Carroll v. United States of America

Filing 59

ORDER denying 32 Motion to Dismiss. Signed by Honorable Timothy D. DeGiusti on 1/3/2017. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
DIANA CARROLL, as Special
Administrator of the Estate of
Rodney James Carroll, deceased,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. CIV-15-674-D

ORDER
This matter comes before the Court on the government’s Motion to Dismiss
[Doc. No. 32], to which Plaintiff has filed her response in opposition [Doc. No.
36], and the government has replied [Doc. No. 39]. The matter is fully briefed and
at issue.
BACKGROUND
While traveling westbound on U.S. Highway I-44 in icy conditions, Mr.
Rodney Carroll and his wife, the plaintiff, witnessed the vehicle ahead of them
(driven by Laronna Gibbons) spin out of control and come to a stop, partially
blocking the highway. Mr. Carroll pulled over on the shoulder and attempted to
assist Ms. Gibbons. During this time, Mr. Laughter Smith, who was also traveling
westbound on I-44, approached the scene while driving a school bus from
Riverside Indian School, a Native American boarding facility in Anadarko,

Oklahoma. Upon observing Ms. Gibbons’ vehicle stalled in the road, Mr. Smith
swerved in an attempt to avoid it; however, he clipped the vehicle’s front bumper,
causing it to spin. While in rotation, the vehicle struck and killed Mr. Carroll. At
the time of the accident, it was nighttime and there were no lampposts or
streetlights on the highway, and Mr. Smith did not see Mr. Carroll.
Pursuant to the Federal Tort Claims Act (FTCA or the Act), 28 U.S.C. §
2671 et seq., Plaintiff assigned to her attorney the authority to present a Claim for
Damage, Injury or Death (Government Tort Claim Act Form SF-95) to the
Department of Interior, Bureau of Indian Affairs [Doc. No. 36-55]. In the “Basis of
Claim” box, Plaintiff stated “An employee of Riverside Indian School, while in the
course and scope of his employment negligently drove a school bus causing it to
collide with Rodney James Carroll causing his death.” The government did not
respond within six months and the claim was deemed denied.1
The SF-95 form identified the “Estate of Rodney James Carroll c/o Diana
Carroll, Special Administrator” as the claimant. In the “Amount of Claim” section,
the form provided a box for each type of damage: property damage, personal
injury, and wrongful death. Ten million dollars ($10,000,000) was claimed in the
“wrongful death” box. No claim was made for either “property damage” or
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Under the FTCA, a claim is considered “denied” when there has been a formal
denial or the agency fails to make a final disposition within six months.
Barnes v. United States, 776 F.3d 1134, 1139 (10th Cir. 2015) (citing 28 U.S.C. §
2675(a)).
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“personal injury.” Damages listed on the continuation page of the SF-95 included
(1) the loss of financial support of contributions of money to Plaintiff; (2)
Plaintiff’s grief; (3) Plaintiff’s loss of the society, services, companionship, and
marriage relationship; (4) the grief of Mr. Carroll’s children; (5) loss of
companionship and parental care, training, guidance, or education that would have
come from Mr. Carroll; (6) Mr. Carroll’s pain and suffering; (7) medical and burial
expenses; and (8) loss of income to Mr. Carroll’s estate.
Upon the denial of her claim, Plaintiff filed suit. The government moves to
dismiss and seek summary judgment as to Plaintiff’s claims on the grounds that (1)
her negligence claim fails as a matter of law; and (2) Plaintiff failed to exhaust
administrative remedies as to her wrongful death claim, and thus, the Court lacks
subject matter jurisdiction as to that cause of action. Alternatively, the government
moves for summary judgment on Plaintiff’s claims.
STANDARD
Plaintiff bears the burden of establishing that her FTCA claim is within the
court’s subject matter jurisdiction. McBride v. CITGO Petroleum Corp., 281 F.3d
1099, 1106 (10th Cir. 2002) (“[B]ecause failure to exhaust administrative remedies
is a bar to subject matter jurisdiction, the burden is on the plaintiff as the party
seeking federal jurisdiction to show, by competent evidence, that she did
exhaust.”). A motion to dismiss for lack of subject matter jurisdiction generally
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attacks the complaint’s allegations in one of two ways: a facial attack or a factual
attack. Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995) (citation
omitted). A facial attack questions the sufficiency of the complaint’s allegations,
and a factual attack questions the facts used to support the complaint’s allegations.
Id. at 1002-03. Here, the government makes a factual attack in that it challenges
the facts in support of Plaintiff’s Complaint. When reviewing a factual attack on
subject matter jurisdiction, the Court may not presume the truthfulness of the
Complaint and has wide discretion to reference evidence outside the pleadings
without converting the motion to a motion for summary judgment. Id. at 1003.
When addressing a motion for summary judgment, the Court views both the
undisputed facts and all reasonable inferences therefrom in the light most favorable
to Plaintiff. Deherrera v. Decker Truck Line, Inc., 820 F.3d 1147, 1159 (10th Cir.
2016). Summary judgment is appropriate if the government shows there is no
genuine dispute as to any material fact and it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). As movant, the government bears the initial burden of
making a prima facie showing of the absence of a genuine issue of material fact
and entitlement to judgment as a matter of law. Fox v. Transam Leasing, Inc., 839
F.3d 1209, 1218 (10th Cir. 2016) (citing Savant Homes, Inc. v. Collins, 809 F.3d
1133, 1137 (10th Cir. 2016)). Where, as here, the government does not bear the

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burden of persuasion at trial, it may satisfy its burden by pointing out a lack of
evidence on an essential element of Plaintiff’s claim. Id.
Upon meeting this burden, the burden then shifts to Plaintiff to set forth
specific facts from which a rational trier of fact could find in her favor. Fox, 839
F.3d at 1219. To satisfy this burden, Plaintiff must identify facts by reference to
affidavits, deposition transcripts, or specific exhibits incorporated therein. Id.
These facts must, at a minimum, establish an inference of the presence of each
element essential to the case. Id.
DISCUSSION
I
Since subject matter jurisdiction is a primary concern of the federal courts,
the Court will address it first. Farmer v. Banco Popular of North America, 791
F.3d 1246, 1254 (10th Cir. 2015) (noting that subject matter jurisdiction is a
“threshold inquiry”). The FTCA is a limited waiver of sovereign immunity making
the federal government liable to the same extent as a private party for certain torts
of federal employees acting in the scope of their employment. United States v.
Orleans, 425 U.S. 807, 813 (1976). “[A]s a prerequisite to suit under the [FTCA,]
... the claim [must] first be presented to the appropriate federal agency and be
finally denied by the agency. This requirement is jurisdictional and cannot be
waived.” Koch v. Potter, 177 F.App’x 785, 786 n. 1 (10th Cir. 2006) (unpublished)
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(quoting Three-M Enters., Inc. v. United States, 548 F.2d 293, 294 (10th Cir. 1977)
(emphasis in original)).
In order to provide adequate notice to the appropriate agency under the
FTCA, a claimant must file “(1) a written statement sufficiently describing the
injury to enable the agency to begin its own investigation, and (2) a sum certain
damages claim.” Bradley v. United States ex rel. Veterans Admin., 951 F.2d 268,
270 (10th Cir. 1991); see also Estate of Trentadue ex rel. Aguilar v. United States,
397 F.3d 840, 852 (10th Cir. 2005). The burden is on the claimant to provide
sufficient information regarding the nature and merits of her claim as to liability.
Keene Corp. v. United States, 700 F.2d 836, 842 (2d Cir.), cert. denied, 464 U.S.
864 (1983). Although filing a SF-95 is the usual method of giving notice, no
particular method is required. Cook v. U.S. on Behalf of U.S. Dep’t of Labor, 978
F.2d 164, 166 (5th Cir. 1992). The notice requirement is meant to inform the
agency of the circumstances of the incident so it can investigate and respond either
by settlement or defense. Borgren v. United States, 723 F.Supp. 581, 582 (D. Kan.
1989).
The government contends Plaintiff failed to properly give notice of her
wrongful death claim. Specifically, the government alleges Plaintiff’s SF-95
commingles a survival and wrongful death action, in that although it provides a
sum certain under the “wrongful death” category, Plaintiff seeks recovery for
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damages that are recoverable only under survivorship claims. The government also
cites to correspondence submitted by Plaintiff’s attorney which references
submission of the claim on behalf of the estate. Accordingly, the government
submits Plaintiff has failed to exhaust administrative remedies for a wrongful death
claim. See Mot. at 14-15.
In Frantz v. United States, 791 F.Supp. 445 (D. Del. 1992), plaintiffs filed a
wrongful death action under the FTCA. The government argued that plaintiffs
failed to comply with the notice requirements, thereby depriving the district court
of jurisdiction. In examining whether the plaintiffs filed a proper claim, the district
court explained:
If multiple claimants exist, each claimant must individually satisfy the
jurisdictional prerequisite of filing a proper claim, unless another is
legally entitled to assert such a claim on their behalf. ... If multiple
claims are asserted on a single claim form, the form must give
“constructive notice” sufficient to warrant investigation of each claim.
... Mere reference to a related cause of action, based upon the same
facts, will be insufficient when it fails to provide the Government
notice of the nature and amount of the claim.
Id. at 447-48 (citations omitted). Therefore, the question presented here is whether
Plaintiff provided sufficient notice to support each of the claims she now asserts.
“Because plaintiff bears the burden of establishing that a proper administrative
claim has been filed, and because wrongful death and survivorship claims are
separate and distinct causes of action, plaintiff must show that it gave specific
notice of the claimants and the nature of the injury as to both causes of action, or
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face dismissal for lack of jurisdiction.” Barrett v. United States, 845 F.Supp. 774,
783 (D. Kan. 1994) (citing Frantz, 791 F.Supp. at 450-51).
Under Oklahoma law, wrongful death and survivorship actions are separate
and distinct. See 12 OKLA. STAT. §§ 1051-1053; Kimberly v. DeWitt, 1980 OK CIV
APP 2, ¶ 7, 606 P.2d 612, 615; compare Berry of City of Muskogee, Okla., 900
F.2d 1489, 1504-05 (10th Cir. 1990) (“Wrongful death statutes create new causes
of action in the most technical sense simply because such actions were unknown at
common law and the decedent’s survivors did not have a cause of action for the
decedent’s personal injuries while he lived. ... The substantive right, however, is
that of the decedent.”) (citations omitted). Oklahoma’s wrongful death statute, 12
OKLA. STAT. § 1053, provides:
When the death of one is caused by the wrongful act or omission of
another, the personal representative of the former may maintain an
action therefor against the latter, or his or her personal representative
if he or she is also deceased, if the former might have maintained an
action, had he or she lived, against the latter, or his or her
representative, for an injury for the same act or omission.
Id. § 1053(A). The damages recoverable in wrongful death actions include (1)
medical and burial expenses; (2) loss of consortium and grief of the surviving
spouse; (3) mental pain and anguish suffered by the decedent; (3) pecuniary loss to
the survivors; and (4) grief and loss of companionship of the children and parents
of the decedent. See 12 OKLA. STAT. § 1053(B).

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The Court finds that the administrative claim filed by Plaintiff in this case
adequately provided sufficient information to enable the government to conduct a
full investigation of the incident which resulted in Plaintiff’s claim. Plaintiff’s SF95 alleged negligence on Mr. Smith’s part and sought recovery of $10 million
under the “wrongful death” category. With the exception of loss of income to Mr.
Carroll’s estate, each category of damages identified in the SF-95 are recoverable
under § 1053(B). Moreover, the SF-95 identified Plaintiff as special administrator
for Mr. Carroll’s estate. Based on the foregoing facts, the Court finds the
government had adequate notice of Plaintiff’s intent to pursue a wrongful death
action and the Court has subject matter jurisdiction over said claim.2
II
Next, the government contends Plaintiff’s negligence claim fails as a matter
of law in that there was no cognizable duty owed by Mr. Smith to Carroll at the
time of the accident since he did not, and could not, observe Mr. Carroll on the
highway. Mot. at 8-9. “Under Oklahoma law, all negligence claims require proof
of a duty, a breach of that duty, and causation.” Martinez v. Angel Exploration,
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The government also contends Plaintiff “clearly” failed to exhaust administrative
remedies for a survivorship claim and asks the Court to exclude such damages in
the event it exercises jurisdiction over the wrongful death claim. Mot. at 15, n. 5.
The Court declines to consider this issue as the government has not provided the
proper factual and legal foundation to support its contention. Hill v. Kemp, 478
F.3d 1236, 1255 n. 21 (10th Cir. 2007) (issues raised in a perfunctory manner will
not be considered); Hardeman v. City of Albuquerque, 377 F.3d 1106, 1122 (10th
Cir. 2004) (issue raised only in footnote before trial court deemed waived).
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LLC, 798 F.3d 968, 974 (10th Cir. 2015) (citing Scott v. Archon Group, L.P., 2008
OK 45, ¶ 17, 191 P.3d 1207, 1211). “The existence of a duty – a legal obligation to
a third person – is a threshold question of law.” Id. “[W]hether or not a duty exists
depends on the relationship between the parties and the general risks involved in
the common undertaking. ... The court decides whether a defendant stands in such
a relationship to a plaintiff that the defendant owes an obligation of reasonable
conduct for the benefit of the plaintiff.” Delbrel v. Doenges Bros. Ford, Inc., 1996
OK 36, ¶ 7, 913 P.2d 1318, 1320-21 (citation omitted). “The most important
consideration in establishing duty is foreseeability.” Id. The general rule under
Oklahoma law is that a defendant owes a duty of care to all persons who are
foreseeably endangered by his conduct with respect to all risks which make the
conduct unreasonably dangerous. Trinity Baptist Church v. Brotherhood Mut. Ins.
Services, LLC, 2014 OK 106, ¶ 8, 341 P.3d 75, 84. “Foreseeability as an element
of duty establishes a ‘zone of risk’, that is, whether the conduct ‘creates a
generalized and foreseeable risk of harming others.’ ” Id. at 84 (citations omitted).
“Concerning duty of care, a driver of a motor vehicle must, at all times, use
that degree of care which is reasonable and prudent under the circumstances. ...
Therefore, a failure to exercise that degree of care which results in injury to
another is actionable negligence.” Dirickson v. Mings, 1996 OK 2, ¶ 7, 910 P.2d
1015, 1018 (citing Agee v. Gant, 1966 OK 31, 412 P.2d 155); see also Fargo v.
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Hays-Kuehn, 2015 OK 56, ¶ 13, 352 P.3d 1223, 1227 (“In applying [the elements
of negligence] to automobile negligence cases, we have long recognized that
drivers have a duty to operate their vehicle with due care. To fulfill this duty, a
driver must do what a prudent person would do under the circumstances of each
particular case.”) (citations omitted).
The Court finds that under the facts presented here (the icy conditions, the
presence of a car stalled in the middle of the highway, the time of day), there
existed a clear duty owed by Mr. Smith to pedestrians on the road (whether seen or
unseen) to operate the bus in a reasonable and prudent manner. Moreover, the
likely presence of a pedestrian near a disabled vehicle, under the circumstances
here, raises genuine issues regarding foreseeability. Whether Mr. Smith’s actions
actually met the standard of care, however, is exclusively a question for the jury
unless reasonable minds could not differ under the facts presented. Fargo, 352
P.3d at 1228. To that end, the Court finds that it cannot, on the current record,
make a determination as a matter of law whether Mr. Smith’s actions were
reasonable and prudent, and thus the question surrounding Mr. Smith’s alleged
negligence is one that rests with the jury. Genuine issues of material fact exist in
this case which preclude the entry of summary judgment. Accordingly, the
government’s motion on this issue is denied.

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CONCLUSION
Defendant’s Motion to Dismiss or in the Alternative Motion for Summary
Judgment [Doc. No. 32] is DENIED as set forth herein.
IT IS SO ORDERED this 3rd day of January, 2017.

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