United States District Court, District of Columbia
January 30, 2002
BRENDA PERKINS, PLAINTIFF,
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Facciola, United States Magistrate Judge.
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.
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).
Person, appearing through Corporation Counsel, now moves pursuant to
Federal Rules of Civil Procedure 12(b)(6)
and 56 to dismiss or for
summary judgment on the theory that Person was acting within the scope of
his employment for the District of Columbia at the time of the accident.
D.C. Code § 2-415 (2001), captioned "Actions against District
employees for negligent operation of vehicles barred; indemnification of
medical employees; disciplinary actions," states the following:
. . . 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
D.C. Code Ann. § 2-415 (2001). Person argues that his dismissal from
the case is proper because plaintiff's amended complaint acknowledges
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
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 estoppel did not know nor should
have known that its adversary's conduct was misleading."
Id. at 59 (citations omitted). Accord: Graham v.SEC, 222 F.3d 994
(D.C. Cir. 2000); Moore v. Blue Cross and Blue Shield of the Nat'l
Capital Area and Capital Care, Inc., 70 F. Supp.2d 9, 26-28 (D.D.C
1999); Chubb Integrated Sys., Inc., v. Nat'l Bank of Washington,
658 F. Supp. 1043, 1050(D.D.C. 1987).
Significantly, the Supreme Court added the following footnote to
its decision in Heckler:
"`The truth concerning these material facts must be
unknown to the other party claiming the benefit of the
estoppel, not only at the time of the conduct which
amounts to a representation or concealment, but also
at the time when that conduct is acted upon by him.
If, at the time when he acted, such party had
knowledge of the truth, or had the means by which with
reasonable diligence he could acquire the knowledge so
that it would be negligence on his part to remain
ignorant by not using those means, he cannot claim to
have been misled by relying upon the representation or
Heckler v. Cmty. Health Servs., 467 U.S. at 59 n. 10 (quoting 3 J.
Pomeroy, Equity Jurisprudence § 810 at 219 (S. Symons ed.
In an attempt to rely on these principles, plaintiff argues that Person
should be estopped from claiming that he is an employee of the District
of Columbia. First, plaintiff argues that his current assertion
"directly contradicts the clear implication left by his statements at the
time of the accident (as set out in his accident report) that he was a
GSA or U.S. Government employee." Plaintiff's Response in Opposition to
Motion of Defendant Wayne Aaron Person to Dismiss or for Summary
Judgment ("Plains. Opp.") at 3. However, plaintiff fails to show that
Person made any representations, let alone any misrepresentations
whatsoever about his employer. Person reported truthfully on the
accident report that the vehicle he was driving was owned by GSA.
Although plaintiff contends that "it may never be clear why defendant
Person did not make it clear that he was not a GSA employee," plaintiff
does not provide any proof that Person affirmatively stated or even
suggested that he was a GSA employee. According to the "Government of the
District of Columbia Department of Public Works Bureau of Motor Vehicle
Services" accident report, Person lists the vehicle owner as "GSA US
Government." Plains. Opp. at Plaintiff's Exhibit A. Person in no way
provided false or misleading information on the accident report. The
report merely required that the vehicle owner be identified. The vehicle
owner was in fact GSA.
Second, plaintiff argues that "it was reasonable for her to act on the
basis of defendant Person's representations as to his employer." Plains.
Opp. at 3. Again, however, there is no proof that Person actually made
any statements about his employer. Person merely indicated on the
accident report that the vehicle in question was owned by GSA. In
allowing for the possibility that plaintiff's belief about
Person was reasonable, it was plaintiff's obligation to verify that
Person did in fact work for GSA. This she failed to do.
Third, plaintiff claims that she "relied to her detriment on defendant
Person's statement that he was a GSA employee in that, rather than giving
the required Notice to the District of Columbia within 6 months of the
accident, she made a Federal Tort Claims Act claim and began negotiations
with the U.S. Government to settle her claim." Plains. Opp. at 3. But,
once again, Person never represented to anyone that he was employed by
the GSA. Any negotiations plaintiff may have had with the US Government
are completely irrelevant to the issue of whether or not Person's conduct
reasonably induced reliance on a set of facts which were not true. That
the U.S. was as confused as plaintiff as to Person's employee status is
irrelevant to her claim of estoppel which has to be based on what Person
did or said and not what the U.S. said or did.
Having thus concluded that plaintiff may not sue defendant Person under
D.C. Code, § 2-415 (2001) and having further concluded that the
doctrine of estoppel does not apply in this instance, defendant Person's
motion will be granted. An Order accompanies this Memorandum Opinion.