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BOYER v. CHALOUX
July 23, 1968
Thomas A. BOYER and Donald Boyer, Plaintiffs,
Alcide L. CHALOUX and the United States of America, Defendants. Ralph HUDSON, Indiv. and as Parent and Natural Guardian of Virginia L. Hudson, an Infant, Plaintiffs, v. Alcide L. CHALOUX and the United States of America, Defendants
The opinion of the court was delivered by: TIMBERS
Defendants Alcide L. Chaloux and the United States having moved, pursuant to Rule 12(b)(6), Fed.R.Civ.P., to dismiss the actions
for failure to state a claim upon which relief can be granted, and the United States also having moved, pursuant to Rule 12(b)(1), Fed.R.Civ.P., to dismiss the actions as to said defendant for lack of jurisdiction over the subject matter; and
The Court having heard arguments of counsel at Syracuse on May 13, 1968, having considered the pleadings, motions, affidavits, exhibits, briefs and all papers filed herein, and being of the opinion that the said motions to dismiss pursuant to Rule 12(b)(6) and Rule 12(b)(1) should be denied, except that, to the extent hereinafter indicated, the motion of the United States to dismiss pursuant to Rule 12(b)(6), construed as a motion for partial summary judgment pursuant to Rule 56, Fed.R.Civ.P., should be granted, for the reasons that
(1) Plaintiffs Thomas A. Boyer, Donald Boyer and Ralph Hudson are New York citizens; defendant Alcide L. Chaloux is a New Hampshire citizen.
(2) Jurisdiction against defendant Chaloux is founded upon diversity of citizenship, 28 U.S.C. § 1332(a)(1); and jurisdiction against the United States is founded upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 1402, 2674.
(3) The complaints allege in substance that on June 30, 1966, at 10 P.M., near the intersection of Route 3, a public highway in Jefferson County near Natural Bridge, New York, with Sand Hill Cemetery Road, a military road leading from the Camp Drum Military Reservation, a passenger vehicle owned by plaintiff Donald Boyer, operated by his son, plaintiff Thomas A. Boyer, and in which plaintiff Ralph Hudson's 18 year old daughter, Virginia L. Hudson, was a passenger, collided with a truck and water trailer owned by the United States and operated with the consent of the United States by Chaloux, a member of the Vermont National Guard who was acting within the scope of his duties as a national guardsman in delivering water from one point to another on the military reservation, although on the public highway at the time of the accident.
(4) The complaints allege negligence on the part of Chaloux in the operation of the truck and water trailer; and on the part of the United States in maintaining the intersection of Sand Hill Cemetery Road and Route 3 as a hidden intersection in a dangerous condition, in failing to equip the truck and water trailer with adequate side lights and reflectors, and under the doctrine of respondeat superior for the negligence of Chaloux in the operation of the truck and trailer.
(5) Plaintiff Thomas A. Boyer seeks $1,000,000 damages for personal injuries; plaintiff Donald Boyer seeks $100,000 medical expenses, loss of services and property damage; and plaintiff Ralph Hudson seeks $75,000 damages for personal injuries to his daughter, Virginia, together with $15,000 medical expenses and loss of services. All plaintiffs seek recovery against both defendants jointly and severally.
(6) In support of their motions to dismiss, the United States urges that Chaloux, a member of the Vermont National Guard, was not in the employ of the United States and therefore was not covered by the waiver of sovereign immunity provided in the Federal Tort Claims Act; Chaloux urges that a compact between the States of Vermont and New York confers upon him, as a member of the Vermont National Guard acting within the scope of his duties in New York, immunity from suit, and further that the instant actions in effect are suits against the State of Vermont and as such are prohibited by the Eleventh Amendment.
(7) On the instant motions to dismiss for failure to state a claim upon which relief can be granted, well-pleaded allegations of the complaints must be accepted as true; and, if under any construction of the complaints a cause of action is stated, the motions must be denied.
(8) Liability against the United States upon the doctrine of respondeat superior for the alleged negligence of Chaloux in the operation of the truck and water trailer cannot be predicated upon his status as a member of the Vermont National Guard, not in federal service, for he was not an employee of the United States within the meaning of the Federal Tort Claims Act. Maryland ex rel. Levin v. United States, 381 U.S. 41, 14 L. Ed. 2d 205, 85 S. Ct. 1293 (1965); cf. Bruce v. United States, Civil No. 65-CV-217, N.D.N.Y., April 14, 1966 (Brennan, D.J.). Plaintiffs do not contend to the contrary.
(9) Nor may liability be imposed upon the United States by the waiver of immunity provision of the Federal Tort Claims Act, 28 U.S.C. § 2674, read in conjunction with N.Y. Vehicle and Traffic Law, McKinney's Consol. Laws, c. 71, § 388, i.e. liability upon the United States as owner of the truck and water trailer for acts of Chaloux as the operator, since 28 U.S.C. § 2674 must be read in conjunction with 28 U.S.C. § 1346(b), under which the United States shall be liable for the negligence of "any employee of the Government." Maryland ex rel. Levin v. United States, supra; Tomack v. United States, 369 F.2d 350 (2 Cir. 1966); Gilkey v. United States, 213 F. Supp. 387 (W.D.Ark.1963); Mandelbaum v. United States, 251 F.2d 748 (2 Cir. 1958); United States v. Eleazer, 177 F.2d 914, 918 (4 Cir. 1949); Mackay v. United States, 88 F. Supp. 696 (D.Conn.1949). Chaloux was not an "employee of the Government."
(10) A fair reading of the complaints, however, does support plaintiffs' claims against the United States under the Federal Tort Claims Act based on alleged negligence of government employees other than Chaloux with respect to maintenance of the tractor and water trailer and maintenance of the intersection of Sand Hill Cemetery Road and Route 3.
(11) The United States is entitled to partial summary judgment in its favor to the extent that the complaints seek recovery against the United States based on alleged negligent acts of Chaloux;
but to the extent that the complaints seek recovery against the United States based on alleged negligent acts of government employees other than Chaloux in the maintenance ...
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