent, careless, and reckless in the operation of his vehicle at the time of the accident. Plaintiffs argue that the government is vicariously liable for the acts or omissions of Dreyer under the FTCA.

Dreyer filed a motion to certify that he was acting within the scope of his employment at the time of the accident and to substitute the government as defendant pursuant to 28 U.S.C. § 2679 (d)(3). This court has jurisdiction to decide Dreyer's motion to certify pursuant to 28 U.S.C. § 2679, and if the court finds that Dreyer was acting within the scope of his employment at the time of the accident, will have jurisdiction of the underlying civil action under the FTCA pursuant to 28 U.S.C. § 1346(b). The government filed a motion to dismiss for lack of subject-matter jurisdiction, or in the alternative summary judgment in the government's favor, asserting that Dreyer was not acting within the scope of his employment when the vehicle he was operating struck Justin Zankel. At a hearing held on January 3, 2007, this court denied without prejudice the government's motion and ordered discovery on Dreyer's motion to certify limited to the scope of employment issue. Following discovery, the government filed a second motion to dismiss or for summary judgment, and plaintiffs filed a motion for summary judgment on the scope of employment issue. This court heard oral arguments by the parties on October 9, 2007, and concluded that it could not grant the motion to dismiss or grant summary judgment because there were genuine issues of material fact in dispute. The summary judgment motions and the motion to dismiss were denied at the hearing held on October 9, 2007. In order to resolve the scope of employment issue for purposes of determining jurisdiction and Dreyer's motion for certification, the court, on January 3, 2008, held an evidentiary hearing. On February 15, 2008, the parties filed proposed findings of fact and conclusions of law.

This court makes the following findings of fact and conclusions of law.


A. Dreyer's Marine Corps Background

1. Dreyer enlisted in the United States Marine Corps ("Marine Corps") on July 27, 1995, and remained on active duty until his discharge on November 5, 2007. Gov't's proposed findings of fact ("Gov't's fof") ¶ 1.

2. Dreyer's primary military occupational specialty was field wireman, a communications position. From 1995 through 2001, Dreyer served in a number of different communications billets in the Marine Corps at various duty stations around the world. Id. ¶ ¶2-3.

3. In 2001, Dreyer was selected by the Marine Corps for recruiting duty and attended recruiter's school in San Diego, California, where he successfully graduated. Id. ¶ 4.

4. In January 2002, Dreyer reported for duty with the 1st Marine Corps District headquartered in Garden City, New York, and was initially assigned to recruiting duty in Cape Cod, Massachusetts, where he remained until Janurary 2003. Id. ¶ 5.

5. In January 2003, Dreyer was transferred to Recruiting Station Pittsburgh ("RS Pittsburgh") as a recruiter. Id. ¶ 6.

6. Dreyer was assigned to Permanent Contact Station ("PCS") Sharon as a basic canvassing recruiter from January 2003 until October 2004. Id. ¶ 13.

7. In December 2003, Dreyer was promoted to the rank of Staff Sergeant. Id. ¶ 7.

8. In October 2004, Dreyer was promoted to Staff Non-Commissioned Officer in Charge ("SNCOIC") or Station Commander of Recruiting Substation Butler ("RSS Butler"). Id. ¶ 13.

B. Organizational Structure of RS Pittsburgh and Surrounding Substations

9. RS Pittsburgh is a subordinate recruiting command under the control and supervision of the 1st Marine Corps District, Garden City, New York. Id. ¶ 8.

10. From June 2003 through June 2006, RS Pittsburgh was commanded by Major Michael Sherman ("Sherman"), who was Dreyer's immediate supervisor. Id. ¶ 9.

11. RS Pittsburgh is headquartered in the Federal Building, located in downtown Pittsburgh, Pennsylvania, and has control over the following nine substations that are responsible for recruiting in Western Pennsylvania: Butler, Beaver, Greensburg, Johnstown, Ross Park, State College, Susquehanna, Three Rivers, and Uniontown. Id. ¶ 10.

12. Each substation is commanded by a mid-level enlisted Marine referred to as a Staff Non-Commissioned Officer in Charge ("SNCOIC") or Station Commander who during the relevant time period reported directly to Sherman. Id. ¶ 11.

13. Under each substation are a number of smaller recruiting stations called permanent contact stations ("PCS"); under RSS Butler, there are two PCSs--one located in Sharon, Pennsylvania, and the other in New Castle, Pennsylvania. Id. ¶ 12.

14. As SNCOIC of Substation Butler, Dreyer's primary office was located at Substation Butler. Dreyer also maintained responsibilities and traveled to PCS Sharon and PCS New Castle. Id. ¶ ¶ 12-15.

C. Dreyer's Responsibilities as SNCOIC of RSS Butler

15. Dreyer's main responsibility was to train and supervise his canvassing recruiters. Id. ¶ 14.

16. The work hours for a typical recruiter were flexible and varied; however, normal working hours for recruiters were from approximately 8:00 a.m. to 7:00-9:00 p.m. in the evening. Id. ¶ 22.

17. In an attempt to meet mission goals, SNCOIC Dreyer's work often exceeded these hours, including working Saturdays and Sundays. Plaintiffs' and Dreyer's joint proposed findings of fact ("Dreyer's fof") ¶ 17.

18. At the time of the accident, SNCOIC Dreyer's area of responsibility included portions of Butler, Lawrence, Venango, and Mercer Counties. Id. ¶ 2.

19. As SNCOIC of RSS Butler, Dreyer had no time restrictions dictating the hours he could work per day. The onlygeographical restrictions placed on Dreyer were that he could not engage in recruiting activities in an asset assigned to another recruiting substation, such as a high school or a community college. Id. ¶ 3.

20. An SNCOIC of a substation has the authority to make certain discretionary decisions in order to meet his mission objectives. Transcript of evidentiary hearing January 3, 2008 ("T.") at 167, 275-76.

D. Use of Government Vehicles by Recruiters and Dreyer

21. Each Marine Recruiter is assigned a government vehicle in order to perform the recruiting mission, and these vehicles are to be used only for official government purposes. Gov't's fof ¶¶ 23-24.

22. Dreyer understood the procedures and authorized uses for government vehicles. Id. ¶ 25.

23. Dreyer was assigned and primarily drove a 2004 Chevy Cavalier, VIN Number 3G1JC52674S163651 ("government vehicle"), from approximately May 2004 through the time of the accident on January 27, 2005. Id. ¶ 26.

24. Government vehicles are an important asset for the recruiting mission. T. at 164, 203.

25. A government vehicle is an integral and important part of a Marine recruiter's job. The recruiter must travel to all parts of his assigned area as well as transport recruits. Dreyer's fof ¶ 5.

26. Recruiters are required to use a government vehicle when traveling as part of the job. Each recruiter is assigned a vehicle, and Dreyer was provided with a government credit card for gas and incidentals related to his government vehicle. The use of a vehicle is essential and necessary to the accomplishment of the recruiting mission. Id.

27. Marine recruiters are not permitted to use their personal vehicles to perform their recruiting-related duties. Id. ¶ 6.

28. Marine Corps personnel are not permitted to use government vehicles to travel between their duty post and residence ("domicile-to-duty" use or "DTD"). Id. ¶ 7.

29. There are two exceptions to the rule prohibiting DTD use of a government vehicle applicable here: (1) if a Marine recruiter obtained DTD written authorization from the Commanding Officer of the 1st Marine Corps District to use a government vehicle for commuting purposes or (2) if a Marine recruiter obtained twenty-four hour temporary DTD permission from the Commanding Officer of RS Pittsburgh. Gov't's fof ¶ 38.

30. Dreyer did not have DTD written authorization permitting him to use his government vehicle for commuting purposes. Id. ¶ 39.

31. Sherman, as the Commanding Officer of RS Pittsburgh, had the authority to grant Dreyer temporary DTD. Id. ¶ 40.

32. All RS Pittsburgh Marines were instructed that temporary DTD transportation was granted by Sherman through verbal authorization by calling him on the phone and explaining the circumstances requiring the temporary DTD use of the government vehicle. Id. ¶ 41.

33. Marines were even permitted to leave a message on Sherman's voice mail, and this would constitute temporary DTD authority. Id. ¶ 44.

34. Sherman considered requests for temporary DTD authorization utilizing criteria that included such factors as safety, efficiency, and recruiting-related use. Sherman considered the safety of the individual the most important factor. Dreyer's fof ¶ 9.

35. Sherman testified that he routinely received temporary DTD requests (two to three per week) and they would typically be granted. Sherman only denied about one dozen requests over a three-year period. Gov't's fof 10.

36. Sherman stated that he previously authorized the personal use of a government vehicle in such cases where: (1) a Marine's vehicle broke down, and he had no other transportation; (2) a Marine's wife went into labor, and the Marine needed to quickly drive to the hospital; and (3) a Marine's ...

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