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January 9, 1978

GLORIA BLESY, an Infant, by WERNER BLESY, her father and natural guardian, and WERNER BLESY, Individually, Plaintiffs

The opinion of the court was delivered by: CURTIN

This case was brought under the Federal Tort Claims Act to recover damages arising out of a two-car collision in Hamburg, New York, between the plaintiff and defendant Eugene Flynn, a serviceman. The defendant United States moved for summary judgment on the issue of its liability, claiming that Flynn was not acting within the scope of his employment at the time of the accident. The parties agreed to a bifurcated trial, with this issue to be determined in advance of a trial on the questions of Flynn's negligence and damages. On July 28, 1976, a trial was held, at which the Government called Colonel Chester Bobinski to testify as a witness on its behalf. The trial record consists of Col. Bobinski's testimony, and the affidavits and exhibits submitted by the parties on the motion. The court has carefully considered the record, and finds that the plaintiff has prevailed.

 Because the law of respondeat superior requires a careful analysis of the circumstances surrounding an accident, the facts in this case merit close attention. In October of 1969, Eugene Flynn was stationed at Fort Gordon, Georgia, on active duty with the United States Army. At that time, he applied under the "compassionate reassignment" regulations for a transfer to another base closer to his hometown of Kersey, Pennsylvania, because of his mother's terminal illness. After he applied, Flynn received orders transferring him to Germany, but the transfer was held in abeyance pending a final decision on his application for compassionate reassignment. On November 26, 1969, special orders were issued approving his application and transferring Flynn from Ft. Gordon to the Niagara Falls Support Detachment in New York.

 The orders prescribed a departure date from Ft. Gordon of December 3, 1969, and a due date at the Niagara Falls Support Detachment of December 13, 1969. Flynn was given seven days of delay en route and three days of travel time. The mode and time of travel were left to Flynn's discretion, but travel by privately owned vehicle was among the alternatives authorized. Flynn was reimbursed for travel expenses at the rate of six cents per mile, measured by a direct route calculation from Ft. Gordon to Niagara Falls. This calculation did not depend on the mode of travel selected or the actual mileage traveled.

 On December 3, Flynn flew by commercial airline to Dubois, Pennsylvania, where he was driven by his family to their home in Kersey. He remained at home until December 12, at which time he left for Niagara Falls in his father's car. The trip was expected to take four to five hours. Although Flynn was not due at the Niagara Falls base until December 13, he intended to arrive early in order to process in at the base.

 At about 11:50 a.m. on December 12, Flynn's car collided with the plaintiff's car while he was driving in a northerly direction on U.S. Rt. 219 in Hamburg, New York. The plaintiff was seriously injured.

 On January 30, 1970, Flynn was notified by the Army that it considered him to be acting "in the line of duty" at the time of the accident pursuant to Army Regulation 600-10. As a result of this determination, Flynn's medical expenses and other costs related to the accident were paid by the Army.

 The plaintiff commenced this personal injury action against Flynn, Flynn's father (the owner of the automobile), and the United States. The defendant United States argues that it is not vicariously liable for alleged negligence on the part of Flynn because Flynn was not acting within the scope of his employment at the time of the accident.

 The Federal Tort Claims Act states that the United States is liable for personal injuries caused by the negligent or wrongful acts of government employees "while acting within the scope of [their] office or employment." 28 U.S.C. § 1346(b). Standards for determining liability are the same as those applicable to "a private individual under like circumstances." Id. § 2674. In determining whether the Government is liable under the doctrine of respondeat superior, the law of the state in which the accident occurred applies. Williams v. United States, 350 U.S. 857, 100 L. Ed. 761, 76 S. Ct. 100 (1955). In this case, the parties agree that New York law controls.

 The first question to be resolved is whether the Army's determination that Flynn was acting "within the line of duty" at the time of the accident is dispositive of the issue of whether he was acting within the scope of his employment. I find that it is not. Under Army Regulation 600-10, a serviceman who is injured while on active duty is presumed to be acting in the line of duty provided that the injury did not result from intentional misconduct or willful negligence. This standard is different from the standard under respondeat superior doctrine, and therefore does not control the issue of the United States' liability to the plaintiff.

 Turning to the New York law of respondeat superior, the determination of whether an employee is acting within the scope of employment does not hinge upon any single circumstance but requires a close analysis of the precise facts before the court. Riley v. Standard Oil Co., 231 N.Y. 301, 132 N.E. 97 (1921). Two conditions, however, must be satisfied. First, the employer must be exercising or have the power to exercise some control, directly or indirectly, over the employee's activities. Second, the employee at the time of the accident must be acting in furtherance of the duties owed to the employer. Lundberg v. State, 25 N.Y.2d 467, 306 N.Y.S.2d 947, 255 N.E.2d 177 (1969).

 As to the first condition, New York case law does not require the employer to be exercising direct control over the physical details of driving or the route selected. For instance, a number of cases have held the employer liable where the employee was driving a privately owned vehicle. See, e.g., Cooke v. Drigant, 289 N.Y. 313, 45 N.E.2d 815 (1942); Kanigher v. Schwerin Air Conditioning Corp., 280 N.Y. 751, 21 N.E.2d 520 (1939); Burdo v. Metropolitan Life Insurance Co., 279 N.Y. 648, 18 N.E.2d 42 (1938). As the court stated in Gutov v. Krasne, 266 A.D. 302, 42 N.Y.S.2d 20, 22 (1st Dept. 1943), aff'd, 292 N.Y. 602, 55 N.E.2d 372 (1944), where the issue was whether a particular agent was a servant or an independent contractor:

In effect, what the trial court told the jury was that liability of defendant for the driver's acts depended upon his right to control the driver's physical operation of the automobile at the time and place of the accident. This definition was too narrow. The test rather is whether the defendant had the right of general control over the driver as to how the business being carried on should be done.

 The Government urges that its indifference to and lack of control over the means of transportation used by Flynn should be decisive in this case. Under New York law, however, lack of control over the details of driving does not exculpate the United States, even when the employee selects a privately owned vehicle as his means of transportation. Cooke v. Drigant, supra. The Fourth Circuit, in an exhaustive analysis of the New York doctrine of respondeat superior as it applies to military personnel, stated the rule as follows:

[The test] takes into consideration all elements and does not preclude the employer's liability because the employee was optionally using his own vehicle, over a route and in a manner which was not, in fact, specifically controlled by the employer. The test is not, as it may be in other jurisdictions, one that requires the particular activity at the time of the accident, i.e., the driving, to be the normal duty of the servant but is, rather, whether the ...

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