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PERKINS v. U.S.

January 30, 2002

BRENDA PERKINS, PLAINTIFF,
V.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Facciola, United States Magistrate Judge.

MEMORANDUM OPINION

Currently pending and ready for resolution is the Motion of Defendant Wayne Aaron Person to Dismiss or for Summary Judgment ("Defs. Mot."). For the reasons set forth below, defendant's motion will be granted.

Introduction

Plaintiff, Brenda Perkins ("Perkins"), claims that while driving her car on the grounds of St. Elizabeth's Hospital on April 4, 1997, she was hit by a vehicle driven by defendant Wayne Aaron Person ("Person"). On June 28, 1999, plaintiff sued the United States ("U.S.") and the General Services Administration ("GSA"). On January 5, 2001, the complaint was amended to include the District of Columbia ("D.C."), and Person individually. On January 19, 2001, I denied the federal defendants' (U.S. and GSA) motion to dismiss or in the alternative for summary judgment. My decision was based in large part on my determination that the federal defendants had not sufficiently argued why the tension between two particular cases that speak to the issue of a lessor's liability*fn1 should be resolved in their favor. Additionally, I was not persuaded in any significant way that the federal regulation that governs accidents involving GSA fleet vehicles (41 C.F.R. § 101-39.405(a) (2000)) negates liability under the Federal Tort Claims Act. 28 U.S.C.A. § 2671 (1994).

I did, however, grant D.C.'s motion to dismiss or for summary judgment, after concluding that there was no issue of genuine material fact that plaintiff never gave sufficient notice under D.C. Code Ann. § 12-309 (2001).

Discussion

. . . no civil action or proceeding shall be brought or be maintained against any employee of the District for loss of or damage to property or for personal injury, including death, resulting from the operation by such employee of any vehicle if it be alleged in the complaint or developed in a later stage of the proceeding that the employee was acting within the scope of his office or employment, unless the District shall, in an action brought against it for such damage or injury, including death, specifically deny liability on the ground that the employee was not, at the time and place alleged, acting within the scope of his office or employment. If in any such civil action or proceeding pending in a court in the District of Columbia . . . the District has not been named as a defendant, said District shall be joined as a defendant and after its answer has been filed and subject to the provisions of the preceding sentence, the action shall be dismissed as to the employee and the case shall proceed as if the District had been a party defendant from the inception thereof.

D.C. Code Ann. § 2-415 (2001). Person argues that his dismissal from the case is proper because plaintiff's amended complaint acknowledges that:

Person was, at the time in the employ of either the GSA/U.S. or D.C. The vehicle he was operating was apparently owned by GSA/U.S. and leased to D.C. Defendant Person was then and there operating the above government vehicle in the course of his employee and with the permission of both the U.S. and D.C. and presumptively as an agent and/or borrowed servant respectively of those government agencies.

First Amended Complaint ("Amend. Comp.") at 2.

Hence, plaintiff may not sue an employee of the District of Columbia for damages arising out of an automobile accident when that employee was acting within the scope of his employment. There is no genuine issue of material fact that defendant Person was an employee of the District of Columbia and acting within the scope of his employment. According to the affidavit submitted by defendant Person, he admits to being an employee of the District of Columbia at the time of the accident. Affidavit of Wayne Aaron Person, Defs. Mot. at Exhibit 1. He further states that he was acting within the scope of his employment at the time of the accident. Id. In addition, according to the declaration of Ora Shackelford ("Shackelford"), Personnel Management Specialist with GSA, Person did not work for the GSA.*fn2 Declaration of Ora Shackelford, Defs. Mot. at Exhibit 2. Plaintiff offers no countervailing affidavit and her failure requires that summary judgment be granted. Fed.R.Civ.P. 56(e). See Thompson v. Evening Star Newspaper Co., 394 F.2d 774, 777 (D.C. Cir), cert denied., 393 U.S. 884 (1968).
Plaintiff argues, however, that the principle of "equitable estoppel" requires that an individual who, by his or her conduct, has induced reliance on a set of facts which are not true, be estopped from asserting the truth as a defense. In Heckler v. Cmty. Health Servs., 467 U.S. 51 (1984), the Supreme Court stated that a claim of estoppel might prevail where:
1) "one person makes a definite misrepresentation of fact to another person having reason to believe that the other will rely upon it, 2) "the party claiming the estoppel must have relied on its adversary's conduct `in such a manner as to change his position for the worse,' and [3)] that reliance [was] reasonable in that the party claiming that ...

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