Peter H. Doggett v. United States

858 F.2d 555 Peter H. DOGGETT, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 86-6109. United States Court of Appeals, Ninth Circuit. Argued and Submitted Feb. 2, 1987. Decided Oct. 3, 1988. Robert Laney, Associate of Peter J. Sullivan, Marina del Rey, Cal., for plaintiff-appellant. Shari Silver and Stephen E. O'Neil, Los Angeles, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before BROWNING, TANG and REINHARDT, Circuit Judges. TANG, Circuit Judge: 1 Doggett appeals the district court's dismissal for lack of jurisdiction of his Federal Tort Claims Act (FTCA) suit arising from an automobile accident caused by an intoxicated serviceman. The district court dismissed the action on the grounds that under California law the provider of alcoholic beverages is immune from tort liability and that no employee of the United States had the requisite "special relationship" with the intoxicated serviceman to create a duty to control his behavior. We affirm in part and reverse in part. I. BACKGROUND 2 On October 6, 1983, Mark Patrick Gorman, an active duty enlisted member of the United States Navy,…

Doggett appeals the district court’s dismissal for lack of jurisdiction of his Federal Tort Claims Act (FTCA) suit arising from an automobile accident caused by an intoxicated serviceman. The district court dis *558 missed the action on the grounds that under California law the provider of alcoholic beverages is immune from tort liability and that no employee of the United States had the requisite “special relationship” with the intoxicated serviceman to create a duty to control his behavior. We affirm in part and reverse in part.

I. BACKGROUND

On October 6, 1983, Mark Patrick Gor-man, an active duty enlisted member of the United States Navy, with the rating of Machinist’s Mate Third Class (MN3), was stationed at the Naval Weapons Station in Seal Beach, California. At approximately 3:30 p.m., on his way home from work, Gorman stopped at the Consolidated Mess Open (CMO), also known as Bunker 33. Bunker 33 is located within the boundaries of the Seal Beach Naval Weapons Station and operates under the control of its Commanding Officer to provide food, refreshments and recreational facilities for military personnel, their dependents and guests.

MN3 Gorman consumed two bottles and…

with whom BROWNING, Circuit Judge, concurs:

Doggett advances an additional theory of liability: He argues that the good Samaritan doctrine applies and creates a duty in Gorman’s companions to prevent him from driving while under the influence of alcohol. This argument has merit as it applies to the petty officers who were with Gorman in Bunker 33. The Supreme Court recently decided that when an obviously intoxicated off-duty soldier shoots a rifle at persons driving by on a public street, the government is liable under the FTCA for its negligence in allowing the soldier to leave the naval base with a loaded rifle in his possession. Sheridan v. United States, — U.S. -, 108 S.Ct. 2449 , 101 L.Ed.2d 352 (1988). The Court held:

Id. at 2455.

In this case, the Navy has voluntarily adopted a regulation prohibiting intoxicated personnel from driving off the naval base. But the regulation does not stop there. It is materially different from the regulation involved in Sheridan because, in addition to prohibiting the conduct at issue, it also undertakes to provide care for the personnel involved. Specifically, the regulation provides that intoxicated personnel shall be detained, allowed…

dissenting in part:

I respectfully dissent from my colleagues’ application of the good Samaritan doctrine in section 3.b. Although I agree that Sheridan v. United States, — U.S. -, 108 S.Ct. 2449 , 101 L.Ed.2d 352 (1988), suggests a possibility that this doc *567 trine might apply to the petty officers, I do not think that we can make this determination as a matter of law. A good Samaritan duty does not arise merely through the adoption of a regulation. The only way a regulation can create a duty under California law is that discussed in our analysis of the potential liability of the security guard in section B.2., a liability predicated on the liability of public entities for injuries caused by noncompliance with mandatory enactments.

It is hornbook law that the good Samaritan duty arises with the performance of specific acts of rescue which induce reliance on the aid of the actor. I do not read Sheridan as modifying the traditional concept of good Samaritan duty so that all it requires is the voluntary adoption of regulations. Rather the Court says that by the voluntary adoption of a regulation and by further voluntarily undertaking to provide care the government assumed the…