Sandra Jean Smith v. United States

1116

by the Trammel v. defendant. Western Co., Cal.App.3d Union Tel. SMITH, Sandra Jean Plaintiff- (1976). Finally, the statute

Cal.Rptr. 361 Appellant, damages in authorizing California re these v. convincing quires “clear and evidence” of America, UNITED STATES or malice.” “oppression, fraud Cal.Civil Defendant-Appellee. in the City Code 3294. As noted Los decision, Angeles “there is no California No. 89-35088. expressly permitting authority whatsoever Appeals, entity recovery States Court of public to seek and, moreover, Ninth punitive damages” Circuit. exception, “nо court noted that with one Argued 9, July and Submitted 1990. jurisdiction expressly other United States 1,May Decided 1991. permits recovery.”1 City such Los An 1023, geles, Cal.App.3d Cal.Rptr. at Opinion Withdrawn Dec. 1991. strongly suggests at 513. This that the Opinion Filed Dec. 1991. California courts would be most reluctant permits to do no other state one what

exception.2 punitive damages is to

punish the offender and to deter others McAllister,

committing wrongs. similar Cal.App.3d Cal.Rptr. at 355. damages clearly

Punitive are disfavored in

California and will be limited the Cali- possible.

fornia courts when There are

strong public policy arguments in favor of prohibit public

a rule that entity recovering punitive

from damages when entity

the same cannot be sued for them. circumstances,

Under all the it cannot be convincing

said that there is evidence

presented Supreme the California

Court would allow a California water dis- punitive damages

trict to pri- recover

vate tortfeasors. The trial court’s decision

should therefore affirmed. decision,

1. Westland’s reliance on State City The Kansas cited Los of California court, Hansen, Angeles Cal.App.2d Cаl.Rptr. United School District v. Celotex (1961), Corp., Kan.App.2d (1981), misplaced. 629 P.2d 196 $100 award in Han district, involving a school "nominal, was not followed in a punitive” sen was for actual or dam involving later case in Kansas an administrative ages prior and was decided to the enactment of agency Secretary of that state. State ex rel. California Government Code section 818. Fomby, Social & Rehabilitation Services v. Kan.App.2d 715 P.2d 1045

H17 GOODWIN, Judge: Circuit appeals Jean Smith the Rule 12 Sandra dismissal of her Federal Tort Claims Act (FTCA) wrongful death of action for alleged negli action her husband. Smith’s gent acts or omissions The district court dismissed Antarctica. “foreign country” ex her claim under ‍​‌‌​​​​​​‌‌​​‌​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌​​‌​​‌​‌​​‌​​‌‌‍ception to the statute. Smith United (D.Or.1989). States, F.Supp. affirm.1 Gernant, Portland, Or., plain- for David tiff-appellant. States, sovereign “The United as a enti Justice, Stern, Dept, of Mark B. U.S. ty, is immune from suit unless it has con D.C., defendant-appellee.

Washington, for sented to be sued.” Cominotto v. United Cir.1986) States, (9th 802 F.2d GOODWIN, FLETCHER Before Mitchell, (citing United States v. FERNANDEZ, Judges. Circuit 2961, 2965, 77 L.Ed.2d (1983)). FTCA, Under the the United ORDER sued for tort States has consented damages negligent “caused May ap- opinion The filed any employee Cir.1991) wrongful act or omission of (9th F.2d 791 is pearing at 932 Government_” 28 U.S.C. withdrawn. FTCA, however, 1346(b)(1982). The a § deny panel unanimously voted immunity sovereign un limited waiver petition rehearing. Judges Fletcher for categories of torts are der which certain reject the and Fernandez have voted to specifically excluded. See Grunnet v. banc, suggestion rehearing for en (9th 574-75 730 F.2d Judge Goodwin so recommends. Cir.1984); (listing four 28 U.S.C. § The full court has been advised of the 1346(b)). exceptions Courts teen to section rehearing An suggestion for en banc. ac- any excluded are over without judge requested tive a vote on whether Cominotto, F.2d at 1129. claim. See rehear the matter en banc. The matter failed to receive votes FTCA, the United States re- Under the judges the nonrecused active favor of en immunity “[a]ny sovereign tains for claim Fed.R.App.P. 35. banc consideration. foreign country.” 28 U.S.C. 2680(k). The central petition rehearing is DENIED sovereignless case is whether suggestion rehearing and the en banc law,2 region tort is a without civil REJECTED. case, stipulated by Exploring Foreign Country Exception: Feder 1. The facts of this parties, provided are in Exhibit A to the district Int’l L. al Tort Claims in 731, 21 Vand.J. Smith, opinion. F.Supp. claims, at 1483-84. court’s 754-55 & nn. 121-25 These however, suspended are the terms 2. “Antarctica can properly be characterized as Treaty, No. 12 U.S.T. T.I.A.S. something anomaly.” Beat of an international (Dec. 1959), to which 402 U.N.T.S. 71 (D.C.Cir. tie v. United party. the United States is Article 4 of 1984). ownership, Under various theories of Treaty treaty is in states while force Australia, Chile, (Argentina, seven countries asserting, sup act shall "constitute basis for Britain, Zealand, France, New and Nor Great porting denying claim sover to territorial way), approximately have asserted claims to eignty at art. IV. Bederman, in Antarctica.” Id. eighty percent of the continent. See meaning analysis by are aided in our the com- of Section We country within 2680(k).3 prehensive opinions of the D.C. Circuit in Beattie. Faced with this same question, recognized that The district court explored legislative the court relevant “foreign country” are not self-defin- words law, history and case and concluded that Congress did not ing and determined that “country” there- Antarctica is not a and sovereign immunity for intend to waive fore, area, as a stateless could not abe committed alleged torts to have been foreign country. 756 The dis- F.2d at 98. government employees outside the territo- inquiry sent shifted the focus of the rial of the United States. We interesting but abstract agree. country, purpose is a to the of the what define the term The FTCA does not (Scalia, J., dissenting). Id. at 107 FTCA. See “foreign country.” 28 1291 U.S.C. §§ alsо Fernandez v. 2680(k) (1982). See & II

Brock, Cir.1988) 622, (9th (the 840 F.2d 632 determining Congress’s starting point agree approach We with the Moreover, itself). language is the as intent Judge conclusions of then and hold Scalia acknowledged, “foreign the term we have that the FTCA does not to claims country” capable meanings. is of different arising in Antarctica. To hold otherwise States, 9, Meredith v. United 330 F.2d 10 provisions render two other of the (9th Cir.) (“[t]he ‘foreign country’ words require FTCA nonsensical and us to create art, carrying a fixed and are not words governing liability rulеs for tortious acts context”), cert. precise meaning every Antarctica. See Central omissions in denied, 137, 867, 379 U.S. 85 S.Ct. Co-op., Mont. Elec. Power Inc. v. Admin (1964); see also United States L.Ed.2d istrator, Admin., Bonneville Power Spelar, 338 U.S. 1472, (9th Cir.1988) (we F.2d “avoid (1949) (Frankfurter, J., 94 L.Ed. 3 concur any statutory interpretation that renders (to ring) “foreign assume that the term any superfluous give section and does not country” “self-defining, is not at all involv of the effect to all words used Con ing judicial judgment, a choice of is me gress”); Hughes Corp. Air v. Public Util. Burnet v. Chica Com’n, jurisprudence.”); chanical 1334, (9th Cir.1981) 644 F.2d Co., 1, go Portrait 52 S.Ct. (it statutory is a “basic rule of construction (1932) (“[t]he 76 L.Ed. 587 word ‘coun provision interpreted that one should not be try,’ expression ‘foreign country’ in the is way internally contradictory in a is which Beattie, ambiguous”); 756 F.2d at 109-110 or that renders other of the (Scalia, J., dissenting) (discussing the dif meaningless”). same statute inconsistent or possible ferent definitions of the term “for provision pro- The venue of the FTCA eign country”). Congress’s Because intent vides that a tort claim the United language, is not clear from ‍​‌‌​​​​​​‌‌​​‌​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌​​‌​​‌​‌​​‌​​‌‌‍the statute’s “may prosecuted only judi- in the “foreign must ascertain a definition plaintiff cial district resides or country” compatible that is with the con complained wherein the act or omission Meredith, text and of the FTCA. 1402(b) (1982). occurred.” 28 U.S.C. As (in defining “foreign 330 F.2d at 10 coun Judge Scalia wrote his dissent: try” FTCA, purposes “[i]t If, assert, necessary appellees ‘foreign object to consider the of the en as coun- state,’ try’ only ‘foreign actment means expression and to construe the and sov- ‘foreign country’ achieve, ereign immunity so as to not thereforе been Burnet, defeat, aim”) (quoting respect occurring waived with to torts 277). at regions S.Ct. at stateless such as undisputed It is resulting that Smith’s cause of action conduct within the United States damage alleged arose from plaintiff foreign country. acts or omissions to the Cf. (9th 1978) United States in Antarctica. Smith’s claim is v. United 588 F.2d 733 Cir. Leaf claim, “headquarters” typically not a (recognizing availability headquarters in- allegation negligent guidance FTCA). volves an claims under the

1H9 re- for those own provision the venue then Beattie, at 756 F.2d 104-05. applies. ... no sense gions makes Ducey v. United See (Scalia, J., dissent- F.2d at Cir.1983)(in applying “the (9th 508 n. repre- Smith, personal ing). While omission act or place where the victim, is able of a deceased sentative 1346(b),the pursuant to section occurred” because of residence in her state lay venue prin “including the choice of law whole law court, venue would a district it has Richards, 369 U.S. at apply) (citing ciples" reside happened to if the exist 592). agree instead with If we were States. the United outside this choice- сonclusion that Judge Scalia’s foreign coun- not^a find the FTCA “that of-law dilemma evidences Zealand, any of New try, a resident occurring suits for torts more envisions no by or omis- injured the acts country,4 other foreign regions than it does in stateless in employee U.S. of a sions foreign sover- occurring in for torts suits but no ven- sovereignty waived find would (Scalia, Beattie, F.2d at 111 eignties.” United against the proceed to ue in which dissenting). J„ Congress in- unlikely that It is States.5 remedy occurring cases for in create a tort out of an act tendеd to In a case Bangkok, Embassy exists. in no venue which in the United States country exception foreign held that the we the FTCA was that further indication A action, adding by way of precluded the is the in Antarctica apply to not intended cited authority has been that: “No obiter presented in extend problem choice-of-law duty of the federal indicating that is the it region. to that provisions ing the Act’s liability governing rules courts to create liability “in imposes accordance statute The the on and omissions for tortious acts the act place where the law of the with con- and of embassies premises American 1346(b) 28 U.S.C. occurred.” omission obviously our em- and ... abroad sulates Richards v. United See also of its Bangkok no bassy tort at law. (citations Meredith, 330 F.2d at 10 it (1962) (“We that own.” believe L.Ed.2d Likewise, United omitted). the while any more of difficult to conceive both activity conducts could have used language Congress States precise de- space and of through the instrumentalities of the law of application to command through cоn- private agencies than negligence fense the occurred place where provide employ Claims who workers employ did the Tort tractors the words it cited we have been Act”). on-the-job injuries, area over which As a stateless suggests history specifically legislative treaty powers of have to number sovereignty, create sub- courts should claims federal declined assert that the governing law. Antarctica rules has no tort See or choice-of-law stantive IV(2); Beat at see alsо acts and omissions Treaty, supra liability for tortious art. dissenting). (Scalia, tie, J. 756 F.2d at 111 Antarctica. adopt the D.C. Circuit’s decline to Ill 1346(b) leads that because conclusion “§ that adopt the view if Even we were there is no civil place where court to a the country, still foreign we anot use its Antarctica apply” the court must law to tort prob- avoid was able to original The D.C. Circuit the 5. Spetar, noted that 4. In the Court Beattie, plaintiffs were resi- country" exception "ex "foreign the lem in where of the draft empted Zealand, foreign country ‘arising in a claims and New all Great Britain dents of suggestion at that] of an “pendent [but behalf alien' because through concept venue” General, Attorney were the last five words sought a “head- plaintiffs relief under also exemption turn [did not] ... so that the excised resulting damages alleging quarters" claim injured circumstances upon the fortuitous Washington, negligence U.S. officers in at citizenship.” at party's lack of at 100-04. F.2d D.C. Hearings, H.R. (quoting H.R. 5373 and easily avoided problem be so venue cannot Sеss., 29, 35, 66). Cong., 2d 77th cases, many however. open citizens is thus to suit the FTCA. under arising in coverage applicability to claims that the of the FTCA’s agree could Antarctica. to Antarctica. The FTCA FTCA extends remains, was, relinquishment limited agree majority with the that since Con- immunity Congress of the common gress not define what it meant did enjoyed from tort claims. “foreign country” enacting Section term begins legislative intent If the search for 2680(k), “we must ascertain a definition enlarging pool objective with country’ ‘foreign compatible with plaintiffs defendants for who think solvent purpose the context and of the FTCA.” particular ought pay” for a “someone correctly identifying at After Ante loss, on Ore- then the focus of the dissent hand, however, at the task extraterritoriality gon tort would favor single not a line to consideration devotes however, If as this. cases such FTCA’s that of its for- begins it legislative intent search for eign country provision. It focuses instead started, sovereign immunity, it is then other on two of the FTCA which reach the conclusion that Con- difficult to “nonsensical,” it asserts would be rendered gress state tort law to intended were to hold that ante government arising out claims enjoyed subject juris- court district governmental presence in Antarctica. in plaintiff’s diction over the claims explicit. intent is far from At least such majority’s approach The it case. causes to greatly implications overstate the of con- IV struing something Antarctica as other than sum, persuaded In we are not that Con- foreign country a and leads it to a conclu- gress immunity al- intended to waive sion inconsistent with the fundamental un- leged occurring in torts derpinnings of the FTCA. accordingly need to reach other we do not might if questions that arise the district I. court had denied the motion and allowed proceed stage to another the case to enacting in the Congress’ FTCA litigation. from the terms of the statute. is evident liable, respect The ‍​‌‌​​​​​​‌‌​​‌​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌​​‌​​‌​‌​​‌​​‌‌‍decision of the district court to dis- “The United States shall be ing relating subject miss this case for lack of the of this title to claims, jurisdiction is in the same manner and to the tort privatе same extent as a individual under AFFIRMED. circumstances_” like U.S.C. § (1982). clear, language As this makes the FLETCHER, Judge, dissenting: Circuit “designed primarily FTCA was to remove majority The concludes that sovereign immunity the of the United region “sovereignless without civil tort States ... to render Government [and] law,” 1117, represents foreign ante private liable in tort as a individual would country purposes of the Federal Tort ” States, be.... Richards v. United (FTCA), plaintiff Act and hence that Claims 7 L.Ed.2d 492 by suit Sandra Jean Smith’s is barred Sec (1962); also see Rudelson v. United 2680(k) Act, tion under which the (9th Cir.1979). Con soverеign United States has retained its gress sought in to create the federal “arising immunity against claims in a for government responsibility for its actions 2680(k) (1982). eign country.” 28 U.S.C. § average akin to that citizen. borne respectfully majority dissent because contexts, pays purposes however, insufficient attention to the In Congress certain underlying foreign and its unwilling subject FTCA coun was the United States try provision ignores Thus, the sound liability 2680(k), reason in tort. in Section ing of the D.C. Circuit Beattie v. govern- it declined to waive federal (D.C.Cir.1984), only 756 F.2d 91 immunity respect ment’s with to clаims case to arising foreign other circuit court address the reasoning countries. The

H21 recognizes, Antarctica is a sover- exception to FTCA’s underpinning this sovereign immunity eignless territory legal system. was that has no general waiver Supreme presented Court United explained Thus we are with a situation 217, 70 Spelar, 338 U.S. her which an American has sued (1949), only decision to ad- 94 L.Ed. government because of its activities brief, 2680(k). though “In dress Section independent region body that has no great ready lay aside a Congress was legal рrinciples might govern sovereign’s ancient un- portion of the concern, Congress’ evidenced in suit. Sec- suit, it un- questioned immunity from was 2680(k), extending tion the FTCA’s to lia- willing subject sovereign immunity waiver of to claims upon the laws of a for- depending bilities subject countries 221, 70 S.Ct. at 12 eign power.” Id. at government the federal to the laws of implicated simply those countries is not un- And, der these circumstances. as the ma- desire to render In accordance with its jority recognizes, nothing language in the liability coextensive government’s tort individual, Congress 2680(k) private of Section itself dictates that a suit that of a present in the FTCA that the district provided such as the one be deemed barred. jurisdiction over actions principal purpose courts have in es- FTCA in circumstances against the United States tablishing liability for the United States private per “if government, where the private akin to that of a citizen should thus son, liable to the claimant would be analysis. control our place the law of the accordance with might an should ask whether individual omission occurred.” 28 U.S.C. the act or for acts or omissions akin to be held liable 1346(b) (1982). limited, If not allegedly engaged govern- those place of the law of the FTCA’s invocation in employees ment and its this case. This occurs, the a tort could extend dis where majority the never is a which arising jurisdiction to claims trict courts’ reaches. in government’s activities other out of the The United States would find countries. II. liability subject itself under the laws of considering purposes of Without ever the sovereign, Congress foreign a result which foreign сountry excep- the FTCA or It understandably desired to avoid. was tion, reason, majority the determines that Section Supreme as the Court rec for this Congress 2680(k)’s sovereign immuni- ognized Spelar, that enacted reservation of 2680(k). ty necessarily This circuit has reiterated extend to claims aris- Section must conclusion, understanding Spelar’s ing Any other it Antarctica. country exception on numerous occasions. declares, render the FTCA’s venue would See, States, 802 e.g., Cominotto v. United choice of law senseless. 1127, (9th Cir.1986)(“Th[е] F.2d 1129 [for cor- simply majority not so. The This is eign country] provision included was be clause rectly notes that the FTCA’s venue subject Congress cause did not want to the provides against “a tort claim the that under the United States to suits laws ‘may prosecuted only in foreign powers.”); Meredith v. United judicial plaintiff district the re- the 9, (9th Cir.), States, 330 F.2d 10 cert. de sides or wherein the act omission com- ” 137, 13 nied, 867, 379 U.S. 86 S.Ct. L.Ed.2d (quot- plained Ante at 1118 of occurred.’ (1964); Cobb United 1402(b)(1982)). provi- ing This 28 U.S.C. § 604, (9th Cir.1951), denied, cert. declares, sion, make no the 913, 360, (1952); 96 L.Ed. U.S. is we to hold that Antarctica sense were Beattie, 756 F.2d at 96. see also foreign country purposes of Sec- not 2680(k). plaintiff case, however, For in that case a plaintiff tion

In this judicial did not reside district government on the of who not sued basis country United States would have taking place pos- that within the actions against government a civil tort law of its own. As the venue for a claim sesses Similarly, provision conduct in even the choice of for tortious con 1346(b) tained in Section of the FTCA though government had waived its sov- does support majority’s not ereign immunity determination to suit for such a tort. foreign country that ‍​‌‌​​​​​​‌‌​​‌​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌​​‌​​‌​‌​​‌​​‌‌‍Antarctica is a certainly it if a non While true that 2680(k). purposes of Section Section resident of the United States filed a tort 1346(b)requires courts to the whole against claim place negligent govern law of where a from its actions in she would occurs, including place’s mental act that pursuant not be able to obtain venue choice of law rule. See Richards v. United 1402(b), Section that fact alone does not 7 L.Ed.2d S.Ct. 2680(k) justify reading Section so as (1962); Beattie, 756 F.2d at 104. Ant рreclude government all suits arctica, course, law, possesses no such that stem from its activities in Antarctica. majority quickly draws from this legal principle guarantees No know “ fact the conclusion ‘that the FTCA no that a who can assert a claim over occurring more suits envisions for torts enjoy subject which a federal court would foreign regions stateless than it does suits jurisdiction matter is entitled to a forum in occurring foreign sovereign- for torts bring Supreme which to suit. As the Court ” (quoting ties.’ Ante at 1119 noted in Brunette Machine Works v. Koc (Scalia, J., dissenting)). F.2d at As the Industries, kum 710 n. observed, however, court Beattie Antarc 1939 n. 32 L.E.2d 428 presents directly opposite tica “a situation (1972), throughout history judi of our becoming to the entangled fear of in for system cial there have existed situations law, eign produced ‘foreign which coun jurisdic “in federal courts have try’ exception. Hence do ... we not feel there tion but is no district which venue logical conclusion to be derived proper.” These situations are not fre therefrom ought is that the entire case quent, they nor are possi favored. But the (emphasis be dismissed.” 756 F.2d at 105 bility gap subject that a between original). That Antarctica is a sover- jurisdiction might simply and venue exist eignless territory devoid of civil does reading does not warrant a statute so as to present only op this Court with those eliminate over a class of cases majority develop tions considered — altogether. problem Those no who have ing our own substantive and choice of law with venue should not be foreclosed from government’s rulеs to determine the liabili cannot, bringing simply suit because others ty region for torts committed in the or of particularly respect to a statute such dismissing liability altogeth suits for such primary purpose which, as the FTCA the of keep If primary pur er. mind the seen, expand juris as we have was to FTCA, pose of the a third alternative diction of the federal courts. comes to the fore. To determine whether provision poses enjoyed subject The FTCA’s venue no the district court present jurisdiction plaintiff’s difficulties in the case. over the Plaintiff claims in Oregon. Smith resides in explic- Under the case we must consider what the liabili 1402(b), then, ty it terms of Section of an she can individual citizen would under be Oregon. file suit in the District of like inquiry She circumstances. This is an prevented doing likely point should not be from so which is to us the direction reading predicated of the statute of principles. on neither well-understood common law language its purpose, only question nor its on Thus we return to the private but possibility liability, surely an an issue considered never what extrеmely majority. limited number of cases a resi- jurisdiction dent of a non-United States III. claiming injured by to have been the activi- government ties of the defendant, United States If this private case involved a Antarctica will be unable to likely apply obtain venue a court would the choice of law for her action. state, of the Oregon, rule forum in ascer- apply States can its Where the United law that should taining principles liability. extraterritorially, No an individual state govern its determination Oregon may long to Ms. the same so as closer connection such as do state has a other state of her Oregon, the run afoul of the constitutional claim than it does not Smith’s furthermore, contains Oregon, In principle residence. of federalism. Old Dominion judicial district only Gilmore, federal 207 U.S. Steamship Co. v. proper. plaintiffs action is (1907), venue over 52 L.Ed. 264 the Su law, there has no tort Because ap preme held that Delaware could Court casé, and in this no conflict laws exists claim ply wrongful its death statute to a likely rule Oregon’s choice of law hence seas, high ground on the for death on the Oregon application counsel would parties involved Dela that both of the were dispute. to this substantive corporations. The Court noted that ware parties being “the fact of the outside bare Furthermore, principle policy no territory, place belonging to no Oregon applying prevent sovereign, limit the author other capacity Oregon’s fashion. [does] in this tort law state_” 28 S.Ct. at extraterritorially depends, ity of the Id. аpply its law to instance, authority capacity Oregon similarly of the 133-34. has the on the in the first gen apply nations to a claim that has to do so. While its tort law on territorial erally apply brought by their law based one of its residents con been nationality is another jurisdiction, cerning well-rec in an accident in injuries sustained In asserting jurisdiction. ognized Antarctica, place high basis which like the seas words, regions subject “in Holmes’ sovereign. Justice belongs other to no seas, high sovereign, like the ... legitimately apply its Oregon could thus relations may treat some between countries to a claim akin to Smith’s tort law by their own governed as their citizens private if defendant were a individual law_” Banana Co. v. Unit American actual- entity. Whether the state would 347, 355-56, Co., ed Fruit course, is, question of state ly do so (1909). In other 53 L.Ed. 826 substantially the same law. It is words, not interfere with where it would court that which confronts district nation, sovereignty of another the Unit private individu- every suit: Would a FTCA on the can its law based ed States like circumstances? al liable under nationality parties involved. question we should that this is the believe the Restate approach This accords with court on remand pose to the district (Third) Foreign Relations Law ment whether Ms. Smith that it determine order (1987) of the United States [Restatement]. her claim pursue is entitled Restatement, country According to the her husband. for the death of prescribe, adju may exercise court’s affirm the district should not dicate, its law based on and enforce juris- subject dismissal for lack require nationality, subject to the parties’ diction. jurisdiсtion exercise of ment that such an “we D.C. Circuit noted As the 402, 421, 431. reasonable. Restatement §§ land of law have a no-man’s [would] courts, particu and this Court American States law covers unless United ‍​‌‌​​​​​​‌‌​​‌​‌‌​‌‌​‌​​​‌‌‌‌​​‌‌​​‌​​‌​‌​​‌​​‌‌‍lar, comity as the central have identified citizens—not the actions of United re principle the reasonableness behind concept an unfair Restatement 403 com quirement. See —and Tort Claims Act ... Federal includes the (a) v. (citing Timberlane Lumber Co. ment concept accepted, Antarc- this (9th America, 549 F.2d 597 Cir. [U]nless Bаnk any area law whatsoev- is an without tica 1976)). reasonable for the It would thus be majority’s F.2d at 105-06. er.” 756 States to exercise over a essentially renders in this case decision involving its nationals Antarc tort claim many of our citi- region where lawless a tica, other nation would have a because no lan- neither the and work. Since zens live jurisdiction, as a result the and basis underlying prin- nor its guage of the FTCA comity disturbed. principle of would not be result, ciples justify respectfully I dis-

sent. TINGEY, husband;

Bradley Amy D. E. wife, Bradley Tingey,

Tingey, D. as

guardian Tingey, ad litem for Trevor F. minor, Plaintiffs-Appellants,

v. WEST, INC.,

PIXLEY-RICHARDS corporation, Blue Cross

Massachusetts Massachusetts,

& Blue Shield of a for

eign Defendants-Appel corporation,

lees. TINGEY, husband, Amy

Bradley D. E. wife,

Tingey, Bradley Tingey, D. as

guardian Tingey, ad litem for Trevor F. minor, Plaintiffs-Appellees,

v. WEST, INC.,

PIXLEY-RICHARDS corporation,

a Massachusetts

Defendant-Appellant. TINGEY, husband,

Bradley Amy D. E. Tingey, wife, Bradley Tingey, D.

guardian Tingey, litem ad for Trevor F. minor, Plaintiffs-Appellees, WEST, INC.,

PIXLEY-RICHARDS corporation,

Massachusetts Roland Mosher, Mosher,

“Buzz” and Jane Doe wife, through

husband John Does

V, Corporation; Corpora White Black

tion, Defendants,

Blue Cross and Blue Shield of

Massachusetts, Defendant-

Appellant. 89-15377,

Nos. 89-15402 and 89-15452. Appeals, Court

Ninth Circuit.

Argued July and Submitted 1991.

Decided Jan.

Case Details

Case Name: Sandra Jean Smith v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 24, 1991

Citation: 953 F.2d 1116

Docket Number: 89-35088

Court Abbreviation: 9th Cir.