B-152659, OCT. 23, 1963

B-152659, OCT. 23, 1963

TO GOVERNMENT EMPLOYEES INSURANCE COMPANY OF WASHINGTON, D.C.:

YOUR CLAIM NO. S18-20159 AS SUBROGEE OF MICHAEL T. KING REQUESTS PAYMENT OF THE AMOUNT OF $382.23 FOR DAMAGES TO MR. KING'S AUTOMOBILE RESULTING FROM A COLLISION ON FEBRUARY 25, 1963, INVOLVING THE AUTOMOBILE OF FOUNTAIN L. WALLACE, AN EMPLOYEE OF OUR OFFICE.

OUR RECORDS ON THE ACCIDENT IN QUESTION DISCLOSE THAT, ON FEBRUARY 25, 1963, MR. WALLACE WAS DRIVING HIS PRIVATELY OWNED AUTOMOBILE ON OFFICIAL GOVERNMENT BUSINESS ON SHORE DRIVE, VIRGINIA BEACH, VIRGINIA, WHEN HE WAS INVOLVED IN AN ACCIDENT WITH TWO OTHER AUTOMOBILES. DRIVING CONDITIONS IN THE AREA AT THAT TIME WERE HAZARDOUS DUE TO A HEAVY FROST THAT FORMED ICY PATCHES ON THE HIGHWAYS.

EACH OF THE TWO LANES PROCEEDING WEST ON THE DUAL HIGHWAY WERE FILLED WITH TRAFFIC. ALL OF THE AUTOMOBILES INVOLVED WERE LOCATED IN THE INSIDE LANE OF TRAFFIC PROCEEDING AT A SPEED OF ABOUT 30-35 MILES PER HOUR IN A 45 MILES-PER-HOUR ZONE. THE VEHICLES WERE IN THE FOLLOWING ORDER--- U.S. NAVY PICKUP TRUCK, NO. 94-41193; FORD FALCON DRIVEN BY MICHAEL T. KING; MR. WALLACE'S AUTOMOBILE; AND A 1957 FORD, DRIVEN BY WILLIAM WEEKS.

THE FIRST INDICATION OF IMPENDING DANGER CAME WHEN THE U.S. NAVY PICKUP TRUCK'S BRAKE LIGHTS FLASHED. THE VEHICLE SKIDDED COMPLETELY AROUND AND ENTERED THE DITCH ON THE RIGHT SIDE OF THE ROAD. MR. KING DRIVING THE FORD FALCON, THEN ATTEMPTED TO BRAKE IN AN EFFORT TO MISS THE SKIDDING U.S. NAVY TRUCK. BY DOING SO, HIS AUTOMOBILE SKIDDED IN SUCH A MANNER THAT IT PROCEEDED DOWN THE HIGHWAY SIDEWAYS. MR. WALLACE WAS UNABLE TO STOP ON THE ICE OR TO MANEUVER INTO THE OUTSIDE LANE AND HIT THE FALCON AT APPROXIMATELY THE RIGHT DOOR. MR. WALLACE WAS THEN STRUCK IN THE REAR BY A 1957 FORD DRIVEN BY WILLIAM WEEKS.

THE VIRGINIA BEACH POLICE DEPARTMENT WAS NOTIFIED BY A PASSING MOTORIST AND OFFICER H. H. UNROE, 1ST PRECINCT, INVESTIGATED THE ACCIDENT. HE WAS ACCOMPANIED BY ANOTHER OFFICER WHOM MR. WALLACE DID NOT IDENTIFY. NONE OF THE DRIVERS INVOLVED WAS ISSUED A SUMMONS AND THE OFFICERS INDICATED THAT THE ACCIDENT WAS UNAVOIDABLE UNDER THE ICY DRIVING CONDITIONS.

YOUR CLAIM, OF COURSE, IS COGNIZABLE BY THIS OFFICE ONLY IN ACCORDANCE WITH THE TERMS OF THE FEDERAL TORT CLAIMS ACT, AS AMENDED, WHICH PROVIDES IN PERTINENT PART (28 U.S.C. 2672) AS FOLLOWS:

"THE HEAD OF EACH FEDERAL AGENCY, OR HIS DESIGNEE FOR THE PURPOSE, ACTING ON BEHALF OF THE UNITED STATES, MAY CONSIDER, ASCERTAIN, ADJUST, DETERMINE, AND SETTLE ANY CLAIM FOR MONEY DAMAGES OF $2,500 OR LESS AGAINST THE UNITED STATES ACCRUING ON AND AFTER JANUARY 1, 1945, FOR INJURY OR LOSS OF PROPERTY OR PERSONAL INJURY OR DEATH CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OR OMISSION OF ANY EMPLOYEE OF THE GOVERNMENT WHILE ACTING WITHIN THE SCOPE OF HIS OFFICE OR EMPLOYMENT, 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.'

IMMUNITY OF THE SOVEREIGN FROM SUITABILITY IS AN ANCIENT PRINCIPLE OF THE LAW, IN TORT AS WELL AS IN CONTRACT CASES. THE FEDERAL TORT CLAIMS ACT IS A MANIFESTATION OF THE GOVERNMENT'S CONSENT TO BE SUED IN A CLASS OF ACTIONS WHERE THERETOFORE ACTION WOULD NOT LIE AGAINST IT. THE STATUTE DOES NOT CREATE A CAUSE OF ACTION BUT WAIVES THE SOVEREIGNTY OF THE UNITED STATES TO PERMIT SUITS FOR TORTS COMMITTED BY ITS AGENTS AND EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR AUTHORITY OR EMPLOYMENT, TO THE SAME EXTENT AND FOR THE SAME REASONS WHICH, UNDER THE STATE LAW, CAN BE ASSERTED AGAINST PRIVATE PERSONS, SUBJECT TO CERTAIN LIMITATIONS REFERRED TO IN THE STATUTE.

THE FEDERAL TORT CLAIMS ACT PERMITS ACTION AGAINST THE GOVERNMENT ONLY WHERE DAMAGE WAS CAUSED BY THE NEGLIGENT OR WRONGFUL ACT OF OMISSION OF ITS AGENT, AND THEN ONLY UNDER CIRCUMSTANCES WHERE THE GOVERNMENT, IF A PRIVATE PERSON, WOULD BE LIABLE UNDER THE LAW OF THE JURISDICTION WHERE THE ACT OR OMISSION OCCURRED.

IT IS STATED IN 7 AM JUR 2D, AUTOMOBILES AND HIGHWAY TRAFFIC SEC. 350 THAT:

"THE OPERATOR OF A MOTOR VEHICLE IS NOT LIABLE AS AN INSURER, OR FOR UNAVOIDABLE OR INEVITABLE ACCIDENTS, AND THE MERE FACT THAT AN ACCIDENT OCCURS WHICH RESULTS IN PERSONAL INJURY, DEATH, OR PROPERTY DAMAGES DOES NOT WARRANT A RECOVERY AGAINST THE OWNER OR OPERATOR OF THE VEHICLE UNLESS IT CAN BE SHOWN THAT THE INJURY OR DAMAGE WAS CAUSED BY THE NEGLIGENCE OF THE OPERATOR.'

IN DUNCAN V. UNITED STATES, 98 F.SUPP. 483, WHEREIN THE PLAINTIFF'S AUTOMOBILE AND A GOVERNMENT VEHICLE WERE INVOLVED IN A HEAD-ON COLLISION, THE COURT HELD THAT SINCE THE GOVERNMENT VEHICLE HAD SKIDDED ONTO THE WRONG SIDE OF THE ROAD AS A DIRECT AND PROXIMATE RESULT OF THE SLIPPERY CONDITION OF THE HIGHWAY AND WITHOUT FAULT ON THE PART OF THE DRIVER, THE COLLISION WAS AN UNAVOIDABLE ACCIDENT AND THERE WAS NO LIABILITY ON THE GOVERNMENT. THE COURT STATED THAT:

"SKIDDING OR SWERVING MAY OCCUR WITHOUT FAULT. IT IS A MATTER OF COMMON KNOWLEDGE THAT DRIVERS CAN LOSE CONTROL OF THEIR CARS ON SLIPPERY ROADS WITHOUT BEING NEGLIGENT IN THE HANDLING OF THE VEHICLE.'

LIKEWISE, IN BAUGHER V. HARMAN, 66 S.E. 86, THE SUPREME COURT OF APPEALS OF VIRGINIA STATED:

"IN THE INTEREST OF PUBLIC SAFETY WE FULLY APPRECIATE THE IMPORTANCE OF A RIGID ENFORCEMENT OF THE LAW AGAINST THE NEGLIGENT OPERATION OF AUTOMOBILES OVER THE HIGHWAYS OF THE COMMONWEALTH. AT THE SAME TIME, SUCH CONSIDERATION CAN AFFORD NO JUSTIFICATION FOR MULCTING THE OWNERS OR DRIVERS OF SUCH MACHINES, EITHER WITH DAMAGES OR FINES, FOR INEVITABLE ACCIDENTS NOT DUE TO THEIR FAULT OR NEGLIGENCE, YET TO THE HAPPENING OF WHICH THEY MAY HAVE INNOCENTLY CONTRIBUTED.'

THERE IS NOTHING IN THE RECORD BEFORE OUR OFFICE TO INDICATE, NOR DOES YOUR CLAIM EVEN ALLEGE, ANY NEGLIGENCE ON THE PART OF MR. WALLACE. IF IT IS INTENDED TO IMPUTE NEGLIGENCE AGAINST MR. WALLACE FROM THE MERE FACT THAT HIS AUTOMOBILE SKIDDED ON THE ICE, IT SHOULD BE NOTED THAT MR. KING'S AUTOMOBILE LIKEWISE SKIDDED AND THEREFORE NEGLIGENCE ALSO MUST BE IMPUTED TO HIM ON THAT BASIS. IT SEEMS APPARENT THAT IF MR. KING HAD NOT SKIDDED, MR. WALLACE WOULD NOT HAVE COLLIDED WITH HIM.

IT IS STATED IN 7 AM JUR 2D, AUTOMOBILES AND HIGHWAY TRAFFIC SEC. 361, THAT:

"THE COMMON-LAW RULE THAT THERE CAN BE NO RECOVERY FOR INJURIES WHERE IT APPEARS THAT THE PERSON INJURED WAS GUILTY OF CONTRIBUTORY NEGLIGENCE, OR WHERE THE INJURY WAS THE RESULT OF THE UNITED, MUTUAL, CONCURRING, AND CONTEMPORANEOUS NEGLIGENCE OF THE PARTIES TO THE TRANSACTION, IS FULLY APPLICABLE IN CASES INVOLVING INJURIES BY MOTOR VEHICLES. * * *

"* * * CONTRIBUTORY NEGLIGENCE IS NEGLIGENCE WHICH CONTRIBUTES TO THE ACCIDENT, HAVING A CAUSAL CONNECTION WITH IT, AND BUT FOR WHICH THE ACCIDENT WOULD NOT HAVE HAPPENED. * * *"

IN THE CASE OF WEBB V. SMITH, 10 S.E.2D 503, THE SUPREME COURT OF APPEALS OF VIRGINIA STATED:

"THE ICE ON THE HARD SURFACE (OF THE ROAD) WAS A CONDITION KNOWN TO THE OPERATOR OF EACH VEHICLE, AND EACH WAS CHARGED WITH THE DUTY TO TAKE CARE AND CAUTION IN THE OPERATION OF HIS VEHICLE PROPORTIONATE TO THE KNOWN AND OBVIOUS DANGEROUS CONDITION OF THE HIGHWAY.'

HENCE, ON THE BASIS OF THE PRESENT RECORD, WE HAVE NO ALTERNATIVE BUT TO DISALLOW YOUR CLAIM.