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Strand v. United States

United States District Court, D. Maryland

February 8, 2017

TOYA STRAND, individually and as legal guardian of JT, a minor Plaintiffs,
UNITED STATES OF AMERICA, Department of the Army Defendant.



         Toya 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.

         The Government argues that the Court lacks jurisdiction over the dispute because the discretionary function exception to the FTCA applies.[1]

         This is 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).

         On 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.[2] 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 PREJUDICE.


         A. The Camp

         During 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. ¶ 13.

         B. The Incident

         The 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.

         After 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.

         There 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.

         C. Camp Governance

         The 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.[3] 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.[4] 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.

         The 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.[5] 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.

         D. Procedural History

         On 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).


         As an initial matter, the Court addresses Strand's Motion for Spoliation Sanctions.[6] 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 Government.

         Strand's 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 might show.


         Strand 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.

         A. Standard of Review

         A party 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 matter] jurisdiction.”).

         B. The FTCA and ...

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