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Taber v. Maine - 67 F.3d 1029 (2d Cir. 1995)

Rule:

Because Feres bars a claim for injuries that arise out of or in the course of activity incident to service, the court concludes that in assessing whether a military plaintiff’s Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 1346(b), claim is barred, the court should proceed by considering the same question that would determine whether the plaintiff would be entitled to receive standard workers’ compensation payments for his injury: was the plaintiff engaged in activities that fell within the scope of the plaintiff’s military employment? Where the answer is yes, so that the plaintiff would be entitled to receive standard workers’ compensation payments, this will mean that the Feres doctrine applies, barring recovery under the FTCA. Conversely, if the answer is no, so that the plaintiff would have no entitlement to recover standard workers’ compensation payments, there should be no Feres bar, absent unusual circumstances that would call into play the Feres discipline rationale.

Facts:

Appellant Navy construction worker was on a weekend furlong in the Country of Guam, when he was struck and injured off a military base by a drunk Navy serviceman. Appellant brought suit against appellee United States under the Federal Tort Claims Act (FTCA), 28 U.S.C.S. § 1346(b), and the trial court dismissed the claim, holding that appellee was not liable under respondent superiority, and the Feres doctrine gave immunity to appellee’s liability. Appellant challenged the ruling.

Issue:

Did the Feres doctrine bar a construction worker's claim against the United States for injuries sustained when he was struck by a drunk naval serviceman?

Answer:

No.

Conclusion:

The court reversed the judgment of the lower court, and held that appellee United States was liable for an automobile accident caused by its military serviceman to appellant military worker, and did not have immunity under the Feres doctrine, because the accident occurred off the military base, and appellant was injured while off-duty.

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