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NELSON v. UNITED STATES

April 29, 1986

LINDA M. NELSON, individually and as parent and next friend of TRACEY R. NELSON, a minor, Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: GREEN

JOYCE HENS GREEN, United States District Judge.

 MEMORANDUM OPINION

 Linda M. Nelson brought this suit individually and on behalf of Tracey R. Nelson, her minor daughter, now twelve years old, seeking to recover damages under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2671, for injuries Tracey sustained as a result of a dog attack that occurred at Bolling Air Force Base on April 13, 1983. Based on the evidence adduced at a two-day bench trial, and for the reasons set forth below, the Court finds that plaintiffs are entitled to a judgment against defendant.

 I.

 At the time of the incident in dispute, Tracey's father, Ricky O. Nelson, was enlisted in the Navy and was temporarily stationed in Japan. He was assigned residential living quarters on Bolling Air Force Base, in Washington, D.C., where his wife, Linda, and two children, Tracey, aged nine, and Philip, aged thirteen, resided. Housing on the base is maintained by the Air Force, and is subject to a variety of rules and regulations. See Bolling Air Force Base Housing Brochure, DX A. Among these is Air Force Regulation 163-4/Base Supplement 1 ("AFR 163-4"), which sets out a series of conditions governing the rights of residents to keep pets on the base.

 On April 13, 1983, Tracey and a five-year old friend, Jessica, walked from the Nelson residence to a nearby playground, passing by the backyard of Air Force Sergeant Clyde B. Casey on their way. Sergeant Casey was stationed at the base and had been assigned living quarters there in 1971. Tr. 195. After playing for a short while, Tracey walked over to Sergeant Casey's house and stood by his backyard fence. Robert Casey, Sergeant Casey's eighteen-year old son, had just finished mowing the lawn and was trimming the yard with an electric weedeater. Tracey testified that she wished to ask him a question about a tennis ball her brother Philip had thrown into the Casey backyard several days before. As she approached the fence, which stood approximately four feet high, she saw the Casey's German shepherd, Rocky, circle around the yard and go into his doghouse. Although she testified that she did not see the Casey's two "Beware of Dog" signs, she was familiar with the dog, stating that it barked at everyone who walked by the yard. She did not call out to Robert Casey but waited until he saw her. While she was waiting, the dog crept up to the fence without attracting her attention, jumped up on its hind legs and bit her in the face. Tr. 123, 239.

 Robert Casey did not notice Tracey until after the dog bit her, when he heard "a noise or a voice." Tr. 239. According to Tracey, Robert unplugged the weedeater, placed it in an outside closet and called the dog. At this point, the dog let go of her, turned, and followed Robert into the house. Robert then closed the back door and pulled the curtains shut. Tr. 157. Robert testified that he turned off the weedeater and ran to the house to tell his mother to call the police and an ambulance, and that the dog followed him to the door. He denied pulling the curtains shut or taking the dog inside with him. Tr. 239-41. A neighbor of the Casey's first attended to Tracey, and she was brought home by the mother of her playmate, Jessica, after her friend had run for help. Linda Nelson called for an ambulance and Tracey was taken to Malcolm Grow Air Force Hospital at Andrews Air Force Base, where she was operated on. She sustained severe and extensive lacerations around her mouth and left eye and remained in the hospital for a week, suffering from general swelling of the face and what she and her mother described as "nerve pain." Id. at 56, 125.

 Scar tissue subsequently formed around her upper and lower lips and left eye. Dr. Clyde Litton, a plastic surgeon who examined Tracey shortly after the attack, testified that she needed reparative surgery both for esthetic purposes and to improve the drainage in her left tear duct and the functioning of her lips. He further stated that Tracey has developed esotropia -- that is, that she is cross-eyed -- as a result of the injuries to her left eye, and that an opthamologist will have to perform surgery to repair the damage to her eye muscles. Id. at 38-42. Tracey testified that she must wear corrective glasses and suffers from double-vision and headaches. Id. at 125. Dr. Litton stated that in his opinion Tracey's injuries will require four reconstructive or reparative procedures; two other plastic surgeons who examined her believed three such procedures are necessary. Id. at 53-54. Plaintiff also introduced evidence of Tracey's pain and suffering in the weeks following the attack, id. at 27-29; and certain emotional problems and fears she has developed as a result of the incident itself and her disfigurement. PX 10-13.

 Much of the testimony at trial concerned the dog's disposition and its alleged propensity to bite children, as well as whether Tracey had previously provoked or taunted the animal. A narrow fire lane ran between the Casey's residence and the adjacent dwelling, and was used by neighborhood children to reach a school bus stop and the playground where Tracey and her friend had been playing. Sergeant Casey's wife, Rosa, and Robert Casey testified that neighborhood children frequently taunted their dog, shouting and throwing rocks at it, and kicking the fence as they passed by. Tr. 253, 398-99. They claimed that Tracey was one of the chief offenders. Id. at 234. Tracey, on the other hand, denied teasing the dog. She stated that another girl in the neighborhood named Stacey, who looked just like her, taunted Rocky on a daily basis. Tr. 144-45. Another witness, Andrew Folts, confirmed that a girl named Stacey Lau bore a strong resemblance to Tracey, although he denied that Stacey teased the dog. Id. at 322-23. Folts and another witness, Ellen Kittle, described the dog as "vicious" and ill-tempered, and stated that it barked at passersby for no reason whatever. Id. at 318-22, 326-27, 346. A third witness, however, testified that the dog only growled at the children if they shouted at him. Id. at 393.

 Plaintiffs also introduced evidence that the dog had previously bitten or scratched children. Base records indicate that Rocky bit eight-year old Brian Kittle on the nose on March 29, 1981, PXs 19, 20, and lacerated nine-year old Joseph Powell on August 27, 1981, PX 21. The reports characterized both attacks as provoked, although written comments to the reports fail to specify what form the provocation took, stating only that Powell was attacked while standing by the fence and that Kittle had wandered into Casey's yard. Id.1 After each incident the dog was ordered quarantined for ten days at the Casey's home. AFR 163-4 provides that where an animal bites a person, base security police must fill out incident reports and send a copy to the base commander or the owner. PX 56 at 1. If the first incident is "particularly vicious," or if a second incident occurs, the regulation requires the removal of the pet from the base at the end of a ten-day quarantine period. Id. at 2. Owners normally receive a letter of warning after the first incident. Id. The Caseys received no warnings after the Kittle and Powell incidents, nor were they required to remove Rocky after the second incident. *fn2"

 II.

 Plaintiff advances two theories of liability: (1) that Sergeant Casey, acting within the scope of his employment, failed to exercise proper control over the dog; or (2) that the base commander negligently permitted a dangerous pet to remain in a residential area on the base, in violation of governing Air Force regulations. The Court addresses each of these contentions in turn.

 The Federal Tort Claims Act waives the government's sovereign immunity with respect to injuries caused by an employee of the government acting within the scope of his office or employment. 28 U.S.C. § 1346(e). Where the employee is a member of the military, the scope of employment "means acting in the line of duty." 28 U.S.C. § 2671. "Line of duty" is in turn defined by the applicable state law of respondeat superior. Williams v. United States, 350 U.S. 857, 100 L. Ed. 761, 76 S. Ct. 100 (1955). Under District of Columbia law, which controls this case, an act is not within the scope of employment if done solely for the employee's purposes; rather, the tort complained of must occur at least in part as a result of a desire to serve the employer. District of Columbia v. Davis, 386 A.2d 1195, 1203 (D.C.App. 1978).

 Defendant contends that Sergeant Casey's decision to keep a German shepherd as a pet *fn3" was not within the scope of his employment, and therefore cannot serve as a predicate for liability under the Federal Tort Claims Act. A similar argument was advanced and rejected, however, in Lutz v. United States, 685 F.2d 1178 (9th Cir. 1982). There, the Ninth Circuit reasoned that base regulations, which required pet owners to exercise control over their animals, essentially delegated partial responsibility for ensuring the health and safety of base residents to such owners. Military housing, the Court noted, is a unique situation in which the employment relationship of base residents continues even during off-duty, at-home hours. Id. at 1182. Base regulations, enforced through the threat of military discipline, impose certain duties on base residents which, while not common to civilian life, are characteristic of military activity and discipline. The performance of such duties, the Court concluded, is properly included within the scope of the resident's employment. Thus, just as in Craft v. United States, 542 F.2d 1250 (5th Cir. 1976), where the ...


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