Robin E. Persons Estate of Kelly Persons and Timothy Persons v. United States

OVERVIEW

Robin E. Persons and her four-year-old son Timothy appeal from the entry of a judgment dismissing their action against Balboa Naval Hospital and the United States Navy. The complaint alleges that as a result of the hospital’s negligence, Petty Officer Kelly Persons (Robin’s husband and Timothy’s father) committed suicide. Appellants seek damages for the serviceman’s wrongful death and for the Navy’s alleged negligent failure both to warn them of Kelly Persons’ condition and to provide them with adequate counseling. The district court entered a judgment dismissing the action for lack of subject-matter jurisdiction under the Feres doctrine. Appellants then filed this timely appeal. In what has now become a well trodden tradition, we reluctantly affirm the district court’s disposition as to the wrongful death claim and the failure to warn. However, we reverse and remand with respect to the claim arising from the hospital’s failure to provide adequate counseling.

FACTUAL AND PROCEDURAL BACKGROUND

The facts in this case are essentially uncontested. In September 1987 Kelly Persons, a petty officer in the United States Navy, presented himself to the Balboa Naval Hospital’s…