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Richard A. Sharrock v. United States of

March 14, 2012

RICHARD A. SHARROCK; CHRISTINA M. SHARROCK, PLAINTIFFS-APPELLANTS,
v.
UNITED STATES OF AMERICA, DEFENDANT-APPELLEE.



Appeal from the United States District Court for the District of Guam Frances Tydingco-Gatewood, Chief District Judge, Presiding D.C. No. 1:08-cv-00013

The opinion of the court was delivered by: Goodwin, Circuit Judge

FOR PUBLICATION

OPINION

Submitted February 15, 2012*fn1 Honolulu, Hawaii

Before: Alfred T. Goodwin, Stephen S. Trott, and Mary H. Murguia, Circuit Judges.

OPINION

Plaintiff Richard Sharrock was injured when the automobile in which he was traveling on Route 1, Naval Base, Guam, collided with an automobile owned and driven by Quinten 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 superior. 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 Captain'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 recreation 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 he was acting within the scope of his employment, as California 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 Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019 (9th Cir. 2004). Because the facts of the accident are undisputed, 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 liability "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); see generally Hartzell v. United States, 786 F.2d 964, 966 (9th Cir. 1986). We apply California 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, ...


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