The opinion of the court was delivered by: INFANTE
This is an action under the Federal Tort Claims Act ("FTCA") against the United States and the Department of the Navy for negligence and emotional distress. Plaintiffs, husband and wife Don and Elizabeth Noel, allegedly sustained injuries while operating a concessionaire's ice cream cart during an air show at Moffett Field Naval Air Base when the wheel of the cart became lodged in a "pad-eye" on the aircraft tarmac, causing the cart to overturn.
Presently before the Court are the Government's motion to dismiss for lack of subject matter jurisdiction, or in the alternative for summary judgment. Having considered the motion papers, the comments of counsel, and good cause appearing: (1) the Government's motion to dismiss for lack of subject matter jurisdiction is GRANTED in part and DENIED in part; and (2) the Government's motion for summary judgment is DENIED.
On October 17, 1992, the Noels attended the Moffett Field Air Show as "civilian charity volunteers" to operate concessionaire's ice cream carts, with the invitation and authorization of the Navy. NAS Moffett Air Field ("Moffett Field"), located in Mountain View, California
, was authorized to host open houses such as air shows for the general public pursuant to 32 C.F.R. § 705.34.
Lieutenant Commander William K. Quigley served as the Air Show Project Officer for the 1992 Air Show held on October 17-18, 1992.
As Air Show Project Officer, Quigley was responsible for planning and coordinating the air show.
There were no statutes, regulations or directives from either the Department of Defense or the Department of the Navy pertaining to crowd control or safety during an air show.
1. The Crowd Control Plan
In preparation for the 1992 Air Show, Quigley formed an air show committee, and designated a crowd control officer, Commander Smith, with responsibility for developing a crowd control plan and setting up crowd control lines.
Whether Commander Smith developed a written crowd control plan is unknown.
Commander Smith also acted as the ramp security officer, and in that capacity was responsible for preparing a ramp security plan with safety officers.
Further, the ramp security officer and safety officers were responsible for (i) submitting fire/disaster and emergency plans, (ii) briefing all ramp security personnel, and (iii) posting security watches during the air show.
The committee determined that it needed one hundred and forty (140) individuals to serve as a safety and security team at hangar one and the "ramp areas" where air show attendees and concessionaires would presumably be congregating.
The aircraft ramp area outside of Hanger One aircraft is a approximately 4000 feet long and 350-500 feet wide, containing thousands of uniformly spaced pad-eyes that are used to "tie-down" aircraft in high winds.
The pad-eyes are holes in the tarmac approximately three to six inches deep, five inches wide and eight inches long, and are spaced approximately twelve feet apart.
The safety and security team was responsible for patrolling the aircraft parking ramp and hangar one exhibit area to give assistance to air show attendees, and also for providing special security for designated aircraft.
The committee further designated twenty safety observers to report any unsafe conditions.
Lastly, the air show committee developed an Air Show 92 Emergency Plan, which contained a list of additional safety precautions and emergency action plans.
The Air Show 92 Emergency Plan does not specify any precautionary measures to be taken with regard to the pad-eyes. According to Quigley, the air show committee realized that hundreds of thousands of people would walk across the ramp areas containing the pad-eyes, but considered the risk of injury remote because the pad-eyes were clearly visible and avoidable.
Quigley also states in his declaration that the committee could not use pad-eye covers because they did not exist, and considered the use of barriers and warning cones impractical in light of the anticipated crowds of 300,000 each day.
Quigley explains that the committee felt that the barriers and cones would have been difficult to keep in place, and that it was more likely that a person would trip over a cone or a barrier than a pad-eye.
Neither Quigley nor anyone else involved in planning the air show considered implementing other types of warnings for the pad-eyes.
Quigley testified that the primary purpose of the air show was to foster goodwill within the community. More specifically, Quigley testified that "an open house is designed for public relations purposes, for the military within a local community to open up the gates and allow people to come in to see the base, to interact with the personnel on the base, and to see basically what their tax dollars are doing, so to speak, and how the military is providing for the defense of the nation."
However, Quigley testified that neither economics nor political considerations influenced decisions regarding crowd control or safety at the air show.
2. The Concession Services Contract
The Moral, Welfare and Recreation Department of the Navy ("MWR") contracted with National Concession Company ("National Concession") to operate concession booths for food, ice cream, beverages and novelties at the 1992 Air Show.
The contract provided the following:
That the NAFI
1. Grant the CONTRACTOR concession rights for food, ice cream, beverage and novelties at the 1992 NAS Moffett Field Air Show, to be held 17 and 18 October 1992.
a. As the major air show concessionaire for food, ice cream, beverage and novelties, CONTRACTOR will be given primary control over all similar concessions operated at the event.
b. If it is mutually decided by the NAFI and the CONTRACTOR to include specialty food and novelty concessions, those concessionaires will contract through the CONTRACTOR for vending rights, with the entire booth fee (as determined by the NAFI) collected by the CONTRACTOR and turned over to the NAFI.
5. Recruit and assign volunteer labor groups to man the concession groups throughout the entire event. The NAFI will pay ten (10) percent commission to volunteer organizations staffing the booths.
That the CONTRACTOR shall:
1. Operate said concessions and provide service and products of a quality satisfactory to the Morale, Welfare and Recreation Department.
2. Keep the concessions open during the hours of 8:00 am to 5:00 pm on 17 ...