Tort Liability of Nonappropriated Fund Activities

• Author: By Major Richard K. Dahlinper
• Pages: 02

This artick couec's the tort liabilita o i certain morale, reereotion, and weliace activities o i the Aimy. Sonap-proprioted finids a h primte associations am disesssed, with emphasis on the indinidid liability oj oficws, em-plogees, mrmbem, a7id giiests of!iiase activities. It is eon-eluded, at tiis 7je)u least, that mdiziduals shovld iriswre

themselves against possible pecuniary liability.

I. ISTRODUCTION

One sunny Sunday morning, Baker was teeing-off on the first hole of the Fort Blank golf course. The ball took off like a shot, screaming down the fairway about five feet off the Fround. Abruptiy, it diced to the right, sailed over the out-of-bounds fence and struck bbt?t directly on the temple, killing him instantly. Abbot, not a member of the military forces, had been atrolling along the ieft shouider of an adjacent state highway. This artieie will examine the legal aspects of tort liability IThiih can arise as a result of incidents just such as this.

The following perp!exing problem areas are presented in ques-tion form as a means of introduction to the Jubjecr matter:

Must Abbot's next of kin rely solely on the assets or insurance coverage, if any, of Baker?

Can the United States Government he joined as a party defendant?

If the golf cour~ewas operated as a nonappropriated fund, IS the

fund Subject to suit or payment of a claim? Khat difference would it make if Baker were the military golf

*"JIGC, U.S. Army; 26th Infantry Divlson, Ylernam, APO Sa" Franc~rca BS226: B.I., 1988, Unli.ernty of Callforma: L.B., 1861, H ~ s o ~ L ~

Lax. School;

member of the Bar of the State of Cahfornia and the Umted States Court of

Militnr) Appeals.

professional for the club and was giving a playing leason at the time of the incident?

What tart liability results if the golf course was being utilized for a tournamelit by an authorized prirate association?

When it appears that a government employee or a gorernm agency is involved in an incident, an injured party has three poble avenues of approach toward reco~e~yfor his damages. Ashe seen, some remedies are exclusive: some remedies are dewnd upon strict compliance with administrative prerequisites: Some remedies oark to the advantage of the claimant whereas others are to the benefit of the tortfeasar: and in some cases the claimant loses completely if he chooses the wrong remedy. The first araila-hie remedy is a ciiil wit againat the individual tortfeaaor. How ever. in many cases a plaintiff will find this remedy unavailable or entremel? cumbersome. A second possible remedy IS to file an adminiatratire claim against the United States Government It will he seen that the egency for irhich an employor where the tartfeasor was a member orrecover?. A third arenue toxard recowry i3 aUnited State3 Government under the Federalgeneral, the Federal Tort Claims 4cr permits payment by the Gor-ernrnent for injuries caused by the wrongful or negligent acts of ita employees while acting within the scape of their employment

Although a Ereat number of books aiid articles discuss the liability of the Government for the torts of military personnel and civilian employees paid from appropriated funds, there is a paucity of material related to liability far torts of employees, members and guests of nonappropriated funds and prirate associations. This article discusses these activities, and poasible tort liability generated therefrom, with recommendations an improving the JYS-tem and clarifying certain areas of coniusion.'

11. IDESTIFICATIOS ASD CLASSIFICATION OF ACTIVITIES

Prior to examining possible tort liability of the Vnited States Government, a nanappropnated fund, a prirate association, or an employee, member or guest of one of these activities, it is appropriate to define just what these organizations and activities are. There are four tyws of morale. recreation and welfare activities.

1 This alsicle uill not delve into the eomplieated ares of whether a claimant

IS baried from recorery bi the "incident to ~ e ~ i i e e ' ' pule because he 11 a

member of the niilitarg or B civilian emplapee. However, on oeeaiion 6oae reference to this situation ~ ~ 1 1 be made mnce the nature of the carer examined rewired consideration of the matter. Lesal analsds of this subject ia well covered m L.

JAYSOI, HANDUNO FEDERAL TORI CLAIMS, eh. 5 (1861).

NONAPPROPRIATED FUND TORTS

It will be observed that the claims and judicial procedures, as well ility, are greatly affected by the type of activA. STATCTORY ORGASIZATIO.VS

anizatione which perform morale, recreation UP welon and around military installations are established and operated pursuant to United States or State statutes. These organizations perform an important function for the military. are almost alnays found existing on an installation, and are moat frequently canaidered as part of the military establishment. Although many of these organizations are authorized space an a military installation? and loaistic support? they are neither military organizations nor instrumentalities of the Government within the pur-VEX

Title 36 of the United Statea Code lists patriotic societies au-thorized and recognized by the United States Government. The Bot- Scout? of America,' for example, operates at virtually erery U.S. militmy post in the world, yet few people undermiid its status. The Bay Scout. of America is B charitable institution. It3 existence is authorized by federal itatute, and it is not liable for negligence of its agents unless negligent in selectin8 those agents

para. 1-32 (Change No. 1,31 Jan. 1969) [hereinafter cited 8%

In Piail t'. l'hited Stntrs.

Arm? Re8 No 210.56, para i s (15 Mas 1069). and Army Reg. KO.

AR 230-11.

930-6 (19 Nou. 1969). Red Cross [hereinafter cited SI I R

-1 (28 hlar. 1969). US0 [heremafter clted as

erica, 9 Cal. App. 2d 160, 61 P.2d 181, (1936).

230 F.2d 213 (10th Cir. 1955).

230-1,

Army Reg. KO.

Q Id. S S 201-208. 11 Id. at 214.

3.5

u-ill therefore not lie against the Government for torts of the Civil Air Patrol or its employees. The claimant must seek redress against the agency or the individual employee-tortfeasor.

Similarly. the Red Cross prorides man!- general \welfare and recreation services to military personnel and their familie?. They are also entitled to many benefits from the military, e.g., office space, supplies and equipment. communications facilities, transportation, subsistence, quarters, medical care, commiirary, exchange. and Army Post Ofice prinlegea.'> In spite of the foregoing, Red Cross personnel are salaried by the Red Crass, are sribject to the control and immediate rearsignment by the Red Cross and are in all other respects independent contractors not in the employ of the United Stat.. Government Accordingly. tarts committed by Red Cross personnel cannot be considered as committed by employees of the United Stares Goiernment nithin the puniew of the Federal Tort Claim* Act :'

Another detutory Organization vhich ?erred the religious. spiritoal. social, welfare, and educational needs of the armed forces is the United Service Organization (USO).L. The E30 is a private association chartered under the laas of the State of S e x Yark and primarily seri-es members of the armed force? and their

which the United States assumes no liability.l~

NONAPPROPRIATED FUND TORTS

Based on the foregoing discussion, it is important to remember that torts committed bv employees of these types of organizations do not subject the United States to suit under the Federal Tort Claims Act and are not corersd by the Army Claims System. An injured party should be advised to seek recovery against the organization itself, or the individual tartfeirar.

The only exception thereto is the American Battle Monuments Commission.:' The acts of incorporation for this organization provide that claims far loss or destruction of real or personal prop-ert>-, pel-sonal injury or death of ani- person cawed by the nedi-gent or nrongfui act or omission of any officer or civilian employee of the commission while acting within the scope of his office or employment may be considered and settled under the Foreign Claims Act." This Act. however, limits recovery to incidents aris-ing in a foreign country and concerning foreign claimants.

2. SPECIAL SERVICES

   mhich provides morale, recreation, and itary command is Special Services:

   "Specmi Serwces" embraces those perwnnel servieei eerabiishrd and

   controlled by militars- authorities and designed to contribute to the pnriical and menrsl effectiveness of military personnel and authar->zed dependents and cwilisn employees 15

   The mission of Special Seriices IS t~ mmulate. develop, and maintain the mental and phrsical well-being of military personnel through their participation in planned recreation and morale

   the construction, modification and maintenance af fac:lities." Son-appropriated funds mas be UsEd to supplement aipropriated funds to support Special Services??

   Major prooram6 of Special Services are the Arm? Library program, the Army Sports program, Army Seri-m Clubs, and the

   ?O Id. para 3. 21 Id. para. DU 21 Id. para Db.

   3 i

   Army Dependent Youth Actit-ities program. In addition. Special Services can establish and operate rest and recuperation areas, 88

   'mming pook and bonliiig alleys.'3

   are proces-ed a i normally required under the Federal Tort Claims Act and implementinE Army regulationr.'.

   \~O.\dPPROPRIATED Fl'SDS

   an)- Indiiidual."

   Three general t)-pe. or categories of nonapprop iated fund. are authorized by regulations. Rerenue-producing fundi are self-suataining funds Estabiiihed to sei1 merchandize and s e r i ~ ~ e s . ~ '

   Exam-theaters and post restauranta. maintained bl- income derived enue-produiinp Exeompcsed of limited groupa of military members and eligible .

   ab *E 27-221

   NONAPPROPRIATED FUND TORTS

   ian employees, Support the fund.*' Examples are the Central Mess funds; Officers', Noncommissioned Officers' and Warrant Officers' open messes; and other association funds considered...