Daniel J. Monaco and Denise E. Monaco v. United States

The appellants, Daniel J. Monaco and Denise E. Monaco [hereinafter “Daniel” and “Denise,” respectively, or “the Monacos”], appeal from an order of the district court granting the motion of the United States to dismiss claims brought against it under the Federal Tort Claims Act [FTCA], 28 U.S.C. §§ 1346 , 2671-2680 (1976 & Supp.1979). The district court concluded that an exception to the FTCA for claims incident to military service barred the Monaco’s claims and accordingly dismissed all claims for lack of subject matter jurisdiction. We affirm.

FACTS

During World War II, from May, 1943, until February, 1946, Daniel was stationed at the University of Chicago, where he participated in the Army Specialized Training Program. As part of the program, Daniel was required to perform calisthenic exercises at the University’s football field. During breaks, he relaxed on the stadium seats. Daniel concedes that he was engaged in active military service at the time.

The Monacos allege that while Daniel was involved in the program, experiments in atomic reactions were being conducted in a laboratory beneath the stadium in connection with the “Manhattan Project,” the research and development…