Coffey

ORDER AND OPINION

The motion to dismiss (Fifth Affirmative Defense) is deemed to be supplemented by the affidavits in support of the motion to dismiss, and is therefore treated as a motion for summary judgment.

Gerald C. Coffey (whose parents are the plaintiffs) was a United States Marine stationed at Camp Pendleton. He was killed while riding as a passenger in an automobile struck by a Santa Fe switch engine while at the intersection of a government-maintained private road and the railroad tracks within the confines of the military reservation. The United States is alleged to have failed to properly mark and guard the railroad crossing. Coffey had a liberty card and the Court infers (the inference most favorable to plaintiff) that he was riding toward the Camp Pendleton exit on the way to off-post liberty. He was, however, still within the confines of the military reservation and was subject to all liberty, cancellation of liberty, uniform, traffic and other military regulations.

Under these circumstances and assuming that the United States was otherwise liable, does the military exemption to the Federal Tort Claims Act bar recovery ?

The solution is reached by finding the…