Noel
Noel v. United States
Opinion
Opinion
Infante, J.
MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
I. INTRODUCTION
This is an action under the Federal Tort Claims Act (“FTCA”) against the United States and the Department of the Navy for negligence and emotional distress. Plaintiffs, husband and wife Don and Elizabeth Noel, allegedly sustained injuries while operating a concessionaire’s ice cream cart during an air show at Moffett Field Naval Air Base when the wheel of the cart became lodged in a “pad-eye” on the aircraft tarmac, causing the cart to overturn.
Presently before the Court are the Government’s motion to dismiss for lack of subject matter jurisdiction, or in the alternative for summary judgment. Having considered the motion papers, the comments of counsel, and good cause appearing: (1) the Government’s motion to dismiss for lack of subject matter jurisdiction is GRANTED in part and DENIED in part; and (2) the Government’s motion for summary judgment is DENIED.
II. BACKGROUND
On October 17, 1992, the Noels attended the Moffett Field Air Show as “civilian charity volunteers” to operate concessionaire’s ice cream carts, with…