United States District Court, D. Maryland
TOYA STRAND, individually and as legal guardian of JT, a minor Plaintiffs,
UNITED STATES OF AMERICA, Department of the Army Defendant.
J. MESSITTE UNITED STATES DISTRICT JUDGE
Strand, individually and on behalf of her son JT (a minor),
has sued the United States (the Government) under the Federal
Tort Claims Act (FTCA), 28 U.S.C. § 2671, et.
seq., in connection with injuries her son sustained
while attending a summer camp run by the United States Army
at Fort Meade, Maryland. In her Complaint, Strand alleges
that the Government, its camp counselors, and camp directors
owed duties to her and JT, which they breached due to
negligence. She also asserts an agency/vicarious liability
claim against the Government as the employer of the
counselors, camp directors, and other individuals who
purportedly breached those duties. She seeks judgment against
the Government in the amount of $750, 000.
Government argues that the Court lacks jurisdiction over the
dispute because the discretionary function exception to the
not the first time in this case that the Government has
raised the discretionary function exception. The Court
previously denied without prejudice the Government's
Motion to Dismiss for Lack of Jurisdiction (ECF No. 14),
which asserted that the discretionary function exception
barred the suit. The Court then allowed discovery to go
forward, following which, the Government has again asked for
dismissal of the suit based on the discretionary function
exception, this time in the form of a Motion to Dismiss for
Lack of Jurisdiction or, Alternatively, for Summary Judgment
(ECF No. 46).
November 15, 2016, the Court held a motions hearing on the
Government's Motion. At the hearing, the Court, sua
sponte, inquired as to the potential application of the
voluntary undertaking theory of liability to the
case. Because the parties had not briefed this
issue, the Court granted the Government leave to submit
supplemental briefing and Strand an opportunity to respond.
The parties did so, and the Court has now reviewed those
filings. For the following reasons, the Court will GRANT the
Government's Motion to Dismiss (ECF No. 46) and
therefore, need not address its alternative Motion for
Summary Judgment (ECF No. 46). Consistent with this,
Strand's Complaint (ECF No. 1) will be DISMISSED WITH
FACTUAL AND PROCEDURAL HISTORY
the summer of 2011, Strand's minor son, JT, who was then
12-years-old, attended a summer camp program (the Camp) run
by the U.S. Army Child, Youth and School Services at Fort
George G. Meade (Fort Meade) at Fort Meade, Maryland. Compl.
¶ 5, ECF No. 1. The Camp was operated by the Army's
Youth Program during the summer months to care for children
of military and Department of Defense personnel. See
Def's. Mot. to Dismiss or Summary Judgment, Exhibit A,
ECF No. 46-3 (Youth Program Handbook), 3. The campers rotated
through various activities at different facilities at the
Youth Center, including a computer lab, dance studio, and
music room. See Def's. Mot. to Dismiss, Exhibit
B, ECF No. 14-4 (Decl. of F. Jamison), ¶ 11. The campers
also took on-post field trips to the Camp's swimming pool
and bowling alley as well as off-post field trips to the zoo
and a movie theater. Id. ¶ 12. When taking a
field trip to the on-post pool, campers, accompanied by
counselors, were transported on a school bus. Id.
incident at issue occurred during one of these on-post field
trips to the pool. On August 9, 2011, JT and between 19 and
34 other campers were transported from the Youth Center to
the Camp's pool. See Def's. Mot. to Dismiss
or Summary Judgment, Exhibit H, ECF No. 46-10 (Attendance
Form); Def's. Mot. to Dismiss or Summary Judgment,
Exhibit F, ECF No. 46-8 (Dep. of JT), 10; Def's. Mot. to
Dismiss or Summary Judgment, Exhibit G, ECF No. 46-8 (Dep. of
K. Wade), 30-31. They were accompanied by three
counselors-Kimberly Wade, Mike King, and Terrance Trotman-as
well as two to four lifeguards. See Dep. of K. Wade,
31-33; Def's. Mot. to Dismiss or Summary Judgment,
Exhibit O, ECF No. 46-17 (Dep. of M. Wise), 15-16; Def's.
Mot. to Dismiss or Summary Judgment, Exhibit B, ECF No. 46-4
(Dep. of F. Jamison), 11.
swimming, JT went into the locker room to change clothes.
See Def's. Mot. to Dismiss or Summary Judgment,
Exhibit E, ECF No. 46-7 (Dep. of JB), 11. There were
approximately eight or nine children in the boys' locker
room, including JB who, at the time, was 14 years old.
See id. at 11, 20-21; Plf's. Resp, Exhibit I,
ECF No. 52-8 (Dep. of J. Beasley), 6. While in the locker
room, JB and JT exchanged words, seemingly disagreeing about
whether JT had insulted JB's mother. Dep. of JT, 12-14.
After exchanging words, JB struck JT one time in the face.
Id. at 16-17.
were no counselors inside the locker room when the incident
occurred. See Plf's. Resp., Exhibit M, ECF No.
52-11, (Dep. of K. Wade (2)), 48-49. Kimberly Wade, the
counselor closest to the locker room at the time, was
standing outside the boys' locker room in order to
simultaneously monitor both the boys' and girls'
locker rooms. Id. See also Mot. to Dismiss
or Summary Judgment, Exhibit K, ECF No. 52-10 (K. Wade
Incident Report). In the minutes preceding the incident, Wade
entered the girls' locker room in an attempt to get the
girls to finish changing more quickly. Id. After
leaving the girls' locker room, Wade heard the sound of
“body movements” coming from the boys' locker
room. Id. at 51. She yelled into the boys'
locker room in an attempt to get the boys to hurry up.
Id. at 52. While she could tell that there was an
argument in progress, she could not hear what words were
being said. Id. at 52-53. She then walked to the
doorway of the boys' locker room, intending to go inside
in order to see what was going on and stop whatever conflict
was taking place. Id. at 53-54; K. Wade Incident
Report. However, upon hearing a shower running, Wade decided
that she should not enter the boys' locker room out of
fear that a boy might be indecent. Dep. of K. Wade, 54; K.
Wade Incident Report. At that point, Wade began to walk to
the entrance of the pool to ask a male counselor to enter the
boys' locker room and check on things. Dep. of K. Wade,
55; K. Wade Incident Report. However, before Wade could reach
a male counselor, she heard several high pitched voices as
well as the sound of crying. Dep. of K. Wade, 57; K. Wade
Incident Report. A number of boys then ran out of the locker
room saying that there was a fight. Dep. of K. Wade, 57-58;
K. Wade Incident Report. Shortly after, JT emerged from the
locker room crying with blood dripping from his mouth. Dep.
of K. Wade, 58; K. Wade Incident Report. J.B., as indicated,
had allegedly struck him. Id.
Camp's operations were governed by Army Regulation 608-10
and Department of Defense Instructions 6060.2 and 6060.4 as
well as a series of handbooks, guides, and standard operating
procedures. Dep. of F. Jamison, 17. The Youth Program Handbook
stated that the Youth Programs “are designed to enhance
soldier readiness by reducing the conflict between mission
and parental responsibilities, to facilitate Family
well-being, and to reinforce Army values.” Youth
Program Handbook, 2. Youth Programs utilize a framework
focusing on four areas of development: (1) sports, fitness,
and health; (2) life skills, citizenship, and leadership; (3)
arts, recreation, and leisure; and (4) academic support,
mentoring, and intervention. Id. at 4. The Youth
Program Handbook provided instruction for child supervision,
staffing, and employee training. It states,
Accountability of youth must be maintained at all times. No
youth are left unsupervised at any time, indoors or outdoors,
asleep or awake (e.g., an overnight field trip). Supervision
of youth must be defined based on the participants' ages
and stages, developmentally-appropriate practices, parental
permission, and situational risk. A system of accountability
must be ensured. Supervision of middle school and teen youth
does not necessarily require that direct Line-O-Sight
Supervision (LOSS) is maintained at all times (e.g., see
field trips). . . . YP management personnel will ensure extra
vigilance in supervision of youth during times of greater
confusion (e.g., during dances, field trips, special events,
or during personnel turnover).
Id. at 15. With regard to child safety, the Youth
Program Handbook stated that the Youth Program Director
should “encourage participants and staff to be
independent decision-makers promoting their own
safety.” Id. at 71.
Youth Program Handbook required a general staffing ratio of 1
supervisor to 15 children, and in the case of an on-site
field trip to the pool, the ratio was reduced to 1:8 when
lifeguards were present. Id. at 18. The Youth
Program Handbook stated that “[s]upervision of youth
during field trips does not always require direct
[Line-O-Sight Supervision].” Id. at 16. There
was no general requirement that staff be present in a
bathroom or locker room. There was, however, one circumstance
in which the Youth Program Handbook mandated staff presence
in a locker room-if there had been an allegation of
institutional child sexual abuse. Id. at 15. In her
deposition, Wade stated that there was a policy that female
counselors could not go into the boys' locker room. Depo.
Of K. Wade, 55. She did, however, indicate that there was an
exception to that policy if someone was in danger and it was
unsafe not to enter. Id.
November 10, 2014, Strand filed suit against the Government
pursuant to the FTCA, alleging negligence and vicarious
liability. Compl. The Government filed a Motion to Dismiss,
arguing that the Court lacked subject matter jurisdiction
pursuant to the discretionary function exception. ECF No. 14.
Following a hearing on June 15, 2015, the Court denied the
motion without prejudice. ECF No. 23. The Government then
answered (ECF No. 26), and the parties engaged in extensive
discovery, which included a number of depositions of key
actors in the incident such as JB, JT, Wade, and JB's
mother. The Government then filed the pending Motion to
Dismiss or, Alternatively, for Summary Judgment (ECF No. 46),
once again seeking dismissal pursuant to the discretionary
function exception. Strand responded (ECF No. 52), and the
Government replied (ECF No. 54). The Court held a hearing on
November 15, 2016. At the conclusion of the hearing, the
Court raised the potential application of the voluntary
undertaking doctrine and provided the parties with an
opportunity to submit supplemental briefing on the issue. The
parties filed supplemental briefs (ECF Nos. 57, 62), and the
Government has since submitted correspondence regarding
United States v. Wood, 845 F.3d 123, (4th Cir.
2017), a recent Fourth Circuit opinion addressing the
discretionary function exception (ECF No. 60).
initial matter, the Court addresses Strand's Motion for
Spoliation Sanctions. Put simply, Strand asserts that the
Government has admittedly lost some of the most relevant
evidence in the case, i.e. (1) the “trip information
form” (2) the Camp file related to the field trip to
the pool on August 8, 2011, and (3) the Camp's
“weekly file” containing relevant information
such as the sign-in sheet that showed precisely which campers
and counselors went to the pool on that day. Strand contends
that as a result of the Government's failure to preserve
this evidence, the parties have not been able to identify
with certainty which, if any, male staff members were present
on the field trip, the precise number of campers on the field
trip, and the identity of the campers on the field trip. She
seeks to have an adverse inference drawn against the
Government in the form of a presumption that the lost
evidence would have been helpful to her and harmful to the
Motion for Spoliation Sanctions is DENIED. She has not shown
that the Government was obligated to preserve this evidence
or that it acted with culpable intention. See Goodman v.
Praxair Servs., Inc., 632 F.Supp.2d 494, 509 (D. Md.
2009) (“A party seeking sanctions for spoliation must
prove . . . the party having control over the evidence had an
obligation to preserve it when it was destroyed or altered
[and] the destruction or loss was accompanied by a
‘culpable state of mind.'”) (quoting
Thompson v. U.S. Dep't of Hous. & Urban Dev.,
219 F.R.D. 93, 101 (D. Md. 2003)). Further, Strand has failed
to prove the relevance of the documents. Id. It is
by no means clear that the allegedly “despoiled”
documents would have provided information not otherwise
available from the attendance sheet, which was produced, or
other discovery revealing the identity of the counselors on
the trip. In any event, as the Court now explains,
Strand's case is infirm, whatever the missing documents
MOTION TO DISMISS
alleges that the Government is liable pursuant to the FTCA
for the injuries sustained by JT based on theories of
negligence and vicarious liability. The Government argues
that the actions taken and decisions made by the Camp, its
directors, and its counselors were discretionary, and
therefore not actionable under the FTCA. If the discretionary
function exception to the FTCA applies, the Court without
question lacks subject matter jurisdiction over Strand's
claims. Strand counters, arguing that the discretionary
function exception cannot apply because: (1) the Government
violated its own policy with respect to the supervision of
children (2) the failure to adequately supervise the
boys' locker room was not based on considerations of
public policy; and (3) the voluntary undertaking doctrine
defeats the discretionary function exception.
Standard of Review
may move for dismissal pursuant to Federal Rule of Civil
Procedure 12(b)(1) where the court lacks subject matter
jurisdiction over the claims alleged in the complaint.
Fed.R.Civ.P. 12(b)(1). Federal courts are courts of limited
subject matter jurisdiction: they “possess only the
jurisdiction authorized them by the United States
Constitution and by federal statute.” See United
States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 347 (4th
Cir. 2009) (citing Bowles v. Russell, 551 U.S. 205,
127 S.Ct. 2360, 2365, 168 L.Ed.2d 96 (2007)). As the party
asserting jurisdiction, the plaintiff bears the burden of
proving that the district court has subject matter
jurisdiction. See Richmond, Fredericksburg & Potomac
R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.
1991). When a governmental entity is sued and Congress has
not waived sovereign immunity as to the claim, sovereign
immunity deprives the court of jurisdiction to hear the case.
See Global Mail Ltd. v. United States Postal Serv.,
142 F.3d 208, 210 (4th Cir.1998). When a district court
determines that it lacks subject matter jurisdiction over an
action, it must dismiss the action. Vuyyuru, 555
F.3d at 347 (citing Arbaugh v. Y & H Corp., 546
U.S. 500, 506-07, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006)).
In considering whether to dismiss for lack of jurisdiction,
the court may consider “evidence outside of the
pleadings without converting the proceeding into one for
summary judgment.” White Tail Park, Inc. v.
Stroube, 413 F.3d 451, 459 (4th Cir. 2005) (quoting
Richmond, Fredericksburg & Potomac R.R. Co., 945
F.2d at 768); see also Williams v. United
States, 50 F.3d 299, 304 (4th Cir. 1995) (“[T]he
court may consider the evidence beyond the scope of the
pleadings to resolve factual disputes concerning [subject
The FTCA and ...