Rutherford v. United States of America
Filing
60
MEMORANDUM OPINION and JUDGMENT in favor of Plainitff and against United States of America, for the negligence of defendant's Gate Security Guard, James Jones, which was the proximate cause of plaintiff's injuries and damages in the amount of $275,123.77, together with the costs of this action, for all of which let execution issue as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 12/21/2017. (AHI)
FILED
2017 Dec-21 PM 01:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHANNON RUTHERFORD,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
Defendant.
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Civil Action No. CV 15-S-560-NE
MEMORANDUM OPINION
“Theodor Seuss Geisel (perhaps better known as Dr. Seuss) is said to have
observed, ‘Sometimes the questions are complicated and the answers are simple.’”1
Regrettably, this is not one of those times. Not only are the issues in this case
complex, but so also are their answers.
I. SUMMARY OF FACTS
Plaintiff, Shannon Rutherford, seeks damages for personal injuries sustained
on Redstone Arsenal: a 38,125 acre (7.9 square mile) United States Army garrison
adjacent to the City of Huntsville in Madison County, Alabama.2 Access to the
Arsenal is restricted because the garrison is a military installation, and important
research and development functions are performed there. More than sixty federal
1
United States v. Baptiste, No. 16-10871, 2017 WL 5712514, at *1 (11th Cir. Nov. 28, 2017)
(Rosenbaum, J.).
2
See, e.g., http://www.mybaseguide.com/army/124-3546 (last visited Dec. 8, 2017).
organizations and contractor operations occupy facilities on the Arsenal, including
nine Commands of the United States Army,3 five agencies of the United States
Department of Defense,4 and the National Aeronautics and Space Administration’s
George C. Marshall Space Flight Center.5 Persons authorized to enter the garrison
do so through one of six gates, which are referred to in Army regulations as “Access
Control Points (ACPs).”6 The events leading to this action occurred at “Gate 1” on
Martin Road East: a four-lane highway that traverses the Arsenal from east to west.
The security guards who served at that Gate were employed by the United States
3
The Army Commands include, among others: the Materiel Command; the Aviation and
Missile Command; the Space and Missile Defense Command; the Test and Evaluation Command;
the Developmental Test Command; the Security Assistance Command; the Contracting Command;
the Expeditionary Contracting Command; and, the Aviation and Missile Research, Development,
and Engineering Center. See, e.g., http://hsvchamber.org/departments/government-public-affairs/
team-redstone (last visited Dec. 8, 2017).
4
These agencies include the Defense Intelligence Agency; the Missile and Space and
Intelligence Center; the Missile Defense Agency (“MDA”); the MDA’s Ground-Based Mid-Course
Defense Agency; and, the MDA’s Targets Test & Sensors Center. Id.
5
See doc. no. 51 (Transcript – Sheehy), at 32-36.
6
See, e.g., Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design),
¶ 1.2 (“An Access Control Point is a corridor at the Installation entrance through which all vehicles
and pedestrians must pass when entering or exiting the Installation. The perimeter of the ACP
consists of both passive and active barriers arranged to form a contiguous barrier to pedestrians and
vehicles. ACP guards control the active barriers to deny or permit entry into the Installation.”).
Note well: Plaintiff objected to this exhibit during trial, saying that the Government had
failed to produce it in response to plaintiff’s pretrial request for production of “any standards,
protocols, policies, [or] procedures that [were] germane to this case. Doc. no. 51 (Transcript –
Sheehy), at 171. This court admitted the exhibit “provisionally.” Id.; see also id. at 191. Now
having thoroughly reviewed the document, its relevance to the discretionary function exception
discussed infra is patently clear. The failure of Government’s counsel to comprehend the
significance of the document is due no commendation. Even so, this court demanded its production
during the examination of Col Sheehy, in order to clarify his testimony. Accordingly, the objection
is overruled.
2
Army Aviation & Missile Command, and had at their disposal an “active vehicle
barrier”7 known as a “Ground Retractable Automobile Barrier (GRAB),” which is
described as an “electrically powered, hydraulically operated, sub-surface mounted
device designed to be fully functional at stopping a vehicle attempting unauthorized
entry on the installation.”8 Colonel Michael Robert Sheehy (U.S. Army Ret.) was
Director of Emergency Services at Redstone Arsenal on the date of the events leading
to this suit.9 He explained that the GRAB Barriers at Gate 1 were located
approximately 900 feet from the Access Control Point itself [i.e., the
entry gate house at which Security Guards were stationed]. And in
between the inbound and outbound lanes there is . . . a [concrete]
physical barrier that would prevent vehicles from passing from one side
to the other.
The distance [between the gate house and GRAB System barriers]
is designed to give the guards . . . enough time to assess the situation and
to activate the GRAB net barrier before a potential threat can enter the
Arsenal.
Doc. no. 51 (Transcript – Sheehy), at 42 (alterations and ellipses supplied).
Plaintiff was employed at NASA’s George C. Marshall Space Flight Center as
7
“Active Vehicle Barriers” are “controlled by ACP guards [and] must be utilized in each
inbound and outbound lane to permit or deny vehicle access.” Defendant’s Ex. 11 (Army Access
Control Points Standard Definitive Design), app. A (Army Standard for ACPs), ¶ 2-2.2.2 (alteration
supplied).
8
Plaintiff’s Ex. 1, at Rutherford_000029 (29 Sept. 2010 Redstone Arsenal General Orders
for Access Control Points, Annex B), ¶ 3. Note well: Each page of Plaintiff’s Exhibit 1 bears a
Bates’ Stamp number beginning, as here, with the prefix “Rutherford_0000.” For convenience, all
subsequent citations to the pagination of that exhibit will eliminate the Bates prefix.
9
See doc. no. 51 (Transcript – Sheehy), at 9.
3
a “Flight Systems Engineer.”10 She had obtained permission to be off work for
several hours on Thursday, May 10, 2012, on “sick leave,” in order to be examined
by a private physician in the Huntsville Hospital Medical Mall on Governors Drive.11
She was driving her personal automobile in the right-hand, outbound lane of Martin
Road at approximately 9:30 a.m., and about to exit the Arsenal through Gate 1: a
point that was approximately five miles from plaintiff’s NASA workplace.12
Shortly before plaintiff reached the exit, however, a pick-up truck driven by an
older man named Tommy Bannister approached Gate 1 from the opposite direction.13
Mr. Bannister did not possess credentials to enter the Arsenal, and appeared to Gate
Guard James Jones to be “a little confused” and “lost.”14 Mr. Bannister said that he
was attempting to reach the municipal airport or some other address on the opposite,
west side of the Arsenal, off Government property, and thought he could cut across
the garrison as a means of shortening the driving distance to his intended destination.
Gate Guard Jones explained to Mr. Bannister “that he couldn’t just pass through, that
it was a controlled area,” and instructed him to drive forward a few feet, to the socalled “turn-around lane,” where he could make a “U-Turn” into the outbound lanes
10
Id. (Transcript – Rutherford), at 142.
11
Id. at 143.
12
Id. at 143-44.
13
Id. at 80. See also Plaintiff’s Ex. 3 (May 15, 2012 Military Police Desk Blotter), at 64.
14
Doc. no. 51 (Transcript – Jones), at 81.
4
of Martin Road.15 Mr. Bannister did not follow that instruction, however. Instead,
he drove past the turn-around lane,16 but only “at an average take-off speed”17 of
“about 10 to 15 miles an hour.”18 Jones stepped into the Gatehouse and depressed a
button to activate the GRAB System,19 and steel-net barriers rose from the ground
under both the inbound and outbound lanes of Martin Road.20
Before Jones activated the GRAB System, he did not make any attempt to
survey the outbound lanes of Martin Road in order to determine whether the barrier
15
Id. at 82-83. See also Defendant’s Ex. 11 (Army Access Control Points Standard
Definitive Design), app. A (Army Standard for ACPs), at ¶ 2-2.6 (“Turn-around Lanes. ACPs
must have at least two turn-around lanes, one before and one immediately after the identity check
or vehicle search area.”) (boldface in original); doc. no. 51 (Transcript – Sheehy), at 49-50
(observing that the turn-around lane at Gate 1 – also sometimes referred to as “the response zone
entrance” – is located immediately past the guard booth. “At other Access Control Points, the [turnaround lane, a/k/a response zone] entrance is a further distance down the road. But in the case of
Gate 1, the turnaround point is immediately after the guard shack.”) (alteration and emphasis
supplied).
16
Doc. no. 51 (Transcript – Jones), at 83 (“He rolled his window up and proceeded
forward.”); id. at 85 (“He proceeded straight ahead on Martin Road.”).
17
Id. at 85.
18
Id.
19
Id. at 86. See also Defendant’s Ex. 11 (Army Access Control Points Standard Definitive
Design), app. A (Army Standard for ACPs), at ¶ 2-2.7 (“Gatehouse. ACPs must have a gatehouse
with the primary controls for the final active vehicle barriers. The gatehouse must be sized to
accommodate ACP guards and their activities.”) (boldface in original).
20
The single control button at Gate 1 that raised the GRAB System Barriers stored under both
the inbound and outbound lanes of Martin Road was different from the System installed at Gate 9,
which provides access to the Arsenal’s major north-south corridor, and which had two activation
buttons: one for the GRAB barriers stored under the inbound lanes, and a separate button for the
barriers under the outbound lanes. Significantly, Gate Guard Jones had activated GRAB System
barriers only once before May 10, 2012, and that was while serving in the Gatehouse at Gate 9. On
that occasion, he had raised only the barrier under the inbound lanes. Doc. no. 51 (Transcript –
Jones), at 86-87. That option was not available to him at Gate 1.
5
might impact innocent motorists about to exit the Arsenal.21 As a result, plaintiff’s
automobile collided with the barrier that rose from the ground under the outbound
lanes, and she was seriously injured.22 She filed an administrative claim with the
United States Army Aviation & Missile Command on October 30, 2012, and
commenced this action on April 3, 2015.
II. PLAINTIFF’S CLAIMS
Plaintiff alleges under the Federal Tort Claims Act, 28 U.S.C. §§ 1346, 26712680 (“FTCA”), that the following acts by representatives of the United States were
negligent, and that each “independently caused (and/or combined and concurred to
cause) plaintiff’s injuries”:23 (1) the Army’s decision to design the GRAB System
installed at Gate 1 with a single, master-control button that simultaneously activated
the steel-net barriers stored under both the inbound and outbound lanes of Martin
Road; (2) Gate Guard James Jones’s failure to retain Mr. Bannister’s driver’s license,
which contributed to Bannister’s failure to turn his truck around and exit Arsenal
property; (3) Jones’s decision to activate the GRAB System when none of the threat
scenarios specified in controlling Army regulations were presented;24 and (4) Jones’s
21
Id. at 87-88.
22
Doc. no. 1 (Complaint), ¶¶ 8 & 9.
23
Doc. no. 32 (Pretrial Order), at 4; doc. no. 45 (Amended Pretrial Order), at 4.
24
Doc. no. 32 (Pretrial Order), at 3-5.
6
failure “to make a ‘reasonable effort to ensure’ that no other vehicles would be
affected by deploying the GRAB System.”25 Defendant’s primary response to those
claims is based upon the “discretionary function exception” to the FTCA, which
deprives federal courts of subject-matter jurisdiction over tort claims resulting from
a federal employee’s performance of a “discretionary function.”26 Accordingly, that
issue must be resolved before taking any steps to address the merits. Morrison v.
Allstate Indemnity Co., 228 F.3d 1255, 1275 (11th Cir. 2000).
III. THE DISCRETIONARY FUNCTION EXCEPTION
Historically, suits seeking damages for the negligent or wrongful acts of
employees of the United States Government were barred by the common-law doctrine
of sovereign immunity. See, e.g., Alden v. Maine, 527 U.S. 706, 715 (1999); Cohens
25
Doc. no. 38 (Plaintiff’s Unopposed Motion to Amend the Pretrial Order), at 2; see also doc.
no. 45 (Amended Pretrial Order), at 4.
26
Even though the Government mentioned the discretionary function exception in the answer
to plaintiff’s complaint filed on September 30, 2015 (see doc. no. 15 (Answer), at 7), the
Government did not raise the defense by way of motion until the month after the Pretrial Conference.
See doc. no. 32 (Pretrial Order entered on July 13, 2017, and setting case for trial on October 10,
2017); doc. no. 39 (Defendant’s Motion for Leave to File Motion to Dismiss for Lack of Subject
Matter Jurisdiction, filed August 9, 2017); doc. no. 40 (order granting motion for leave to file); doc.
no. 42 (Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction, entered on the record
on August 14, 2017).
Of course, a defendant is free to raise the issue of subject matter jurisdiction at any stage of
the proceedings. See Douglas v. United States, 814 F.3d 1268, 1280-81 (11th Cir. 2016) (“[A] party
may move to dismiss for lack of subject-matter jurisdiction at any time.”) (citing Fed. R. Civ. P.
12(b)(1), (h)(1)) (alteration supplied). Even so, the failure of the Government’s attorneys to raise
this jurisdictional defense until the eve of trial is not to be commended, as resolution of the defense
earlier in the litigation could have saved significant resources of the court and parties.
7
v. Virginia, 19 U.S. 264 (1821).27 A limited waiver of that immunity was created in
1946 with the enactment of the FTCA, which grants district courts exclusive
jurisdiction over civil actions to recover money damages
for injury or loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would
be liable to the claimant in accordance with the law of the place where
the act or omission occurred.
28 U.S.C. § 1346(b)(1). See also, e.g., Federal Deposit Insurance Corp. v. Meyer,
510 U.S. 471, 475 (1994) (observing that § 1346(b) “waived the sovereign immunity
of the United States for certain torts committed by federal employees”). The FTCA
makes the United States liable for torts to which it applies “in the same manner and
to the same extent as a private individual under like circumstances.” 28 U.S.C. §
2674.
Even so, the FTCA does not waive the sovereign immunity of the United States
in all respects. Instead, as the Supreme Court observed,
Congress was careful to except from the Act’s broad waiver of immunity
several important classes of tort claims. Of particular relevance here, 28
U.S.C. § 2680(a) provides that the Act shall not apply to
27
See generally Gregory C. Sisk, A Primer on the Doctrine of Federal Sovereign Immunity,
58 Okla. L. Rev. 439, 443-45, 456 (2005) (tracing the history of federal sovereign immunity, and
concluding that individuals may not sue the United States for monetary damages unless the
Government has consented to suit by a statutory waiver of sovereign immunity).
8
“[a]ny claim based upon an act or omission of an employee
of the Government, exercising due care, in the execution of
a statute or regulation, whether or not such statute or
regulation be valid, or based upon the exercise or
performance or the failure to exercise or perform a
discretionary function or duty on the part of a federal
agency or an employee of the Government, whether or not
the discretion involved be abused.” (Emphasis added.)
The discretionary function exception, embodied in the second clause of
§ 2680(a), marks the boundary between Congress’ willingness to impose
tort liability upon the United States and its desire to protect certain
governmental activities from exposure to suit by private individuals.
United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467
U.S. 797, 808 (1984).
District courts are instructed that the exception must be strictly construed in
favor of the Government; and, if it appears that a claim falls within the exception, the
court lacks subject-matter jurisdiction. See, e.g., Swafford v. United States, 839 F.3d
1365, 1369-70 (11th Cir. 2016) (citing U.S. Aviation Underwriters, Inc. v. United
States, 562 F.3d 1297, 1299 (11th Cir. 2009); JBP Acquisitions, LP v. United States
ex rel. FDIC, 224 F.3d 1260, 1263 (11th Cir. 2000)).
A.
The Test for Determining Whether the Exception Applies
District courts must apply a test framed by the Supreme Court’s opinion in
United States v. Gaubert, 499 U.S. 315 (1991), for the purpose of determining
whether the discretionary function exception to the FTCA deprives federal courts of
9
subject-matter jurisdiction over allegedly negligent conduct of a Government agency
or employee. See, e.g., Hughes v. United States, 110 F.3d 765, 767-68 (11th Cir.
1997); Powers v. United States, 996 F.2d 1121, 1124 (11th Cir. 1993); Autery v.
United States, 992 F.2d 1523, 1528 (11th Cir. 1993); Willett v. United States, 24 F.
Supp. 2d 1167, 1172 (M.D. Ala. 2014).
1.
The first part of the Gaubert test— Was the allegedly negligent
conduct mandatory or discretionary?
As its name implies, the discretionary function exception “covers only acts that
are discretionary in nature” — in other words, acts that “‘involve an element of
judgment or choice.’” Gaubert, 499 U.S. at 322 (quoting Berkovitz v. United States,
486 U.S. 531, 536 (1988)). Accordingly, a court must first look at the nature of the
allegedly negligent act, and determine whether its performance involved an element
of judgment or choice on the part of the federal agency or employee. See Gaubert,
499 U.S. at 322-23; Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997);
Autery, 992 F.2d at 1526; Powers, 996 F.2d at 1124. That inquiry focuses upon the
question of whether the language of “the controlling statute or regulation mandates
that a government agent perform his or her function in a specific manner.” Hughes,
110 F.3d at 768 (quoting Powers, 996 F.2d at 1125).
10
Conduct is mandatory, in the sense of being obligatory or compulsory,28 when
“a ‘federal statute, regulation, or policy specifically prescribes a course of action for
an employee to follow,’ because ‘the employee [then] has no rightful option but to
adhere to the directive.’” Gaubert, 499 U.S. at 322 (quoting Berkovitz, 486 U.S. at
536) (emphasis and alteration supplied); see also, e.g., Nguyen v. United States, 556
F.3d 1244, 1250 n.2 (11th Cir. 2009) (observing that conduct is mandatory “when a
federal statute, regulation, or policy specifically prescribes a course of conduct
embodying a fixed or readily ascertainable standard”).
Under the applicable precedents, therefore, if a regulation
mandates particular conduct, and the [federal agency or] employee obeys
the direction, the Government will be protected because the action will
be deemed in furtherance of the policies which led to the promulgation
of the regulation. See Dalehite [v. United States, 346 U.S. 15, 36
(1953)]. If the employee violates the mandatory regulation, [however,]
there will be no shelter from liability because there is no room for
choice and the action will be contrary to policy. . . .
Gaubert, 499 U.S. at 324 (emphasis and alterations supplied).
2.
The second part of the Gaubert test— Applied only when the allegedly
negligent conduct is determined to have been discretionary
28
See Bryan A. Garner, Garner’s Dictionary of Legal Usage 562 (3d ed. 2011) (comparing
the American term mandatory to the terms obligatory and compulsory that are more common in
English law). Moreover, the design standards promulgated by the Army’s Office of Provost Marshal
General (“OPMG”) discussed in Part III.B.3 of this opinion, infra, “consist of mandatory
requirements and non-mandatory recommendations. Mandatory requirements in the criteria are
designated by the [imperative] words ‘shall,’ ‘will,’ or ‘must,’ whereas non-mandatory
recommendations are designated by the [precatory] words ‘should,’ ‘can,’ or ‘may.’” Defendant’s
Ex. 11 (Army Access Control Points Standard Definitive Design), app. B (ACP Criteria From
OPMG), ¶ 2.2 (emphasis and alterations supplied).
11
On the other hand, if a statute, regulation, or policy does not specifically
prescribe a course of action, but instead allows the federal agency or employee to
exercise a degree of judgment or choice, then the second part of the test framed by the
Gaubert opinion must be addressed. It requires the court to determine whether the
allegedly negligent discretionary conduct was “grounded in considerations of public
policy.” Ochran, 117 F.3d at 499 (citing Gaubert, 499 U.S. at 322-23); see also
Autery, 992 F.2d at 1526-27 (“[E]ven assuming the challenged conduct involves an
element of judgment, however, we then must determine if the challenged actions are
the kind of conduct that the discretionary function exception was designed to
shield.”) (alteration in original, citations and internal quotation marks omitted). As
the Supreme Court explained in Gaubert:
When established governmental policy, as expressed or implied
by statute, regulation, or agency guidelines, allows a Government agent
to exercise discretion, it must be presumed that the agent’s acts are
grounded in policy when exercising that discretion. For a complaint to
survive a motion to dismiss, it must allege facts which would support a
finding that the challenged actions are not the kind of conduct that can
be said to be grounded in the policy of the regulatory regime. The focus
of the inquiry is not on the agent’s subjective intent in exercising the
discretion conferred by statute or regulation, but on the nature of the
actions taken and on whether they are susceptible to policy analysis.
Gaubert, 499 U.S. at 324-25 (footnote omitted).
If both parts of the Gaubert test are satisfied, discretionary acts of the federal
12
agency or employee will be protected, even if the particular acts that resulted in injury
to the plaintiff were negligent. See Varig Airlines, 467 U.S. at 820.
B.
Army Regulations Bearing Upon the Application of the Gaubert Test in
This Case
Subsections 1 through 3 of the present Part of this opinion describe regulations
that prescribe design standards for “Access Control Points (ACPs)” on all Army
installations, while subsection 4 addresses General Orders that specifically applied
to Redstone Arsenal on the date of plaintiff’s injuries, and governed Gate Guard
James Jones’s operation of the GRAB System Barriers at Gate 1.
1.
The Basic Access Control Point Design Regulation
The Protective Design Center of the United States Army Corps of Engineers
promulgated a regulation during December of 2004 entitled “Army Access Control
Points Standard Definitive Design.” The first part of that regulation states, in
mandatory terms,29 that Access Control Points “shall be designed to” achieve three
purposes: i.e.,
ACPs shall be designed [1] to prevent an unauthorized vehicle or
pedestrian from entering the Installation, [2] to ensure safety of
innocent ACP users, and [3] to maximize throughput of vehicular
and pedestrian traffic. In order to meet these diverse and sometimes
conflicting requirements, Army ACP designers must consider local site
constraints and then use creativity and innovation to develop design
29
See supra note 28.
13
solutions that meet all of the ACP performance requirements. There are
no cookie-cutter design solutions. Each design is unique. Designers
must carefully consider all of the criteria and then select and design
protective measures that will be most effective for the given site.
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), ¶ 1.3,
at 2 (boldface in original, italicized emphasis and alterations supplied).
Part 4 of the same regulation reinforces the second design purpose — that of
ensuring the safety of innocent users of the ACP — by using the mandatory phrase
“must include” to emphasize that “ACP designs must include adequate safety features
to ensure the safety of motorists entering and exiting the ACP.” Id., ¶ 4, at 3
(emphasis supplied). Part 4 also uses the obligatory phrase “must provide” to
emphasize that “Active vehicle barrier controls must provide sufficient information
to ACP guards to help them decide when to deploy the barriers.” Id. (emphasis
supplied).30
30
The complete text of Part 4 reads as follows:
4 CONTROL OF ACTIVE VEHICLE BARRIERS
Active vehicle barriers are an essential element in preventing unauthorized motorists
from entering Army Installations. However, an active vehicle barrier capable of
stopping large, moving vehicles can cause significant damage to vehicles and can
cause injury or even death to vehicle occupants. Through Army policy and design
criteria, ACP designs must include adequate safety features to ensure the safety of
motorists entering and exiting the ACP. The active vehicle barrier controls are an
essential element of the ACP safety features. Active vehicle barrier controls must
provide sufficient information to ACP guards to help them decide when to deploy the
barriers. Active vehicle barrier controls must also close the active barriers upon
command of the guards in order to stop a threat vehicle. Finally, the active vehicle
barrier controls must provide sufficient warning to non-threat vehicles to allow them
14
Part 2 of the Basic Access Control Point Design Regulation references
standards promulgated by three other Army components and incorporates each by
inclusion of copies in Appendices “A” through “C”: i.e.,
2.1
THE ARMY STANDARD FOR ACPs
The Army Standardization Committee established the Army Standard for
Access Control Points on 14 December 2004. The standard lists mandatory
requirements for all Army ACPs. The standard is included in Appendix A.
The Army Standardization Committee must approve changes, deviations, or
waivers from this standard.
2.2
OFFICE OF PROVOST MARSHAL GENERAL (OPMG)
DESIGN CRITERIA
OPMG, as the Army’s proponent for Access Control Points, provided their
criteria for ACP’s [sic] in a document titled “ACP Criteria from OPMG” dated
19 Novembver 2004. The OPMG Criteria consist of [both] mandatory
requirements and non-mandatory recommendations. Mandatory requirements
in the criteria are designated by the words “shall,” “will,” or “must,” whereas
non-mandatory recommendations are designated by the words “should,” “can,”
or “may.” OMPG Criteria have been made a part of this Standard Definitive
Design. The OPMG Criteria is [sic] included in Appendix B.
2.3
STANDARD DEFINITIVE DESIGN DRAWINGS
The U.S. Army Corps of Engineers (USACE), as the Center of Standardization
for Army Access Control Points, developed Standard Definitive Design
drawings for ACP’s. These drawings incorporate both the Army Standards
and the OPMG Criteria. They also provide mandatory requirements and
recommendations to Army ACP designers and Installation Security Specialists
for designing Army ACPs. The drawings have been made a part of this
Standard Definitive Design and are included in Appendix C.
to either clear the barrier or stop safely in front of it before it is closed.
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), ¶ 4 (boldface in
original, italicized emphasis supplied).
15
Id., ¶¶ 2.1 – 2.3, at 2-3 (boldface in original, emphasis and alterations supplied).31
2.
Appendix A to the Basic Design Regulation— Standards promulgated
by the Army Facilities Standardization Committee
Appendix A contains design standards promulgated by the Army Facilities
Standardization Committee on December 14, 2004. The Foreword to that regulation
states that it “establishes mandatory features” for Access Control Points at “all active
Army installations,”32 and Paragraph 2-2.1 uses the obligatory phrase “must be” to
mandate that Access Control Points “be designed to ensure [the] safety of motorists,
pedestrians, and guards.” Defendant’s Ex. 11 (Army Access Control Points Standard
Definitive Design), app. A (Army Standard for ACPs), ¶ 2-2.1, at 2 (alteration
31
The drawings specified for inclusion in Appendix C were not among the materials
identified as Defendant’s Exhibit 11. Consequently, the court cannot ascertain what light those
design criteria might cast upon the issues of this case.
32
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), app. A
(Army Standard for ACPs), at ii (1st para.). The statement quoted in text is reinforced in the third
and fourth paragraphs of the Foreword, as follows:
The Army Standard for Access Control Points is mandatory for operations
and maintenance projects starting FY2006 and beyond. For programing purposes
requiring the use of Military Construction, Army/Army Reserve/National Guard
appropriations, all projects from FY 2008 and after must apply the Army Standard.
Only the Army Facilities Standardization Committee has the authority to
approve exceptions to this standard. Waivers for the Army Standard must be
approved through the installation management chain of command in accordance with
AR 415-15. . . .
Id. (3d & 4th para.) (emphasis supplied). See also id., ¶ 1-1 (“This document provides standards for
Army access control points (ACPs).”), and ¶ 1-2 (“This Army Standard applies to all Army active
installations and reserve components . . . “).
16
supplied).33
3.
Appendix B to the Basic Design Regulation— Standards promulgated
by the Office of the Provost Marshal General
Appendix B incorporates design standards promulgated by the Army’s Office
of Provost Marshal General (“OPMG”) on November 19, 2004. Relevant criteria are
summarized below.
a.
Threat scenarios addressed by the OPMG design standards
The OPMG standards use the obligatory phrase “shall be designed” to
33
The full text of the quoted regulation reads as follows: “ACPs must be designed to defeat
the vehicle and pedestrian threats prescribed in the ACP Criteria from the Office of the Provost
Marshal General (Appendix B in the Standard Designs for ACPs), and to ensure safety of motorists,
pedestrians, and guards.” Additional standards that have some bearing upon the issues of this case
include the following:
2-2.2.2 Active Vehicle Barriers. Active vehicle barriers, controlled by ACP guards,
must be utilized in each inbound and outbound lane to permit or deny vehicle access.
2-2.2.3 Active Vehicle Barrier Safety. An active vehicle barrier safety regime must
be utilized that conforms to one of the Surface Deployment and Distribution
Command – Transportation and Engineering Agency (SDDC-TEA) approved safety
protocols. [Note: Neither party offered a copy of these safety protocols at trial.]
****
2-2.6 Turn-around Lanes. ACPs must have at least two turn-around lanes, one
before and one immediately after the identity check or vehicle search area.
2-2.7 Gatehouse. ACPs must have a gatehouse with the primary controls for the
final active vehicle barriers. The gatehouse must be sized to accommodate ACP
guards and their activities.
Id. at 2-3 (boldface in original, alteration and italicized emphasis supplied).
17
emphasize that Access Control Points
shall be designed to defeat the following four minimum vehicle threat
scenarios. Additional vehicle threat scenarios may be considered if supported
by a local threat assessment.
1) Vehicle Threat Scenario #1. Threat vehicle enters the ACP in the inbound
or outbound lane(s) at the maximum speed attainable at the ACP entrance
and then immediately accelerates at its maximum acceleration rate through
the ACP. Army policy sets the maximum acceleration rate of a threat
vehicle at 11.3 f/s/s.
2) Vehicle Threat Scenario #2. Threat vehicle enters the ACP in the inbound
or outbound lane(s) at or under the posted ACP Speed Limit and then, later
at some point further in the Approach Zone, accelerates at its maximum
acceleration rate through the rest of the ACP.
3) Vehicle Threat Scenario #3. Threat vehicle attempts to covertly enter the
ACP, but is detected and denied entry by guards at the ID Check Area.
Vehicle driver then defies guards and accelerates through the rest of the
ACP at the vehicle’s maximum acceleration rate.
4) Vehicle Threat Scenario #4. Similar to Threat Scenario 3 above, except the
driver of the denied vehicle drives toward the Turn-around or Search Area
at the ACP Speed Limit (25 mph) as if complying with guard instructions,
but then fails to turn and instead accelerates at its maximum acceleration
rate through the rest of the ACP.
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), app.
B (ACP Criteria From OPMG), ¶¶ I.5.a.1 – a.4, at 2-3 (emphasis supplied).
b.
The requirement of a single, master-control button
Various other provisions of the OPMG regulation require the installation of
active vehicle barriers in all inbound and outbound lanes of primary and secondary
18
access control points,34 and mandate that a “master ‘Emergency Fast Operate’ (EFO)
button” be used to simultaneously “close all active barriers in all inbound and
outbound lanes.” Id., ¶ I.20.f.1, at 8 (emphasis supplied).35
4.
General Orders specifically applicable to Redstone Arsenal
General Orders specifically governing the procedures for controlling all Access
Control Points on Redstone Arsenal were promulgated by the Chief of the garrison’s
Physical Security Division in the Directorate of Emergency Services on September
29, 2010. See Plaintiff’s Ex. 1, at 11–33. Colonel Sheehy described the Orders as “a
directive that is compulsory in nature,”36 and issued in order to “add specificity to the
34
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), app. B
(ACP Criteria From OPMG), ¶ I, at 2 (“The following requirements apply to Primary and Secondary
ACPs except as noted: . . .”); id., ¶ I.2.b, at 2 (“The perimeter of the ACP, except at its entrance, shall
include both passive and active vehicle barriers arranged to form a contiguous barrier to vehicles.
Active vehicle barriers, that can be opened and closed, shall be deployed at the end of the ACP (i.e.,
at the entrance to the Installation).”); id., ¶ I.2.c, at 2 (“ACP guards will control the active vehicle
barriers to deny or permit entry into the Installation.”); id., ¶ I.20.a, at 6 (“Active barriers shall be
installed in all inbound and outbound lanes at the end of the Response Zone.”).
35
The full text of the OPMG paragraph from which the textual quotes are taken reads as
follows:
Only guards in the Gatehouse, Guard Booths, and Overwatch Position shall have
emergency close control of the active barriers. A master “Emergency Fast Operate”
(EFO) button shall be provided on a Barrier Master Control Panel located in the
Gatehouse. Slave EFO buttons shall be located in each Guard Booth and the
Overwatch Position. The ‘Emergency Fast Operate’ buttons will close all active
barriers in all inbound and outbound lanes.
Id., ¶ I.20.f.1, at 8 (emphasis supplied).
36
Doc. no. 51 (Transcript – Sheehy), at 14.
19
Army-level directives” discussed in the preceding subsections.37
a.
Obtaining a form of governmental identification
The General Orders instruct Gate Security Guards to obtain some form of
governmental identification from all visitors who seek, but are denied, access to the
garrison, and to record specific information on a “vehicle turn-around document”:
a. Prior to denying access to the installation, ACP personnel will
conduct inquiries to determine visitor access: (If able to validate visit, process,
inspect and issue visitor pass. If unable to validate the visit, initiate turn
around procedures.)
(1) Obtain a form of government ID (local, state, federal photo
identification)[38]
(2) What is the nature of your visit? (Official or Personal)
(3) Who are you here to visit?
(4) Do you have a contact number of the person you are visiting?
****
c. When vehicles are denied entrance to RSA, the following
information will be recorded on the vehicle turn-around document:
(1) Reason for turnaround: Be very specific as to the reason for
access denial.
(2) Drivers Name and other pertinent information.
(3) License Plate Number and state of issue.
(4) Make, model, year, color and type of vehicle (2005 Blue Chevy
37
Id. at 37 (alteration supplied). Sheehy said that Army Regulation 190-16 (Plaintiff’s Ex.
2, at 2-3) was the authority for issuing such General Orders. Id. at 14-15.
38
The General Orders elsewhere specify that the required forms of Governmental
identification include “a valid driver’s license, valid state registration and valid motor vehicle proof
of insurance . . . Additionally, an approved US Government picture ID (issued by a Federal, State,
or Municipal government) is required for all persons in the vehicle age 16 and older.” Plaintiff’s Ex.
1, ¶ 2.c, at 13. See also id., ¶ 2.f, at 15 (same).
20
Impala 2DR).
Id., ¶¶ 9.a. & c., at 22 (emphasis and footnote supplied). Despite the omission of a
mandatory adverb, such as “must,” from the directive stated in Paragraph 9.a(1) above
— i.e., “Obtain a form of government ID” — the structure of that directive implies
an obligatory, non-discretionary requirement.39
b.
Threat scenarios authorizing deployment of GRAB System
Barriers
The General Orders also contain three appendices containing specific
instructions for deploying each of the three “active vehicle barrier systems” used on
Redstone Arsenal.40 The second appendix (“Annex B”) addresses Ground Retractable
Automobile Barrier (GRAB) Systems, and “establishes procedures to be followed by
all Security Force personnel posted at the Access Control Points (ACP) in the
Operation and Deployment of the GRAB System.”41 Similar to the OPMG criteria
applicable to all Army installations discussed in subsection III.B.3.a., supra, the
General Orders also describe threat scenarios that authorized Gate Security Guards
to deploy the GRAB System’s barriers:
39
See supra note 28, listing terms used to designate mandatory requirements in Army
regulations.
40
The “active vehicle barrier systems” addressed in the appendices to the General Orders are:
Roadblade Perimeter Protection System (“Annex A”); the GRAB System deployed here (“Annex
B”); and Stop Sticks (“Annex C”).
41
Plaintiff’s Ex. 1, app. B, at 29.
21
(1) Unauthorized Vehicle Access and Gate Runners: The decision to
deploy the GRAB Barrier System will be at the discretion of the security
personnel in the lane that the unauthorized vehicle is attempting to access or
the guard performing overwatch duties. If a threat is perceived, Guard
personnel are authorized to immediately deploy the GRAB System. Threat
scenarios meeting this criteria are:
a. High Speed Attack From Outside Installation:
• The threat vehicle enters the ACP at whatever speed it can attain
at the ACP entrance.
• The vehicle could be using the in-bound or out-bound lanes.
• For a straight roadway coming into the ACP, the threat vehicle’s
entrance speed can be quite high.
b. High Speed Attack After Entrance:
• The threat vehicle enters the ACP at a speed slightly below the
setting of the over-speed detector at the ACP entrance.
• Once past the over-speed detector, the threat vehicle then begins
its attack by accelerating toward the final barriers.
c. Covert Attack at ID Check Area:
• The driver of the threat vehicle attempts to gain access using
false credentials.
• The guards deny access and direct the driver to either the Search
Area or Turn-around lane.
• The driver defies the guard instructions and immediately bolts
toward the final barrier.
d. Covert Attack at End of the Turn Around Lane:
• The driver of the threat vehicle attempts to gain access using
false credentials.
• The guards deny access and direct the driver to either the Search
Area or the Turn-around Lane.
• The driver feigns compliance with the guard instruction and
approaches the Response Zone [i.e., “the area between the guard
booth and the GRAB barrier,” 900 feet west of Gate 1 on both
the inbound and outbound lanes42] at the ACP speed limit.
• Instead of turning into the Search Area or Turn-around lane
42
Doc. no. 51 (Transcript – Sheehy), at 49.
22
when reaching the Response Zone entrance,[43] the driver bolts
toward the final barrier.
Plaintiff’s Ex. 1, app. B, ¶¶ 4.b(1)a.–d., at 29-30 (emphasis, alterations, and footnotes
supplied).
c.
Ensuring that innocent vehicles would not be affected
The General Orders also mandated that “Security Guard deploying the GRAB
Barrier System will make a reasonable effort to ensure that there are no other vehicles
that will be directly affected by deploying the GRAB Barrier System.”44 Id., ¶ 4.b(4),
at 30 (emphasis supplied).
C.
The Viability of Plaintiff’s Claims Under the Gaubert Test
1.
The requirement of a single, master-control button
As discussed in Part III.B.3.b., supra, the decision to design the GRAB System
installed at Gate 1 on Redstone Arsenal with a single, master control button that
simultaneously deployed the GRAB barriers stored under both the inbound and
outbound lanes of Martin Road was mandated by the regulations promulgated by the
Office of the Army’s Provost Marshal General: i.e., “A master ‘Emergency Fast
Operate’ (EFO) button shall be provided on a Barrier Master Control Panel located
43
Id. at 49-50 (observing that the turn-around lane at Gate 1 – sometimes referred to as “the
response zone entrance” – is located immediately past the guard booth. “At other Access Control
Points, the entrance is a further distance down the road. But in the case of Gate 1, the turnaround
point is immediately after the guard shack.”).
44
Plaintiff’s Ex. 1, app. B, ¶ 4.b(4), at 20 (emphasis supplied).
23
in the Gatehouse. . . . The ‘Emergency Fast Operate’ buttons will close all active
barriers in all inbound and outbound lanes.” Defendant’s Ex. 11 (Standard Designs
for ACPs), app. B (ACP Criteria From OPMG), ¶ I.20.f.1, at 8 (emphasis supplied).45
Plaintiff attempted to overcome the force of that mandatory design standard by
eliciting testimony from Colonel Sheehy that, prior to the date of plaintiff’s injuries,
he and other officers in the garrison’s chain-of-command had recognized the risk that
Gate 1’s “master Emergency Fast Operate” control button posed for innocent, nonthreat motorists in the outbound lanes of Martin Road.46 Their recognition of that
specific danger was manifested in an electronic mail message transmitted by Colonel
Sheehy to Colonel John Hamilton, the Garrison Commander, and several other
Arsenal officials shortly after the incident leading to this suit, and stating in pertinent
part that:
The enduring concern is the mandated dual activation of both inbound
and outbound traffic lanes. The risk and concern we anticipated
manifested itself in today’s accident, and we are fortunate there were not
additional or more serious injuries. I believe we should challenge this
design mandate to DA [i.e., Department of the Army], and will
coordinate with Mike Moore and team to establish a way ahead on this.
Will keep you posted.
45
Colonel Sheehy testified that the single, master-control button depressed by Gate Guard
Jones at Gate 1 complied with mandatory Army regulations, whereas it was Gate 9 — with two
activation buttons, which allowed Gate Guards to selectively activate the GRAB barrier under either
the inbound lanes or the outbound lanes (see supra note 20) — that was out of compliance. Doc.
no. 51 (Transcript – Sheehy), at 58-60.
46
Id. at 21-22; id. at 187.
24
Plaintiff’s Ex. 30, fourth ¶ (alteration supplied).47
Nevertheless, until such time as the Department of the Army grants permission
to deviate from the OPMG design requirement, Army personnel have “no rightful
option but to adhere to the directive.” Gaubert, 499 U.S. at 322.
Accordingly, the discretionary function exception to FTCA liability deprives
this court of subject-matter jurisdiction over plaintiff’s claim that it was negligent to
design the GRAB System installed at Gate 1 with a single, master-control button, and
47
See also doc. no. 51 (Transcript – Sheehy), at 187. The full text of Col. Sheehy’s email
message (Plaintiff’s Ex. 30) reads as follows:
We had a gate runner, which prompted the guard to activate the barrier
system. In addition to activating for the inbound traffic lanes, the system activated
for outbound traffic, per COE [i.e., Corp of Engineers] specs. Resultantly, an
outbound vehicle with a single female occupant, reportedly an MSFC [i.e., Marshall
Space Flight Center] employee, struck the barrier at a moderately high rate of speed.
Though ambulatory, she was badly impacted and was evacuated to HSV main via
HEMSI with unknown injuries. She likely has a broken arm.
We shut down Gate 1 outbound lane for the response, and we’ve since
reopened it fully.
The gate runner was an elderly gentleman who misunderstood the guard’s
turn-around instructions. We are reviewing the specific instructions given. It
appears the guard may have given less than full guidance (relative to the turn-around
sign we installed last year) and not retained the driver’s ID, per standard procedure.
Following our review we will implement remedy as appropriate.
The enduring concern is the mandated dual activation of both inbound and
outbound traffic lanes. The risk and concern we anticipated manifested itself in
today’s accident, and we are fortunate there were not additional or more serious
injuries. I believe we should challenge this design mandate to DA [i.e., Department
of the Army], and will coordinate with Mike Moore and team to establish a way
ahead on this. Will keep you posted. [Alterations supplied.]
25
that claim must be dismissed. Id. at 324 (“Under the applicable precedents, therefore,
if a regulation mandates particular conduct, and the employee obeys the direction, the
Government will be protected because the action will be deemed in furtherance of the
policies which led to the promulgation of the regulation.”).
2.
Gate Guard Jones’s failure to retain Mr. Bannister’s driver’s license,
which contributed to Bannister’s failure to turn his vehicle around
and exit Army property
Gate Guard James Jones admitted that he did not obtain a state driver’s license
or other form of governmental identification from Mr. Bannister, as required by
General Order Paragraph 9.a.1, discussed in Part III.B.4.a, supra, and retain that
document until Bannister entered the turn-around lane and was prepared to exit
Arsenal property.48
Jones also failed to record the information mandated by
Paragraph 9.c on a “vehicle turn-around document.”
Jones characterized those portions of the General Orders as discretionary
“guidelines,” or merely suggested operating practices.49 Colonel Sheehy described
the requirement as a “best-in-class practice”50 that was “always within the guard’s
48
Doc. no. 51 (Transcript – Jones), at 82-83.
49
Id. at 83 (characterizing the requirements of the General Orders as “our SOP, which is a
guideline,” and adding that “we are also given what is called officer discretion.”
50
Doc. no. 51 (Transcript – Sheehy), at 19-20 (characterizing the retention of a person’s
driver’s licence until such time as he complied with the instruction to turn his vehicle into the turnaround lane and was prepared to exit the Arsenal as “what I would call a best-in-class practice. It
is — and it was a standard procedure that was generally followed at that time, but it was not a
required procedure”).
26
discretion.”51 This court does not believe that the testimony of Gate Guard Jones and
Colonel Sheehy can change the mandatory terms of the regulation into a discretionary
practice, but even if it were assumed that it could, the second part of the Gaubert test
does not provide the Government any relief.
One purpose of training Gate Security Guards to retain the identification of a
person denied access to the Arsenal was to provide an incentive for that driver to
obey the instruction to turn his vehicle around, and exit the garrison.52 As Colonel
Sheehy admitted, a driver would “be less likely to drive off” without his license.53
Moreover, Gate Guard Jones offered only two justifications for exercising his
“discretion” to ignore the requirements: i.e., when no other Security Guards were on
duty in the Gatehouse; or, the other Guards were otherwise indisposed.54
Significantly, however, neither Jones nor any other Government witness testified that
either circumstance existed when Mr. Bannister arrived at Gate 1.
Thus, even viewing General Order Paragraphs 9.a.1 and 9.c as discretionary
“guidelines” or “best-in-class practices,” the choice of Gate Guard Jones to ignore
51
Id., at 62-64.
52
See doc. no. 51 (Transcript – Sheehy), at 20 (agreeing that “a collateral advantage” of the
requirement to retain the ID of a person denied access was “to incentivize that individual to turn
around”).
53
Id. at 20-21.
54
See doc. no. 51 (Transcript – Jones), at 83-85.
27
those requirements was not grounded in a consideration of the public policies stated
in the regulation discussed in Part III.B.1, supra: that is, the omissions did not aid in
preventing an unauthorized vehicle from entering the installation.55 Thus, Jones’s
failure to comply with the General Orders’ directives was not the kind of conduct that
the discretionary function exception was designed to shield. See, e.g., Berkovitz, 486
U.S. at 536; Autery, 992 F.2d at 1526-27.
3.
Jones’s decision to activate the GRAB System when none of the threat
scenarios specified in pertinent Army regulations were presented
Of the four threat scenarios described in the ACP Criteria From OPMG
discussed in Part III.B.3.a., supra, only the third and fourth approximate the events
that led to this suit: i.e.,
3)
Vehicle Threat Scenario #3. Threat vehicle attempts to covertly enter
the ACP, but is detected and denied entry by guards at the ID Check
Area. Vehicle driver then defies guards and accelerates through the
rest of the ACP at the vehicle’s maximum acceleration rate.
4)
Vehicle Threat Scenario #4. Similar to Threat Scenario 3 above, except
the driver of the denied vehicle drives toward the Turn-around or
Search Area at the ACP Speed Limit (25 mph) as if complying with
guard instructions, but then fails to turn and instead accelerates at its
maximum acceleration rate through the rest of the ACP.
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), app.
B (ACP Criteria From OPMG), ¶ I.5.a (emphasis supplied).
55
Moreover, Mr.
See Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), ¶ 1.3,
at 2.
28
Bannister’s actions did not fit any of the threat scenarios described in those portions
of the General Orders discussed in Part III.B.4.b., supra.
Even so, there were important factual distinctions between Mr. Bannister’s
actions and the threat scenarios outlined in that regulation. When Bannister, who
appeared “confused” and “lost,”56 drove past the turn-around lane, his truck neither
approached its “maximum acceleration rate,”57 nor “bolt[ed] toward the final
barrier.”58 Instead, as Gate Guard Jones testified, Mr. Bannister proceeded forward
“at an average take-off speed” of “about 10 to 15 miles an hour.”59 For the same
reasons, Mr. Bannister’s actions did not fit any of the threat scenarios described in
thos portions of the General Orders discussed in Part III.B.4.b, supra.
Given those considerations, it appears that the judgment of Gate Guard Jones
that Mr. Bannister was “a gate runner”60 who posed a threat to the security of the
Army garrison was not rationally grounded in fact. Even so, the threat scenarios
sketched in the referenced regulations are examples, and not exclusive limitations.
Colonel Sheehy described them as
56
Doc. no. 51 (Transcript – Jones), at 81.
57
Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design), app. B
(ACP Criteria From OPMG), ¶¶ I.5.a.3 & a.4.
58
Plaintiff’s Ex. 1, app. B, ¶¶ 4.b(1)c. & d., at 30 (alteration supplied).
59
Doc. no. 51 (Transcript – Jones), at 85.
60
Id. at 83.
29
descriptive in nature, and . . . not intended to be all inclusive. There are
hundreds, if not thousands, of different scenarios that could occur under
any different conditions. And the guard has not just the responsibility,
but the authority and mandate and the discretion along with that to
determine when to activate the barrier system if he perceives there’s a
threat. And it’s a total assessment.
****
You can never predict all the scenarios that might be applicable.
And that’s the guard’s training and discretion as to when to apply the
system.
Doc. no. 51 (Transcript – Sheehy), at 54-55 (emphasis and ellipses supplied).61
Nevertheless, the lack of congruence between Mr. Bannister’s actions and the
vehicle threat scenarios described in regulations should not be evaluated in isolation,
but in conjunction with the following claim — in Colonel Sheehy’s phrase, “it’s a
total assessment.” Id.
4.
Jones’s failure “to make a ‘reasonable effort to ensure’ that no other
vehicles would be affected by deploying the GRAB System”
As noted in Part III.B.5.c., supra, Redstone Arsenal’s General Orders state in
obligatory terms that “[t]he Security Guard deploying the GRAB Barrier System will
make a reasonable effort to ensure that there are no other vehicles that will be directly
affected by deploying the GRAB Barrier System.” Plaintiff’s Ex. 1, app. B, ¶ 4.b(4)
61
See also Defendant’s Ex. 11, (Basic ACP Design Regulation), app. B (ACP Criteria From
OPMG), ¶ 1.5.a, at 2 (“ACPs shall be designed to defeat the following four minimum vehicle threat
scenarios. Additional vehicle threat scenarios may be considered if supported by a local threat
assessment.”) (emphasis supplied).
30
at 30 (alteration and emphasis supplied). The phrase “will make” is mandatory, but
the object of that phrase (“a reasonable effort”) implies some degree of judgment or
choice on the part of the Gate Guard when attempting to determine whether any other
vehicles would be directly affected by deploying the GRAB Barriers. Cf., e.g.,
Ochran, 117 F.3d at 500.
Despite the lack of specificity of “a reasonable effort,” the phrase clearly
contemplates that the Gate Guard will make some effort to determine whether any
other vehicles would be directly affected by deploying the GRAB Barriers before
activating the system. However, the evidence in this case is clear and unequivocal
that Jones made no effort whatsoever.62
Stated differently, Jones did not have discretion to completely disregard an
Order that was otherwise compulsory in nature63 by failing to make any effort to
ascertain whether innocent motorists in the outbound lanes of Martin Road would be
affected by his deployment of the GRAB barriers, especially when the following facts
are taken into account: Mr. Bannister was elderly and obviously confused or lost;64
his truck did not “bolt” forward “at its maximum acceleration rate”; and, the GRAB
62
See, e.g., doc. no. 51 (Transcript – Jones), at 87-88.
63
See doc. no. 51 (Transcript – Sheehy), at 13 (describing an Order as “a directive that is
compulsory in nature”); Plaintiff’s Ex. 1, at 11 (Redstone Arsenal General Orders), ¶ 1.e (“Security
Forces will adhere to the General Orders, appendices and all applicable regulatory requirements
pertaining to the assigned ACP.”).
64
See doc. no. 51 (Transcript – Jones), at 81.
31
Barrier under the inbound lanes of Martin Road was located some 900 feet from the
Gatehouse: a distance that was “designed to give the guards . . . enough time to
assess the situation and to activate the GRAB net barrier before a potential threat
[could] enter the Arsenal.”65 Those facts underscore the conclusion that the choice
of Gate Guard James Jones to make no effort, much less “a reasonable effort,” to
ensure that no other vehicles would be directly affected by deploying the GRAB
Barrier System was not grounded in considerations of one of the fundamental policies
stated in Army regulations: that of ensuring the safety of innocent motorists. See,
e.g., Defendant’s Ex. 11 (Army Access Control Points Standard Definitive Design),
¶ 1.3, at 2 (mandating that Access Control Points “shall be designed . . . [2] to ensure
safety of innocent ACP users . . . .”) (boldface removed, ellipses, alteration, and
emphasis supplied); id., app. A (Army Standard for ACPs), ¶ 2-2.1, at 2 (“ACPs must
be designed . . . to ensure safety of motorists . . . .”) (ellipses and emphasis supplied).
Accordingly, Jones’s activation of the GRAB System under the circumstances
described was negligent, and his act was not the kind of conduct the discretionary
function exception was designed to shield. Cf. Downs v. United States Army Corps
of Engineers, 333 F. App’x 403 (11th Cir. 2009).
IV. CONTRIBUTORY NEGLIGENCE
65
Doc. no. 51 (Transcript – Sheehy), at 42 (ellipsis and alteration supplied).
32
The Government’s second defensive contention is based upon Alabama’s
doctrine of contributory negligence, which provides that “‘a plaintiff cannot recover
in a negligence suit where plaintiff’s own negligence is shown to have proximately
contributed to his damage, notwithstanding a showing of negligence on the part of the
defendant.’” Phillips v. Seward, 51 So. 3d 1019, 1025 (Ala. 2010) (quoting Brown
v. Piggly-Wiggly Stores, 454 So.2d 1370, 1372 (Ala. 1984)).66
Alabama law generally defines negligence as the failure to do what a
reasonably prudent person would have done under the same or similar circumstances.
See, e.g., Ford Motor Co. v. Burdeshaw, 661 So. 2d 236, 238 (Ala. 1995); Elba Wood
Products, Inc. v. Brackin, 356 So. 2d 119, 122 (Ala. 1978); Glenn Construction Co.,
LLC v. Bell Aerospace Services, Inc., 785 F. Supp. 2d 1258, 1282 (M.D. Ala. 2011).67
However, the standard of care required of a person can be established as a
matter of law by a statute, municipal ordinance, or regulation. See generally Jenelle
Mims Marsh, Alabama Law of Damages § 30.3, at 686-87 (6th ed. 2012); Note, The
Doctrine of Statutory Negligence in Alabama, 27 Ala. L. Rev. 155 (1975). When a
66
See also, e.g., 1 Michael Roberts & Gregory S. Cusimano, Alabama Tort Law § 202, at 152
(6th ed. 2015) (“A plaintiff whose contributory negligence proximately contributed to his injury is
completely barred from recovering for negligence of the defendant.”).
67
See also, e.g.,2 Alabama Pattern Jury Instructions – Civil § 28.01 (3d ed. 2016)
(“Negligence is the failure to use reasonable care to prevent harm to oneself or others. A person’s
conduct is negligent when (he/she) either does something that a reasonably prudent person would
not do in a similar situation, or (he/she) fails to do something that a reasonably prudent person would
have done in a similar situation.”).
33
statute, ordinance, or regulation establishes the applicable standard of care, “anyone
who violates it and causes an injury to a person whom the statute was intended to
protect is liable for negligence per se. . . . Proof of a violation of the statute is proof
of negligence.” Parker Building Services Co. v. Lightsey ex rel. Lightsey, 925 So. 2d
927, 931 (Ala. 2005) (citing Thomas Learning Center, Inc. v. McGuirk, 766 So. 2d
161, 171 (Ala. Civ. App. 1998)).
For example, if plaintiff had been driving upon an Alabama highway outside
the boundaries of Redstone Arsenal, on a roadway governed by the “Alabama Rules
of the Road,”68 as opposed to the outbound lanes of Martin Road on land owned and
controlled by the United States Army, the following State statutory provisions would
have governed the operation of her automobile: Ala. Code § 32-5A-31(a) (1975)
(2010 Replacement Vol.) (“The driver of any vehicle shall obey the instructions of
any official traffic-control device applicable thereto placed in accordance with law
. . . .”); id. § 32-5A-34(a)(1) (“When a red lens is illuminated with rapid intermittent
flashes, drivers of vehicles shall stop at a clearly marked stop line . . . .”); id. § 32-5a34(a)(2) (“When a yellow lens is illuminated with rapid intermittent flashes, drivers
of vehicles may proceed through the intersection or past such signal only with
caution.”); id. § 32-5A-171(5) (providing, in relevant part, that it is unlawful for a
68
See Ala. Code §§ 32-5A-1 to 32-5A-195 (1975) (2010 Replacement Vol.).
34
person to operate a vehicle at a speed “greater than 55 miles per hour at any time
unless a different maximum rate of speed is authorized by the Governor under
authority granted in subdivision (6) or as provided in subdivision (7)”) (emphasis
supplied).
The Government’s attorneys did not offer copies of similar Army regulations
governing the operation of motor vehicles on Redstone Arsenal. If they had done so,
and if defense counsel had proved that plaintiff violated any one or more of the
comparable regulatory rules of the road, that would constitute negligence as a matter
of law (or, as it often is called, negligence per se). See Parker Buildings Services,
925 So. 2d at 930-31. See also, e.g., 1 Alabama Pattern Jury Instructions – Civil §
26.21 (Violation of Rule of the Road or Municipal Traffic Ordinance — Negligence
Per Se) (3rd ed. 2016).
Even so, proof that plaintiff was negligent as a matter of law does not absolve
the Government of the obligation to prove that her violation of one or more of the
Army regulatory rules of the road was the proximate cause of her injuries. Cf., e.g.,
Parker Building Services, 925 So. 2d at 931 (holding that it must be proved that the
statutory violation “proximately caused the injury”); Fox v. Bartholf, 374 So. 2d 294,
295 (Ala. 1979) (“The jury [or other finder of the facts] must find the statutory
violation proximately caused the injury.”) (alteration supplied, and citing Cox v.
35
Miller, 361 So. 2d 1044 (Ala. 1978); Vines v. Plantation Motor Lodge, 336 So. 2d
1338 (Ala. 1976); Allman v. Beam, 272 Ala. 110, 130 So. 2d 194 (1961)).69
Accordingly, the following subsections address the issues of whether the
Government proved that: plaintiff ignored the visual and audible warnings of the
impending deployment of the GRAB System’s Barriers, and/or that her automobile
exceeded the posted speed limit of 40 miles per hour when approaching Gate 1; and,
if so, whether such negligence as a matter of law was a proximate cause of her
injuries.
A.
The Effectiveness of the GRAB System’s Visual and Audible Warnings
Colonel Sheehy testified that, when a Gate Guard deployed the GRAB
System’s barriers, an audible alarm and blinking traffic signals were simultaneously
activated for the purpose of alerting motorists to the fact that the barriers stored below
the road surface were about to be raised, and as a warning to stop their vehicles.70
It’s set up to provide the public sufficient audio and visual warning so
that when the system is being activated [motorists] have the opportunity,
if they’re driving under the speed limit, that affords them enough time
69
See also, e.g., 1 Alabama Pattern Jury Instructions — Civil § 26.23 (Contributory
Negligence – Violation of Rule of the Road or Municipal Traffic Ordinance) (3rd ed. 2016); Jenelle
Mims Marsh, Alabama Law of Damages § 30.3, at 687 (6th ed. 2012) (observing that “proof of a
violation of a statute or ordinance regulating the operation of a motor vehicle does not, per se,
impose liability for injuries caused by the vehicle in the absence of proof that the violation
proximately caused the injuries”) (footnote omitted); Note, The Doctrine of Statutory Negligence
in Alabama, 27 Ala. L. Rev. 155, 168-70 (1975).
70
Doc. no. 51 (Transcript – Sheehy), at 43.
36
to slow down and stop before colliding with the barrier.
So the warning lights and the audio alarm initiate . . . immediately
upon the guard’s activation of the button. There’s a delay in the raising
of the barrier that . . . corresponds with the speed limit so that if a
vehicle . . . is too close to stop in time, they will not collide with the
barrier because of the delay, again calculated relative to the speed limit.
There’s also a sensor system so [that] if . . . the vehicle is within
the proximity of that sensor and the barrier — the barrier will not
activate. But if the vehicle is outside of that sensor system, they should
have sufficient time to stop before the barrier is raised.
Doc. no. 51 (Transcript – Sheehy), at 43 (alterations and ellipses supplied).
Kirk Alan Schneider, an employee of a private contractor supporting the work
of the U.S. Army’s Missile Defense Agency on Redstone Arsenal, was driving a
motor vehicle just ahead of plaintiff’s automobile at the time of the events leading to
this suit. He testified that it was a warm Spring day and the windows of his
“Hummer” Sport Utility Vehicle were open. Moreover, as a result of the fact that the
radio in his vehicle “was broken,” he was not “listening to any music” and “could
hear just about anything.”71 Even so, as he was
just about to come to that barrier . . . maybe 10 yards from it, I thought
I noticed out of the corner of my right eye a light change color, a traffic
signal type light changing color. And, at the same time, I thought I
heard coming into the cabin of my vehicle a faint siren or horn type
71
Doc. no. 51 (Transcript – Schneider), at 103 (“I hate air conditioning. I like to just have
my windows open, 10th of May, it was already warm out, but I like the windows open. And my
radio was broken in the Hummer at the time, still is. So I wasn’t listening to any music. So I could
hear just about anything.”).
37
thing.
Well, I had never seen or heard that before. And in an instant, I
processed what that might mean. And I’m thinking, what if that’s a
signal that the barrier’s coming up?
Well, I was so close to the barrier, and at the speed I was going,
there was time to do only one thing, and that was nothing. I had time to
do nothing. So I — I kept the same speed, proceeded across the barrier.
And now in my mind I’m thinking, what if something’s happening?
There’s a car about a car length behind me. So I’m looking
though my rearview mirror.
Now I’m across the barrier, and I see the car that I had overtaken
[i.e., plaintiff’s automobile], but I also saw the barrier had come up. It
had to have been right behind my car, right behind it. A fraction of a
second after I crossed over it, I think is when the barrier must have come
up.
I saw through my rearview mirror, as I’m now slowing down, her
vehicle impact the barrier . . . I think at full speed. . . .
Doc. no. 51 (Transcript – Schneider), at 103–104 (ellipses, emphasis, and alteration
supplied).
Plaintiff’s perception of the visual warning signals was similar to that of Mr.
Schneider: she “saw a flash,” but did not “know what the flash was.”72 “I can’t tell
you if the flash was a light or my airbag. I don’t know. I have no clue.”73
72
Doc. no. 51 (Transcript – Rutherford), at 144.
73
Id. at 146.
38
Plaintiff also had no recollection of hearing an audible warning signal,74 but
that is not altogether surprising in view of the fact that the sound of the warning
signal recorded on the videotape of the incident played in open court was difficult to
discern, even when the volume was turned as high as the play-back device allowed.
The video image also established that the windows of plaintiff’s automobile were
rolled up when she collided with the barrier. And, Mr. Schneider emphasized that,
“[i]f my windows had been closed and/or if my radio was on, I do not think I could
have heard that horn or siren. It’s only because my radio was off and the windows
were open that I heard that horn or siren.”75 He described the volume of the horn or
siren as “faint,”76 and he could “only guess[] what the visual signal and the audible
signal meant. Nobody teaches that stuff out at the Arsenal, what it means. . . . But
even worse, the signaling at the different gates [i.e., the warning signals at Gates 1
and Gate 9] are all different.”77 In sum, “It’s confusing. It’s contradictory. And
we’re not educated on it one way or the other.”78
Based upon the foregoing, uncontradicted evidence, this court concludes that
the Government failed to prove that the visual and audible signals at Gate 1 were
74
Id.
75
Doc. no. 51 (Transcript – Schneider), at 106.
76
Id.
77
Doc. no. 51 (Transcript – Schneider), at 106 (alterations supplied).
78
Id. at 107.
39
effective to provide plaintiff an adequate warning of the GRAB barrier’s impending
deployment. Consequently, the Government did not prove that she was negligent as
a matter of law for ignoring either signal.
B.
The Speed and Braking Distance of Plaintiff’s Automobile
Kirk Schneider also testified that, while driving his vehicle in the “left-hand”
(inside) lane of Martin Road, “pretty close to the speed limit . . . within 2 or 3 miles
per hour” of the posted limit of 40 miles per hour,79 he slowly overtook and passed
plaintiff’s automobile which was traveling in the “right-hand” (outside) lane.80 On
the basis of those facts, Schneider concluded that plaintiff must have been driving at,
or slightly below, the posted speed limit as she approached Gate 1.
Q.
Do you have a judgment as to her speed as you overtook her?
A.
Yes. I would judge it to be 40 miles an hour — 40 miles an hour,
plus or minus 2 miles an hour. Again, I was probably doing 42,
if I had to guess. I slowly overtook her.
Q.
Okay.
A.
So I would say she was probably doing exactly the speed limit.
Q.
You think she was doing probably exactly 40 miles an hour?
79
Id. at 103 (“I was going pretty close to the speed limit, I’m sure, within 2 or 3 miles per
hour, plus or minus.”). See also id. at 102 (“While I’m on base, I like to keep pretty close to the
speed limit. Now, off base I’m not quite so strict. But, you know, I am 24 years post military, and
I was warned you don’t speed on base. So I was going pretty close to the speed limit.”).
80
Id. at 103.
40
A.
Yes.
Doc. no. 51 (Transcript – Schneider), at 105.
Plaintiff testified, however, that she “was going under the speed limit. 40
[miles per hour] or below. I mean, I know not to speed on the Arsenal. I know that.
Everybody knows [that].”81 Plaintiff’s account of her speed is consistent with the
estimate contained in the Military Police report published just five days after the
incident. Their traffic accident investigation concluded, on the basis of a timedistance analysis of a video tape recorded by a camera mounted on one of the uprights
supporting the GRAB System’s barrier, that plaintiff’s vehicle was moving at a speed
of 36.173 miles per hour, nearly four miles per hour below the posted limit, when it
collided with the GRAB System’s barrier.82
81
Doc. no. 51 (Transcript – Rutherford), at 146 (emphasis and alterations supplied); see also
id. at 162-163 (plaintiff reaffirms, on cross examination, her deposition testimony that she was not
exceeding the 40 mile per hour speed limit: “It may have been less.”).
82
Plaintiff’s Ex. 3 (May 15, 2012 Military Police Desk Blotter), at 64; see also id. at 135
(May 15, 2012 email from Col. Michael Sheehy to Col. John S. Hamilton stating that, by means of
a “video review, TAI [Traffic Accident Investigation] calculated the speed on impact at 36 mph, in
a speed limit zone of 40 mph.”) (alteration supplied). A November 7, 2012 email from Army
Civilian Police Captain Robert York to Col. Sheehy explained the calculation process as follows:
Attached are the calculations that were used to determine the velocity (speed) of the
vehicle [driven by Shannon Rutherford]. The calculations are based on the video
from the Grab net system. Officer Ewald took a copy of the video to an employee
of Dynetics Tech Services (NASA contractor) who was able to determine the time
that it took the vehicle to travel from one portion of the concrete pad at the net to the
other side. The time was determined to be .198 seconds. The distance traveled in
this time was 10.5 feet.
The skid marks that were documented began at the point of impact with the [GRAB
41
The Government was not content to rest upon the foregoing evidence of
plaintiff’s speed, however, and retained Joey Keith Parker,83 a registered professional
engineer employed by “3 Axis Engineering” in Tuscaloosa, Alabama.84 Mr. Parker
has testified in state and federal courts in the fields of engineering and accident
reconstruction.85 His written report and testimony asserted the following opinions:
1.
“Ms. Rutherford failed to heed the horn/siren, yellow flashing
lights, and overhead yellow signal lights that activated 4.7
seconds before her vehicle impacted the GRAB system gate.”86
2.
“Ms. Rutherford ran the red light that activated 2.4 seconds
before her vehicle impacted the GRAB system net.”87
3.
“The speed of the Rutherford Toyota was 43 mph as it passed
System] net, not prior to impact.
After I reviewed the video, it appears to me that the vehicle had begun to brake prior
to the impact based on the slightly downward angle of the front end of the vehicle.
The difficulty with this is that we can’t see nor determine the exact actions of the
driver prior to entering the view of the camera. The field of view on the camera is
too narrow to see actions prior to impact.
Id. at 133 (Nov. 7, 2012 email from Army Civilian Police Captain Robert York to Col. Sheehy)
(alterations supplied). A copy of the handwritten calculations upon which Captain York’s
conclusion was based is found in the same Exhibit, at 138. See also doc. no. 51 (Transcript –
Sheehy), at 23 (recalling that he had been notified that “our traffic accident investigator had assessed
that she was driving within the posted speed limit”).
83
Plaintiff had no objection to Parker’s designation as an expert. Doc. no. 51 (Transcript –
Parker), at 192.
84
Id. at 191.
85
Id. at 192.
86
Defendant’s Ex. 3 (Parker Report), at 2.
87
Id. at 4.
42
through the GRAB system.”88
4.
“The Rutherford Toyota would have been 299 feet from contact
with the GRAB gate when the yellow warning lights (and horn)
first activated, 156 feet from contact when the red light first
activated, and 80 feet from contact when the GRAB system gate
first began to raise.”89
5.
“The Rutherford Toyota could have been braked to a stop in a
distance of 77 to 103 feet.”90
The persuasiveness of those opinions is eviscerated by several facts. The first
is that Mr. Parker’s calculations of braking distances did not take into account
principles of human factors engineering — e.g., the temporal interval that elapses
between a normal human’s perception of a visual or audible warning signal, the
cognition of the significance of the warning(s), the mental formulation of an
appropriate response, and the time required to effect the physical response — a
critical expanse of time that, the witness acknowledged, normally consumes 2.5
seconds in an emergency situation.
BY MR. BART SINIARD [one of plaintiff’s attorneys]:
Q.
Exactly. Did you put any analysis into your report regarding
human factors?
A.
I don’t believe there’s any human factors in there.
88
Id. at 5.
89
Id.
90
Id. at 6.
43
Q.
Isn’t that important in determining braking distance?
A.
Braking distance is a mechanical function ability of the vehicle.
THE COURT: Wait a second.
Human factors establish[] that there is a time delay between a
driver observing some stimulus, whether it be someone walking across
the road, or in this case a signal, and then making the mental decision to
brake, and then removing the foot from the accelerator and applying the
brake.
Now, there are standard, generally accepted principles in human
factors engineering for determining the average time delay between
observing a stimulus and actually depressing the brake pedal.
And I don’t see any of that in your analysis.
THE WITNESS: Correct. Yes, sir. I’ve been to several classes
that address issues of human factors and traffic reconstruction.
And the classes that I have been to have what I would call
standard textbook situations. And the closest situation to what we see
here is response to a yellow traffic signal, if you’re driving down the
residential street here in town, and that number has been studied.
What I didn’t do in this case was apply that directly to this case,
because this is not a traffic signal on a residential street. It’s a different
application that, as far as I know, hasn’t been studied.
And, so I can tell you what the sort of rule of thumb numbers are
that people use, but as far as having a number for this specific case, I’m
unaware of anybody who’s done that research.
BY MR. BART SINIARD:
Q.
My research shows common traffic reaction times range
44
anywhere from 1.5 seconds to 3 seconds, depending on how
common the traffic stimulus is. Do you agree with that?
A.
The number that’s used in accident reconstruction for a typical
response is 1-and-a-half seconds.
Q.
And that’s assuming it is a common traffic stimulus; is that true?
A.
I don’t know about the word “common,” but an emergency
situation. The civil engineering people who do traffic design
typically use 2-and-a-half seconds, so that’s close to the range
that you gave.
Doc. no. 51 (Transcript – Parker), at 215-217 (alteration and emphasis supplied).
In addition, and as discussed in the preceding subsection (Part IV.A, supra),
Kirk Schneider testified that the GRAB System’s audible warning was so faint that
it could be heard only if the windows of an automobile were down, and, no music was
playing on the vehicle’s radio. He also testified that the System’s visual signals
activated only when he was about ten yards from the barrier. Plaintiff’s automobile
was only a short distance behind his; and, based upon the sequence of events Mr.
Schneider experienced, he testified that there was not sufficient time for her to stop
before the GRAB System barrier rose from the ground.
THE WITNESS [Kirk Schneider]: So I — I know that the
[plaintiff’s] vehicle was within a car length or two behind me, so that
would let me judge the approximate distance that she was from the
barrier.
I know approximately how fast she was going, about 40 miles an
45
hour.
I know that as I was just about on the [GRAB System’s] barrier
I thought I saw that light change colors, which would put her at the
most, I would say[,] three car lengths from the barrier when that light
would have flashed.
At her speed, even if she would have seen what I saw, and she, I
would say, definitely did not hear what I heard because her windows
were up. And I don’t know if she was listening to a radio or not.
But even if she saw the light change, there’s no way she could
have stopped. She might have been able to, maybe could have slowed
down if she could have seen it, but not enough to make any difference,
I don’t believe.
Doc. no. 51 (Transcript – Schneider), at 108-109 (alterations supplied).
Finally, Mr. Parker admitted that all of his opinions were based upon the
assumption that plaintiff’s automobile was moving at 43 miles per hour prior to its
collision with the GRAB System barrier, and he had not made any calculations based
upon a speed of 40 mph.
Q.
Okay. So, to be clear, you have no opinion that, if Ms.
Rutherford had been going 40 miles an hour, she would have
avoided hitting the barrier?
A.
In the absence of braking, she would have hit the barrier.
Q.
I’m saying even with braking.
A.
With braking, depending on where, maybe, maybe not.
Doc. no. 51 (Transcript – Parker), at 222.
46
C.
Conclusions on the Contributory Negligence Defense
Based upon all of the foregoing considerations, this court finds the testimony
of Kirk Schneider and plaintiff, as corroborated by the Military Police’s
contemporaneous traffic accident investigation,91 to be more credible than that of the
Government’s witness, Joey Keith Parker. Mr. Parker’s testimony and written report
failed to prove to the satisfaction of this court that plaintiff ignored the visual and
audible warning signals of the GRAB barrier’s impending deployment, or that she
was driving her automobile faster than the posted speed limit of 40 miles per hour
when approaching Gate 1. Even if the Government had proved either or both of those
contentions, the Government failed to satisfy this court that such violations of the
Army’s “rules of the road” were the proximate cause of plaintiff’s injuries.
Accordingly, defendant’s contributory negligence defense is rejected.
V. FEDERAL EMPLOYEES’ COMPENSATION ACT
The Government’s final defensive contention is that a substantial question
exists as to whether the Federal Employees’ Compensation Act provides the exclusive
remedy for the injuries sustained by plaintiff, Shannon Rutherford,92 and she should
have been required to file a claim with the Department of Labor’s Office of Workers’
91
See supra note 82 and accompanying text.
92
The Federal Employees’ Compensation Act program is authorized by 5 U.S.C. § 8101 et
seq. Regulations implementing the Act are provided at 20 C.F.R. §§ 10.00-10.826. The program
is administered by the Department of Labor’s Office of Workers’ Compensation Programs.
47
Compensation Programs, and to receive an adjudication of that claim, before
proceeding with suit in this court under the Federal Tort Claims Act.93
The Federal Employees’ Compensation Act of 1916, 5 U.S.C. §§ 8101–8193
(“FECA”), created a workers’ compensation program for federal employees, and
requires the United States to “pay compensation . . . for the disability or death of an
employee resulting from personal injury sustained while in the performance of his [or
her] duty,” unless the injury or death was caused by the employee’s own “willful
misconduct, intent, or intoxication.” 5 U.S.C. § 8102(a) (emphasis and alteration
supplied). A federal employee who suffers an injury while performing her or his
governmental duties is exclusively limited to the remedies provided by that Act. See
5 U.S.C. § 8116(c). Accordingly, the Federal Tort Claims Act may not be used by
civilian employees of the Government as an alternative remedy “for the disability or
death of an employee resulting from personal injury sustained while in the
performance of his [or her] duty.” 5 U.S.C. § 8102(a) (emphasis and alteration
supplied). A claim for FECA benefits must be filed with the Secretary of Labor
(through the Office of Workers’ Compensation Programs). See 5 U.S.C. § 8121; see
also, e.g., Woodruff v. United States Department of Labor, 954 F.2d 634, 637 (11th
93
See doc. no. 49 (Defendant’s Motion for Judgment as a Matter of Law at the Close of
Plaintiff’s Evidence, and, at the Close of All of the Evidence); doc. no. 49-1 (Brief in support of
previous motion); and doc. no. 53 (Defendant’s Post-Trial Brief), at 6.
48
Cir. 1992) (observing that the Secretary of Labor “has delegated responsibility for
FECA management to the Director of the Office of Workers’ Compensation
Programs”).94 A claim for FECA benefits must be filed within three years of the
injury or death, see 5 U.S.C. § 8122(a), although an untimely claim may be allowed
if the employee’s “immediate superior had actual knowledge of the injury or death
within 30 days” of the event giving rise to the claim. 5 U.S.C. § 8122(a). Moreover,
in contrast with the general presumption of judicial review of agency decisions in
modern law, FECA provides that the Secretary of Labor’s determination of FECA
benefits is “final and conclusive” and “not subject to review . . . by a court by
mandamus or otherwise.” 5 U.S.C. § 8128(b) (ellipsis supplied). A substantial
question of coverage under FECA is deemed to exist, unless the court determines “as
a matter of law that, viewing all of the circumstances, the Secretary [of Labor] could
not find FECA coverage of” the injury at issue. Concordia v. United States Postal
Service, 581 F.2d 439, 442-44 (5th Cir. 1978) (alteration supplied);95 see also Noble
v. United States, 216 F.3d 1229, 1235 (11th Cir. 2000) (same).
94
The Office of Workers’ Compensation Programs “has exclusive jurisdiction in the cases
before it to decide all questions arising under the Act, subject to review and final decision by the
[Employees’ Compensation Appeals] Board.” Anneliese Ross, 42 E.C.A.B. 371, 375 (1991)
(alteration and emphasis supplied).
95
The Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit
handed down prior to the close of business on September 30, 1981, in Bonner v. City of Prichard,
661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
49
Despite what has been said above, nothing in the Federal Tort Claims Act
excludes civilian employees of the United States as a category from bringing suit
against the Government for injuries suffered by the negligent or wrongful acts of
other federal employees.96 Instead, the pivotal issue is whether substantial evidence
indicates that the employee’s injury occurred in the performance of her governmental
duties. If not, the employee may proceed without first filing a claim under the Federal
Employees’ Compensation Act. See, e.g., Bailey v. United States, 451 F.2d 963, 965
(5th Cir. 1971) (holding that “if no substantial question of FECA coverage is
presented, the employee may prosecute his tort claim without first applying to the
Secretary of Labor”); see also Avasthi v. United States, 608 F.2d 1059, 1060 (5th Cir.
1979) (“The employee must first seek and be denied relief under FECA unless his
injuries do not present any substantial question of compensability under that act.”)
(emphasis supplied).
As noted at the beginning of this opinion, plaintiff was performing no duties
for her federal employer at the time and place of the events leading to this suit.
Instead, she had obtained permission to be off-work, on “sick leave,” and was driving
in her personal automobile to a private physician’s office off government property.
96
See generally Gregory C. Sisk, Judicial Review of Personal Injury Claims by Federal
Civilian Employees: Navigating Between the Shoals of FECA and the Crest of the FTCA, 51 Tort
Trial & Ins. Prac. L.J. 893, 897 (2016).
50
She was about five miles from her workplace in Building No. 4610 when she collided
with the GRAB System barrier.97 Viewing all of these circumstances, this court
determines as a matter of law that the Secretary of Labor could not conclude that
plaintiff’s injuries were sustained while in the performance of her employment duties.
See, e.g., Noble, 216 F.3d at 1235; Concordia, 581 F.2d at 442-44.
Moreover, this court determined on two occasions prior to trial that the facts
of this case did not present a substantial question of coverage under the Federal
Employees’ Compensation Act.98 No new facts have been discovered, and there have
been no intervening decisions that would lead this court to a different conclusion.
For all of these reasons, as well as those addressed in the orders denying the
Government’s previous motions to dismiss this action based upon the contention that
a substantial question exists as to whether FECA provides the exclusive remedy for
plaintiff’s injuries, this court once again rejects this defense.
VI. DAMAGES
Plaintiff was knocked unconscious by the force of her automobile’s collision
with the GRAB System’s steel-net barrier and the explosive impact of her vehicle’s
97
Doc. no. 51 (Transcript – Rutherford), at 144.
98
See doc. no. 4 (Defendant’s Motion and Brief to Dismiss or, in the Alternative, Motion to
Stay); doc. no. 14 (Memorandum Opinion and Order denying previous motion); doc. no. 21
(Defendant’s Renewed Motion and Brief to Dismiss or, in the Alternative, Motion to Stay); doc. no.
30 (Memorandum Opinion and Order denying renewed motion).
51
airbag. She eventually was awakened by the sound of her auto horn blaring, and by
Kirk Schneider knocking on her window, motioning for her to unlock the door. The
experience was extremely traumatic because, in addition to the pain of her ankle, arm,
shoulder, spinal, and head injuries,99 plaintiff
remembered smoke . . . it smelled like fire or something burning. And
then — and, of course, I thought, you know, this is about to explode.
And I immediately thought I’ve got to save myself for my daughter.
And because I didn’t want to leave her. I didn’t want to leave — I just
didn’t want to leave her behind. And because I just didn’t want to ever
leave my girl behind.
Doc. no. 51 (Transcript – Rutherford), at 144.100 She subsequently was diagnosed as
suffering from, among other things, Post Traumatic Stress Disorder,101 an opinion that
was confirmed by the results of a Minnesota Multiphasic Personality Inventory
assessment.102 She endured the pain of extensive surgery on her left ankle, which
entailed cutting her calf muscle and the ligament on the top of her foot, and breaking
99
See, e.g., doc. no. 51 (Transcript – Rutherford), at 149 (“my head was screaming . . . my
head was exploding”).
100
See also doc. no. 51 (Transcript – Rinn), at 129 (where Dr. Roger C. Rinn, Ph.D. in
Clinical Psychology, testified that plaintiff related to him during the first of six sessions of
psychological counseling that she “thought that the car would explode. And she indicated that she
felt she was going to die. She felt that she would have to leave her daughter as her father had at a
very young age before her. She was, I think, 14 when he passed away. And all these [thoughts] went
through her mind. She was, to say the least, terrified, according to her report.”).
101
Id. at 131.
102
Id. at 130.
52
the ankle bone, shifting it, and screwing it back together,103 as well as numerous,
painful, post-op physical therapy sessions.
Plaintiff no longer can engage in physical activities she enjoyed prior to her
injuries — e.g., walking long distances,104 jogging, marathon running, playing on
several world championship softball teams,105 playing Quarterback for a professional
women’s football team,106 and snow skiing107 — because of the risk and fear of having
to undergo additional, extensive surgery on her left ankle if she should again fracture
her fifth metatarsal.108 Plaintiff’s husband affirmed that she has exhibited “a lot of
depression” since the accident.109
A.
The Parties’ Stipulations
The parties stipulated that plaintiff suffered the following injuries as a
103
See doc. no. 51 (Transcript – Rutherford), at 150-151; Plaintiff’s Ex. 10 (nine photographs
of plaintiff’s left ankle post-surgery).
104
See doc. no. 51 (Transcript – Rutherford), at 157-158.
105
Id. at 155 (“I played on several world championship teams as an adult, not kids, but as an
adult.”).
106
Id. (“I played a quarterback for the Minnesota Vixens, which . . . is a women’s football
team”); Plaintiff’s Ex. 11 (Sports Illustrated magazine article about plaintiff’s role as Quarterback
for the “Minnesota Vixens”).
107
See Plaintiff’s Ex. 12 (photograph of plaintiff on snow skis).
108
See doc. no. 51 (Transcript – Rutherford), at 152 (“I’m not able to run” because, as a result
of fracturing her fifth metatarsal twice since the original surgery, her orthopaedic surgeon told her
“that if I fractured [it] a third time he’s going to have to go back under and rotate the ankle”); id. at
156 (testifying about the mental agony of not being able to play softball with her daughter); id. at 157
(“running is out of the question now”).
109
Doc. no. 51 (Transcript – Robert Rutherford), at 165; see also id. at 166 (plaintiff’s
inability to continue running marathons “has affected her emotionally and mentally”).
53
proximate result of her collision with the GRAB barrier:
a.
ankle/foot injury with resultant surgical fixation performed
by Dr. Matthew DeOrio with ensuing orthotics and
physical therapy;
b.
lumbar spine injury with resultant injection performed by
Dr. Sara Nadella and ensuing physical therapy;
c.
multiple abrasions, contusions, bicipital tendinitis in the
shoulder, and migraine headaches treated by Huntsville
Hospital emergency room doctors, HEMSI personnel, Dr.
Scott Royster, Dr. Harry McDaris, and Dr. John Greco[;]
d.
Plaintiff also suffered emotional and psychological trauma
as a result of the incident which was diagnosed and treated
by Dr. Roger Rinn.
9.
Plaintiff has endured pain and suffering as a result of her injuries.
10.
If Defendant is found liable, Plaintiff is entitled to compensation
for pain and suffering.
11.
Plaintiff has endured mental anguish as a result of her injuries.
12.
If Defendant is found liable, Plaintiff is entitled to compensation
for mental anguish.
Doc. no. 41 (Parties’ Statement of Agreed and Disputed Facts), ¶¶ 8-12, at 5-6
(emphasis supplied).
The parties also stipulated: (a) that the aggregate amount of medical expenses
actually billed by plaintiff’s physicians and other health care providers (an amount
that is strangely referred to in pleadings as the “Retail Amount” of her medical
54
bills110) was $69,650.81;111 (b) that the total amount actually paid by plaintiff’s health
insurers was only $16,043.28 (i.e., the sum of $14,938.77 paid by Blue Cross Blue
Shield of Alabama, and an additional $1,104.51 paid by Blue Cross Blue Shield
Federal);112 (c) that plaintiff’s out of pocket expenses for medical bills was $4,125.19;
and (d) the cost of traveling to-and-from health care providers, physical therapists,
and psychological counseling sessions was $998.58 (i.e., 1,958 miles x 51¢ per
mile).113 The parties also filed the following contentions:
In the event the United States is found liable, Defendant is of the
position [i.e., contends] that, with respect to any award relating to
medical costs, Plaintiff can recover only for medical costs that she paid
out-of-pocket. Defendant asserts that recent Eleventh Circuit case law
clarifies that Plaintiff cannot recover for any amounts written off by
insurers or medical providers. See Bobo v. Tenn. Valley Auth., 855 F.3d
1294, 1311 (11th Cir. 2017) (“[A]mounts that were written off by
providers under contractural agreements with insurers are not amounts
that a plaintiff has paid or is obligated to pay within the meaning of the
Alabama Supreme Court’s decisions.”).
In the event the United States is found liable, Plaintiff is of the
position [i.e., contends] that Plaintiff can recover damages for out-of110
See doc. no. 41 (Parties’ Statement of Agreed and Disputed Facts), at 3 (“Retail Amount
of Total Medical Bills: $69,650,81”); doc. no. 46 (Plaintiff’s Itemization of Damages), at 1 (same).
111
See Plaintiff’s Ex. 21 (Medical Specials of Shannon Rutherford).
112
Consumer Reports has aptly observed that: “The contracted prices that health plans
negotiate with providers in their networks have little or nothing to do with the actual quality of
services provided and everything to do with the relative bargaining power of the providers.”
https://www.consumerreports.org/cro/magazine/2012/07/that-ct-scan-costs-how-much/index.htm
(last visited Dec. 20, 2017).
113
See doc. no. 41 (Parties’ Statement of Agreed and Disputed Facts), at 3; doc. no. 46
(Plaintiff’s Itemization of Damages), at 1.
55
pocket medical costs and amounts paid by her health insurers. Plaintiff
does not contend [that] she is entitled to recover the retail amount of
medical bills.
If Defendant is found liable, Plaintiff is entitled to compensation
for lost wages in the amount of $20,000.00.
Doc. no. 41 (Parties’ Statement of Agreed and Disputed Facts), at 3-4 (alterations
supplied); see also doc. no. 46 (Plaintiff’s Itemization of Damages), at 1 (“Plaintiff
agrees [that] she is not entitled to recover the ‘retail’ amount of medical bills, but
claims she is entitled to recover subrogation amounts and the other expenses outlined
above, which totals: $21,167.05.”) (alteration supplied, boldface in original); id. at
2 (“Lost Wages (Stipulated to by Defendant) $20,000”) (boldface emphasis deleted).
Finally, plaintiff seeks the recovery of $250,000 for mental anguish, and an
additional $250,000 for her physical pain and suffering.
B.
Conclusions on Plaintiff’s Damage Claims
In accordance with the parties’ stipulations, the court finds that plaintiff is
entitled to recover $5,123.77 for out-of-pocket medical and mileage expenses, as well
as $20,000.00 for lost wages.
Plaintiff contends, but the United States denies, that she also is entitled to
recover the amounts actually paid to her physicians and other health care providers
56
by her health insurers.114 Prior to 1987, Alabama law recognized the common-law
collateral source rule, which “meant that a defendant in a personal injury case could
not obtain a reduction in a plaintiff’s damages award based on that plaintiff’s receipt
of medical benefits from a collateral source.” Washington v. United States, 17 F.
Supp. 3d 1154, 1157 (S.D. Ala. 2014). As such, a defendant was barred from
introducing evidence of such benefits. Id. The State Legislature altered that rule in
1987, however, with the enactment of Act No. 87-187, which allowed admission of
evidence of medical payments from a collateral source. See 1987 Acts of Alabama,
No. 87-187, at 258. As codified, the pertinent parts of that Act provide that:
(a) In all civil actions where damages for any medical or hospital
expenses are claimed and are legally recoverable for personal injury or
death, evidence that the plaintiff’s medical or hospital expenses have
been or will be paid or reimbursed shall be admissible as competent
evidence. In such actions upon admission of evidence respecting
reimbursement or payment of medical or hospital expenses, the plaintiff
shall be entitled to introduce evidence of the cost of obtaining
reimbursement or payment of medical or hospital expenses.
****
(c) Upon proof by the plaintiff to the court that the plaintiff is
obligated to repay the medical or hospital expenses which have been or
will be paid or reimbursed, evidence relating to such reimbursement or
payment shall be admissible.
Ala. Code §§ 12-21-45(a), (c) (1975) (2012 Replacement Vol.).
114
Id. at 3-4.
57
The Southern District of Alabama concluded that the foregoing statute altered
the traditional collateral source rule, and held that “evidence of collateral-source
payments is now properly admissible, but . . . it is left to the fact finder’s discretion
to determine whether and, if so, to what extent to reduce a plaintiff’s recovery by the
amount of such payments, in light of all the surrounding facts and circumstances.”
Washington, 17 F. Supp. 3d at 1158. The Alabama Supreme Court also has said that
the statute’s silence on its effect upon the law of damages
can be viewed as a virtue, not a vice, because it leaves to the courts their
historical function of determining the limits of recoverable damages,
through an evolving common law. This statutory silence gives both a
plaintiff and a defendant latitude to explore various arguments about
windfalls. A defendant may desire to argue that reimbursement of the
plaintiff for medical expenses already paid by an insurer is a double
recovery. On the other hand, a plaintiff may wish to argue that the
defendant reaps a windfall unless additional damages are awarded,
beyond the mere expense of the insurance or other collateral-source
benefits, so as to compensate the plaintiff for having the discipline and
foresight to devote money or earning power to paying the expense of
acquiring the insurance or other collateral-source benefits rather than
paying for some immediate gratification.
Marsh v. Green, 782 So. 2d 223, 233 n.2 (Ala. 2000).
Here, the parties stipulated to the amount that plaintiff’s health insurers paid
for her medical treatment, but there is no evidence of the amount, if any, that plaintiff
may be responsible for reimbursing those insurers in the event of her recovery in this
action. Accordingly, this court is unable to determine whether plaintiff should
58
recover the amounts paid by her two insurers.
VII. CONCLUSION
Upon consideration of the pleadings, evidence, stipulations, briefs, and
arguments of counsel, it is CONSIDERED, ORDERED, and ADJUDGED that
judgement be, and the same hereby is, entered in favor of plaintiff, Shannon
Rutherford, and against defendant, United States of America, for the negligence of
defendant’s Gate Security Guard, James Jones, which was the proximate cause of
plaintiff’s injuries and damages; and that plaintiff have and recover $4,125.19 in outof-pocket medical expenses, $998.58 in reimbursement for milage, $20,000 in lost
wages, and $250,000 for mental anguish, pain, and suffering, for a total judgment in
the sum or amount of Two Hundred Seventy-Five Thousand, One Hundred Twenty
Three and 77/100ths Dollars ($275,123.77), together with the costs of this action, for
all of which let execution issue.
DONE and ORDERED this 21st day of December, 2017.
______________________________
United States District Judge
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