Fowler v. United States
2011 U.S. App. LEXIS 10915
| 10th Cir. | 2011Background
- Fowler was injured June 4, 2006 in Boulder County, Colorado when Garrick’s car collided with Fowler and Fowler’s motorcycle.
- Garrick, an active-duty U.S. Air Force member on a three-day TDY at the Boulder Facility, worked 12-hour shifts and had mandated rest and pre-shift briefing.
- The Air Force provided hotel lodging and per diem/mileage for Garrick during TDY; he slept at a hotel the night before his shift and commuted to the Boulder Facility the next day.
- During a break on the first TDY day, Garrick went to the hotel to nap while still on duty; he completed his shift after returning to the facility.
- Fowler sued the United States under the FTCA and Garrick for tort claims; Garrick sought scope-of-employment certification under the Westfall Act.
- The district court granted summary judgment for the United States, dismissed Garrick, and later, Garrick and Fowler jointly dismissed Fowler’s remaining claims against Garrick.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Garrick was acting within the scope of employment | Fowler: Garrick acted within scope due to traveling-employee rule and on-duty break. | Garrick/U.S.: Garrick was outside scope; break to nap not necessarily incidental to employment. | Genuine scope-of-employment issue; summary judgment improper. |
| Applicability of the traveling employee doctrine | Fowler: traveling-employee rule applies, lodging was necessary and beneficial to employment. | Garrick: not required to stay, and break activities not necessarily incidental. | Traveling-employee doctrine could apply; factual disputes remain about necessarily incidental activities. |
| Whether the district court properly granted summary judgment given disputed scope facts | Fowler: there are material facts about scope; summary judgment was inappropriate. | Garrick/United States: no genuine dispute on scope; court should grant summary judgment. | Summary judgment improper; genuine issues of material fact exist. |
| Effect of the Westfall Act certification on appellate jurisdiction | Fowler argues Westfall decision does not moot appeal because FTCA scope issue remains. | United States contends Westfall ruling precludes FTCA appeal as moot. | Westfall ruling did not moot the appeal; district court’s Westfall determination remanded; live controversy remains. |
Key Cases Cited
- Hynes v. Donaldson, 395 P.2d 221 (Colo. 1964) (traveling employee concept for scope-of-employment considerations)
- Goettman v. N. Fork Valley Rest., 176 P.3d 60 (Colo. 2007) (en banc; traveling employee scope considerations)
- Pham v. OSP Consultants, Inc., 992 P.2d 657 (Colo. App. 1999) (personal activities within scope-of-employment analysis)
- Alexander Film Co. v. Indust. Comm'n, 319 P.2d 1074 (Colo. 1957) (traveling employee meals and lodging treated as within scope of employment)
- Raleigh v. Performance Plumbing & Heating, 130 P.3d 1011 (Colo. 2006) (scope of employment question generally fact-intensive)
- Holt v. United States, 46 F.3d 1000 (10th Cir. 1995) (intertwining jurisdictional and merits questions under Rule 12(b)(1))