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PERKINS v. U.S.
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).
. . . 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).
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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