Demello et al v. United States of America et al

Filing 44

ORDER signed by Judge Benjamin H. Settle granting in part and denying in part 31 Motion to Dismiss.(TG)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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JAIME DEMELLO, et al.,
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CASE NO. C16-5741 BHS

Plaintiffs,
v.
UNITED STATES OF AMERICA, et
al.,

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ORDER GRANTING IN PART
AND DENYING IN PART
DEFENDANT’S 12(B)(1) MOTION
TO DISMISS

Defendants.

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This matter comes before the Court on the motion to dismiss of Defendant United

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States of America (“Government”). Dkt. 31. Plaintiffs oppose the motion. Dkt. 37. The

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Court has considered the pleadings filed in support of and in opposition to the motion and

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the remainder of the file and hereby grants in part and denies in part the motion for the

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reasons stated herein.

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I.

BACKGROUND

This case involves a shooting on Joint Base Lewis-McChord (“JBLM”) which
resulted in the death of a child, Alexander Demello.
The area of JBLM at issue is marked by a chain-link fence that stands “at the end

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of Woodbrook Drive SW just beyond 150th St SW, in Lakewood, WA.” Dkt. 29 at 3–4.

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The fence separates a wooded area of undeveloped JBLM property from the adjacent

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civilian residential area (“Woodbrook neighborhood”). Id. Just beyond the fence there is

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a trail through the undeveloped wooded area of JBLM that Woodbrook neighborhood

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residents frequently used as a dog-walking trail and park. Id. at 4–5. It was widely known

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that the area was also frequented by teenage children. Id. There has been a “6-foot by 3-

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foot hole” in the fence since 2007. Id. Defendant Adonis Brown (“Brown”) had

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frequently used the hole in the fence to access the trail on JBLM property. Id. at 6.

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On October 20, 2015, 14-year-old A.D. and his 13-year-old brother, Alexander

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Demello, followed their 17-year-old friend, Brown, onto the undeveloped wooded area of

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JBLM property. The Demellos and Brown were residents of the Woodbrook

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neighborhood and “had no knowledge that the wooded property adjacent to their

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neighborhood belonged to JBLM or that it was Government Property.” Id. While the

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boys were walking the trail through the undeveloped wooded area of JBLM property,

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Brown “found a gun under some brush.” Id. at 6–7. Brown accidently fired the gun,

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striking Alexander Demello “in the face just below his right eye.” Id. On October 25,

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2015, Alexander Demello died at Mary Bridge Children’s Hospital in Tacoma,

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Washington. Id. at 7.

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On August 26, 2016, Plaintiffs Jaime Demello, the Estate of Alexander Demello,

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Michael Demello, and minor children A.D. and O.D. (collectively “Plaintiffs”), filed their

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original complaint against the Government, Adonis Brown (“Brown”), and several

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unnamed others. Dkt. 1. Plaintiffs asserted claims for common-law negligence, premise

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liability, wrongful death, and negligent infliction of emotional distress. Specifically,

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Plaintiffs alleged that the Government’s failure to secure the perimeter separating the

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base from a civilian neighborhood, despite safety complaints and knowledge of criminal

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activity in the area, breached a duty owed to Alexander Demello and proximately caused

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his death and the other injuries alleged. See id.

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On June 1, 2017, the Government moved to dismiss the original complaint. Dkt.

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17. On August 9, 2017, the Court granted the motion to dismiss. Dkt. 27. Specifically, the

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Court found that the factual allegations in the original complaint focused exclusively on

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the Government’s decision not to maintain the base’s perimeter fence and that the

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Government’s decision was the exercise of a discretionary function. Id. Accordingly, the

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Court lacked jurisdiction to consider such a claim under the Federal Tort Claims Act

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(“FTCA”). However, the Court also found that Plaintiffs, while they had failed to

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adequately allege a claim based on a failure to warn of known hazards, had nonetheless

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sufficiently referenced such a claim as to warrant leave to file an amended complaint. Id.

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On October 4, 2017, Plaintiffs filed their second amended complaint. Dkt. 28. The

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second amended complaint alleges that the Government knew of frequent criminal

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activity taking place in the area where Alexander Demello was shot and nonetheless

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failed to remedy or warn of known dangers inherent to such an area of frequent criminal

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conduct, such as the presence of weapons or other dangerous criminal paraphernalia. Id.

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8–9. The second amended complaint also renewed Plaintiffs’ allegations that the

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Government is liable for its decision not to repair the hole in the perimeter fence or

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maintain adequate security patrols. Id.

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On November 16, 2017, the Government moved to dismiss the second amended
complaint for lack of jurisdiction on the same theory as before. Dkt. 31. On December 5,

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2017, Plaintiffs responded. Dkt. 37. On December 11, 2017, the Government replied.

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Dkt. 40.

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II. DISCUSSION
A.

Standard
The Government moves to dismiss for lack of subject matter jurisdiction. Motions

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to dismiss brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure may

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challenge jurisdiction factually by “disputing the truth of the allegations that, by

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themselves, would otherwise invoke federal jurisdiction,” or facially by “asserting that

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allegations in the complaint are insufficient on their face to invoke federal jurisdiction.”

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Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For facial

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challenges, a plaintiff’s allegations are assumed as true and the complaint is construed in

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his favor. Id. In a factual attacks under Rule 12(b)(1), courts “need not presume the

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truthfulness of the plaintiffs’ allegations.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir.

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2000). Instead, a factual attack under Rule 12(b)(1) allows district courts to look beyond

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“the face of the pleadings, [and] review any evidence, such as affidavits and testimony, to

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resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United

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States, 850 F.2d 558, 560 (9th Cir. 1988).

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Federal courts are presumed to lack jurisdiction and on a motion to dismiss

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pursuant to Rule 12(b)(1) the burden of proof is on the plaintiff to establish subject matter

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jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F. 2d 1221, 1225 (9th Cir.

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1989). To meet this burden in an action against the Government, a plaintiff “must point to

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an unequivocal waiver of sovereign immunity.” Blue v. Windall, 162 F.3d 541, 544 (9th

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Cir. 1998) (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).

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B.

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Discretionary Function Exception
Plaintiffs bring claims against the Government pursuant to the Federal Tort Claims

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Act (“FTCA”). The FTCA is a limited waiver of sovereign immunity that allows claims

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to be brought against the Government for “the negligent or wrongful act or omission of

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any employee of the government while acting within the scope of his office or

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employment.” 28 U.S.C. § 2675(a). Congress has designated numerous exceptions to the

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FTCA’s waiver of sovereign immunity by exempting the Government from liability for

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certain types of claims. See 28 U.S.C. § 2680. These statutory exceptions must be

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construed strictly in favor of the Government. U.S. v. Nordic Village, 503 U.S. 30, 34

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(1992) (citing McMahon v. U.S., 342 U.S. 25, 27 (1951) (“statutes which waive immunity

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of the Government from suit are to be construed strictly in favor of the sovereign.”);

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F.D.I.C. v. Craft, 157 F.3d 697, 707 (9th Cir. 1998) (“the FTCA’s waiver of sovereign

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immunity is strictly construed in favor of the sovereign.”). Therefore, a claim that “falls

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within an exception of the FTCA . . . must be dismissed for lack of subject matter

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jurisdiction.” Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942 (9th Cir. 2003).

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The “discretionary function” exception prohibits suit against the Government for

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“any claim based upon . . . the exercise or performance or the failure to exercise or

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perform a discretionary duty on the part of a federal agency or an employee of the

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Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). It is

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the Government’s burden to show that the discretionary function exception applies.

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Whisnant v. U.S., 400 F.3d 1177, 1181 (2005) (citing Bear Medicine v. U.S. ex rel. Sec’y

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of the Dep’t of the Interior, 241 F.3d 1208, 1213 (9th Cir. 2001)).

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“The Supreme Court has established a two-part test for determining the

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applicability of the discretionary function exception.” Bibeau, 339 F.2d at 945. See U.S.

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v. Gaubert, 499 U.S. 315, 322–23 (1991); Berkovitz by Berkovitz v. U.S., 486 U.S. 531,

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536 (1988). First, the challenged conduct must “be the product of judgment or choice” on

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the part of the acting employee. Berkovitz, 486 U.S. at 536. Therefore, “the discretionary

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function exception will not apply when a federal statute, regulation, or policy specifically

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prescribes a course of action for the employee to follow.” Id. at 356. When an employee

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acts under such a mandatory directive, their conduct cannot be the product of judgment or

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choice because they have “no rightful option but to adhere to the directive.” Id. at 537.

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Second, that judgment or choice must be “based on public policy considerations.” Id. at

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537. “The purpose of the [discretionary function] exception is ‘to prevent judicial second-

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guessing of legislative and administrative decisions grounded in social, economic, and

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political policy through the medium of an action in tort.’” ARA Leisure Servs. v. United

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States, 831 F.2d 193, 194 (9th Cir. 1987) (quoting U.S. v. Varig Airlines, 467 U.S. 797,

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814 (1984)). The applicability of the discretionary function exception depends “not on

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the agent’s subjective intent in exercising [his discretion], but on the nature of the actions

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taken and on whether they are susceptible to policy analysis.” Gaubert 499 U.S. at 325.

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Plaintiffs have alleged that the area where Alexander Demello was shot and killed

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is a wooded area on the base “commonly used recreationally by the public” for its trails,

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where teenaged children were known to play frequently. Dkt. 29 at 5. Plaintiffs have also

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alleged that the Government failed to adequately warn Alexander Demello of the known

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risks associated with the area or introduce adequate safety measures. Id. at 8–9. The

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Ninth Circuit has previously noted that the discretionary function exception is not

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implicated where a military base fails as a landowner in its duty under state law to make

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safe its property for invitees by warning them of known dangers. United States v. White,

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211 F.2d 79, 82 (9th Cir. 1954). As noted by the Tenth Circuit, citing the Ninth Circuit’s

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decision in White, “the Government’s decision, as a landowner, not to warn of the known

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dangers or to provide safeguards cannot rationally be deemed the exercise of a

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discretionary function.” Smith v. United States, 546 F.2d 872, 877 (10th Cir. 1976).

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The D.C. Circuit’s decision in Cope v. Scott, 45 F.3d 445, 452 (D.C. Cir. 1995),

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further informs the Court’s analysis of scenarios premised on the government’s failure to

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warn of known hazards on its property. In that case, the D.C. Circuit held that, while the

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discretionary function exception applied to the Government’s decisions involving the

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maintenance of a road, it did not apply to the Government’s failure to adequately warn of

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known dangers on that road. Cope, 45 F.3d at 452. Similarly, the Court has already ruled

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that the Government’s decisions not to maintain or repair the base’s perimeter fence or

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patrol the subject area falls within the ambit of the discretionary function exception.

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Accordingly, to the extent that Plaintiffs renew such claims, they are again dismissed.

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Dkt. 29 at 7–8.

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However, this does not mean that the Government was performing a discretionary

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function when it allegedly failed to inform Alexander Demello of known dangers. To

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show that a failure to warn is covered by the discretionary function exception, the

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Government must show that the alleged failure to warn was itself a conscious decision

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involving the exercise of social, economic, or political policy. See Cope, 45 F.3d at 452

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(comparing Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir. 1987) with Boyd v.

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United States, 881 F.2d 895, 896 (10th Cir. 1989)). The Government has failed to

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establish that its alleged failure to warn those who used the trails in the wooded area of

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known dangers was the result of a discretionary function. The regulations cited by the

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Government regarding base security do not contain any policy considerations implicating

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the use of signage or some other means to warn of known latent dangers in an area used

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frequently by the public. The Government’s present motion to dismiss for lack of

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jurisdiction must be denied as to Plaintiffs’ claims premised on a failure to warn.

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Notably, it seems Plaintiffs will have a difficult hurdle to overcome in showing

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that Alexander Demello was not a trespasser and that he suffered injury from a known

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artificial latent danger, let alone a foreseeable one. See Dkt. 29 at 9 (citing RCW

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4.24.210(4)). It is questionable whether such a danger has even been alleged. See Dkt. 27

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at 9 (“Such allegations on their own cannot support a plausible theory that the

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Government should have known that contraband, such as a firearm, might be found along

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the trail and that the Government is therefore liable for failing to prevent Alexander

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Demello’s injury.”). But the Court will not sua sponte address these issues when the

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parties have yet to raise them.

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III. ORDER
Therefore, it is hereby ORDERED that the Government’s motion to dismiss (Dkt.
31) is GRANTED in part and DENIED in part. To the extent Plaintiffs allege that the

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Government is liable for failing to repair JBLM’s perimeter fence or practice adequate

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security measures, such claims are DISMISSED. Otherwise, the Court has jurisdiction to

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consider Plaintiffs’ claims that the Government was negligent in failing to warn

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Alexander Demello of known dangers.

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Dated this 31st day of January, 2018.

A

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BENJAMIN H. SETTLE
United States District Judge

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