B-145762-O.M. May 19, 1961

B-145762-O.M. May 19, 1961

The Comptroller General

Herewith is the file relative to judgment rendered February 1, 1961, by the District Court of Guam for the Territory of Guam in the case of Mary Catherine Quinlisk vs. The United States of America, Civil No. 44-59, for $3,500.00.

The judgement represents payment for injuries sustained by the plaintiff while walking over a wooden foot bridge giving access to the Anderson Air Force Base Central Exchange Branch No. 10 (Marbo). The proximate cause of the accident was found to be the defective and deteriorated planking of the bridge.

The Department of Justice forwarded the judgement to the Department of the Air Force for payment by the Army and Air Force Exchange Service, inasmuch as the premises where the accident occurred appeared to be under control of the Post Exchange, and such non-appropriated fund activities have now adopted a program of self-insurance against payment of tort claims. See the penultimate paragraph of Assistant Attorney General's letter of July 14, 1960.

The Air Force returned the judgement, together with an opinion of the Judge Advocate General's Office that it was not payable from non-appropriated funds, but should be paid from appropriated funds, presumably meaning the permanent appropriation for payment of judgements rendered by United States District courts, authorized under the Act of July 27, 1956, 70 Stat. 694.

According to the decision of the United States Court of Appeals for the Fourth Circuit, in the case of United States vs. Holcombe, 227 F. 2d. 143, and other court cases cited by the Department of Justice, it appears established as a general rule that the United States is liable under Federal Tort Claims Act for the torts of employees of non-appropriated funds activities.

However, in view of the doubt as to the liability of the United States in this particular case, and the fact that the Department Of Justice intends to use our decision as a precedent for other similar cases, the matter in submitted for your consideration and instructions. See B-128687, December 9, 1958.

K.L. GAYLOR Chief, Payment Claims Branch

Enclosures

Indorsement

Director, Claims Division

Returned. The administrative arrangements made between the Department of Justice and the military services for initially forwarding judgement in cases arising out of activities of Army and Air Force Exchange Service, Ships Stores, and other instrumentalities operating through the use of non-appropriated funds, to the Service involved for payment out of such non-appropriated funds has been followed in the instant case. However, the declination of the Air Force to make payment of the judgment from non-appropriated funds is for the reason that the negligence which gave rise to the accident was imputable to the Installation Engineer, and not to the Air Force Exchange officers. Since this determination was made upon the facts and circumstances of the instant case, it is not viewed as an attempt by the Air Force to refute the arrangements made with the Department of Justice, nor as establishing a precedent for payment from appropriated funds of all judgments rendered in cases involving torts arising out of non-appropriated fund activities.

In view of the foregoing, and since the judgment was rendered by the district court against the United States and has become final settlement should issue charging the appropriation "20X1752 Judgements Under $100,000, United States Courts."

Frank H. Weitzel Assistant Comptroller General of the United States