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HEREDIA v. UNITED STATES

May 31, 1995

ANTONIO HEREDIA, Plaintiff, against UNITED STATES OF AMERICA and JUAN VELASCO, Defendants.


The opinion of the court was delivered by: MIRIAM GOLDMAN CEDARBAUM

 CEDARBAUM, J.

 This is an action brought pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671 et seq., for injuries suffered by plaintiff in an automobile accident. The United States moves to dismiss the amended complaint for failure to state a claim under the FTCA. For the reasons discussed below, defendant's motion to dismiss is granted in part and denied in part.

 Background

 Plaintiff Antonio Heredia was an eighteen year-old high school student and a participant in the Marine Corps' "Delayed Entry Program." The Delayed Entry Program permits the Recruiting Service of the Marine Corps to accept applicants but delay their departure for recruit training. Participants in the program -- commonly referred to as "poolees" -- perform no official duties and are not entitled to pay or benefits, although as a condition of participation they must enlist in the Marine Corps Reserves. A poolee is expected to report for active duty on a certain date, but acceptance in the Marine Corps is conditioned upon a poolee's fitness and good behavior. See United States Military Personnel Procurement Manual, Enlisted Processing, Chapter 2 § 2301(1)(b) (attached as Exhibit A to Decl. of Asst. U.S. Att'y Gideon A. Schor.)

 The amended complaint alleges that plaintiff and another poolee, Juan Velasco, spent August 13, 1992 working at the "request and command" of Marine Corps recruiter Sgt. Freddy A. Feliz at the Marine Corps Recruiting office at 72 Westchester Square in the Bronx. (Amend. Compl. at P 16.) According to the amended complaint, Feliz instructed Velasco to assist him with recruiting activities by travelling to the Pan American Motor Inn in Queens. Feliz "expressly or impliedly" gave Velasco -- who was a licensed driver -- permission to use Feliz' personal automobile to perform this errand. This is alleged to be a violation of Marine Corps regulations. (Id. at P 19.) It is also alleged that Feliz had previously permitted Velasco to use his automobile to run personal errands for him. (Id. at PP 20-21.) Feliz is not alleged to have instructed plaintiff to accompany Velasco to Queens, although plaintiff telephoned his mother to inform her that he would be home later than usual because he was assisting Feliz with recruiting activities. (Id. at P 18.) While driving to Queens, Velasco lost control of the automobile, skidded off the road and hit a tree. Plaintiff, who was sitting in the front passenger seat, suffered. massive abdominal and neurological injuries. (Id. at P 24.) Plaintiff claims that the United States is liable for the negligence of Velasco, and for Feliz' allegedly negligent supervision of Velasco.

 The United States moves to dismiss the amended complaint on the grounds that (1) it cannot be liable under the FTCA for the negligence of Velasco, since Velasco was not a federal employee at the time of the accident, and (2) it cannot be liable for the negligence of Feliz, because Feliz would not be liable for plaintiff's injuries under New York law. At oral argument, I dismissed Count Three of the amended complaint, which was against Feliz individually under N.Y. Veh. & Traf. Law § 388 (McKinney 1986). (Trans. of Proc., Dec. 16, 1994, at 27.)

 When considering a motion to dismiss the complaint for failure to state a claim, the court must presume the truth of all material facts alleged in the complaint and all inferences must be drawn in favor of the pleader. See, e.g., Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995). Dismissal is appropriate only where "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 I. Liability of the United States for the conduct of Velasco

 The Federal Tort Claims Act confers exclusive jurisdiction upon the federal courts for civil actions involving

 
personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

 28 U.S.C. § 1346(b) (1988). Thus, plaintiff's claim against the United States for the negligence of Velasco may proceed only if Velasco was an "employee of the Government" who was acting "within the scope of his office or employment" at the time of the accident. "Employees" of the United States are defined by the FTCA as "officers or employees of any federal agency, . . . and persons acting on behalf of a federal agency in an official capacity, temporarily or permanently in the service of the United States, whether with or without compensation." 28 U.S.C. § 2671. The Second Circuit has stated that this language is to be construed "with an eye to general agency law rather than to the formalities of employment contracts." Witt v. United States, 462 F.2d 1261, 1263-64 (2d Cir. 1972).

 It is not alleged that Velasco was either enlisted in the Marine Corps or a government employee at the time of the accident. However, plaintiff contends that Feliz' "order" to Velasco to travel to Queens on his behalf created a principal-agent relationship, which in turn transformed Velasco into a federal "employee" under the FTCA pursuant to Witt. Witt held that a civilian employee of a private club run by a private association of military personnel on a military base was an "employee" under the FTCA. The plaintiff was a military prisoner who had "volunteered" for a prison work detail to shovel manure at the club. He was injured in an accident caused by the negligence of the civilian employee. Although there was no written agreement, the court noted that the civilian supervisor was "impliedly authorized by the Commandant of the Disciplinary Barracks to transport prisoners in his custody to a work detail . . . to supervise or help supervise that detail and to return ...


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