Feindt v. United States of America

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
PATRICK FEINDT, JR., et al.,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
CIV. NO. 22-00397 LEK-KJM
ORDER GRANTING IN PART AND DENYING
IN PART DEFENDANT’S PARTIAL MOTION TO DISMISS FOURTH
AMENDED COMPLAINT [ECF NO. 121], [FILED 6/27/23 (DKT. NO. 129)]
Before the Court is Defendant United States of
America’s (“Defendant” or “United States”) reinstated Partial
Motion to Dismiss Fourth Amended Complaint [ECF No. 121], filed
on June 27, 2023 (“Motion”). 1 	[Dkt. no. 129.] 	On November 9,
2023, Plaintiffs filed their memorandum in opposition to the
Motion (“Opposition”). 	[Dkt. no. 193.] 	On November 21, 2023,
Defendant filed its reply in support of the Motion (“Reply”).
[Dkt. no. 199.] 	On November 29, 2023, a stipulation was
approved and filed stating that the Motion, Opposition, and
1 The Motion was originally denied, without prejudice to
refiling due to the then-pending Plaintiff’s Opposed Motion to
Correct Their Fourth Amended Complaint. 	[EO: Court Order
Denying Defendant United States of America’s Partial Motion to
Dismiss Fourth Amended Complaint, filed 9/26/23 (dkt. no. 178);
Plaintiff’s Opposed Motion to Correct Their Fourth Amended
Complaint, filed 9/22/23 (dkt. no. 176).] 	On October 26, 2023,
this Court issued an order reinstating Defendant’s Motion. [Dkt.
no. 190.]
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Reply would apply to the Fifth Amended Complaint and no
additional briefing was required. 	[Dkt. no. 201.] 	On
December 1, 2023, Plaintiffs’ Fifth Amended Complaint was filed.
[Dkt. no. 210.] 	The Court finds this matter suitable for
disposition without a hearing pursuant to Rule LR7.1(c) of the
Local Rules of Practice for the United States District Court for
the District of Hawaii (“Local Rules”). 	Defendant’s Motion is
hereby granted in part and denied in part. 	The Motion is
granted insofar as the failure to warn claims contained in
Counts II and IV are dismissed with prejudice. 	The Motion is
denied as to Defendant’s request to dismiss the failure to warn
claim and Defendant’s request to dismiss some of the plaintiffs’
medical negligence claim in Count IV.
BACKGROUND
This case arises out of the May 6 and November 20,
2021 fuel leaks from the U.S. Navy’s Red Hill Bulk Fuel Storage
Facility on Joint Base Pearl Harbor-Hickam (“Red Hill” and
“JBPHH”). 	[Fifth Amended Complaint at pgs. iii, 1; id. at ¶¶ 4,
9.] 	Relevant to the instant Motion, Plaintiffs allege that
Defendant owns and operates Red Hill and the water system that
serves JBPHH, as well as the housing that Plaintiffs lease and
reside upon. 	[Id. at ¶¶ 6, 9, 530.] 	Defendant was allegedly
negligent in releasing fuel into the water supply, and it failed
to disclose the leaks to affected parties as required, including
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Plaintiffs. 	[Id. at ¶¶ 4, 26, 73, 538, 542.] 	Plaintiffs
contend Defendant failed to warn residents of the danger, and
only admitted on December 2, 2021 that the November 2021 spills
contaminated the water for some Plaintiffs. 	[Id. at ¶ 39.]
Plaintiffs allege that they suffered health issues, economic
harm and fear as a result of the spills and their aftermath.
[Id. at ¶¶ 82-86.]
Plaintiffs allege the following claims against
Defendant: (1) a negligence claim (Count I); (2) a negligent
undertaking claim (Count II); (3) a nuisance claim (Count III);
(4) a medical negligence claim alleging failure to treat and
delayed care (Count IV); (5) an infliction of emotional distress
claim (Count V); and (6) a premises liability claim alleging
breach of the duty to control force (Count VII).
Defendant’s Motion asks this Court to dismiss the
following claims from Plaintiff’s Fifth Amended Complaint: (1)
the failure to warn claims within Counts I, II, and IV for lack
of subject matter jurisdiction because the Defendant is entitled
to sovereign immunity pursuant to the Federal Tort Claims Act’s
(“FTCA”) misrepresentation exception codified at Title 28 United
States Code Section 2680(h); and (2) 77 of the 298 Plaintiffs’
medical negligence claims in Count IV for lack of sufficient
factual allegations. 	[Motion at 2.]
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STANDARD
I. 	Federal Rule of Civil Procedure 12(b)(1)
Rule 12(b)(1) authorizes a defendant to move for
dismissal of an action for “lack of subject-matter
jurisdiction[.]” 	“Once challenged, the party asserting subject
matter jurisdiction has the burden of proving its existence.”
Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009)
(citation and quotation marks omitted). 	This district court has
stated:
a district court must dismiss a complaint if it
lacks subject matter jurisdiction to hear the
claims alleged in the complaint. 	Fed. R. Civ.
P. 12(b)(1). 	A jurisdictional attack pursuant to
FRCP 12(b)(1) may be facial or factual. 	Safe Air
for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
Cir. 2004) (citation omitted). 	A facial attack
challenges the sufficiency of the allegations
contained in a complaint to invoke federal
jurisdiction, while a factual attack “disputes
the truth of the allegations that, by themselves,
would otherwise invoke federal jurisdiction.”
Id.
Jiang v. Fang, CIVIL NO. 20-00100 JAO-KJM, 2020 WL 6889169, at
*1 (D. Hawai`i Nov. 23, 2020).
“In a facial attack, the court may dismiss a complaint
when its allegations are insufficient to confer subject matter
jurisdiction, and a complaint’s factual allegations are taken as
true and construed in the light most favorable to the nonmoving
party.” 	McCoy v. Hawai`i Dep’t of Hum. Serv., CIV. NO. 21-00063
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LEK-RT, 2021 WL 5040197, at *3 (D. Hawai`i Oct. 29, 2021)
(citations omitted).
II. 	Federal Rule of Civil Procedure 12(b)(6)
The Ninth Circuit has described the standard
applicable to a motion under Rule 12(b)(6) as follows:
To survive a motion to dismiss for failure
to state a claim after the Supreme Court’s
decisions in Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009) and Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.
Ct. 1955, 167 L. Ed. 2d 929 (2007), the
[plaintiff’s] factual allegations “must . . .
suggest that the claim has at least a plausible
chance of success.” 	In re Century Aluminum [Co.
Sec. Litig.], 729 F.3d [1104,] 1107 [(9th Cir.
2013)]. 	In other words, their complaint “must
allege ‘factual content that allows the court to
draw the reasonable inference that the defendant
is liable for the misconduct alleged.’” 	Id.
(quoting Iqbal, 556 U.S. at 678, 129 S. Ct.
1937).
Following Iqbal and Twombly, . . . . we have
settled on a two-step process for evaluating
pleadings:
First, to be entitled to the presumption of
truth, allegations in a complaint or
counterclaim may not simply recite the
elements of a cause of action, but must
contain sufficient allegations of underlying
facts to give fair notice and to enable the
opposing party to defend itself effectively.
Second, the factual allegations that are
taken as true must plausibly suggest an
entitlement to relief, such that it is not
unfair to require the opposing party to be
subjected to the expense of discovery and
continued litigation.
[Eclectic Props. E., LLC v. Marcus & Millichap
Co., 751 F.3d 990, 996 (9th Cir. 2014)] (quoting
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Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir.
2011)). 	In all cases, evaluating a complaint’s
plausibility is a “context-specific” endeavor
that requires courts to “draw on . . . judicial
experience and common sense.” 	Id. at 995–96
(internal quotation marks omitted).
Levitt v. Yelp! Inc., 765 F.3d 1123, 1134-35 (9th Cir. 2014)
(some alterations in Levitt). 	This Court is not required to
accept as true “[t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements.” 	Iqbal, 556
U.S. at 678 (citing Twombly, 550 U.S. at 555).
DISCUSSION
I. 	Failure to Warn Claim in Counts I, II, and IV
Defendant contends the FTCA’s misrepresentation
exception bars Plaintiffs’ failure to warn claims because these
claims are predicated upon alleged failures to communicate or
miscommunications, thus satisfying the misrepresentation
exception’s essentiality test. 	[Motion, Mem. in Supp. at 8
(citations omitted).] 	Plaintiffs argue their failure to warn
claims are not subject to the misrepresentation exception
because: (1) traditionally misrepresentation was a commercial
tort that did not include failure to warn of a known hazard and
applied to pecuniary loss; (2) the failure to warn claims arise
primarily from the negligent performance of a mandatory
operational task – the issuance of a public notification; and
(3) Defendant can be held liable under the FTCA for failure to
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warn of a known hazard through a premises liability theory.
[Mem. in Opp. at 7.]
“An action can be brought by a party against the
United States only to the extent that the Federal Government
waives its sovereign immunity. 	If sovereign immunity has not
been waived, the court must dismiss the case for lack of subject
matter jurisdiction.” 	Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021) (internal quotation marks and citations
omitted).
The FTCA generally waives the United States’
sovereign immunity and permits tort suits for
damages against the government “in the same
manner and to the same extent as a private
individual under like circumstances.” 	28 U.S.C.
§ 2674; Esquivel v. United States, 21 F.4th 565,
572–73 (9th Cir. 2021). 	Specifically, the FTCA
grants district courts jurisdiction over civil
actions for money damages for negligent or
wrongful acts or omissions of government
employees acting in the scope of 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)(1); Esquivel, 21 F.4th at 572–73.
Agustin v. United States, Civ. No. 22-00167 JMS-WRP, 2023 WL
160076, at *3 (D. Hawai`i Jan. 11, 2023) (footnote omitted).
However, the United States did not waive sovereign immunity for
all tort claims: the misrepresentation exception of § 2680(h) is
an important exception at issue here.
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The FTCA’s misrepresentation exception codified in
§ 2680(h) absolutely bars “claims against the United States for
fraud or misrepresentation by a federal officer.” 	Kim v. United
States, 940 F.3d 484, 492 (9th Cir. 2019) (quotation marks and
citation omitted). 	“The misrepresentation exception shields
government employees from tort liability for failure to
communicate information, whether negligent, or intentional.”
Lawrence v. United States, 340 F.3d 952, 958 (9th. Cir. 2003)
(citation omitted). 	The misrepresentation exception applies to
affirmative misstatements as well as omissions. 	See Green v.
United States, 629 F.2d 581, 584-85 (9th Cir. 1980) (holding
“the misrepresentation exception precludes liability where the
plaintiff suffers economic loss as a result of a commercial
decision which was based on a misrepresentation by government
consisting either of false statements or a failure to provide
information which it had a duty to provide”).
Plaintiffs’ failure to warn claims in Counts I, II and
IV involve in the type of failure to communicate information
within the scope of the misrepresentation exception. 	As to
Counts I and II, Plaintiffs allege “[o]fficers failed to warn
residents that the leaks had occurred in violation of federal
and state law,” as one of many theories of negligence. 	[Fifth
Amended Complaint at ¶¶ 467.g, 481.g.] 	As to Count IV,
Plaintiffs allege “[t]he United States failed to clearly
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communicate the important facts regarding the Red Hill Bulk Fuel
Storage Facility fuel leaks to these plaintiffs or their medical
care providers, allowing them to become ill, with no
transparency in communicating the origin of the harm.” 	[Id. at
¶ 508.]
A. 	The Misrepresentation Exception
Is Not Limited to Commercial Cases
Plaintiffs contend the misrepresentation exception
applies to the commonly understood definition of a
misrepresentation claim, namely the invasion of financial or
commercial interests, and not to personal injury cases. 	[Mem.
in Opp. at 18-21.] 	Plaintiffs’ argument fails. 	The Ninth
Circuit has explicitly rejected this argument:
The [plaintiffs] contend, however, that the
[misrepresentation] exception does not apply
because their claim seeks damages for personal
injury. 	They insist that, decades ago, our court
limited the exception only to cases where the
“plaintiff is seeking to recover for economic
loss suffered as a result of a commercial
decision the plaintiff made in reliance on a
government misrepresentation.”
Our cases impose no such limitation. 	The
[plaintiffs] are correct that some cases have
observed that the exception primarily applies to
claims of economic loss flowing from commercial
transactions. 	See, e.g., United States v.
Neustadt, 366 U.S. 696, 711 n.26, 81 S. Ct. 1294,
6 L. Ed. 2d 614 (1961) (observing that the torts
covered by the exception are “confined very
largely to the invasion of interests of a
financial or commercial character, in the course
of business dealings” (internal quotation marks
omitted)); Green v. United States, 629 F.2d 581,
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584 (9th Cir. 1980) (“[T]he misrepresentation
exception precludes liability where the plaintiff
suffers economic loss as a result of a commercial
decision which was based on a misrepresentation
by [the] government . . . .”). 	But such cases do
not hold that the exception cannot apply in other
contexts. . . .
Kim, 940 F.3d at 492–93 (emphases and some alterations in Kim).
The Ninth Circuit again rejected the same argument that
Plaintiffs make here in Andrade v. United States, 845 F. App’x
594 (9th Cir. 2021):
Andrade tries to cabin the “misrepresentation”
exception only to the “duty to use due care in
obtaining and communicating information upon
which that party may reasonably be expected to
rely in the conduct of his economic affairs”
Neustadt, 366 U.S. at 706–07, 81 S. Ct. 1294
(internal quotation marks omitted) (emphasis
added). 	While the misrepresentation in Nuestadt
led to the loss of a job, nothing in the opinion
suggests that the holding is limited to “economic
affairs.”
845 F. App’x at 596 (emphasis in Andrade). 	The Ninth Circuit
has applied the misrepresentation exception to “claims of
personal injury resulting from non-fraudulent failures to warn.”
Kim, 940 F.3d at 493 (citing Doe v. Holy See, 557 F.3d 1066,
1084 n.10 (9th Cir. 2009) (per curiam); Lawrence v. United
States, 340 F.3d 952, 958 (9th Cir. 2003)). 2 	Thus, the
misrepresentation exception is not limited to commercial cases.
2 In Holy See, the Ninth Circuit stated that, even if the
failure to warn claim stemming from a priest’s known sexual
abuse of children were not barred by the discretionary function
(. . . continued)
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B. 	Safe Drinking Water Act Public Notification
Plaintiffs contend the misrepresentation exception
does not apply because the failure to warn claims arise
primarily from the negligent performance of an operational task,
and misrepresentations are only collaterally involved.
Plaintiffs argue the gravamen of their failure to warn claims is
not misrepresentation but the violation of a mandatory
operational requirement – the requirement to notify the public
within twenty-four hours that the water was not safe to drink
pursuant to Title 42 United States Code Sections 300f-300j
(“Safe Drinking Water Act” or “SDWAA”) and Title 40 Code of
Federal Regulations Sections 141.201, 141.202(b) (EPA
regulations). 	Plaintiffs also argue the United States has
waived sovereign immunity under the SDWA. 	[Mem. in Opp. at 9-
11.] 	Defendant contends Plaintiffs’ argument defies the holding
in Green v. United States, 629 F.2d 581, 584 (9th Cir. 1980),
that the existence of a duty on the part of the government to
provide information to the plaintiffs did not render the
misrepresentation exception inapplicable. 	Further, Defendant
exclusion, it would be barred by the misrepresentation
exception. 	557 F.3d at 1069-71, 1084 n.10. 	In Lawrence, the
Ninth Circuit held that the misrepresentation exception applied
to two federal agents’ failure to communicate information about
a former convicted felon at an exemption hearing, which resulted
in the convicted felon being hired at a juvenile residential
care facility and sexually abusing a minor. 	340 F.3d at 953-55,
958.
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argues there is no private right of action for damages arising
from a violation of the SDWA, and violations of the SDWA cannot
sustain a cause of action under the FTCA. 	[Reply at 6-7.]
Plaintiffs’ argument turns on whether failing to issue
a public notification as required by the SDWA constitutes a
failure to perform an “operational task” or is more properly
characterized as a failure to communicate information. 	The
Court finds Plaintiffs’ failure to warn claims are more properly
characterized as a failure to communicate information, rather
than as a negligent performance of an operational task.
Plaintiffs rely on the distinction summarized in United States
v. Fowler:
To determine whether a claim is one of
misrepresentation or negligence the court
examines the distinction
between the performance of operational tasks
and the communication of information. 	The
Government is liable for injuries resulting
from negligence in performance of
operational tasks even though
misrepresentations are collaterally
involved. 	It is not liable, however, for
injuries resulting from commercial decisions
made in reliance on government
misrepresentations.
[Guild v. United States, 685 F.2d 324,] 325 [(9th
Cir. 1982)].
913 F.2d 1382, 1387 (9th Cir. 1990). 	In Fowler, the Ninth
Circuit found that the claim was one of misrepresentation
because the plaintiffs were injured by the government’s
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representation it would pay for flood damage, when it would not,
and the plaintiffs were not damaged as a result of the negligent
handling of their insurance claim. 	Therefore, the plaintiffs’
claim fit in the category of negligent misrepresentation, and
was barred by Title 28 United States Code Section 2680(h). 	See
id. at 1387-88. 	So too here. 	Plaintiffs’ damages in their
failure to warn claims are due to the alleged failure of the
government to issue a notification that the water was unsafe to
drink, allowing them to become ill, and resulting in injuries
and damages. 	See Fifth Amended Complaint at ¶¶ 468-71, 482-85,
508, 510. 	At heart, these are claims about communication of
information. 	See Neustadt, 366 U.S. at 706-11 (holding that the
action was one of misrepresentation because the focus of the
claim was on the plaintiff’s reliance upon misinformation
communicated to him by the government). 	This lack of
communication or miscommunication is in no way collateral to the
failure to warn claims. 	See Guild, 685 F.2d at 326 (holding
that the misrepresentation exception was inapplicable because
“[a]ny communication of misinformation was collateral”); see
also Mundy v. United States, 983 F.2d 950, 952-53 (9th Cir.
1993) (holding that the misrepresentation 	was inapplicable
because the focus of the claim was on the processing of a
requested security clearance – an operational task – and the
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communication of the result of this task “was only collaterally
involved” in the injury).
Further, Defendant is correct that Green, 629 F.2d at
583-84, forecloses Plaintiffs’ argument. 	Green held that a duty
on the part of the government to provide plaintiffs information
does not “render the [misrepresentation] exception
inapplicable.” 	Id. at 584. 	In Green, the Ninth Circuit
examined Neustadt, in which the United States Supreme Court
found the misrepresentation exception precluded a home buyer’s
claim based on an inaccurate Federal Housing Administration
appraisal, despite acknowledging the government’s apparent duty
to obtain and communicate information carefully. 	Id. (quoting
Neustadt, 366 U.S. at 710, 81 S. Ct. 1302). 	Similarly, here,
even if Defendant possesses a duty to issue a public
notification pursuant the SDWA and Title 40 Code of Federal
Regulations Sections 141.201 and 141.202(b), the
misrepresentation exception still applies because the focus of
the failure to warn claims is on the communication of
information.
Finally, the United States has not waived its
sovereign immunity for the failure to warn claims in the instant
case pursuant to the Safe Drinking Water Act. 	The Fifth Amended
Complaint cites to the waiver of sovereign immunity in Title 42
United States Code Sections 300f–300j, [Fifth Amended Complaint
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at ¶ 27,] which states in relevant part that certain United
States government entities are subject to certain substantive
and procedural requirements “in the same manner and to the same
extent as any person is subject to such requirements,” and
waives United States sovereign immunity “with respect to any
such substantive or procedural requirement.” 	42 U.S.C. § 300j-
6(a). 	Plaintiffs appear to argue the notification requirement
of Title 40 Code of Federal Regulations Sections § 141.201 and
141.202(b) is one such requirement. 	See Mem. in Opp. at 10-12.
Even assuming the waiver of sovereign immunity in § 300j-6(a)
applies to the notification requirement of Sections 141.201 and
141.202(b), Plaintiffs seek damages, and the Safe Drinking Water
Act does not create a private civil action under which damages
can be recovered for violation of a provision of the Safe
Drinking Water Act. 	See Mays v. Flint, 871 F.3d 437, 450 (6th
Cir. 2017) (citing Harding-Wright v. D.C. Water & Sewer Auth.,
350 F. Supp. 2d 102, 107 (D.D.C. 2005)). 	Because a person is
not subject to a suit for damages under Title 42 United States
Code Section 300j-6, neither is the United States government.
See Molsbergen v. United States, 757 F.2d 1016, 1020 (9th Cir.
1985) (“The government may be held liable for claims brought
pursuant to the FTCA only if a private person would, under
similar circumstances, be liable pursuant to the law of the
place where the act or omission occurred.”). 	Alleged violations
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of federal law – including alleged violations of the SDWA -
“cannot sustain a cause of action under the FTCA.” 	Delta Sav.
Bank v. United States, 265 F.3d 1017, 1026 (9th Cir. 2001)
(citations omitted).
Therefore, because the communication of information
(or lack thereof) was not “collaterally involved” in the injury
giving rise to the failure to warn claims in Counts I, II, and
IV, Plaintiffs’ argument that the misrepresentation exception
under § 2680(h) does not apply on this basis fails.
C. 	Premises Liability
Plaintiffs argue the failure to warn claims can move
forward based on a premises liability theory for failure to warn
of a known hazard, because Defendant owned and operated the Red
Hill facility, the water system, and the land upon which
Plaintiffs reside. 	[Mem. in Opp. at 15-16.] 	Defendant notes
that the magistrate judge determined that Plaintiffs only stated
a premises liability claim under Restatement (Second) of Torts §
361 in his Order Granting Plaintiffs’ Motion to Amend Complaint,
[filed 5/19/23 (dkt. no. 100) (“5/19 Order”),] and § 361 does
not include a warning component. 	Defendant notes Plaintiffs’
other premises liability theories with a warning component, such
as Restatement (Second) of Torts § 358, are inapplicable to this
case. 	[Reply at 8-9.]
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Preliminarily, the magistrate judge in the 5/19 Order
did not determine that Plaintiffs exclusively stated a § 361
claim. 	The 5/19 Order simply determined that § 361 provides a
basis for Plaintiffs’ premises liability claim. 	See 5/19 Order
at 10.
Plaintiffs’ claims in Count II and IV do not implicate
a premises liability theory. 	As to Count II, Plaintiffs allege
Defendant owed a duty to Plaintiffs on the Navy water line based
on the voluntary assumption of a duty recognized in Hawai`i law,
and pursuant to federal law and regulations. 	[Fifth Amended
Complaint at ¶¶ 474-76.] 	These allegations do not implicate a
premises liability theory. 	Similarly, in Count IV Plaintiffs do
not make any allegations related to Defendant’s control or
ownership of land that would implicate a premises liability
theory – instead the claim relates to medical negligence. 	See
id. at ¶¶ 503-10. 	Plaintiffs’ premises liability argument
therefore fails as to Counts II and IV.
Count I implicates a premises liability theory.
Plaintiffs allege the Government had a “duty to exercise
reasonable care in the operation and maintenance of the Red Hill
Bulk Fuel Storage Facility,” which federal officers violated by
“fail[ing] to warn residents that the leaks had occurred.”
[Fifth Amended Complaint at ¶¶ 466, 467.g.] 	Plaintiffs allege
Defendant is the “occupier, owner, and possessor” of “the water
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system, and the housing which Plaintiffs leased and resided
upon.” 	[Id. at 530.] 	Plaintiffs allege Defendant “contaminated
plaintiffs’ water system.” 	[Id. at ¶ 537.]
Generally, a defendant lessor cannot be held liable
under a theory of premises liability to a lessee under Hawai`i
law after a lessee has taken possession. 	Mitchell v. United
States, Civ. No. 11-00088 HG-KSC, 2011 WL 4048986, at *4 (D.
Hawai`i Sept. 12, 2011) (citing Hao v. Campbell Estate, 869 P.2d
216, 218 (Haw. 1994)). 3 	Under Restatement (Second) of Torts §
355, generally, “a lessor of land is not subject to liability to
his lessee or others upon the land with the consent of the
lessee or sublessee for physical harm caused by any dangerous
condition which comes into existence after the lessee has taken
possession.”
However, under Hawai`i law “a lessor has a duty to
warn a lessee of dangerous conditions known to the lessor but
not known or obvious to the lessee, even when the dangerous
condition exists in an area not controlled by the lessor.” 	Hao,
76 Hawai`i at 81, 869 P.2d at 220 (1994) (some citations
omitted) (citing Kole v. AMFAC, Inc., 69 Haw. 530, 750 P.2d 929
3 In Hao, the Hawai`i Supreme Court stated: “At common law
a nonpossessory lessor generally had no duty to protect a lessee
or others on the land against harm from dangerous conditions
existing at the time of the lease.” 	76 Hawai`i at 80, 869 P.2d
at 219 (some citations omitted) (citing Restatement (Second) of
Torts § 356 comment a (1965)).
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(1988)). 	In Kole, owners of a condominium unit owed their
lessees a duty to warn of the known hazardous condition in the
condominium’s common area – an area not under the control of the
condominium owners. 	While in Kole the dangerous condition
appears to have existed at the time the lessees entered into the
lease, this temporal distinction does not appear to be the most
salient factor. 	See Kole, 69 Haw. at 530-33, 750 P.2d at 930-
31. 	As the Hawai`i Supreme Court points out in Hao, the salient
factor appears to be lessor’s knowledge of the dangerous
condition that is not obvious to lessee. 	Here, Defendant is
alleged to be the owner of the water system and housing that
Plaintiffs leased – a parallel relationship to the owners and
lessees in Kole. 	See Fifth Amended Complaint at ¶ 530. 	As in
Kole, in the instant case, Defendant possessed greater knowledge
of the dangerous condition, given that Defendant owns and
operates the water system, and had more information about the
leaks, given that the leaks were allegedly caused by negligent
errors of United States personnel. 	[Id. at ¶¶ 4, 5, 9.]
Further, contamination in water is likely less apparent than the
danger of golf balls entering a swimming pool from a neighboring
golf course as in Kole. 	Therefore, the Court concludes that
Defendant may be liable under a premises liability theory for
the failure to warn claims in Count I.
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Therefore, the misrepresentation exception does not
apply to the failure to warn claims alleged in Count I, and
Defendant does not retain sovereign immunity over that portion
of Count I. 	See Molsbergen, 757 F.2d at 1020. (“The government
may be held liable for claims brought pursuant to the FTCA only
if a private person would, under similar circumstances, be
liable pursuant to the law of the place where the act or
omission occurred.”). 	Defendant’s Motion is granted as to the
failure to warn claims within Counts II and IV, but denied as to
the failure to warn claim within Count I.
D. 	No Leave to Amend
Because amendment cannot cure the defect in the
failure to warn claims in Counts II and IV, the failure to warn
portions of those claims must be dismissed with prejudice. 	See
Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1102 (9th Cir. 2018)
(“Dismissal with prejudice and without leave to amend is not
appropriate unless it is clear . . . that the complaint could
not be saved by amendment.” (quotation marks and citation
omitted)). 	The Court makes no inclinations or conclusions
regarding any other aspect of Counts II and IV or the
accompanying theories of liability alleged in those claims.
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II. 	Denial of Request to Dismiss
Certain Plaintiffs from Count IV
Defendant contends the Fifth Amended Complaint does
not state a claim of medical negligence on behalf of the
seventy-seven Plaintiffs listed in Table 1 because the Fifth
Amended Complaint: (1) as to Audrey Lamagna (“Lamagna”) contains
no allegations she received medical care from a United States
medical provider; and (2) contains only “conclusory boilerplate
allegations that provide no information regarding when, where,
or from whom Plaintiffs received the medical care they allege
was negligent.” 	Motion, Mem. in Supp. at 17, see also id. at
18-20 (Table 1). 	Plaintiffs argue the general allegations in
the Fifth Amended Complaint stating that
the United States failed to provide proper
medical care to Plaintiffs by negligence in
treating medical conditions resulting from the
contamination, failing to monitor the Plaintiffs’
health, failing to perform required medical
tests, not adhering to accepted standards of
care, not addressing health conditions in a
timely manner, and in some cases, not providing
treatment at all
[Mem. in Opp. at 23,] together with the specific allegations for
each Plaintiff asserting medical negligence are sufficient to
survive a motion to dismiss. 	[Id. at 23-24.]
The Court agrees with Plaintiffs. 	Plaintiffs’
allegations are sufficient to allege medical negligence as to
the seventy-seven Plaintiffs listed in Table 1.
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To make a claim for negligence/medical
malpractice, Plaintiffs must show (1) the duty
and standard of care, (2) negligent breach of the
standard of care, and (3) injuries proximately
caused by the negligence. 	See, e.g., Birmingham
v. Fodor’s Travel Publications 73 Haw. 359, 833
P.2d 70, 74 (1992) (noting the elements of a
negligence action); Bernard v. Char, 79 Hawai`i
371, 903 P.2d 676 (1996) (“Bernard I”) aff’d 79
Hawai`i 362, 903 P.2d 667 (1996) (“Bernard II”).
Bynum v. Magno, 125 F. Supp. 2d 1249, 1258 (D. Hawai`i 2000).
Allegations in a complaint “must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.” 	Starr,
652 F.3d at 1216. 	Plaintiffs allege 	“[t]he United States has
negligently failed to treat these plaintiffs’ medical conditions
caused by the Red Hill Bulk Fuel Storage Facility fuel leaks,”
“has failed to monitor these plaintiffs’ conditions, perform
required medical tests, or treat the illnesses caused by the
negligent conduct relating to the Red Hill Bulk Fuel Storage
Facility fuel leaks,” “has failed to adhere to the accepted
standards of care for these plaintiffs,” “has failed to timely
address the health conditions of each of these plaintiffs or
perform the standard of care in a timely manner, including
appropriate referrals,” and in some instances, “has failed to
treat these plaintiffs altogether, refusing appropriate tests or
treatment.” 	[Fifth Amended Complaint at ¶¶ 503-07.] 	Plaintiffs
also provide specific allegations as to each Plaintiff. 	This is
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sufficient to give fair notice to Defendant and to allow
Defendant to defend itself effectively. 	See Starr, 652 F.3d at
1216. 	Plaintiffs are not required to state which specific
doctors they sought care from, nor which specific dates they
sought care.
For example, Defendant cites the allegations regarding
Cheryl Burness’s medical negligence claim, [Motion, Mem. in
Supp. at 17 n.4] which state in part:
The family sought care from government medical
providers, but the care was deficient.
Government medical providers knew or reasonably
should have known about the fuel leaks and the
threat to public health they posed. 	Through
their training and protocols, military medical
providers possess an understanding of risk
assessment and treatment for toxic exposure.
Toxicological testing was not performed in a
timely and proactive manner, nor was suitable
treatment given, to ensure health after a known
exposure to fuel-contaminated water.
[Fifth Amended Complaint at ¶ 258.] 	These allegations are
sufficient to state a plausible medical negligence claim. 	See
Iqbal, 556 U.S. at 678. 	The allegations for the other seventy-
six Plaintiffs listed in Table 1 are similar and also
sufficient.
As to Defendant’s argument that Audrey Lamagna’s
medical negligence claim is not sufficiently alleged [Motion,
Mem. in Supp. at 17], this argument also fails. 	Plaintiffs
allege “[s]tomach pains, nausea, and skin irritation symptoms
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were brushed off by the doctors in the fall of 2021. 	Audrey
suffered an ectopic pregnancy and the surgeons had to remove one
of her fallopian tubes after having a lack of adequate health
care that led to weeks of spotting, abdominal pain, and mental
anguish from the miscarriage.” 	[Fifth Amended Complaint at
¶ 160.] 	These allegations, coupled with the general allegations
of medical negligence committed by Defendant, including that
Defendant “failed to treat these plaintiffs’ medical conditions
caused by the Red Hill Bulk Fuel Storage Facility fuel leaks,”
and failed to adhere to accepted standards of care and to
address health conditions in a timely manner, among other
allegations, sufficiently allege a plausible medical negligence
claim on behalf of Audrey Lamagna. 	See id. at ¶¶ 503-07.
Further, contrary to Defendant’s contention, the general
allegations make clear that Audrey Lamagna’s doctor was a
government doctor. 	The Fifth Amended Complaint also alleges
“[o]ther plaintiffs did not receive government provided medical
care and do not bring medical negligence claims at this time.”
[Id. at ¶ 502.] 	This allegation, treated as true for purposes
of the instant Motion, implies that the plaintiffs alleged in
paragraph 501 of the medical negligence claim did receive
government provided medical care. 	See Iqbal, 556 U.S. at 678.
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Insofar as the Motion requests dismissal of the
medical negligence claims of the seventy-seven Plaintiffs listed
in Table 1, the Motion is denied.
CONCLUSION
For the foregoing reasons, Defendant’s Partial Motion
to Dismiss Fourth Amended Complaint [ECF No. 121], filed
June 27, 2023 and which has been deemed to apply to the Fifth
Amended Complaint, is HEREBY GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED insofar as the failure to warn claims
contained in Counts II and IV are DISMISSED WITH PREJUICE. 	The
Motion is DENIED as to the failure to warn claims within Count
I, and as to Defendant’s request to dismiss the medical
negligence claims in Count IV by the seventy-seven Plaintiffs
listed in Table 1 of the Motion.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, January 11, 2024.
PATRICK FEINDT, JR., ET AL. VS. UNITED STATES OF AMERICA; CV 22-
00397 LEK; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S PARTIAL MOTION TO DISMISS FOURTH AMENDED COMPLAINT
[ECF NO. 121], [FILED 6/27/23 (DKT. NO. 129)
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