United States v. 2012-03-14 | 10-16425 | RICHARD SHARROCK V. USA | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 RICHARD A. SHARROCK; CHRISTINA
M. SHARROCK, No. 10-16425
Plaintiffs-Appellants, D.C. No.
v. 1:08-cv-00013
UNITED STATES OF AMERICA, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Guam
Frances Tydingco-Gatewood, Chief District Judge, Presiding
Submitted February 15, 2012*
Honolulu, Hawaii
Filed March 14, 2012
Before: Alfred T. Goodwin, Stephen S. Trott, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Goodwin
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Wayson W.S. Wong, Hagatna, Guam, for the plaintiffs-
appellants.
Anne Murphy, Civil Division, Department of Justice, Wash-
ington, D.C., for the defendant-appellee.
OPINION
GOODWIN, Circuit Judge:
Plaintiff Richard Sharrock was injured when the automo-
bile in which he was traveling on Route 1, Naval Base, Guam,
collided with an automobile owned and driven by Quinten
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McCoy, an off-duty sailor whose negligence was conceded.
Sharrock and his wife, Christina, (the “Sharrocks”) brought
suit against the United States on a theory of respondeat supe-
rior. The district court granted summary judgment for the
government, and the Sharrocks appeal. The district court held
that McCoy “was not acting in the course and scope of his
employment, was not going about the business of his
employer, and was not therefore acting in the line of duty.”
We review de novo, and we affirm.
I. Facts and Proceedings Below
Gunner’s Mate McCoy, at noon on the day of the accident,
was given the rest of the day off. At the time of the accident,
he was driving, in his own car, to a basketball practice at a
facility furnished by the Navy as part of its Morale, Welfare
& Recreation (“MWR”) Program. In Guam, McCoy was
assigned to the crew of the U.S.S. Frank Cable. McCoy’s
shipmates were planning to participate in a “Captain’s Cup”
basketball tournament scheduled to take place about two
weeks after the date of the accident. The record does not
reveal whether the ship’s captain was the sponsor of the Cap-
tain’s Cup tournament.
The MWR Program was directed by a paid staff person
whose deposition established that the Captain’s Cup sports
program also included volleyball, softball, flag football, and
soccer. The MWR program also included less strenuous recre-
ation like motion pictures, guitar lessons, billiards, and card
games. Commanding officers encouraged, but did not require,
participation in MWR activities. Physical exercise sessions,
on the other hand, were a mandatory part of McCoy’s general
military duties, and were scheduled during on-duty time with
participants required to wear appropriate uniforms.
The district court had before it the above undisputed facts,
among others, and was faced with the problem of deciding
whether, on those facts, McCoy’s negligence occurred while
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he was acting within the scope of his employment, as Califor-
nia courts frame the question, or “in the line of duty” as the
Federal Tort Claims Act (“FTCA”) frames the question. We
have held that both characterizations have the same meaning
where the employee is a member of the military. Lutz v.
United States, 685 F.2d 1178, 1182 (9th Cir. 1982).
II. Law and Analysis
We review a grant of summary judgment de novo. See Uni-
versal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019
(9th Cir. 2004). Because the facts of the accident are undis-
puted, the scope of employment issue here is suitable for
determination as a matter of law. See id.; see also Washington
v. United States, 868 F.2d 332, 333-34 (9th Cir. 1989).
[1] Scope of employment for FTCA purposes extends lia-
bility “under circumstances where the United States, if a pri-
vate 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)(1); see generally Hartzell v. United
States, 786 F.2d 964, 966 (9th Cir. 1986). We apply Califor-
nia law because of the dearth of Guam case law on point, and
because Guam’s doctrine of respondeat superior, codified in
18 Guam Code Ann. § 20309, is identical to California Civil
Code § 2338. See Sumitomo Constr. Co., Ltd. v. Zhong Ye,
Inc., 1997 Guam 8; 1997 WL 471506, at *2 (Guam 1997)
(“[W]hen a legislature adopts a statute which is identical or
similar to one in effect in another jurisdiction, it is presumed
that the adopting jurisdiction applies the construction placed
on the statute by the originating jurisdiction.”); see also
Fajardo v. Liberty House Guam, 2000 Guam 4; 2000 WL
38719, at *4-5 (Guam 2000) (applying California case law
where the Guam statute mirrored a California statute and
“there is no compelling reason to deviate from [California’s]
interpretation of th[e] statute[ ].”).
[2] The “going and coming rule” generally precludes an
employer’s liability for the torts of an employee committed
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during the employee’s commute to and from work. See Sprin-
kles v. Assoc. Indem. Corp., 188 Cal. App. 4th 69, 79 n.4
(2010). The Sharrocks invoke the special errand exception to
this rule, however, which provides for respondeat superior
liability where the employee is commuting to or from work on
a special errand either as part of his regular duties or at the
order or request of his employer. See Jeewarat v. Warner
Bros. Entm’t, Inc., 177 Cal. App. 4th 427, 436 (2009).
Ultimately, the whole bundle of facts must be considered
in deciding whether McCoy’s errand involved a risk to the
traveling public that “may fairly be regarded as typical of or
broadly incidental to the enterprise undertaken by the employ-
er.” See Jeewarat, 177 Cal. App. 4th at 434 (internal quota-
tion marks and emphasis omitted). To determine this inherent
risk, courts ask whether the accident was a foreseeable conse-
quence of the employment. Farmers Ins. Group v. Cnty. of
Santa Clara, 11 Cal. 4th 992, 1004 (1995). Foreseeability in
this context amounts to whether “an employee’s conduct is
not so unusual or startling that it would seem unfair to include
the loss resulting from it among other costs of the employer’s
business.” Id. at 1004.
On one hand, under California law, the scope of employ-
ment for respondeat superior purposes has been interpreted
broadly. See id. California courts have extended respondeat
superior liability in a variety of circumstances, such as in an
accident occurring after a company banquet, Boynton v.
McKales, 139 Cal. App. 2d 777, 789 (1956); an accident
occurring after an office Christmas party, Harris v. Trojan
Fireworks Co., 120 Cal. App. 3d 157, 164 (1981); an after-
hours fight on company property, Rodgers v. Kemper Constr.
Co., 50 Cal. App. 3d 608, 624 (1975); and in numerous work-
ers’ compensation cases, see, e.g., Dimmig v. Workmen’s
Comp. Appeals Bd., 6 Cal. 3d 860, 869 (1972) (employee
returning home from night school classes).
On the other hand, courts applying California law have
refused to find respondeat superior liability for injuries sus-
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tained under comparable circumstances. See Chapin v. United
States, 258 F.2d 465, 470-71 (9th Cir. 1958) (service member
driving between permanent duty stations); Concepcion v.
United States, 374 F. Supp. 1391, 1394-95 (D. Guam 1974)
(service member driving on base after being released from
duty for the day); Blackman v. Great Am. First Sav. Bank,
233 Cal. App. 3d 598, 605 (1991) (employee driving to night
school from work); Robbins v. Hewlett-Packard Corp., 26
Cal. App. 3d 489, 495 (1972) (employee attending company
picnic). In finding no respondeat superior liability here, the
district court applied local precedent as stated in Concepcion.
The disparate outcomes described above reflect the under-
lying difficulty in defining the contours of respondeat supe-
rior liability in close cases, as here. Thus, it is helpful to rule
out authority that rests on non-analogous grounds. Cf. Farm-
ers, 11 Cal. 4th at 1005 (“To aid us in our application of these
principles, we find it helpful to compare the types of situa-
tions in which the respondeat superior doctrine has and has
not been applied.”).
A subset of California respondeat superior cases in our cir-
cuit have involved service members whose negligent driving
was the direct consequence of voluntary intoxication. See,
e.g., Doggett v. United States, 875 F.2d 684 (9th Cir. 1989),
abrogated by United States v. Olson, 546 U.S. 43 (2005).
Along these lines, the Second Circuit, applying California
law, broadly extended liability in holding that damage caused
by a drunk-driving service member in Guam was a foresee-
able risk of military base operations. See Taber v. Maine, 67
F.3d 1029, 1036-37 (1995). Taber has been cited by this cir-
cuit, however, only for its detailed analysis of the Feres doc-
trine which bars servicemembers’ FTCA claims for injuries
sustained during the course of military service. See id. at
1037-53; see also Costco v. United States, 248 F.3d 863, 866-
67, 869 (9th Cir. 2001); Dreier v. United States, 106 F.3d
844, 850 n.6 (9th Cir. 1996). The Feres doctrine was not
raised by the parties and is not at issue in this case. Moreover,
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the military branches have specific regulations dealing with
personnel who become intoxicated and thereafter become
involved in automobile accidents. These circumstances have
their own unique questions of rights and duties, and there is
no occasion here to expand upon what has been written in
military personnel drunk-driving cases.
Similarly, we decline to base our consideration on the
workers’ compensation cases in which scope of employment
is broadly interpreted in order to carry out the legislative pol-
icy of providing medical care and replacement of wages lost
due to injuries from industrial accidents. See, e.g., Munyon v.
Ole’s Inc., 136 Cal. App. 3d 697, 702-03 (1982) (“An
employee can suffer an injury that is compensable under
workers’ compensation laws and at the same time not be
within the scope of employment under the doctrine of
respondeat superior.”). Although the inquiry is related and
workers’ compensation cases may be persuasive in certain cir-
cumstances, they are not controlling and do not aid our analy-
sis here.
[3] On the facts of this case, we are required to determine
whether the Navy created and maintained an environment
which made McCoy’s conduct at the time and place of the
accident reasonably foreseeable. See Jeewarat, 177 Cal. App.
4th at 435. The Sharrocks contend that the special errand
exception applies because McCoy was “requested” to attend
the MWR program. In support of this argument, the Sharrocks
point to the deposition testimony of McCoy’s supervising
officer that participation in the basketball tournament related
to McCoy’s general duties as a sailor and McCoy’s testimony
that the Navy stressed the virtues of physical fitness. The
Sharrocks further cite Department of Defense Instructions that
require the United States military to create MWR programs.
The Sharrocks believe that these facts give rise to a clear
inference that the Navy requested and encouraged McCoy to
participate in the MWR program. However, these facts are
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inadequate to establish that McCoy was acting in the scope of
his employment at the time of the accident.
[4] The Department of Defense Instructions mandate only
the creation of MWR programs, not servicemember atten-
dance at such programs. See Dep’t of Def., Instruction No.
1015.10 (Nov. 3, 1995) (as amended through Change 2, Oct.
31, 2007). Moreover, even if the Navy encouraged McCoy to
participate in MWR programs, the record does not reflect any
evidence that the Navy “required” or “ordered” him to do so.
To the contrary, by all accounts McCoy’s MWR participation
was voluntary. McCoy himself stated that his participation in
the Captain’s Cup program was not required.
[5] The facts of this case thus appear most closely analo-
gous to Blackman v. Great American First Savings Bank, 284
Cal. App. 3d 598 (1991). In Blackman, the court affirmed
summary judgment for the employer where the employee
injured the plaintiff in a car accident on the way to night
classes at a local university. The court held that the accident
was not a special errand within the scope of employment
where the employee’s classroom attendance was not part of
her regular duties and was encouraged but not required. Id. at
602-03. Although the employer paid for the classes and the
employee’s classwork did accrue to the employer’s benefit
over time, the court held that attendance at the classes was not
a special errand because any benefit to the employer was
“broadly collateral” and had “no direct impact” on the
employer’s daily operations. Id. at 604. Similarly here, the
Navy’s support of MWR programs and any incidental benefit
to the Navy from service members’ participation therein, does
not make McCoy’s attendance at the basketball practice com-
parable to a special errand. To endorse government liability
for the Sharrocks’ injuries in this instance would exceed the
permissible scope of that exception.
In sum, the Sharrocks’ theory of liability, as the district
court correctly noted, would impose upon the military a bur-
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den far broader than that imposed upon any private employer,
and in excess of the limited waiver contemplated by the
FTCA. See Lutz v. United States, 685 F.2d 1178, 1183 (9th
Cir. 1982). We have, in several cases, resisted subjecting the
military to expansive respondeat superior liability. See
Clamor v. United States, 240 F.3d 1215, 1217 (9th Cir. 2001)
(no respondeat superior liability where Navy civilian
employee “was not engaged in any errand for his employer,
but was leaving work and free to do whatever he wished”);
Hartzell v. United States, 786 F.2d 964, 967 (9th Cir. 1986)
(fact that servicemember’s travel “was in some part intended
to serve the Air Force . . . is not sufficient to bring her within
the scope of employment”); Chapin v. United States, 258 F.2d
465, 468 (9th Cir. 1958) (military’s unique authority over ser-
vicemembers is insufficient to extend liability beyond that of
a private employer).
III. Conclusion
[6] We conclude that a servicemember en route to partici-
pation in a recreational activity, where participation is encour-
aged by the Navy but not required, is not acting in the line of
duty.
AFFIRMED.
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