MEMORANDUM AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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.
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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.
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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 and 18 October 1992.
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9. Responsible for erecting and tearing down booths. Booths will be removed at the end of the event on Sunday, 18 October 1992.
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14. Train all volunteer booth workers and provide procedural guides to all booth managers. Train all cash pick-up and counting staff in cash handling procedures, including forms.
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23. Provide NAFI with name[s] of all subcontractors.
That CONTRACTOR shall not:
24. Represent or permit himself to be represented to the public as an agent or employee of the NAFI by the use of the name of the NAFI on letters, bills, signs, or by other means. CONTRACTOR, his servants agents, and employees are in no sense agents of the United States, the NAFI, Department of the Navy, Commanding Officer of NAS Moffett Field.
See Ex. A to Boyce Decl.
In accordance with the contract, Ms. Wendy Boyce, administrative assistant to the director of MWR, recruited volunteer labor groups to staff National Concession's food booths.
Boyce also received a request from one of National Concession's ice cream concession subcontractors, Faire Foods, Inc., to locate volunteer labor groups to staff its booths.
Although Faire Foods did not have a contract with MWR, Ms. Boyce (i) contacted various volunteer labor groups, (ii) explained that MWR did not have a contract with Faire Foods, (iii) asked whether the groups wanted their names forwarded to Faire Foods, and (iv) Provided Faire Foods representative, Mr. Leonard Ivler, with the names of interested groups, including the Noels. Thereafter, MWR did not have any further contact with volunteer labor groups chosen to staff Faire Food's ice cream carts. The Noels volunteered to staff Faire Foods' ice cream carts.
3. The Accident
On or about October 17, 1992, the Noels attended the Moffett Field air show as volunteer workers, and were each provided a Faire Foods ice cream cart at the "staging area" in Hangar One.
Don Noel describes the ice cream carts as "rectangular boxes" with two large wheels and two smaller wheels approximately six inches in diameter.
The parties provide different accounts of what occurred next. According to the Noels, the ice cream cart assigned to Elizabeth Noel did not have a handlebar, but had what appeared to be a leather or vinyl strip across the back of the cart for pushing, and an umbrella mounted on top of the cart.
The Noels were directed to push their ice cream carts out onto the tarmac and set up their carts approximately 130 yards from Hangar One.
As they pushed their carts from the Hangar out onto the tarmac, they were surrounded by "hundreds of thousands of people" who were attending the air show.
They assert that they were initially "completely unaware" of the existence of tie-down holes in the tarmac, and were unable to see them because of the "mobs of people."
Moreover, the Noels were not provided any assistance by the Navy in transporting their carts to their designated positions, nor were they warned by the Navy or anyone else of the existence of tie-down holes in the tarmac.
The Noels also did not notice any Navy or military personnel in the vicinity directing the crowds.
Elizabeth maneuvered her cart without any guidance from her husband.
About halfway into her route, she noticed three or tour tie down holes that seemed to appear "intermittently one at a time, in a sudden and random fashion without any discernable pattern due to the large crowds."
However, Don Noel did not see the tie-down holes at all until after the accident in question.
As Elizabeth reached her destination, the wheel of her cart was caught in a tie-down hole, instantly causing the cart to overturn and land on her leg.
According to Elizabeth, she did not see any tie-down holes in the vicinity of the accident because they were obscured by the crowds.
Mr. Noel was approximately five feet away from Elizabeth at the time of the accident, and did not witness the cart overturning.
Elizabeth was treated by Navy paramedics at a first aid station, and subsequently transported to El Camino Hospital by ambulance.
The Government's version of the relevant events is set forth in a report dated December 18, 1992, prepared by investigating officer Lt. Commander Sue Catherman pursuant to Chapter II, Part B of the JAG manual.
The report is based almost entirely on Lt. Commander Sue Catherman's interviews with the Noels.
According to the report, an employee of Faire Foods by the name of Earl Hampton was responsible for supervising the volunteer workers.
The report states that Elizabeth Noel told Mr. Hampton that she would not be able to push the cart she was initially assigned because she suffered from a hernia, and that Mr. Hampton gave her another cart with bigger wheels for better maneuverability.
Although the second cart did not have a handle, Mr. Hampton stated that it would not present any problems.
The second cart also had a very large umbrella located in the center of the cart that obstructed her view completely.
The Government's report further states that each of the five or six volunteers working for Faire Foods lined up, single file, with their respective carts and proceeded out of Hangar One with Mr. Hampton leading the way.
The report states that due to the "unevenness of the concrete" and the "holes" (pad-eyes), Don Noel was in front of Elizabeth guiding her to turn right, left, to go straight, etc.
According to Catherman's interviews with the Noels, the front left wheel of the cart dropped down into the pad-eye, and as Elizabeth pushed the cart forward in an attempt to dislodge the wheel, the cart rear-ended upwards and came down on Mrs. Noel's right shin.
Lastly, Catherman states in her report that the Noels attributed the cause of the accident to: (1) a defective ice cream cart without a handle, which could have created a "safety zone" between Elizabeth Noel's body and the cart; and (2) the uneven surface of the pavement and the pad-eyes.
In their complaint, the Noels allege, inter alia, that defendants were negligent in (1) failing to employ sufficient means to control the crowds attending the air show, and the crowds obscured the "tie down" holes; (2) failing to employ warning signs, barriers, cones, or other safety devices; (3) failing to warn of unreasonable risk of injury posed by the aforesaid conditions; and (4) failing to divert or exclude the general public or the Noels from a hazardous condition.
III. LEGAL STANDARDS
The defense of lack of subject matter jurisdiction cannot be waived, and the court is under a continuing duty to dismiss an action whenever it appears that the court lacks jurisdiction. Fed.R.Civ.P. 12(h)(3). The standards that must be applied in ruling on a motion to dismiss vary according to the nature of the jurisdictional challenge. In general, a court is free to hear evidence regarding jurisdiction and to rule on that issue prior to trial. Augustine v. United States, 704 F.2d 1074 (9th Cir. 1983). However, a court may not resolve genuinely disputed facts where the "question of jurisdiction is dependent on the resolution of factual issues going to the merits." Sun Valley Gas. v. Ernst Enterprises Inc., 711 F.2d 138 (9th Cir. 1983); Roberts v. Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987), citing, Augustine, 704 F.2d at 1077.
In ruling on a jurisdictional motion involving factual issues which also go to the merits, the court should employ the standard applicable to a motion for summary judgment, as a resolution of the jurisdictional facts is akin to a decision on the merits. Thornhill Publishing Co. v. General Telephone Corp., 594 F.2d 730, 733-35 (9th Cir. 1979); Augustine, supra. Summary judgment shall be entered against the non-moving party if:
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). On a motion for summary judgment, the court must determine whether the evidence presented is such that a jury, applying the appropriate evidentiary standard, could reasonably find for either the plaintiff or defendant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The test to determine whether a motion for summary judgment should be granted mirrors the standard for a directed verdict: "the trial judge must direct the verdict if, under governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. at 250. Accordingly, in reversing a denial of summary judgment, the Supreme Court ruled:
Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no "genuine issue for trial" under Rule 56(c).