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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1 2 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 4 5 JAIME DEMELLO, et al., 6 7 8 CASE NO. C16-5741 BHS Plaintiffs, v. UNITED STATES OF AMERICA, et al., 9 ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S 12(B)(1) MOTION TO DISMISS Defendants. 10 11 This matter comes before the Court on the motion to dismiss of Defendant United 12 States of America (“Government”). Dkt. 31. Plaintiffs oppose the motion. Dkt. 37. The 13 Court has considered the pleadings filed in support of and in opposition to the motion and 14 the remainder of the file and hereby grants in part and denies in part the motion for the 15 reasons stated herein. 16 17 18 19 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 20 of Woodbrook Drive SW just beyond 150th St SW, in Lakewood, WA.” Dkt. 29 at 3–4. 21 The fence separates a wooded area of undeveloped JBLM property from the adjacent 22 civilian residential area (“Woodbrook neighborhood”). Id. Just beyond the fence there is ORDER - 1 1 a trail through the undeveloped wooded area of JBLM that Woodbrook neighborhood 2 residents frequently used as a dog-walking trail and park. Id. at 4–5. It was widely known 3 that the area was also frequented by teenage children. Id. There has been a “6-foot by 3- 4 foot hole” in the fence since 2007. Id. Defendant Adonis Brown (“Brown”) had 5 frequently used the hole in the fence to access the trail on JBLM property. Id. at 6. 6 On October 20, 2015, 14-year-old A.D. and his 13-year-old brother, Alexander 7 Demello, followed their 17-year-old friend, Brown, onto the undeveloped wooded area of 8 JBLM property. The Demellos and Brown were residents of the Woodbrook 9 neighborhood and “had no knowledge that the wooded property adjacent to their 10 neighborhood belonged to JBLM or that it was Government Property.” Id. While the 11 boys were walking the trail through the undeveloped wooded area of JBLM property, 12 Brown “found a gun under some brush.” Id. at 6–7. Brown accidently fired the gun, 13 striking Alexander Demello “in the face just below his right eye.” Id. On October 25, 14 2015, Alexander Demello died at Mary Bridge Children’s Hospital in Tacoma, 15 Washington. Id. at 7. 16 On August 26, 2016, Plaintiffs Jaime Demello, the Estate of Alexander Demello, 17 Michael Demello, and minor children A.D. and O.D. (collectively “Plaintiffs”), filed their 18 original complaint against the Government, Adonis Brown (“Brown”), and several 19 unnamed others. Dkt. 1. Plaintiffs asserted claims for common-law negligence, premise 20 liability, wrongful death, and negligent infliction of emotional distress. Specifically, 21 Plaintiffs alleged that the Government’s failure to secure the perimeter separating the 22 base from a civilian neighborhood, despite safety complaints and knowledge of criminal ORDER - 2 1 activity in the area, breached a duty owed to Alexander Demello and proximately caused 2 his death and the other injuries alleged. See id. 3 On June 1, 2017, the Government moved to dismiss the original complaint. Dkt. 4 17. On August 9, 2017, the Court granted the motion to dismiss. Dkt. 27. Specifically, the 5 Court found that the factual allegations in the original complaint focused exclusively on 6 the Government’s decision not to maintain the base’s perimeter fence and that the 7 Government’s decision was the exercise of a discretionary function. Id. Accordingly, the 8 Court lacked jurisdiction to consider such a claim under the Federal Tort Claims Act 9 (“FTCA”). However, the Court also found that Plaintiffs, while they had failed to 10 adequately allege a claim based on a failure to warn of known hazards, had nonetheless 11 sufficiently referenced such a claim as to warrant leave to file an amended complaint. Id. 12 On October 4, 2017, Plaintiffs filed their second amended complaint. Dkt. 28. The 13 second amended complaint alleges that the Government knew of frequent criminal 14 activity taking place in the area where Alexander Demello was shot and nonetheless 15 failed to remedy or warn of known dangers inherent to such an area of frequent criminal 16 conduct, such as the presence of weapons or other dangerous criminal paraphernalia. Id. 17 8–9. The second amended complaint also renewed Plaintiffs’ allegations that the 18 Government is liable for its decision not to repair the hole in the perimeter fence or 19 maintain adequate security patrols. Id. 20 21 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, 22 ORDER - 3 1 2017, Plaintiffs responded. Dkt. 37. On December 11, 2017, the Government replied. 2 Dkt. 40. 3 4 5 II. DISCUSSION A. Standard The Government moves to dismiss for lack of subject matter jurisdiction. Motions 6 to dismiss brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure may 7 challenge jurisdiction factually by “disputing the truth of the allegations that, by 8 themselves, would otherwise invoke federal jurisdiction,” or facially by “asserting that 9 allegations in the complaint are insufficient on their face to invoke federal jurisdiction.” 10 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For facial 11 challenges, a plaintiff’s allegations are assumed as true and the complaint is construed in 12 his favor. Id. In a factual attacks under Rule 12(b)(1), courts “need not presume the 13 truthfulness of the plaintiffs’ allegations.” White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 14 2000). Instead, a factual attack under Rule 12(b)(1) allows district courts to look beyond 15 “the face of the pleadings, [and] review any evidence, such as affidavits and testimony, to 16 resolve factual disputes concerning the existence of jurisdiction.” McCarthy v. United 17 States, 850 F.2d 558, 560 (9th Cir. 1988). 18 Federal courts are presumed to lack jurisdiction and on a motion to dismiss 19 pursuant to Rule 12(b)(1) the burden of proof is on the plaintiff to establish subject matter 20 jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F. 2d 1221, 1225 (9th Cir. 21 1989). To meet this burden in an action against the Government, a plaintiff “must point to 22 ORDER - 4 1 an unequivocal waiver of sovereign immunity.” Blue v. Windall, 162 F.3d 541, 544 (9th 2 Cir. 1998) (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)). 3 B. 4 Discretionary Function Exception Plaintiffs bring claims against the Government pursuant to the Federal Tort Claims 5 Act (“FTCA”). The FTCA is a limited waiver of sovereign immunity that allows claims 6 to be brought against the Government for “the negligent or wrongful act or omission of 7 any employee of the government while acting within the scope of his office or 8 employment.” 28 U.S.C. § 2675(a). Congress has designated numerous exceptions to the 9 FTCA’s waiver of sovereign immunity by exempting the Government from liability for 10 certain types of claims. See 28 U.S.C. § 2680. These statutory exceptions must be 11 construed strictly in favor of the Government. U.S. v. Nordic Village, 503 U.S. 30, 34 12 (1992) (citing McMahon v. U.S., 342 U.S. 25, 27 (1951) (“statutes which waive immunity 13 of the Government from suit are to be construed strictly in favor of the sovereign.”); 14 F.D.I.C. v. Craft, 157 F.3d 697, 707 (9th Cir. 1998) (“the FTCA’s waiver of sovereign 15 immunity is strictly construed in favor of the sovereign.”). Therefore, a claim that “falls 16 within an exception of the FTCA . . . must be dismissed for lack of subject matter 17 jurisdiction.” Bibeau v. Pac. Nw. Research Found., Inc., 339 F.3d 942 (9th Cir. 2003). 18 The “discretionary function” exception prohibits suit against the Government for 19 “any claim based upon . . . the exercise or performance or the failure to exercise or 20 perform a discretionary duty on the part of a federal agency or an employee of the 21 Government, whether or not the discretion involved be abused.” 28 U.S.C. § 2680(a). It is 22 the Government’s burden to show that the discretionary function exception applies. ORDER - 5 1 Whisnant v. U.S., 400 F.3d 1177, 1181 (2005) (citing Bear Medicine v. U.S. ex rel. Sec’y 2 of the Dep’t of the Interior, 241 F.3d 1208, 1213 (9th Cir. 2001)). 3 “The Supreme Court has established a two-part test for determining the 4 applicability of the discretionary function exception.” Bibeau, 339 F.2d at 945. See U.S. 5 v. Gaubert, 499 U.S. 315, 322–23 (1991); Berkovitz by Berkovitz v. U.S., 486 U.S. 531, 6 536 (1988). First, the challenged conduct must “be the product of judgment or choice” on 7 the part of the acting employee. Berkovitz, 486 U.S. at 536. Therefore, “the discretionary 8 function exception will not apply when a federal statute, regulation, or policy specifically 9 prescribes a course of action for the employee to follow.” Id. at 356. When an employee 10 acts under such a mandatory directive, their conduct cannot be the product of judgment or 11 choice because they have “no rightful option but to adhere to the directive.” Id. at 537. 12 Second, that judgment or choice must be “based on public policy considerations.” Id. at 13 537. “The purpose of the [discretionary function] exception is ‘to prevent judicial second- 14 guessing of legislative and administrative decisions grounded in social, economic, and 15 political policy through the medium of an action in tort.’” ARA Leisure Servs. v. United 16 States, 831 F.2d 193, 194 (9th Cir. 1987) (quoting U.S. v. Varig Airlines, 467 U.S. 797, 17 814 (1984)). The applicability of the discretionary function exception depends “not on 18 the agent’s subjective intent in exercising [his discretion], but on the nature of the actions 19 taken and on whether they are susceptible to policy analysis.” Gaubert 499 U.S. at 325. 20 Plaintiffs have alleged that the area where Alexander Demello was shot and killed 21 is a wooded area on the base “commonly used recreationally by the public” for its trails, 22 where teenaged children were known to play frequently. Dkt. 29 at 5. Plaintiffs have also ORDER - 6 1 alleged that the Government failed to adequately warn Alexander Demello of the known 2 risks associated with the area or introduce adequate safety measures. Id. at 8–9. The 3 Ninth Circuit has previously noted that the discretionary function exception is not 4 implicated where a military base fails as a landowner in its duty under state law to make 5 safe its property for invitees by warning them of known dangers. United States v. White, 6 211 F.2d 79, 82 (9th Cir. 1954). As noted by the Tenth Circuit, citing the Ninth Circuit’s 7 decision in White, “the Government’s decision, as a landowner, not to warn of the known 8 dangers or to provide safeguards cannot rationally be deemed the exercise of a 9 discretionary function.” Smith v. United States, 546 F.2d 872, 877 (10th Cir. 1976). 10 The D.C. Circuit’s decision in Cope v. Scott, 45 F.3d 445, 452 (D.C. Cir. 1995), 11 further informs the Court’s analysis of scenarios premised on the government’s failure to 12 warn of known hazards on its property. In that case, the D.C. Circuit held that, while the 13 discretionary function exception applied to the Government’s decisions involving the 14 maintenance of a road, it did not apply to the Government’s failure to adequately warn of 15 known dangers on that road. Cope, 45 F.3d at 452. Similarly, the Court has already ruled 16 that the Government’s decisions not to maintain or repair the base’s perimeter fence or 17 patrol the subject area falls within the ambit of the discretionary function exception. 18 Accordingly, to the extent that Plaintiffs renew such claims, they are again dismissed. 19 Dkt. 29 at 7–8. 20 However, this does not mean that the Government was performing a discretionary 21 function when it allegedly failed to inform Alexander Demello of known dangers. To 22 show that a failure to warn is covered by the discretionary function exception, the ORDER - 7 1 Government must show that the alleged failure to warn was itself a conscious decision 2 involving the exercise of social, economic, or political policy. See Cope, 45 F.3d at 452 3 (comparing Bowman v. United States, 820 F.2d 1393, 1395 (4th Cir. 1987) with Boyd v. 4 United States, 881 F.2d 895, 896 (10th Cir. 1989)). The Government has failed to 5 establish that its alleged failure to warn those who used the trails in the wooded area of 6 known dangers was the result of a discretionary function. The regulations cited by the 7 Government regarding base security do not contain any policy considerations implicating 8 the use of signage or some other means to warn of known latent dangers in an area used 9 frequently by the public. The Government’s present motion to dismiss for lack of 10 jurisdiction must be denied as to Plaintiffs’ claims premised on a failure to warn. 11 Notably, it seems Plaintiffs will have a difficult hurdle to overcome in showing 12 that Alexander Demello was not a trespasser and that he suffered injury from a known 13 artificial latent danger, let alone a foreseeable one. See Dkt. 29 at 9 (citing RCW 14 4.24.210(4)). It is questionable whether such a danger has even been alleged. See Dkt. 27 15 at 9 (“Such allegations on their own cannot support a plausible theory that the 16 Government should have known that contraband, such as a firearm, might be found along 17 the trail and that the Government is therefore liable for failing to prevent Alexander 18 Demello’s injury.”). But the Court will not sua sponte address these issues when the 19 parties have yet to raise them. 20 21 22 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 ORDER - 8 1 Government is liable for failing to repair JBLM’s perimeter fence or practice adequate 2 security measures, such claims are DISMISSED. Otherwise, the Court has jurisdiction to 3 consider Plaintiffs’ claims that the Government was negligent in failing to warn 4 Alexander Demello of known dangers. 5 Dated this 31st day of January, 2018. A 6 7 BENJAMIN H. SETTLE United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 9

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