[598 P.2d 21] David H. Carmichael, of Carmichael, McNiff & Patton, Cheyenne, and John E. Stanfield, of Smith, Stanfield & Scott, Laramie, signed the briefs, and David H. Carmichael, Cheyenne, appeared in oral argument on behalf of appellants.

David D. Uchner and Nick Kalokathis, of Lathrop & Uchner, P.C., Cheyenne, signed the brief and David D. Uchner, Cheyenne, appeared in oral argument on behalf of appellee.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROONEY, Justice.

Appellants-plaintiffs appeal from a summary judgment in favor of appellee-defendant (Reiman-Wuerth Company) in which the District Court determined that such be final and that there was no just reason for delay in the entry of it. Appellee, Reiman-Wuerth Company, was only one of several defendants in an action for alleged damages resulting from a multi-vehicle collision. The driver and owner of one of the vehicles involved in the collision, James W. Grandpre (also a defendant), was an employee of appellee. Appellants state the issue on appeal to be: "Is there a genuine issue of material fact concerning the vicarious liability of Appellee for the acts of its servant (Grandpre) which caused damage to the (appellants)?" The trial court found that there was no genuine issue as to any material fact and that appellee was entitled to a summary judgment as a matter of law. We affirm.

Grandpre was employed as a carpenter by appellee on a construction jobsite in Cheyenne. On January 6, 1977, Grandpre requested permission to leave the job for the purpose of depositing his paycheck before 3:00 p. m. in a local bank so that some of his outstanding checks would not be dishonored. Also, he stated that he felt his ex-wife's employment by the bank might be jeopardized if his account were overdrawn. He was granted the requested permission by his supervisor.

It was the policy of appellee to allow employees to take time off for such personal activities, but it expected employees to take only the time necessary to accomplish such, and it did not pay employees for the time involved therein. Grandpre made his request and made his trip to the bank under these conditions. He drove his own automobile to the bank, made the deposit, and [598 P.2d 22] was involved in the collision while returning to the jobsite. He had never driven his own automobile on appellee's business, but was furnished a vehicle owned by appellee for such purpose.

The foregoing facts are not in dispute. The dispute arises over appellants' position: (1) that the trip was, at least in part, for the benefit of appellee or was employment related inasmuch as it contributed to Grandpre's "happiness" and thus made him a better and more efficient employee all to appellee's benefit as evidenced by appellee's policy which made the trip possible; (2) that appellee exercised control over the trip by requiring Grandpre to return to work immediately after completing his personal activity; and (3) that the determination of these two things (and thus the determination of whether or not the trip was in the scope of employment) was a question of fact for the jury. The fallacy of appellants' position lies in a misunderstanding or misapplication (1) of the definition of the term "scope of employment" and (2) of those issues in this matter that are questions of fact.

The meaning and application of the term "scope of employment" has necessitated considerable judicial attention. The general principles relative thereto are set out in 1 Restatement of Agency 2d (ALI 1958), pp. 504-524, as follows:

§ 228. General Statement

"(1) Conduct of a servant is within the scope of employment if, but only if:

"(a) it is of the kind he is employed to perform;

"(b) it occurs substantially within the authorized time and space limits;

"(c) it is actuated, at least in part, by a purpose to serve the master, and

"(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

"(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

§ 229. Kind of Conduct within Scope of Employment

"(1) To be within the scope of employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized.

"(2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered:

"(a) whether or not the act is one commonly done by such servants;

"(b) the time, place and purpose of the act;

"(c) the previous relations between the master and the servant;

"(d) the extent to which the business of master is apportioned between different servants;

"(e) whether or not the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant;

"(f) whether or not the master has reason to expect that such an act will be done;

"(g) the similarity in quality of the act done to the act authorized;

"(h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant;

"(i) the extent of departure from the normal method of accomplishing an authorized result; and

"(j) whether or not the act is seriously criminal.

§ 230. Forbidden Acts

"An act, although forbidden, or done in a forbidden manner, may be within the scope of employment.

§ 231. Criminal or Tortious Acts

[598 P.2d 23] "An act may be within the scope of employment although consciously criminal or tortious.

§ 232. Failure to Act

"The failure of a servant to act may be conduct within the scope of employment.

§ 233. Time of Service

"Conduct of a servant is within the scope of employment only during a period which has a reasonable connection with the authorized period.

§ 234. Area of Service

"Conduct is within the scope of employment only in the authorized area or in a locality not unreasonably distant from it.

§ 235. Conduct Not for Purpose of Serving Master

"An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to a service on account of which he is employed.

§ 236. Conduct Actuated by Dual Purpose

"Conduct may be within the scope of employment, although done in part to serve the purposes of the servant or of a third person.

§ 237. Re-entry into Employment

"A servant who has temporarily departed in space or time from the scope of employment does not re-enter it until he is again reasonably near the authorized space and time limits and is acting with the intention of serving his master's business."

In the most recent case in which this court considered the term "scope of employment," we said that a person was acting within the scope of employment:

"If, at the time of the accident, the employee is engaged in furthering the employer's business interests, and with respect thereto the employer has the right to control the details of the work and to discharge the employee for failing to follow orders without incurring liability * * *." Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034, 1043 (1978).

The term "scope of employment" therefore has a distinct meaning by law. Although generally the determination as to whether or not one is acting within the scope of employment is a question of fact for the jury, Sun Land and Cattle Co. v. Brown, Wyo., 394 P.2d 387 (1964); Barnes v. Fernandez, Wyo.,526 P.2d 983 (1974), the determination of the definition of it or the standard under which it is ascertained is a question of law for the court. Durham v. State, Wyo., 422 P.2d 691 (1967); Brennan v. Leshyn, 51 Ill.App.2d 132, 201 N.E.2d 167 (1964); 75 Am.Jur.2d, Trial, § 701; 88 C.J.S. Trial § 318. Accordingly, if this case were presented to the jury, the court would have to instruct it sufficiently as to the meaning of the term "scope of employment" so that the jury could properly apply the facts under the law.

When we examine the facts of this case to which these instructions would apply, we find that this is one of the cases which come within the exception enunciated in Combined Insurance Company of America v. Sinclair,supra, to the general proposition on this point, i. e., that the scope of employment issue "is ordinarily a question of fact for the jury and becomes a question of law only when but one reasonable inference can be drawn." The only reasonable inference that can be drawn from the facts of this case under the applicable law is that Grandpre was not acting within the scope of his employment by appellee at the time of the collision.

In focus on this point, we note that in addition to the previously recited undisputed facts, it is not contested that appellee's policy to allow its employees time off for personal errands does have some benefit in contributing to the "happiness" of the employees. [598 P.2d 24] Nor is it contested that appellee expected and directed employees to use only such time as necessary to complete the personal errands. The only contest, then, is whether or not the policy and direction, without more, place the employee in the scope of employment. To accept appellants' contention that they do would also require acceptance of the contentions that policies for employee "happiness" by allowing vacations, no Saturday work, or lunch hours, coupled with directions to return to work immediately after the end of vacation, or after one hour for lunch, or at 8:00 a. m. each working day, would place the employees in the scope of employment, without more, while on vacation, on Saturdays, during lunch hours in fact, at all times. Under the legal definition of "scope of employment" a reasonable mind could not find activities of these types, without more, to be within the scope of employment.

We reach the conclusion that Grandpre was not within the scope of employment by appellee at the time of the incident even under the oft-repeated standard by which we review a denial or grant of a summary judgment on appeal: that the moving party has the burden of showing absence of a genuine issue of a material fact, Timmons v. Reed, Wyo., 569 P.2d 112 (1977); and that we look at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from facts contained in affidavits, exhibits, and depositions, Bluejacket v. Carney, Wyo., 550 P.2d 494 (1976); Timmons v. Reed, supra.

Grandpre's conduct at the time of the collision was not actuated in any part by a purpose to serve appellee (§ 228, 1 Restatement of Agency 2d, supra); Grandpre's errand was not done with intention to perform it as a part of or incident to a service on account of which he was employed (§ 235, 1 Restatement of Agency 2d, supra); and Grandpre was not furthering the business interests of appellee in any part at the time of the collision (Combined Insurance Company of America v. Sinclair, supra).

Grandpre was not acting in the scope of employment by appellee at the time of the collision.

Affirmed.

[874 P.2d 126] Thomas R. Patton, Lynn C. Harris, Provo, and Vicki Rinne, Highland, for plaintiffs and petitioners.

Mark J. Williams, Salt Lake City, for defendants and respondents.

ON CERTIORARI TO THE UTAH COURT OF APPEALS

DURHAM, Justice:

This case is before the court on a petition for a writ of certiorari to the Utah Court of Appeals. Plaintiffs Jeff Christensen and Kyle James Fausett claim that the court of appeals erred when it concluded that defendant Burns International Security Services ("Burns") was not liable under the doctrine of respondeat superior for the actions of its employee, Gloria Swenson. The court of appeals determined that Swenson was acting outside the scope of her employment at the time of her automobile accident with Christensen and Fausett and therefore affirmed the trial court's grant of summary judgment. Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992). We reverse.

Burns provides security services for the Geneva Steel Plant ("Geneva") in Orem, Utah. Burns employed Swenson as a security guard in June 1988. On the day of the accident, July 26, 1988, Swenson was assigned to guard duty at Gate 4, the northeast entrance to the Geneva property. Security guards at Gate 4 worked eight-hour continuous shifts, with no scheduled breaks. However, employees were permitted to take ten- to fifteen-minute unscheduled lunch and restroom breaks.

When taking their lunch breaks, Gate 4 guards generally ate a bag lunch but occasionally ordered take-out food from the sole restaurant within close physical proximity to Gate 4, the Frontier Cafe. The Frontier Cafe was located directly across the street from the Geneva plant, approximately 150 to 250 yards from Gate 4. The cafe's menu was posted near the telephone at Gate 4. Aside from vending machines located within a nearby Geneva office building, the Frontier Cafe provided the sole source of food accessible to Gate 4 guards within their ten- to fifteen-minute breaks. Indeed, the Frontier Cafe was the only restaurant in the immediate area. Whether they brought their lunches or ordered from the cafe, Gate 4 guards were expected to eat at their posts.

Shortly after 11:00 a.m. on the day of the accident, Swenson noticed a lull in the traffic at Gate 4 and decided to get a cup of soup from the Frontier Cafe. She placed a telephone order for the soup from Gate 4 and then drove her automobile to the cafe. She intended to pick up the soup and return to Gate 4 to eat at her post. She expected the round trip to take approximately ten to fifteen minutes, as permitted by Burns' unscheduled break policy. On her return trip, however, she collided with plaintiffs' motorcycle at a public intersection just outside Geneva's [874 P.2d 127] property. Both Christensen and Fausett were injured.

Christensen and Fausett filed a negligence action against Swenson and Burns. After answering the complaint, Burns moved for summary judgment, claiming that it was not liable under the doctrine of respondeat superior because Swenson was not acting within the scope of her employment at the time of the accident. The trial court granted Burns' motion, and Christensen and Fausett appealed. The court of appeals affirmed the trial court's decision, concluding that reasonable minds could not disagree that Swenson was acting outside the scope of her employment at the time of the accident. Christensen, 844 P.2d at 995. We granted plaintiffs' petition for certiorari.

Summary judgment is appropriate when the record indicates that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); Clover v. Snowbird Ski Resort, 808 P.2d 1037, 1039 (Utah 1991). We review a trial court's order granting summary judgment for correctness, according no deference to the trial court's legal conclusions. Clover, 808 P.2d at 1039-40; Blue Cross & Blue Shield v. State, 779 P.2d 634, 636 (Utah 1989). In addition, we view all relevant facts and all inferences arising from those facts in the light most favorable to the party opposing the motion. Clover, 808 P.2d at 1039. Should we conclude that a genuine issue of material fact exists, we must reverse the grant of summary judgment and remand for trial on that issue. Atlas Corp. v. Clovis Nat'l Bank, 737 P.2d 225, 229 (Utah 1989).

Under the doctrine of respondeat superior, employers are vicariously liable for torts committed by employees while acting within the scope of their employment. Clover, 808 P.2d at 1040. Whether an employee is acting within the scope of her employment is ordinarily a question of fact. Id. The question must be submitted to the jury " 'whenever reasonable minds may differ as to whether the [employee] was at a certain time involved wholly or partly in the performance of [the employer's] business or within the scope of employment.' " Id. (quoting Carter v. Bessey, 97 Utah 427, 432, 93 P.2d 490, 493 (1939)). However, when the employee's activity is so clearly within or outside the scope of employment that reasonable minds cannot differ, the court may decide the issue as a matter of law. Id.; Birkner v. Salt Lake County, 771 P.2d 1053, 1057 (Utah 1989).

In Birkner, we stated that acts falling within the scope of employment are "'those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of employment.'" 771 P.2d at 1056 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 502 (5th ed. 1984)). We articulated three criteria helpful in determining whether an employee is acting within or outside the scope of her employment. First, the employee's conduct must be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Id. at 1056-57. Second, the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Id. at 1057. Finally, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Id.

The court of appeals held that Swenson was not substantially within the ordinary spatial boundaries of her employment because the accident did not occur on Geneva property.^[1] Christensen, 844 P.2d at 995. [874 P.2d 128] Christensen and Fausett argue that the court of appeals erred in its application of the second criterion identified in Birkner. Burns responds that the court of appeals properly construed the second Birkner criterion in holding that Swenson was acting outside the scope of her employment at the time of the accident.

Because the court of appeals concluded that Swenson failed to satisfy the second Birkner criterion, it did not address the first and third criteria. See Christensen, 844 P.2d at 995. However, our review of the record indicates that reasonable minds could differ on all three criteria. Thus, to avoid a second summary judgment on remand, we address all three of the Birkner criteria.

The first Birkner criterion requires that the employee's conduct be of the general kind the employee is hired to perform, that is, "the employee must be about the employer's business and the duties assigned by the employer, as opposed to being wholly involved in a personal endeavor." Birkner, 771 P.2d at 1056-57. Reasonable minds could differ as to whether Swenson was about Burns' business when she was involved in the traffic accident between Gate 4 and the Frontier Cafe.

We base this conclusion on two disputed issues of material fact. First, Swenson claims that Burns employed her as a security guard to "see and be seen" on and around the Geneva plant. Thus, traveling the short distance to the Frontier Cafe in uniform arguably heightened the secure atmosphere that Burns sought to project. Burns, on the other hand, claims that Swenson was not hired to perform that function. Burns' position is supported by the deposition of another security guard who stated that he considered lunch trips to the Frontier Cafe to be entirely personal in nature.

A second material issue of fact remains as to whether Burns tacitly sanctioned Gate 4 guards' practice of obtaining lunch from the Frontier Cafe. Burns expected its Gate 4 guards to work eight-hour continuous shifts and to remain at their posts as much as possible. However, because Burns also recognized that the guards must at times eat meals and use the restroom, the company permitted them to take ten- to fifteen-minute paid breaks. The record indicates that Burns was aware that its employees occasionally traveled to the Frontier Cafe during these unscheduled breaks but had never disciplined them for doing so. Indeed, Swenson asserts that a menu from the Frontier Cafe was posted in plain view at Gate 4. Thus, reasonable minds could differ as to whether Burns tacitly sanctioned, or at least contemplated, that its guards would satisfy their need for nourishment by obtaining meals from the Frontier Cafe.

The second Birkner criterion states that the employee's conduct must occur substantially within the hours and ordinary spatial boundaries of the employment. Birkner, 771 P.2d at 1057. It is undisputed that Swenson's action occurred within the hours of her employment. She was at her post and in uniform when she decided to take advantage of a lull in plant traffic to eat lunch.

With respect to spatial boundaries, we find that reasonable minds might differ as to whether Swenson was substantially within the ordinary spatial boundaries of her employment when traveling to and from the Frontier Cafe. Again, the court of appeals concluded that Swenson did not pass this criterion because the accident did not occur on Geneva property. Christensen, 844 P.2d at 995. While it is true that Swenson was not on Geneva property when the accident occurred, she was attempting to obtain lunch from a restaurant within the geographic area accessible during her ten- to fifteen-minute break. Given the other facts of this case, reasonable minds could differ as to whether Swenson's trip to the Frontier Cafe fell substantially [874 P.2d 129] within the ordinary spatial boundaries of her employment.^[2]

Furthermore, Burns could not point to specific orders barring guards from leaving the facility in their own vehicles to go to the Frontier Cafe on break, although two managers opined that such behavior was prohibited. This dispute alone presents a genuine issue of material fact. If guards were expressly forbidden to drive to the Frontier Cafe to pick up lunch during their break, a jury could find that Swenson was substantially outside the ordinary spatial boundaries of her employment; if they were not so forbidden, a jury might find her to have been acting substantially within the ordinary spatial boundaries of her employment.^[3]

Under the third criterion of the Birkner test, "the employee's conduct must be motivated, at least in part, by the purpose of serving the employer's interest." Birkner, 771 P.2d at 1057. Applying this criterion to the instant case poses the question of whether Swenson's trip to the Frontier Cafe was motivated, at least in part, by the purpose of serving Burns' interest. Reasonable minds might also differ on this question.

First, two Burns managers admitted in their depositions that employee breaks benefit both the employee and the employer. Employees must occasionally eat meals and use the restroom, and employers receive the corresponding benefit of productive, satisfied employees. Reasonable minds could differ as to whether Swenson's particular break fell into this mutual-benefit category.

Second, given the continuous-shift nature of the job and the comparatively brief breaks permitted, Burns' break policy obviously placed a premium on speed and efficiency. Swenson claimed that traveling to the Frontier Cafe enabled her to obtain lunch within the allotted period and thus maximize the time spent at her post. In this respect, reasonable minds might conclude that Swenson's conduct was motivated, at least in part, by the purpose of serving Burns' interest. Evidence indicating that Swenson tried to save time on her lunch break by phoning her order ahead, driving instead of walking, and attempting to return immediately to her post is also relevant in this regard.

In sum, we hold that reasonable minds could differ as to whether Swenson was acting within or outside the scope of her employment when she collided with plaintiffs' motorcycle. Thus, summary judgment is inappropriate. We reverse and remand for further proceedings.

ZIMMERMAN, C.J., STEWART, Associate C.J., and GREENWOOD, Court of Appeals Judge, concur.

HOWE, Justice, concurring:

I concur. I write to address the concerns of the court of appeals when, in affirming the summary judgment in favor of Burns, it wrote:

Holding otherwise would unduly expand the scope of employment. Every off-site location regularly patronized by an employee for personal purposes could potentially be considered within the ordinary spatial boundaries of the employment. Such a holding would also blur the rule that conduct occurring during an employee's off-premises lunch hour is outside the scope of employment. See, e.g., 1 Arthur Larson, The Law of Workmen's Compensation § 15.51 (1992).

[874 P.2d 130] Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992).

Larson in his treatise recognizes exceptions to the general rule relied on by the court of appeals. One such exception is where the employee is paid during the time taken out for lunch or coffee and to suit the employer's convenience, the employee rushes out to "get a quick bite to eat, and [hurries] back because of the pressure of work.... Here the very making of a lightning excursion for lunch is an effort expended in the employer's interest to conserve his time." 1 Arthur Larson, The Law of Workmen's Compensation, § 15.52 (1993). Larson cites many cases where the exception was relied on. Only one need be mentioned. In Shoemaker v. Snow Crop Marketers Division of Clinton Foods, Inc., 74 Idaho 151, 258 P.2d 760 (1953), an employee was awarded compensation when he was injured while retrieving his packed lunch from a building adjoining his employer's premises. He was on paid time and under orders of his employer to hurry back.

Although the case presently before the court is not a workers' compensation case, I believe that this well-recognized exception may be applicable here, as the majority opinion correctly opines.

GREENWOOD, Court of Appeals Judge, sat to fill the vacancy on the court.

[1] We note that in reaching its decision, the court of appeals construed Clover v. Snowbird Ski Resort, 808 P.2d 1037 (Utah 1991), as establishing a literal approach to the second Birkner criterion. The court of appeals interpreted Clover's application of the second Birkner criterion as turning on the fact that the employee's conduct took place " 'on his employer's premises.' " Christensen v. Burns Int'l Sec. Servs., 844 P.2d 992, 995 (Utah Ct.App.1992) (quoting Clover, 808 P.2d at 1041). Relying on that language, the court of appeals concluded that because Swenson's accident did not occur on "the premises of the Geneva Steel Plant[,]" the accident necessarily did not occur substantially within the ordinary spatial boundaries of her employment. Id.

We did not intend to establish such a bright-line rule in Clover. The Birkner criteria cannot be rigidly applied to every fact pattern. Some flexibility is required to address situations, like the instant case, where the employee's conduct is technically outside the physical boundaries of her employer's premises but arguably substantially within the ordinary spatial boundaries of the employment.

[2] Moreover, as we have already noted, the record indicates that Burns was aware that Gate 4 guards occasionally traveled to the Frontier Cafe for lunch and that the company may have tacitly sanctioned the practice. Reasonable minds could differ as to whether such a tacit sanction brought the Frontier Cafe substantially within the ordinary spatial boundaries of Swenson's employment.

[3] We acknowledge the court of appeals' concern that ruling in favor of Swenson could result in "[e]very off-site location regularly patronized by an employee for personal purposes [to] potentially be considered within the ordinary spatial boundaries of the employment." Christensen, 844 P.2d at 995. However, we note that this case is before us on a petition to review the court of appeals' affirmance of summary judgment. Thus, our opinion establishes only that, under the facts of this case, reasonable minds may differ as to whether Swenson's accident occurred substantially within the ordinary spatial boundaries of her employment. We do not hold that all lunch breaks, no matter where or when taken, fall within the scope of employment. Furthermore, we think that lines can successfully be drawn to avoid the court of appeals' concerns.

[24 Wn.App. 275] [600 P.2d 680] Kennedy, Moore & Twisselman, James D. Twisselman, Everett, for appellants.

Lane, Powell, Moss & Miller, C. William Bailey, Seattle, for respondent.

CALLOW, Chief Judge.

The issue presented is whether the Washington rule which holds that an employer is not liable for an assault committed by an employee for his own purposes should be abandoned in favor of a rule which would impose liability on an employer when the employee injures a third party in a dispute arising out of the employment.

The facts are agreed upon by the parties. On July 23, 1976, Elzear Kuehn was driving his wife's automobile southbound on Interstate 5. At approximately 6:30 p. m., the Kuehns were a short distance south of Seattle, in the traffic lane next to the outside lane. As the Kuehns' automobile proceeded down a hill, a truck tractor-semitrailer combination in the outside lane started to pass them. The truck was owned by Inter-City Auto Freight, Inc., and [24 Wn.App. 276] operated by Richard K. White. When the trailer of the combination pulled even with the Kuehns' automobile, the rig swerved left into the [600 P.2d 681] Kuehns' traffic lane. Mrs. Kuehn screamed "He's going to crash us. He's going to crash us." Mr. Kuehn applied his brakes and drove into the lane to his left.

Thereafter, Mr. Kuehn stepped on the gas, caught up with the truck, and motioned to White to pull over onto the shoulder of the highway. White shook a fist in the direction of the Kuehns' automobile and weaved towards the Kuehns, forcing them over into the third lane. Mr. Kuehn again accelerated to catch up with the truck. White, followed by the Kuehns, drove onto the right-hand shoulder of the road. White crammed on the brakes of the truck and Kuehn had to brake hard to keep from driving into the rear of the truck. When the truck stopped, Kuehn parked behind it so that both he and Mrs. Kuehn could see the driver's door of the truck.

White got out of the cab of the truck and walked towards Kuehn's car carrying a 2-foot-long metal pipe owned by Inter-City. Mr. Kuehn got out of his car and asked White why he was carrying the pipe. White replied, "That's my equalizer." Mr. Kuehn asked White why he had attempted to force the Kuehns' automobile off of the road, to which White replied, "There is no son of a bitch going to give me the finger." White then swung the pipe at Kuehn's head, grazing the side of his face and knocking off Kuehn's glasses. As Kuehn bent over to pick up his glasses White hit him on the side of the head with the pipe, knocking Kuehn to his hands and knees, and when Kuehn tried to get up White hit him again on the head.

Mrs. Kuehn got out of the automobile and asked White, "What are you trying to do? Kill him?" White replied, "There's no son of a bitch going to give me the finger." White then got back into the truck and drove off, and Mrs. Kuehn took Mr. Kuehn to a hospital. Before this incident, White's record with his employer, Inter-City, had been good.

[24 Wn.App. 277] Later, White was convicted of assault. Mr. and Mrs. Kuehn then filed a civil action against White and Inter-City Auto Freight, Inc. Inter-City's subsequent motion for summary judgment of dismissal was granted. The Kuehns appeal.

A master is responsible for the servant's acts under the doctrine of respondeat superior when the servant acts within the scope of his or her employment and in furtherance of the master's business. Where a servant steps aside from the master's business in order to effect some purpose of his own, the master is not liable. Kyreacos v. Smith, 89 Wash.2d 425, 429, 572 P.2d 723 (1977) (murder); Hein v. Chrysler Corp., 45 Wash.2d 586, 599, 277 P.2d 708 (1954) (interference with contract); Langness v. Ketonen, 42 Wash.2d 394, 399, 255 P.2d 551 (1953); Westerland v. Argonaut Grill, 185 Wash. 411, 414-15, 55 P.2d 819 (1936); Nolan v. Fisher Co., 172 Wash. 267, 269, 19 P.2d 937 (1933); Estes v. Brewster Cigar Co., 156 Wash. 465, 473, 287 P. 36 (1930); DeLeon v. Doyhof Fish Prods. Co., 104 Wash. 337, 343, 176 P. 355 (1918); Matsuda v. Hammond, 77 Wash. 120, 123, 137 P. 328 (1913). As stated in Hein v. Chrysler Corp., supra 45 Wash.2d at page 600, 277 P.2d at page 716:

An employee who willfully and for his own purposes violates the property rights of another . . . is not acting in the furtherance of his employer's business. Consequently, his employer cannot be held liable under the doctrine of Respondeat superior for the employee's wrongful act. The same rule should apply to any tort, regardless of its nature.

See also Annot., 34 A.L.R.2d 372 (1954); F. Harper & F. James, Law of Torts § 26.9 (1956); W. Prosser, Law of Torts § 70 (4th ed. 1971); W. Seavey, Handbook of the Law of Agency § 89C (1964).

If the assault by the servant is occasioned solely by reason of the servant's ill will, jealousy, hatred, or other ill feelings, independent of the servant's duty, then the master is not liable. E. g., Linck v. Matheson, 63 Wash. 593, 596, 116 P. 282 (1911). To fall within the scope of employment, [24 Wn.App. 278] the assault must be committed by authority of the employer, such authority being either expressly conferred or fairly implied from the nature of the employment [600 P.2d 682] and the duties incidental thereto as where the servant is authorized to maintain discipline or the character of the employment is liable to create disputes and result in breaches of the peace. An abuse or excessive exercise of the servant's authority in such situations does not relieve the master of liability. Langness v. Ketonen, supra 42 Wash.2d at 399-400, 255 P.2d 551; Brazier v. Betts, 8 Wash.2d 549, 556-60, 113 P.2d 34 (1941).

Where the servant's intentionally tortious or criminal acts are not performed in furtherance of the master's business, the master will not be held liable as a matter of law even though the employment situation provided the opportunity for the servant's wrongful acts or the means for carrying them out. In Kyreacos v. Smith, supra, a Seattle police detective killed a man whom he suspected of murdering a complaining witness in a case in which the detective had arrested the decedent for a credit card forgery. The detective's conviction of first-degree murder was affirmed on appeal in State v. Smith, 85 Wash.2d 840, 540 P.2d 424 (1975). In the subsequent wrongful death action brought by the decedent's widow, it was held that the City of Seattle was not liable under the doctrine of respondeat superior as a matter of law and that summary judgment was appropriate. The court stated that "if a servant steps aside from his master's business and, in order to effect some purpose of his own, commits an assault, the master is not liable." Kyreacos v. Smith, supra 89 Wash.2d at 429, 572 P.2d at 725. The court reasoned that the commission of premeditated murder by a policeman precluded any possibility that he was acting within the scope of his employment.

Recovery against the master has uniformly been denied in those instances where a servant-truck driver and the plaintiff collided, an altercation followed, and the driver lost his temper and struck the plaintiff. F. Harper & F. James, Supra § 26.9, at 1392 n. 16; W. Prosser, Supra § 70, [24 Wn.App. 279] at 464. Accord, Restatement (Second) of Agency § 245, comment f, Illustration 8 (1958).

The plaintiffs urge an abandonment of these enunciated principles of respondeat superior. In their stead, the plaintiffs would have us embrace the rule adopted in California. Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947); Pritchard v. Gilbert, 107 Cal.App.2d 1, 236 P.2d 412 (1951). In those cases involving a servant's intentional assault, the California rule extends a master's liability to include risks inherent in or created by the enterprise for the reason that the master is thought to be best able to assume and spread the risk. A risk may be said to inhere in or be created by a business when "an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business," or it is typical of the employer's business. Rodgers v. Kemper Constr. Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143, 148-49 (1975). The risks of an employer's enterprise include those faults of human nature which may surface when a servant has contact with a third party. Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5, 7-8 (1946).^[1] We note that the California rule is based in large part upon section 2338 of the California Civil Code, which makes a principal liable for the wrongful acts of the agent committed in and as a part of the principal's [600 P.2d 683] business. We [24 Wn.App. 280] find no comparable statutory directive in Washington and decline to impose a rule, the ramifications of which would be far-reaching and which would rearrange, across the state, the responsibility of employers for the conduct of their employees. Such a redirection of social policy is, more appropriately, the function of the legislature.^[2]

A party is entitled to summary judgment when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Balise v. Underwood, 62 Wash.2d 195, 381 P.2d 966 (1963). Considering all of the evidence submitted and the reasonable inferences therefrom in the light most favorable to the nonmoving party, we must determine if reasonable people might reach different conclusions from the evidence and inferences therefrom. If so, summary judgment must be denied. CR 56(c); Jacobsen v. State, 89 Wash.2d 104, 108-09, 569 P.2d 1152 (1977). Whether a tortious act was one performed within the scope of the servant's employment for which the master would consequently be held liable is a determination which necessarily depends upon the particular circumstances and facts of the case. This question is ordinarily one for the trier of [24 Wn.App. 281] fact, although certain fact patterns may establish as a matter of law that the master is not liable. See Kyreacos v. Smith, supra ; Restatement (Second) of Agency § 228, comment d (1958).

Here, as a result of White's driving, the Kuehns attempted to catch up with White's truck. Both then drove off the road. White then assaulted Kuehn because of his personal anger towards Kuehn and not because of any intent to serve the employer.

The judgment is affirmed.

FARRIS and RINGOLD, JJ., concur.

[1] As stated in Fields v. Sanders, 29 Cal.2d 834, 839, 180 P.2d 684, 172 A.L.R. 525 (1947), quoting from Andrews v. Seidner, 49 Cal.App.2d 427, 121 P.2d 863, 864 (1942):

"Responsibility of the principal results from acts so committed even though they be contrary to the principal's explicit instructions or otherwise unauthorized, or malicious or wilful. In considering whether an unauthorized wrongful act of an agent is attributable to his principal, we cannot look to the nature of such act alone to see whether it was committed in and as a part of the transaction of the principal's business, but we must consider as well the activity of the agent on behalf of the principal in connection with which the act was committed. The inquiry is not whether the wrongful act itself was authorized but whether it was committed in the course of a series of acts of the agent which were authorized by the principal. Of course, where the agent, for however brief a space of time, has ceased to serve his principal, he alone is responsible for his acts during the period of such cessation. . . . "

[2] See Ira S. Bushey & Sons, Inc. v. United States, 276 F.Supp. 518 (E.D.N.Y.1967), Aff'd, 398 F.2d 167 (2d Cir. 1968). In Sandman v. Hagan, 261 Iowa 560, 154 N.W.2d 113 (1967), at page 569, 154 N.W.2d at page 118, 119, we find:

We are aware of the so-called modern trend to find liability in this class of cases on the basis that such wrongs are committed by the employee only because of the employment situation, and that since the employer has the benefit of the enterprise as between two innocent third parties, he is better able to bear the risk of loss. If he cannot altogether avoid such wrongs, he can at least minimize them. In those cases it is argued that a general sense of fairness requires that the employer, as the person interested and benefited by the business, rather than the persons who have no concern in or control over it, should bear the burden of such wrongs as incidental to such business. See Penas v. Chicago, M. & St. P. Ry. Co., 112 Minn. 203, 127 N.W. 926 . . . ; Harper, Torts, section 291, page 640; 45 Harvard Law Review 342. If employer liability is to be extended this far, we believe it should come from the legislature, and do not find that this concept has substantial support in judicial decisions.

[638 P.2d 162] Claude W. Martin of Brown, Drew, Apostolos, Massey & Sullivan, Casper, on behalf of appellant.

James R. McCarty, Casper, on behalf of appellee.

Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.

BROWN, Justice.

Appellant, The Sage Club, appeals a judgment entered against it in a lawsuit arising out of an altercation between a bartender employed at the club, Mr. Thyfault, and a customer, appellee David Leland Hunt. The trial court entered a default judgment against Mr. Thyfault and held The Sage Club liable under the theories of respondeat superior and negligence in continuing to employ Mr. Thyfault. Appellant asserts that it cannot be held liable for the intentional tort of its employee because the tort was personal to Mr. Thyfault and was not within the scope of employment.

We affirm.

I

A dispute took place over money which appellee had left on the bar. Appellee thought that someone, supposedly Thyfault, had taken more money than he was entitled to take for his drinks. Mr. Thyfault undoubtedly resented the insinuation, so he jumped over the bar and attacked appellee. Thyfault hit appellee in the face, breaking his nose and inflicting other bruises, and then threw appellee down the stairs, reinjuring his back.

This court has held that an employer may be held liable for the negligent acts of an employee acting within the scope of employment, Gill v. Schaap, Wyo., 601 P.2d 545 (1979); Miller v. Reiman-Wuerth Company, Wyo., 598 P.2d 20 (1979); Combined Insurance Company of America v. Sinclair, Wyo., 584 P.2d 1034 (1978); and Stockwell v. Morris, 46 Wyo. 1, 22 P.2d 189 (1933). We have not, however, had occasion to rule on whether an employer may be held responsible for the intentional tort of an employee. The majority rule, in fact the universally accepted rule, holds employers liable for the intentional torts of employees committed within the scope of employment. Prosser, Law of Torts, § 70, p. 464 (4th ed., 1971). The rule is a matter of economic and social policy, based both on the fact that the employer has the right to control the employee's actions and that the employer can best bear the loss as a cost of doing business. The Restatement (Second), Agency 2d § 245, p. 537 (1958), phrases the rule as:

"A master is subject to liability for the intended tortious harm by a servant to the person or things of another by an act done in connection with the servant's employment, although the act was unauthorized, if the act was not unexpectable in view of the duties of the servant."

We agree with the accepted rule and hold that an employer may be held liable for the intentional tort of an employee if the employee is acting within the scope of employment.

Appellant here contends that Mr. Thyfault was not acting within the scope of employment because the altercation which took place was a personal one between Thyfault and appellee. The question of whether an employee is acting within the scope of employment is one for the trier of fact, in this case the trial court, and becomes a question of law when only one reasonable inference can be drawn about the question from the evidence. Miller v. Reiman-Wuerth [638 P.2d 163] Co., supra, at 23. We think the evidence here was sufficient to show that Thyfault was acting within the scope of employment when he attacked appellee. We said in Combined Insurance Co. of America v. Sinclair, supra, at 1041, that in general the servant's conduct is within the scope of his employment, "if it is of the kind which he was employed to perform, occurs substantially within the authorized limit of time and space, and is actuated, at least in part, by a purpose to serve the master," citing Prosser, Law of Torts, supra, p. 461 (4th ed.). Here, Mr. Thyfault's duties included collecting money for drinks, and he lost his temper over that matter. His duties also included keeping order in the bar and removing disruptive customers, which Thyfault apparently tried to do by pushing appellee down the stairs.

Appellant relies on Lombardy v. Stees, 132 Colo. 570, 290 P.2d 1110 (1956), for the proposition that since the assault was purely personal, it was not within the scope of employment. In that case, however, the evidence showed that the only express instruction to the bartender was that if anyone got too much to drink he was not to be served further. The bartender there had no authority to act as a bouncer; Thyfault did, and his employment was of such a nature as to contemplate the use of force. Indeed, the owner of The Sage Club testified that Thyfault sometimes had to remove people from the club on a daily basis.

In addition to the facts set out in Combined Insurance Co. of America v. Sinclair, supra, an important factor in deciding a principal's liability for his agent's intentional torts is whether "the use of force is not unexpectable by the master." Restatement (Second), Agency 2d § 228(1)(d), p. 504 (1958). Where the nature of the employment is such that the master must contemplate the use of force by the servant, the master will be held liable for the willful act of the servant even though he had no knowledge that the act would take place. Jones v. Herr, 39 Or.App. 937, 594 P.2d 410 (1979). The employer need not have foreseen the precise act or exact manner of injury as long as the general type of conduct may have been reasonably expected. Riviello v. Waldron, 47 N.Y.2d 297, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (1979). Some who frequent grogshops are not the most docile members of society. Where an employee is serving in this type of environment as a bartender, the master is usually responsible if the employee loses his temper and willfully injures a patron because the result is foreseeable in view of the servant's job.

This court will therefore not indulge in nice distinctions to determine whether the excessive force was motivated by personal reasons. It is appellant's misfortune to have hired a quarrelsome and violent bartender who in turn attacked a plaintiff experienced at collecting on injury claims. Appellant evidently allowed Thyfault to use force at his discretion, and he was performing work of the kind he was employed to perform. The assault occurred within the authorized limits of time and space and was motivated, at least partially, by a desire to serve the Sage Club. Appellant is consequently vicariously liable to Mr. Hunt under the doctrine of respondeat superior.

II

The trial court also ruled that The Sage Club was liable under a theory of negligence in maintaining Mr. Thyfault as an employee. Since we have already affirmed on the basis of respondeat superior, we do not need to address the issue of negligence.

Affirmed.

THOMAS, Justice, dissenting.

I cannot join in the opinion of the court in this instance, even though I have no disagreement with the accuracy of the concepts of law and fact which are there set forth. The sole reason I cannot join is that in my judgment this appeal should have been dismissed.

In addition to its other findings, the district court found as follows:

"6. That the Defendant, Sage Club, was negligent in keeping the Defendant, Joe Thyfault as an employee after he had [638 P.2d 164] displayed vicious and aggressive behavior and that Plaintiff's injuries are a result of said negligence.

"7. That the Defendant, Sage Club, is liable to Plaintiff for damages listed in paragraph 3 other than punitive damages as a result of said negligence.

"9. If an employer is negligent in keeping an employee who exhibits aggressive and quarrelsome tendencies and the employee assaults a customer while on duty, the employer is liable for damages resulting from the employer's negligence.

In these findings the district court stated an alternative basis for the liability of The Sage Club other than respondeat superior. I cannot read into the appellant's brief any attack upon these findings of independent negligence. The tenor of the argument is only that the doctrine of respondeat superior does not justify the finding of liability in this instance. While appellant at oral argument attacked the sufficiency of the evidence to support the finding of independent negligence, that matter is not addressed in appellant's docketing statement.

In his docketing statement the appellant in part of his "Statement of the Nature of the Proceedings" said with respect to the finding of the district court: "The Court below held the employer of the bartender liable on the theory of vicarious liability." No mention is made of the independent negligence of The Sage Club. In stating the "Questions Presented by this Appeal" the appellant refers only to the tort being committed "outside the employee's employment." The brief which was submitted is consistent with the docketing statement. The issue of sufficiency of the evidence to support independent negligence on the part of the employer was waived. Roberts Construction Company v. Vondriska, Wyo., 547 P.2d 1171 (1976); Barber v. Barber, Wyo., 349 P.2d 198 (1960), and the authorities cited therein.

The case for me therefore becomes one in which even if the court had agreed with counsel's argument about respondeat superior no relief could have been afforded to the appellant, and no judgment finding error on the part of the trial court could have become effective because The Sage Club would still have been liable based upon its independent negligence.

In North Laramie Land Co. v. Hoffman, 28 Wyo. 183, 201 P. 1022 (1921), the Court said at 28 Wyo. 187, 201 P. 1022:

" * * * If it be made to appear to an appellate court that the questions involved are no longer of any practical importance to the parties the case will not be reviewed on the merits merely to determine who shall pay the costs. * * * "

In Druley v. Houdesheldt, 75 Wyo. 155, 294 P.2d 351 (1956), the Court, with respect to two questions posed by the appellees, there said at 75 Wyo. 165, 294 P.2d 351:

"These questions, while of academic interest and potentially determinative in certain instances, are not requisite to adjudication of this case and need not be discussed."

In Matter of Estate of Frederick, Wyo., 599 P.2d 550, 558 (1979), the Court said, of issues found to be moot:

" * * * While these issues are sharply drawn, no doubt significant, and somewhat intriguing, we conclude that they are illusory for adversarial purposes because of the mootness injected into this case by our disposition of Case No. 5029. Proper application of the principles of judicial restraint leads to the conclusion that we should not here address these issues because our opinion under the circumstances would be advisory only. House v. Wyoming Highway Department, 66 Wyo. 1, 203 P.2d 962 (1949); Welch v. Town of Afton, 64 Wyo. 49, 184 P.2d 593 (1947). Cf., State ex rel. Schwartz v. Jones, 61 Wyo. 350, 157 P.2d 993 (1945)."

In Northern Utilities, Inc. v. Public Service Commission of Wyoming, Wyo., 620 P.2d 139, 140 (1980), the Court in a published order dismissing appeal said:

"2. When pending appeal an event occurs which makes a determination of the question involved unnecessary the appeal should be dismissed. In the Matter of the Estate of Frederick, Wyo.1979, 599 P.2d 550, 558; House v. Wyoming Highway [638 P.2d 165] Department, 1949, 66 Wyo. 1, 203 P.2d 762."

In Reno Livestock Corporation v. Sun Oil Company, Wyo., 638 P.2d 147 (No. 5531, decided December 29, 1981) this court said at P.2d 154:

" * * * When no controversy exists, courts will not consume their time deciding moot questions nor decide cases to arise in the future. Northern Utilities, Inc. v. Public Service Commission, Wyo., 617 P.2d 1079, 1085 (1980) and cases there cited. * * * "

The court at a later point, at 638 P.2d 155, said:

" * * * We will not decide questions not requisite to adjudication and being only of academic interest. Wallace v. Casper Adjustment Service, Wyo., 500 P.2d 72 (1972)."

Because I am persuaded that no attack is mounted upon the alternative basis of liability in this case which is the independent negligence of The Sage Club, it is my view that it is unnecessary to determine the question of respondeat superior. The issue presented by this appeal was moot and illusory from the time the docketing statement was filed. It is for these reasons that I would hold that the appeal should have been dismissed rather than determined.

Page 167

Page 168

        Philip A. Berns, Washington, D. C., (Edwin L. Weisl, Jr., Asst. Atty. Gen., Joseph P. Hoey, U. S. Atty., Louis E. Greco, Atty. in Charge, New York Office, Admiralty and Shipping Section, Peter M. Klein, Atty., Admiralty and Shipping Section, Dept. of Justice), for the United States, appellant.

        Christopher E. Heckman, New York City, Foley & Martin, New York City, for appellee Ira S. Bushey & Sons, Inc.

        Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

        FRIENDLY, Circuit Judge:

        While the United States Coast Guard vessel Tamaroa was being overhauled in a floating drydock located in Brooklyn's Gowanus Canal, a seaman returning from shore leave late at night, in the condition for which seamen are famed, turned some wheels on the drydock wall. He thus opened valves that controlled the flooding of the tanks on one side of the drydock. Soon the ship listed, slid off the blocks and fell against the wall. Parts of the drydock sank, and the ship partially did — fortunately without loss of life or personal injury. The drydock owner sought and was granted compensation by the District Court for the Eastern District of New York in an amount to be determined, 276 F.Supp. 518; the United States appeals.¹

        Before reaching the merits, we must deal with a procedural issue injected by the district judge, since we would have no jurisdiction of the appeal if his decision of the question was correct. Although Bushey, the drydock owner, had brought its libel under the Public Vessels Act, 46 U.S.C. §§ 781-790, and the United States did not dispute the applicability of that statute save for unsuccessfully contending that Bushey must first present its claim to the Coast Guard Board of Contract Appeals,² the judge ruled that the damage to the drydock was not "caused by a public vessel of the United States" since "the Tamaroa was not, in a practical sense, a ship causing a `collision,' but an inert mass." 276 F.Supp. at 523. He then proceeded to hold (1) that sovereign immunity was nevertheless waived under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and 2674, the exception in § 2680(d) for "any claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States" being inapplicable because, as he believed, no such remedy was provided; (2) that Bushey's pleading would be deemed amended to allege a claim under the Tort Claims Act which it had not asserted; (3) that New York law applied, 28 U.S.C. § 1346 (b); (4) that this, however, was the "whole" law of New York; and (5) that New York would, indeed must, determine liability for a tort on navigable waters in accordance with maritime law. Hence, from a substantive standpoint, the chase was thought to have ended where it began, save for a caveat as to the applicability of distinctive admiralty remedies, notably limitation, an issue not practically important here.

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        What does remain important is that our powers to review a judgment determining liability but not fixing damages are entirely different if the action was in admiralty as the parties thought or at law as the judge held. If it was the former, we have jurisdiction under 28 U.S.C. § 1292(a) (3) relating to "interlocutory decrees * * * determining the rights and liability of the parties to admiralty cases in which appeals from final decrees are allowed," whereas if it were the latter, we would have none. Beebe v. Russell, 60 U.S. (19 How.) 283, 285, 15 L.Ed. 668 (1856); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945).

        We perceive no basis for the court's restrictive reading of the Public Vessels Act. It is no strain whatever on the language to say that a public vessel has "caused" any tort damage for which she is legally responsible. Thomason v. United States, 184 F.2d 105 (9 Cir. 1950). The Act speaks of causing "damage"; it says nothing about causing "collision." Such debate as there has been concerning the scope of the Public Vessels Act relates to claims sounding in contract, see Calmar S. S. Corp. v. United States, 345 U.S. 446, 456 n. 8, 73 S.Ct. 733, 738, 97 L.Ed. 1140 (1953), and even as to that "equivocal language should be construed so as to secure the most harmonious results." Id. Furthermore, and decisively, even if the judge's narrow reading of § 1 of the Public Vessels Act had been warranted, the suit could nevertheless be maintained under § 2 of the Suits in Admiralty Act as amended, 46 U.S.C. § 742. This provides, inter alia, that in cases where if any vessel owned by the United States "were privately owned or possessed, * * * a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States * * *." — the language of the 1920 statute restricting the Suits in Admiralty Act to merchant vessels having been stricken in 1960, 74 Stat. 912, for the very purpose of avoiding fruitless jurisdictional controversies and bringing all maritime claims against United States vessels into the admiralty jurisdiction of the district courts. See S.Rep. 1894, 86th Cong. 2d Sess., 2 U.S. Code Cong. & Adm. News, p. 3583 et seq.³

        With our appellate jurisdiction under 28 U.S.C. § 1292 (a) (3) thus established, we return to the facts. The Tamaroa had gone into drydock on February 28, 1963; her keel rested on blocks permitting her drive shaft to be removed and repairs to be made to her hull. The contract between the Government and Bushey provided in part:

        (o) The work shall, whenever practical, be performed in such manner as not to interfere with the berthing and messing of personnel attached to the vessel undergoing repair, and provision shall be made so that personnel assigned shall have access to the vessel at all times, it being understood that such personnel will not interfere with the work or the contractor's workmen.

        Access from shore to ship was provided by a route past the security guard at the gate, through the yard, up a ladder to the top of one drydock wall and along the wall to a gangway leading to the fantail deck, where men returning from leave reported at a quartermaster's shack.

        Seaman Lane, whose prior record was unblemished, returned from shore leave a little after midnight on March 14. He had been drinking heavily; the quarter-master made mental note that he was "loose." For reasons not apparent to us or very likely to Lane,⁴ he took it into his head, while progressing along the gangway wall, to turn each of three large

Page 170

wheels some twenty times; unhappily, as previously stated, these wheels controlled the water intake valves. After boarding ship at 12:11 A.M., Lane mumbled to an off-duty seaman that he had "turned some valves" and also muttered something about "valves" to another who was standing the engineering watch. Neither did anything; apparently Lane's condition was not such as to encourage proximity. At 12:20 A.M. a crew member discovered water coming into the drydock. By 12:30 A.M. the ship began to list, the alarm was sounded and the crew were ordered ashore. Ten minutes later the vessel and dock were listing over 20 degrees; in another ten minutes the ship slid off the blocks and fell against the drydock wall.

        The Government attacks imposition of liability on the ground that Lane's acts were not within the scope of his employment. It relies heavily on § 228(1) of the Restatement of Agency 2d which says that "conduct of a servant is within the scope of employment if, but only if: * * * (c) it is actuated, at least in part by a purpose to serve the master." Courts have gone to considerable lengths to find such a purpose, as witness a well-known opinion in which Judge Learned Hand concluded that a drunken boatswain who routed the plaintiff out of his bunk with a blow, saying "Get up, you big son of a bitch, and turn to," and then continued to fight, might have thought he was acting in the interest of the ship. Nelson v. American-West African Line, 86 F.2d 730 (2 Cir. 1936), cert. denied, 300 U.S. 665, 57 S.Ct. 509, 81 L.Ed. 873 (1937). It would be going too far to find such a purpose here; while Lane's return to the Tamaroa was to serve his employer, no one has suggested how he could have thought turning the wheels to be, even if — which is by no means clear — he was unaware of the consequences.

        In light of the highly artificial way in which the motive test has been applied, the district judge believed himself obliged to test the doctrine's continuing vitality by referring to the larger purposes respondeat superior is supposed to serve. He concluded that the old formulation failed this test. We do not find his analysis so compelling, however, as to constitute a sufficient basis in itself for discarding the old doctrine. It is not at all clear, as the court below suggested, that expansion of liability in the manner here suggested will lead to a more efficient allocation of resources. As the most astute exponent of this theory has emphasized, a more efficient allocation can only be expected if there is some reason to believe that imposing a particular cost on the enterprise will lead it to consider whether steps should be taken to prevent a recurrence of the accident. Calabresi, The Decision for Accidents: An Approach to Non-fault Allocation of Costs, 78 Harv.L.Rev. 713, 725-34 (1965). And the suggestion that imposition of liability here will lead to more intensive screening of employees rests on highly questionable premises, see Comment, Assessment of Punitive Damages Against an Entrepreneur for the Malicious Torts of His Employees, 70 Yale L.J. 1296, 1301-04 (1961).⁵ The unsatisfactory quality of the allocation of resource rationale is especially striking on the facts of this case. It could well be that application of the traditional rule might induce drydock owners, prodded by their insurance companies, to install locks on their valves to avoid similar incidents in the future,⁶ while placing the burden on shipowners is much less

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likely to lead to accident prevention.⁷ It is true, of course, that in many cases the plaintiff will not be in a position to insure, and so expansion of liability will, at the very least, serve respondeat superior's loss spreading function. See Smith, Frolic and Detour, 23 Colum.L.Rev. 444, 456 (1923). But the fact that the defendant is better able to afford damages is not alone sufficient to justify legal responsibility, see Blum & Kalven, Public Law Perspectives on a Private Law Problem (1965), and this overarching principle must be taken into account in deciding whether to expand the reach of respondeat superior.

        A policy analysis thus is not sufficient to justify this proposed expansion of vicarious liability. This is not surprising since respondeat superior, even within its traditional limits, rests not so much on policy grounds consistent with the governing principles of tort law as in a deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities. It is in this light that the inadequacy of the motive test becomes apparent. Whatever may have been the case in the past, a doctrine that would create such drastically different consequences for the actions of the drunken boatswain in Nelson and those of the drunken seaman here reflects a wholly unrealistic attitude toward the risks characteristically attendant upon the operation of a ship. We concur in the statement of Mr. Justice Rutledge in a case involving violence injuring a fellow-worker, in this instance in the context of workmen's compensation:

        "Men do not discard their personal qualities when they go to work. Into the job they carry their intelligence, skill, habits of care and rectitude. Just as inevitably they take along also their tendencies to carelessness and camaraderie, as well as emotional make-up. In bringing men together, work brings these qualities together, causes frictions between them, creates occasions for lapses into carelessness, and for fun-making and emotional flare-up. * * * These expressions of human nature are incidents inseparable from working together. They involve risks of injury and these risks are inherent in the working environment."

        Hartford Accident & Indemnity Co. v. Cardillo, 72 App.D.C. 52, 112 F.2d 11, 15, cert. denied, 310 U.S. 649, 60 S.Ct. 1100, 84 L.Ed. 1415 (1940); cf. Robinson v. Bradshaw, 92 U.S.App.D.C. 216, 206 F.2d 435 (1953). Judge Cardozo reached a similar conclusion in Leonbruno v. Champlain Silk Mills, 229 N.Y. 470, 128 N.E. 711, 13 A.L.R. 522 (1920). Further supporting our decision is the persuasive opinion of Justice Traynor in Carr v. Wm. C. Crowell Co., 28 Cal.2d 652, 171 P.2d 5 (1946) [employer liable for violent acts of servant against employee of a subcontractor working on the same construction job], followed in Fields v. Sanders, 29 Cal.2d 834, 180 P.2d 684, 172 A.L.R. 525 (1947) [employer liable for violent acts of driver against another driver in traffic dispute].

        Put another way, Lane's conduct was not so "unforeseeable" as to make it unfair to charge the Government with responsibility. We agree with a leading treatise that "what is reasonably foreseeable in this context [of respondeat superior] * * * is quite a different thing from the foreseeably unreasonable risk of harm that spells negligence * *. The foresight that should impel the prudent man to take precautions is not the same measure as that by which he should perceive the harm likely to flow from his long-run activity in spite of all reasonable precautions on his own part. The proper test here bears far more resemblance to that which limits liability for workmen's compensation than to the test for negligence. The employer should be held to expect risks, to the public also,

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which arise `out of and in the course of' his employment of labor." 2 Harper & James, The Law of Torts 1377-78 (1956). See also Calabresi, Some Thoughts on Risk Distribution and the Law of Torts, 70 Yale L.J. 499, 544 (1961). Here it was foreseeable that crew members crossing the drydock might do damage, negligently or even intentionally, such as pushing a Bushey employee or kicking property into the water. Moreover, the proclivity of seamen to find solace for solitude by copious resort to the bottle while ashore has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that Lane's precise action was not to be foreseen. Compare, for a similar problem in the law of damages, Petition of Kinsman Transit Co., 338 F.2d 708, 721-726 (2 Cir. 1964), cert. denied, Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965), but see also 388 F.2d 821 (2 Cir. 1968). Consequently, we can no longer accept our past decisions that have refused to move beyond the Nelson rule, Brailas v. Shepard S.S. Co., 152 F.2d 849 (2d Cir. 1945), cert. denied, 327 U.S. 807, 66 S.Ct. 970, 90 L.Ed. 1032 (1946); Kable v. United States, 169 F.2d 90, 92 (2 Cir. 1948),⁸ since they do not accord with modern understanding as to when it is fair for an enterprise to disclaim the actions of its employees.

        One can readily think of cases that fall on the other side of the line. If Lane had set fire to the bar where he had been imbibing or had caused an accident on the street while returning to the drydock, the Government would not be liable; the activities of the "enterprise" do not reach into areas where the servant does not create risks different from those attendant on the activities of the community in general. Cf. Gordon v. United States, 180 F.Supp. 591 (Ct.Cl.1960); Trost v. American Hawaiian S.S. Co., 324 F.2d 225 (2 Cir. 1963), cert. denied, 376 U.S. 963, 84 S.Ct. 1125, 11 L.Ed.2d 981 (1964). We agree with the district judge that if the seaman "upon returning to the drydock, recognized the Bushey security guard as his wife's lover and shot him," 276 F.Supp. at 530, vicarious liability would not follow; the incident would have related to the seaman's domestic life, not to his seafaring activity, cf. Hartford Accident & Indemnity Co. v. Cardillo, supra, 112 F.2d at 17, and it would have been the most unlikely happenstance that the confrontation with the paramour occurred on a drydock rather than at the traditional spot. Here Lane had come within the closed-off area where his ship lay, cf. McConville v. United States, 197 F.2d 680 (2 Cir. 1957), to occupy a berth to which the Government insisted he have access, cf. Restatement, Agency 2d, § 267, and while his act is not readily explicable, at least it was not shown to be due entirely to facets of his personal life. The risk that seamen going and coming from the Tamaroa might cause damage to the drydock is enough to make it fair that the enterprise bear the loss. It is not a fatal objection that the rule we lay down lacks sharp contours; in the end, as Judge Andrews said in a related context, "it is all a question [of expediency,] * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind." Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 354-355, 162 N. E. 99, 104, 59 A.L.R. 1253 (1928) (dissenting opinion).

        Since we hold the Government responsible for the damage resulting from Lane's turning the wheels, we find it

Page 173

unnecessary to consider Bushey's further arguments that liability would attach in any event because of later inaction of Lane and others on the Tamaroa; and that in libels in rem, whose principles are here applicable by virtue of § 3 of the Suits in Admiralty Act, ordinary rules of agency are inapplicable and the ship is liable for anything ship-connected persons cause it to do. Cf. The China, 74 U.S. (7 Wall.) 53, 19 L.Ed. 67 (1868); Burns Bros. v. Central R.R. of N. J., 202 F.2d 910, 914 (2 Cir. 1953).

        Affirmed.

---------------

Notes:

1. The district court also dismissed a libel by the United States against the drydock owner for damage to the vessel; the United States has not appealed from that ruling.

2. This contention has not been pressed on appeal.

3. The discussion in Gilmore & Black, Admiralty, § 11-11 (1957), which the judge cited, 276 F.Supp. at 523, is thus largely obsolete — a good instance of the compelling need for a revised edition of this indispensable work.

4. Lane disappeared after completing the sentence imposed by a courtmartial and being discharged from the Coast Guard.

5. We are not here speaking of cases in which the enterprise has negligently hired an employee whose undesirable propensities are known or should have been. See Koehler v. Presque-Isle Transp. Co., 141 F.2d 490 (2 Cir.), cert. denied, 322 U.S. 764, 64 S.Ct. 1288, 88 L.Ed. 1591 (1943).

6. The record reveals that most modern drydocks have automatic locks to guard against unauthorized use of valves.

7. Although it is theoretically possible that shipowners would demand that drydock owners take appropriate action, see Coase, The Problem of Social Cost, 3 J.L. & Economics 1 (1960), this would seem unlikely to occur in real life.

8. The Brailas decision relied on Davis v. Green, 260 U.S. 349, 43 S.Ct. 123, 67 L.Ed. 299 (1922), which was applied in St. Louis-San Francisco R. Co. v. Mills, 271 U.S. 344, 46 S.Ct. 520, 70 L.Ed. 979 (1926); Atlantic Coast Line R. Co. v. Southwell, 275 U.S. 64, 48 S.Ct. 25, 72 L.Ed. 157 (1927); and Atlanta & Charlotte Air Line R. Co. v. Green, 279 U.S. 821, 49 S.Ct. 350, 73 L.Ed. 976 (1929). However, we agree with Chief Judge Murrah that the Supreme Court would not follow Davis today, despite its author's eminence. Copeland v. St. Louis-San Francisco R. Co., 291 F.2d 119, 121, 123 (10 Cir. 1961) (dissenting opinion).

---------------

[1030] [1031] Frederick J. DeFilippo, Elmira, NY, for appellant.

Anne VanGraafeiland, Asst. U.S. Atty., Rochester, NY (Patrick H. NeMoyer, U.S. Atty., Rochester, NY, on the brief), for appellee.

Before: LEVAL, and CALABRESI, Circuit Judges.^[1]

CALABRESI, Circuit Judge:

Twenty-six years ago, in Ira S. Bushey & Sons, Inc. v. United States, 398 F.2d 167 (2d Cir.1968), this court held that the United States Government was vicariously liable for damage to a drydock caused by a drunken sailor who was returning to ship from a night's liberty. In his celebrated opinion, Judge Henry Friendly described the basis of respondeat superior as the "deeply rooted sentiment that a business enterprise cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities." Id. at 171. Even though the sailor had become drunk while on liberty and far off base, we noted that drinking on leave was so common a part of naval life that the sailor's drunken return to ship could fairly be deemed to be characteristic of the military enterprise and, hence, that the government should be held liable for the damage that he caused. See id. at 172.

In Bushey, we applied admiralty law. Today —in a case that again involves a seaman who had too much to drink — we must apply the law of Guam. This, in turn, points us to California decisions for guidance. As it happens, California has taken the lead in developing the modern law of respondeat superior even before Bushey. And, so, rounding out the circle, we now reach the same conclusion as did Judge Friendly, twenty-six years ago.

Although in Bushey the decision that the government was liable under respondeat superior pretty well disposed of all the issues in [1032] the case, a similar conclusion here offers no such closure. Instead, it forces us into that singular tangle of seemingly inconsistent rulings and rationales known as the Feres doctrine. In the end, we conclude that the most sensible reading of Feres and its progeny does not bar this suit. But we would be less than candid if we did not admit that the Feres doctrine has gone off in so many different directions that it is difficult to know precisely what the doctrine means today.

BACKGROUND

The facts are simple enough and not disputed. On the morning of April 13, 1985, Robert S. Maine, ("Maine") a Navy serviceman on active duty at the U.S. Naval Ship Repair Facility on the island of Guam, went on liberty after having completed a grueling 24 hour duty shift. While on liberty he was free to leave the base as he pleased and travel up to 50 miles away. He could also be recalled for duty at any time.

Maine decided to have a good time. By noon, he was relaxing at an on-base beach party and drinking beer with Navy friends. Later that afternoon, he purchased two six-packs of beer at the base PX with his Navy comrade, Karin Conville ("Conville"), and returned with her to his barracks to drink several more cans. At dinnertime, Maine accompanied friends to the enlisted men's club, where he consumed two cocktails with his meal. After dinner, he attended a barracks party in the room of a superior officer, with several other superior officers present. There, Maine drank three or four more beers and — when he left to return to his own barracks at about 11:00 p.m. — Conville and another Navy comrade named Jean Buquet noticed that he seemed to be drunk. At around 11:30 p.m., Maine had difficulty sleeping and decided to drive off base to get something to eat. Feeling tired, he aborted his snack mission and tried to return to base. On the way back, he caused the accident that injured Scott A. Taber ("Taber").

Taber was an enlisted Seabee — a construction worker in the United States Navy — and was stationed at Camp Covington, Guam. At 6:00 p.m. on Friday, April 12th, he too went on liberty. Accordingly, he was free to go off base at any time, to travel anywhere within 50 miles of his base and, unless he was recalled for duty, to do as he pleased until his liberty ended at 6:00 a.m. on the following Monday.

Around 2:00 p.m. on Saturday April 13, Taber's civilian friend, Estelita Stills ("Stills"), met Taber at his base in her car. They planned to spend the weekend together at her house, which was located off the base. Before going there, however, the two drove to her cousins' home for dinner at the nearby U.S. Naval Station. There, Taber enjoyed a meal and, as a friendly gesture in return, helped fix the cousins' car. Shortly before midnight, Stills and Taber left for Stills's house and their weekend of rest and recreation. As fate would have it, they never got there. While they were driving on the public roadway toward Stills's house, Maine crashed into them, injuring Taber severely.

Two years later, Taber started this action for damages under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, in the United States District Court for the Western District of New York, (David G. Larimer, Judge). Naming both Maine and the United States Government as defendants, Taber complained that he was injured as a result of Maine's negligent driving and that, because Maine was acting within the scope of his Naval employment when he caused the accident, the government was liable on a theory of respondeat superior. The government moved for summary judgment on the grounds that, as a matter of law, Maine's conduct fell outside the scope of his military service and that, therefore, the government was not liable for Taber's injuries.

Taber opposed the government's motion and cross-moved to amend his complaint. The proposed amended complaint claimed that the government was vicariously liable for the actions of the Navy personnel who allegedly had negligently allowed Maine to get drunk and to drive off base. In response, the government argued that the doctrine established by Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), which held that "the Government is not liable under the Federal Tort Claims Act [1033] for injuries to servicemen where the injuries arise out of or in the course of activity incident to service," id. at 146, 71 S.Ct. at 159, barred Taber's new claims.

The district court agreed with the government in all respects. In his Decision and Order dated December 7, 1993, Judge Larimer granted summary judgment to the government because "Maine's drunk driving incident on April 13, 1985, was not in the line of duty and therefore the United States is not liable under the doctrine of respondeat superior." He also denied Taber's motion to amend his complaint holding that these claims would be barred by the Feres doctrine.

The action proceeded against Maine, however. After a bench trial in which Maine appeared pro se, the district court found Maine liable for negligence and assessed Taber's damages at $300,000. A final judgment was entered and Taber appealed.

In his appeal, Taber presses only his original claim that the government is vicariously liable for Maine's negligence, and abandons his motion to amend his complaint. He argues that: (1) the district court erred in failing to apply the doctrine of respondeat superior to Maine's drunk driving; and (2) the Feres doctrine does not bar this claim. We agree with both of Taber's contentions. Accordingly, we reverse the district court's judgment and remand the case for further proceedings.

DISCUSSION

I. Respondeat Superior

The FTCA allows civil actions against the government based on the negligent acts or omissions of its employees, see 28 U.S.C. § 1346(b), including those of members of the Armed Services who are acting "in the line of duty." 28 U.S.C. § 2671. The courts have uniformly equated the FTCA's "line of duty" language with the phrase "scope of employment," as that concept is defined by the respondeat superior law of the jurisdiction in which the accident occurred. See McHugh v. University of Vermont, 966 F.2d 67, 75 n. 9 (2d Cir.1992) (citing McCall v. United States, 338 F.2d 589 (9th Cir.), cert. denied, 380 U.S. 974, 85 S.Ct. 1334, 14 L.Ed.2d 269 (1965)); Merritt v. United States, 332 F.2d 397, 398 (1st Cir. 1964). Because the accident in this case happened in Guam, we must follow Guam's law of respondeat superior. Since the law of Guam is anything but certain, however, that is easier said than done.

Where the law of Guam is unclear, the Ninth Circuit, serving as Guam's highest appellate court, see 48 U.S.C. § 1424-2 (investing the Ninth circuit with certiorari jurisdiction to review "all final decisions of the highest court of Guam"), has instructed courts to look to California law for guidance. Cf. People of the Territory of Guam v. Muna, 999 F.2d 397, 399 n. 1 (9th Cir.1993) ("As a general rule, we refer to California law in resolving unsettled questions of Guam law"). This is particularly true in cases, like this one, where the relevant Guam statute is identical to, and indeed derives from, the California Civil Code. See Concepcion v. United States, 374 F.Supp. 1391, 1395 (D.Guam 1974) (noting that the respondeat superior section of the Civil Code of Guam was "taken verbatim" from the California Civil Code and that "[t]he California cases construing the doctrine ... are persuasive in the construction of similar Guam laws"); cf. People of the Territory of Guam v. Iglesias, 839 F.2d 628, 629 (9th Cir.1988) ("We should [be guided by California law] when California law forms the antecedent of a Guam statute and the intent of the Guam legislature is difficult to discern"). Indeed, on several occasions, the Ninth Circuit relied upon California cases in intuiting Guam's law of respondeat superior. See Williams v. United States, 248 F.2d 492, 494-95 (9th Cir.1957), cert. denied, 355 U.S. 953, 78 S.Ct. 537, 2 L.Ed.2d 529 (1958); United States v. Johnson, 181 F.2d 577, 580-81 (9th Cir.1950) ("California decisions with respect to the tests for determining when the servant of a private employer is acting within the course of his employment supply a convenient starting point for a discussion").

Nevertheless, we begin with Guam. We have found only one decision by a court sitting in Guam, which addresses Guam's law of respondeat superior. See Concepcion, 374 [1034] F.Supp. at 1395.^[2] That case held that an off-duty Navy petty officer was not acting in the line of duty when he drove a servicemember to a naval communications station so that the servicemember could make an emergency phone call to his family. Id. at 1393. If Concepcion properly defines Guam's law of respondeat superior, we would agree with the district court that Taber's claim must fail, for the links between the tortfeasor's actions and the government are closer in that case than they are in the case before us. Consequently, the first question that we must ask is whether Concepcion is controlling today. We think it is not.

The government argues that we should follow Concepcion because we should pay particular attention to the holdings of a federal district judge regarding the law of the jurisdiction in which that federal district court sits. This deference is certainly justified when a district judge — familiar with local law and customs — bases his or her decision on that familiarity. See Stevens v. Barnard, 512 F.2d 876, 880 (10th Cir.1975) ("The views of a federal judge, who is resident of the state where the controversy arose in a case involving interpretations of the law of the state, carry extraordinary persuasive force on appeal where there are no state decisions on point or none which provide clear precedent.").

It is much less appropriate, however, when the district court does not rely on its "home grown" expertise, but, as in Concepcion, has simply interpreted a statute that, itself, originally comes from another jurisdiction, and has cited only cases from that other jurisdiction in support of its interpretation. Moreover, reliance on the local district court is least likely to be sound when, again as here, there exists a Court of Appeals (the Ninth Circuit), that hears both diversity cases from the state of the statute's origination (California) and appeals from the local and federal courts of the jurisdiction in which the district court sits (Guam). This is especially so when that appellate court has spoken frequently on the issue.

For these reasons we conclude that Concepcion, a rather dated holding of an isolated district court in Guam, which cited a few lower court California cases and no Guam cases in interpreting a statute that is identical to California's, is a weak guide to Guam law today. A better source of law would seem to be the many California and Ninth Circuit decisions that have given meaning to California's respondeat superior statute, See, e.g., Mary M. v. City of Los Angeles, 54 Cal.3d 202, 208-09, 285 Cal.Rptr. 99, 101-02, 814 P.2d 1341 (1991); Perez v. Van Groningen & Sons, Inc., 41 Cal.3d 962, 967-68, 227 Cal.Rptr. 106, 108-09, 719 P.2d 676 (1986); Hinman v. Westinghouse Elec., Co., 2 Cal.3d 956, 959-60, 88 Cal.Rptr. 188, 190, 471 P.2d 988 (1970); Liu v. Republic of China, 892 F.2d 1419, 1427-28 (9th Cir.1989), cert. dismissed, 497 U.S. 1058, 111 S.Ct. 27, 111 L.Ed.2d 840 (1990); United States v. Romitti, 363 F.2d 662, 665 (9th Cir.1966), and, by derivation, the Guam statute as well. Roberto v. Aguon, 519 F.2d 754, 755 (9th Cir.1975) ("Appellate courts have consistently recognized that decisions of California courts ... subsequent to the adoption of the Guam codes while not binding, are persuasive.").

It seems clear to us that California law (and by implication the law of Guam) would hold the government vicariously liable for Maine's actions. California was one of the first states in the nation to adopt an expansive reading of the respondeat superior doctrine. As early as 1961, commentators noted that California had taken the lead in equating the scope of respondeat superior liability to the traditionally broader coverage mandated by workers' compensation statutes. Thus, California employers were subject to liability for injuries to third parties caused by the behavior of their employees whenever the employees' acts "arose out of or in the course of" their employment relationship. See Guido Calabresi, Some Thoughts on Risk [1035] Distribution and the Law of Torts, 70 Yale L.J. 499, 545 (1961).

This approach to respondeat superior is even more evident in numerous California cases decided after Concepcion (which inevitably cast doubt on Concepcion itself). For example, in Rodgers v. Kemper Construction Co., 50 Cal.App.3d 608, 124 Cal.Rptr. 143 (4th Dist.1975), a subcontractor was held vicariously liable for an assault committed by two of its employees who had lounged around drinking for several hours in what was, ironically, called the "dry house" (a rest area/locker room located on the job site). On a Friday night after their work shift had ended, the employees, though free to go home, stayed in the dry house and got drunk. Later they went outside and got in a fight with the plaintiffs. See Id. at 615, 124 Cal.Rptr. at 146-47.

In finding respondeat superior liability, the court stated that "the inquiry should be whether the risk was one `that may be fairly regarded as typical of or broadly incidental' to the enterprise undertaken by the employer." Id. at 619, 124 Cal.Rptr. at 149 (citations omitted). The court further noted that under California law,

where social or recreational pursuits on the employer's premises after hours are endorsed by the express or implied permission of the employer and are `conceivably' of some benefit to the employer or, even in the absence of proof of benefit, if such activities have become `a customary incident of the employment relationship,' an employee engaged in such pursuits after hours is still acting within the scope of his employment.

Id. at 620, 124 Cal.Rptr. at 150.^[3]

In Rodgers, the subcontractor "customarily permitted employees to remain on the premises in or about the dry house long after their work shift had ended" and it was also "customary, particularly on Friday evenings, for employees to sit around the dry house after their work shift and talk and drink beer, often ... joined by their supervisors." Id. at 619-20, 124 Cal.Rptr. at 149. Because it "was neither unusual nor unreasonable" for the assailants to be on the job site drinking before the assault, and because such drinking in the dry house "was a customary incident of the employment relationship," the court ruled that their related tortious actions fell within the scope of their employment. Id. Not surprisingly, the court in Rodgers relied heavily on our decision in Bushey. See id. at 618, 124 Cal.Rptr. at 148-49.

Similarly, in Childers v. Shasta Livestock Auction Yard, Inc., 190 Cal.App.3d 792, 235 Cal.Rptr. 641 (3d Dist.1987), Shasta's foreman gave Childers and Abbott (both Shasta employees) the keys to his office at the end of the day and told them to go have a beer. The two employees were later joined by a customer, and the three of them drank both beer and hard liquor for several hours, getting quite drunk. Id. at 799, 235 Cal.Rptr. at 642-43. At around 10:00 p.m., Abbott suggested to Childers that they drive off to feed Abbott's horses. Abbott drove her truck off the road, killing herself and injuring Childers. Id.

In addressing Childers's claim against Shasta, the court made clear that the fact that Childers's injuries occurred away from the work site did not bar the employer's vicarious liability for Abbott's drunk driving. The court said:

respondeat superior liability is properly applied where an employee undertakes activities within his or her scope of employment that cause the employee to become an instrumentality of danger to others even where the danger may manifest itself [1036] at times and locations remote from the ordinary workplace.

Id. at 804-05, 235 Cal.Rptr. at 647. The court also explicitly linked the scope of liability under respondeat superior to that which would make an employer liable to an employee under the workers' compensation laws. Id. at 801, 235 Cal.Rptr. at 644.

Consistently with these cases, the Ninth Circuit has, itself, read California's law of respondeat superior broadly. See Liu, 892 F.2d at 1427-28 (citing both Rodgers and Childers); Romitti, 363 F.2d at 665-66 (adopting "scope of enterprise analysis" as respondeat superior standard under California law). In fact, the Ninth Circuit took specific note of both Rodgers and Childers when, in a case very close to ours, it stated in dictum that California law would likely impose liability on the government for the actions of an off-duty servicemember who becomes drunk while on a military base, and then drives off base and injures someone. See Doggett v. United States, 875 F.2d 684, 687 (9th Cir.1988).

The district court below tried to distinguish these authorities on the ground that the drinking in Rodgers and Childers took place at the work site while Maine's supposedly did not. We disagree. The drinking in both Rodgers and Childers occurred at worksite rest areas (the "dry house" and the business office, respectively) — not on the assembly line. Similarly, although Maine did not drink while working at the Naval Ship Repair Facility, he drank at an on-base beach party, at the enlisted men's club, and in the barracks — all of which were located on his base. These places were as much on-site rest areas as the ones involved in both Rodgers and Childers.^[4]

The government understandably seeks to rely on an older conception of respondeat superior. This view of the doctrine required a close link between the acts of the "agent" and "profit" accruing to the master before vicarious liability attaches to the latter. See Restatement (Second) of Agency § 228 (1984). But today this position is in hasty retreat, if not rout. Thus Rodgers and Childers held that the employer-benefit requirement is met whenever broad potential effects on morale and customer relations exist, or where the employer has implicitly permitted or endorsed the recreational practices that led to the harm. See Rodgers, 50 Cal.App.3d at 618-21, 124 Cal.Rptr. at 149-50; Childers, 190 Cal.App.3d at 805-06, 235 Cal.Rptr. at 647-48. The decline of this profit requirement, in a direct sense, can also be seen in the wholesale abandonment of the charitable immunity exception to respondeat superior. See W. Page Keeton, Dan B. Dobbs, Robert E. Keeton & David G. Owen, Prosser and Keeton on Torts, § 133 (5th ed. 1984) (hereinafter, "Prosser & Keeton"); Restatement (Second) of Torts § 895E (1977).

Of course drinking by servicemembers can be viewed as important to military morale, just as drinking was apparently instrumental to good employee morale and customer relations in Rodgers and Childers. Hence, "employer-benefit" can be adduced in all these cases. But in the end, "employer-benefit" is significant only because it is one way of showing that the harm that drinking causes can properly be considered a cost of the employer's enterprise.

California courts have said that the doctrine of respondeat superior is "concerned with the allocation of the cost of industrial injury." Childers, 190 Cal.App.3d at 801, 235 Cal.Rptr. at 644 (emphasis added). The issue is simply whether the employee's "conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Rodgers, 50 Cal.App.3d at [1037] 619, 124 Cal.Rptr. at 149 (emphasis added). Thus, our focus must be on the relationship between the servicemember's behavior and the costs of the military enterprise.

Here, it is undisputed that drinking on base during off-duty hours was a commonplace, if not an officially condoned activity. It certainly was a customary incident of Maine's employment relationship with the Navy, as that element is described in Rodgers. See 50 Cal.App.3d at 620, 124 Cal.Rptr. at 150. And in the context of the military mission, an occasional drunken servicemember who leaves government premises and causes damage is a completely foreseeable event, in the sense that it is a reasonably obvious risk of the general enterprise. As such, we do not think that it would be either "unfair" or the slightest bit unreasonable to impose that cost on the government. To the contrary, given the pervasive control that the military exercises over its personnel while they are on a base, it is totally in keeping with the doctrine of respondeat superior to allocate the costs of base operations to the government. See William M. Landes & Richard A. Posner, The Positive Economic Theory of Tort Law, 15 Ga.L.Rev. 851, 914-15 (1981) (discussing respondeat superior as an incentive for employers to exert their control over employees to induce careful conduct). And this is so quite apart from whether or not the military benefits from the boost in morale achieved through fairly lenient on-base drinking policies.^[5]

As the leading Torts treatise has put it, "the integrating principle" of respondeat superior is "that the employer should be liable for those faults that may be fairly regarded as risks of his business, whether they are committed in furthering it or not." Fowler V. Harper, Fleming James, Jr. & Oscar S. Gray, The Law of Torts § 26.8 (2d ed., 1986) [hereinafter, "Harper & James"]. Judge Friendly made the same point most elegantly in Bushey. "The proclivity of seamen to find solicitude by copious resort to the bottle," he wrote, "has been noted in opinions too numerous to warrant citation. Once all this is granted, it is immaterial that [the coastguardsman's] precise action was not to be foreseen." 398 F.2d at 172. After all, the government "cannot justly disclaim responsibility for accidents which may fairly be said to be characteristic of its activities." Id. at 171.

We believe the law of Guam reaches the same conclusion. Accordingly, we hold that the government is vicariously liable for Maine's conduct.

II. The Feres Doctrine

Unfortunately, this does not end our analysis. Although the government may be responsible for Maine's actions under respondeat superior, it may not be liable to Taber because of the Feres doctrine. The district court did not reach this issue since it held that the government was not vicariously liable in the first place. It did, however, conduct a Feres analysis of the proposed claims contained in Taber's cross-motion to amend his complaint. The court concluded that these claims, which sought to impose liability upon the government for the actions of Navy personnel other than Maine, were barred by the Feres doctrine.

It is not clear whether the district judge would have also ruled that the Feres doctrine barred Taber's original claim based on Maine's conduct. In denying Taber's cross-motion to amend his complaint on Feres grounds, the district court emphasized the nature of the relationship between the allegedly negligent Navy personnel (i.e., the injurers) and the government. The district court did not focus on the nature of the [1038] relationship between Taber (i.e., the plaintiff) and the government at the time of his injury — a consideration that is, in almost all cases, of much greater relevance to the Feres analysis.

A fair reading of the district judge's opinion suggests, however, that he would have concluded that Feres also barred Taber's current suit, although we cannot be sure. In any event, rather than remanding the case to the district court for further consideration on this point, we choose to address the Feres question directly. We do this because both parties have briefed and argued Feres at length, and because we believe we should try to clarify what has become an extremely confused and confusing area of law.^[6]

A. The History of Feres

The Feres doctrine started lucidly enough as a rule that barred servicemember's claims under the FTCA for injuries that "arise out of or are [sustained] in the course of activity incident to service." Feres, 340 U.S. at 146, 71 S.Ct. at 159. This language, which derived from the words characteristically found in both state and federal workers' compensation statutes, was not chosen accidentally. Indeed, at its inception, the rule in Feres is best understood as an attempt to preclude suits by servicemembers against the government because, as military employees, they received government disability and death benefits — benefits that the Court observed were similar to (and if anything more generous than) most civilian workers' compensation awards. See Feres, 340 U.S. at 145, 71 S.Ct. at 158-59.

Then, as now, civilian workers' compensation statutes typically barred tort suits by employees against their employers for injuries arising out of or in the course of employment. See Harper & James § 11.2 ("The compensation under these [state and federal] acts is usually the exclusive remedy of the employee and dependents against the employer, in lieu of any amounts that might otherwise have been recovered in a lawsuit for injuries covered by the acts."); Arthur Larson & Lex K. Larson, The Law of Workermen's Compensation, § 65.30 (1994) [hereinafter "Larson on Workmen's Compensation"]. It must have seemed reasonable to the Supreme Court to treat military employees in a similar manner. After all, treating like cases alike is the great engine of the law.

That such a reading of the FTCA was exceedingly willful, and flew directly in the face of a relatively recent statute's language and legislative history, see generally, United States v. Johnson, 481 U.S. 681, 692-703, 107 S.Ct. 2063, 2069-75, 95 L.Ed.2d 648 (1987) (Scalia, J., dissenting), apparently did not trouble the Court much — intent, as it was, to make the FTCA "fit" the legal landscape of the time.^[7] Indeed, in this regard, it is particularly [1039] noteworthy that in 1949, one year before the Court decided Feres, Congress had amended the Federal Employees' Compensation Act specifically to preclude covered federal employees from maintaining personal injury and wrongful death suits under the FTCA. See Larson on Workermen's Compensation at § 65.33 (citing 5 U.S.C. 8116(c)).

It may occasionally be desirable for courts to invite legislatures to reconsider outdated statutes so that, unless the legislatures make clear their continued preference for disparate treatment, like cases may be treated alike. See generally, Guido Calabresi, A Common Law for the Age of Statutes (1982). Although apparently this was precisely what the Court was doing in Feres, its willingness to ignore language, history, and the process of incremental law making (not to mention possible ways of dialoguing with Congress to discern the legislature's actual intent) was nevertheless remarkable. In any event, none of these considerations seemed to matter to the Court which seemingly concluded that the federal "systems of simple, certain and uniform compensation for injuries or death in the armed services," Feres, 340 U.S. at 144, 71 S.Ct. at 158, should be, like workers' compensation laws, an injured servicemember's sole source of recovery. Id. at 143, 71 S.Ct. at 158.

Despite its willful and arguably misguided origins, Feres would have been both easy enough to understand and to follow had it actually been applied to all servicemembers who benefited from the "simple, certain, and uniform [system of government] compensation." Later courts might have taken comfort in Congress' apparent acquiescence in the Supreme Court's construction of the FTCA, see Johnson, 481 U.S. at 686 & n. 6, 107 S.Ct. at 2066 n. 6, even though such reliance on legislative inaction is rarely sound given the degree of inertia that is intentionally built into our system of checks and balances. See id. at 702-03, 107 S.Ct. at 2075 (Scalia, J., dissenting). And in time, the willfulness of the Court's decision in Feres would have been forgotten, especially if it had achieved treatment for military personnel that was, in fact, "like" the treatment accorded to the great mass of civilian employees. But such a result seemingly did not come about.

Instead Feres quickly lurched toward incoherence. Part of the problem lay with Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), a case that had immediately preceded Feres. In Brooks, the Supreme Court permitted recovery under the FTCA to two servicemen, the Brooks brothers, who had been "on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission [when] a government owned and operated vehicle collided with [them]." Feres, 340 U.S. at 146, 71 S.Ct. at 159. Attempting to distinguish its previous holding in Brooks, the Feres court noted that "[t]he injury to Brooks did not arise out of or in the course of military duty," and that the "Brooks's relationship [to the government] while on leave was not analogous to that of a soldier injured while performing duties under orders." Id.

But the plaintiffs in Brooks were eligible for precisely the same set of government benefits as were the plaintiffs in Feres, and indeed they originally collected them in addition to receiving their FTCA awards. See Brooks, 337 U.S. at 53-54, 69 S.Ct. at 920-21 (remanding the case for further proceedings to determine whether and by how much Brooks's FTCA judgment should be off-set by their/his military disability benefits). This fact immediately placed Brooks in tension with Feres. For if the existence of a military death and disability compensation scheme was to be the singular rationale for precluding servicemembers from asserting tort claims against the government, Feres should have overruled Brooks.

But Feres neither overruled Brooks, nor limited Brooks to its immediate facts. Indeed, the Supreme Court and several circuit courts (without reproof from the Supreme Court), have subsequently applied Brooks rather than Feres, and allowed FTCA claims in a significant number of cases in which the injured plaintiffs were fully covered by the government's compensation scheme. See e.g. United States v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954) (Brooks held controlling where veteran sued Veteran's [1040] Administration hospital for malpractice in treating an injury sustained while plaintiff was in military service); Harvey v. United States, 884 F.2d 857, 861 (5th Cir.1989) (despite the fact that serviceman "[i]ndisputably ... received some compensation from the military during the time he was on medical hold" he was permitted to sue for injuries sustained due to military medical malpractice); Cortez v. United States, 854 F.2d 723, 727 (5th Cir.1988) (At the time of serviceman's death due to military medical malpractice, he was on the Temporary Disability Retirement List, "was receiving disability pay and was eligible for treatment in government hospital. Neither benefit [was] sufficient to warrant a Feres bar."); Johnson v. United States, 704 F.2d 1431, 1441 n. 6 (9th Cir.1983) ($1.5 million in Veterans Act benefits deducted from serviceman's $3.5 million FTCA award); Rinelli v. United States, 706 F.Supp. 190, 194 (E.D.N.Y.1988) (serviceman on Temporary Disability Retirement List and receiving military benefits permitted to sue under FTCA for military medical malpractice); Cooper v. Perkiomen Airways, Ltd., 609 F.Supp. 969, 972 (E.D.Pa.1985) (serviceman's widow permitted to sue government for husband's death that resulted from negligence of federal air traffic controllers even though she received military compensation benefits).

Had the decision in Feres offered any other rationale that provided guidance in determining which cases should follow its own holding as opposed to Brooks, this split in authority would not have been problematic. Unfortunately, it did not.

Feres did mention two other reasons for its holding, besides the statutory benefits rationale. But neither of them was particularly helpful. First, the Court concluded that government liability in a case like Feres was not analogous to any liability of a "private individual" and, hence, was not permitted by the FTCA. See 340 U.S. at 141-42, 71 S.Ct. at 157 (FTCA did not authorize "the creation of new causes of action but [government] acceptance of liability under circumstances that would bring private liability into existence"). This explanation was highly questionable, however, and in any event, did not provide a sensible way to distinguish Brooks. Moreover, the Court abandoned it almost immediately after Feres, and has never resurrected it. See Rayonier, Inc. v. United States, 352 U.S. 315, 319, 77 S.Ct. 374, 376-77, 1 L.Ed.2d 354 (1957) (federal government not immune under the FTCA for negligence of United States Forest Service employees); Indian Towing Co. v. United States, 350 U.S. 61, 64-65, 76 S.Ct. 122, 124-25, 100 L.Ed. 48 (1955) (rejecting claim that United States is not liable under FTCA for the "negligent performance of `uniquely governmental functions'").

The Court's second rationale in Feres was that all military personnel should be subject to a uniform rule governing compensation for injuries sustained while in the service. See Feres, 340 U.S. at 142-43, 71 S.Ct. at 157-58. In offering this explanation, the Court noted that "[t]he relationship between the government and members of its armed forces is `distinctively federal in character.'" Id. at 143, 71 S.Ct. at 158. The Court further mentioned that the significant variation in tort recoveries that would inevitably result from the FTCA's lex loci provision would be inequitable in the military context. Id. at 142-43, 71 S.Ct. at 157-58.

Although this uniformity rationale was intelligible, it neither explained Feres's bar on tort suits nor accounted for the holding in Brooks. After all, if the impetus for Feres was the idea that all FTCA claims by military personnel should be controlled by a uniform federal law, then one would not have expected Feres to bar all such claims without discussion. It would have been just as plausible for the Court to have begun developing a uniform federal common law of torts — analogous, say, to admiralty — that would be applied to military claims and that would subsequently be articulated on a case-by-case basis by the lower courts.

Instead, Feres did preclude FTCA suits by military personnel, and further suggested that the government compensation system was the applicable uniform federal remedy. See 340 U.S. at 144, 71 S.Ct. at 158. This step created a logical inconsistency because this same uniform federal remedy applied to the plaintiffs in Brooks as well, and yet they [1041] were not barred by it from bringing a FTCA tort suit. Had the court chosen to create a federal common law, later courts might have distinguished Brooks from Feres on the grounds that the plaintiffs in Brooks — unlike those in Feres — were sufficiently removed from military duty so that uniformity of federal law was neither required nor, perhaps, even appropriate. Military plaintiffs would, in both instances, have tort remedies. Those whose accidents were closely linked to the government, would be covered by a uniform federal tort law. Those further removed would be bound by variable state tort rules.

Given the absence of any seemingly consistent rationale in Feres itself, it is not surprising that the Court soon developed a new, after-the-fact explanation for its holding. In United States v. Brown, the Court recharacterized Feres and said:

The peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that obtain if suits under the Tort Claims Act were allowed for the negligent acts committed in the course of military duty led [us] to read the Act as excluding claims of this character.

Brown, 348 U.S. at 112, 75 S.Ct. at 143.

With this new spin, the Court interpreted Feres to preclude some, but not all, actions in order to keep courts from second guessing military policies and to prevent their likely interference with military discipline. This explanation had two advantages.

First, it seemed to justify a distinction between Brooks and Feres. As the Court had already noted in Feres, "Brooks' father, riding in the same car recovered for his injuries...." 340 U.S. at 146, 71 S.Ct. at 159. This fact implied that the Brooks brothers' own FTCA recovery — given the time, place, and manner of their injuries — involved no more military second guessing or interference with discipline than did their civilian father's award.

Second, by linking Feres to discipline the Court tied into a line of influential scholarship, emerging at the time, that offered both an explanation and justification (albeit retrospective) for its otherwise extraordinarily willful refusal to follow the language and probable intent of the FTCA. Professors Alexander Bickel and Harry Wellington, for example, in a celebrated article, argued that federal courts are justified in refusing to comply with federal laws that apparently require them to behave in ways that are so inappropriate for judicial bodies as to raise structural constitutional questions. See, Alexander M. Bickel & Harry H. Wellington, Legislative Purpose and the Judicial Process: The Lincoln Mills Case, 71 Harv. L.Rev. 1 (1957). They contended that in such situations courts should find ways to avoid acting, even if such avoidance involves tortured statutory construction. Only if Congress expressly requires them to do so should courts act in such cases. Even then, it is preferable that Congress make its will known after the courts have given warning of the constitutional dangers at stake.^[8]

In later writings, Professor Bickel, in particular, developed this theme further. See, e.g., Alexander M. Bickel, The Least Dangerous Branch (2d ed. 1986); Alexander M. Bickel, The Passive Virtues, 75 Harv.L.Rev. 40 (1961). The importance of his approach, both in this country and abroad, is obvious. See, e.g., Greene v. McElroy, 360 U.S. 474, 506-07, 79 S.Ct. 1400, 1418-19, 3 L.Ed.2d 1377 (1959) (finding that a loyalty security program established administratively, which did not permit confrontation of witnesses, was unlawful without explicit executive or congressional authority); Kent v. Dulles, 357 U.S. 116, 128-29, 78 S.Ct. 1113, 1119-20, 2 L.Ed.2d 1204 (1958) (Congressional delegation of power to issue passports to Secretary of State did not give the Secretary unbridled discretion to deny communists passports without explicit Congressional authorization); cf. Barenblatt v. United States, 360 U.S. 109, 137-40, 79 S.Ct. 1081, 1098-1100, 3 L.Ed.2d 1115 (1959) (Black, J., dissenting) ("If Congress wants ideas investigated, if it even [1042] wants them investigated in the field of education, it must be prepared to say so expressly and unequivocally"); see also Can. Const. (Constitution Act, 1982) pt. I (Canadian Charter of Rights and Freedoms), § 33 (Canadian non-obstante clause providing that legislature may abrogate enumerated rights that are provisionally enforced by the Supreme Court provided that the legislature explicitly decides to do so).

Interfering with military discipline and second-guessing military policy are two activities that fit comfortably in a list of things that courts should try to avoid doing if at all possible. Perhaps for this reason, or perhaps for the want of any other seemingly coherent explanation, the "disciplinary" reading of Feres took hold and in time became dominant. See United States v. Shearer, 473 U.S. 52, 57, 105 S.Ct. 3039, 3042-43, 87 L.Ed.2d 38 (1985) (stating that "Feres seems best explained" by the discipline rationale) (quoting United States v. Muniz, 374 U.S. 150, 162, 83 S.Ct. 1850, 1857, 10 L.Ed.2d 805 (1963)). Indeed, at one point in the doctrine's recent development, the Supreme Court suggested that the other rationales — the existence of the federal compensation scheme and the desirability of a uniform federal rule — were "no longer controlling." Shearer, 473 U.S. at 58 n. 4, 105 S.Ct. at 3043 n. 4.

B. The Current Quandary

Unfortunately, the emphasis on discipline led the circuit courts — and perhaps the Supreme Court itself — onto a path that they were ultimately unwilling to follow. Because key questions of military discipline often seem to involve the government's control of the tortfeasor rather than the victim, the Feres analysis over time, came to focus as much on the relationship between the military and the injurer as it did on the relationship between the military and the injured plaintiff. This view of discipline is evident, if not necessarily determinative, in case after case in which courts found a Feres bar.^[9]

But any discipline rationale that focuses on the relationship of the tortfeasor to the government has a fundamental flaw — namely, that the same acts, by the same injurer, in the same disciplinary relationship to the government, lead without question, to government FTCA liability when the victim is a civilian. See Johnson, 481 U.S. at 700, 107 S.Ct. at 2074 (Scalia, J., dissenting); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 676-77, 97 S.Ct. 2054, 2060, 52 L.Ed.2d 665 (Marshall, J., dissenting). Feres bars the suit only if the injured party is a member of the military. This inherent conflict was bound to surface sooner or later. Ironically, it did not emerge in a case where the claimant was a civilian and severe military discipline issues between the government and the military injurer were, nonetheless, at stake. Rather, it appeared in a case involving a member of the armed services whose estate sued the government for FTCA respondeat superior liability on account of the alleged negligence of civilians. See United States v. Johnson, 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648 (1987).

In Johnson, the victim was a Coast Guard helicopter pilot on a rescue mission and was killed due to a radar mishap for which the Federal Aviation Administration was responsible. Id. at 683, 107 S.Ct. at 2065. The decedent was on active duty, and so the government argued Feres. The Eleventh Circuit concluded, however, that since the injurer was not in the military, no issues of [1043] discipline (by now seemingly the dominant rationale for the Feres) were at play. Id. at 684-85, 107 S.Ct. at 2065-66.

On appeal, the Supreme Court could have found that the facts raised significant discipline questions involving the decedent-servicemember and the government. It could then have held that these by then perfectly acceptable Feres grounds barred the suit. Or it could have followed Justice Scalia, who in an extraordinarily powerful dissent, argued against extending Feres to cases in which the injurer was not in the military. Id. at 692-703, 107 S.Ct. at 2069-75 (Scalia, J. dissenting).^[10] Either way, discipline would have remained the dominant Feres rationale. Instead, the Court did neither.

The Feres doctrine, the court said in Johnson, did not depend on discipline alone. It rested, rather, on three grounds — the desirability of a uniform federal rule, the existence of the federal compensation scheme, and concerns for military discipline. Id. at 689-91, 107 S.Ct. at 2068-69. Cf. Stencel Aero Engineering Corp. v. United States, 431 U.S. at 672-74, 97 S.Ct. at 2058-59 (considering these three factors in holding that Feres barred third party indemnity claim against government by manufacturer of a defective product that injured a serviceman while on duty). Thus, the Court resurrected its original justifications (except, of course, the totally abandoned "individual liability" analogue) and made clear that those rationales were no longer, "no longer controlling." Shearer, 473 U.S. at 58, n. 4, 105 S.Ct. at 3043 n. 4. These two original grounds, together with disciplinary considerations, both explained Feres, see Johnson 481 U.S. at 688-91, 107 S.Ct. at 2067-69, and justified barring the plaintiff's FTCA suit in Johnson itself. Id. at 691-92, 107 S.Ct. at 2069-70. No one factor governed, and all were to be evaluated.

Because the lower courts have found the rationales other than discipline extremely difficult to apply in a coherent manner, see e.g. Elliott v. United States, 13 F.3d 1555, 1559 (11th Cir.) (first two rationales "provide no help in determining when an injury occurs `incident to service'"), vacated for reh'g in banc, 28 F.3d 1076 (11th Cir.) (in banc), affirming district court judgment by equally divided court, 37 F.3d 617 (11th Cir.1994), it is not surprising that Johnson — a decision that we are bound to follow — left both the doctrine and the lower courts more at loose ends than ever. The Fifth and Eleventh Circuits, for example, have attempted to circumvent this problem by conducting a nominal three factor Feres analysis only after resolving the threshold — and in practice determinative —issue of whether the plaintiff's injury was sustained "incident to service." See e.g. Parker v. United States, 611 F.2d 1007, 1013-15 (5th Cir.1980) (adopting a three-part test for deciding whether servicemember's activity is "incident to service"); Pierce v. United States, 813 F.2d 349, 352-54 (11th Cir.1987) (applying Parker test). This Circuit, on the other hand, has instructed the district courts to analyze servicemember claims "in light of the `three broad rationales' underlying Feres, and to determine whether [the plaintiff's] injuries `arise out of or in the course of activity incident to service.'" Sanchez v. United States, 839 F.2d 40, 42 (2d Cir.1988) (per curiam), but has given no guidance as to how this is to be done in a coherent fashion. Neither approach is fully satisfactory.

It seems to us that there are two ways in which the Feres doctrine can be dealt with today. They would both lead to the same result in this case. The first approach would be to agree with Justice Scalia's dissent in Johnson and to admit that Feres is a mistake —was perhaps always a mistake — and should be scrapped. That option is, of course, not open to us.^[11] After all, this case does not present one of those exceedingly rare situations in which a lower court can so clearly foresee that the Supreme Court will [1044] reverse itself that it can ignore a Supreme Court precedent. See Barnette v. W. Va. State Bd. of Educ., 47 F.Supp. 251, 252-53 (S.D.W.Va.1942) (Parker, J.) (disregarding prior Supreme Court flag salute precedent where a majority of the Court had expressed its desire to overrule its prior decision and the threatened violation of religious liberty was clear), aff'd, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). Feres has been regularly —albeit inconsistently — applied by the Supreme Court, and the mere existence of a convincing dissent in a closely divided Court cannot alter its binding force.

The second possibility is to go back to the Feres and Brooks cases and see whether, taken together, these decisions provide a consistent thread of meaning that we can use to sew up the holes that exist in the doctrine today. If such a meaning exists, and if that meaning is consistent with the three "factors" enumerated in Johnson, then these factors can function as guideposts for the lower courts — rather than serve merely as ritual words to be announced, formulaically and ex cathedra, after a court has decided to apply or to eschew Feres on some other ground. We think such a reading is possible and that it results in a workable doctrine.^[12]

C. Rationalizing Brooks and Feres

First came Brooks, which, despite the existence of a federal statutory scheme of military death and disability benefits, permitted members of the armed services to recover under the FTCA so long as their "injuries [were] not caused by their service except in the sense that all human events depend upon what has already transpired." Brooks, 337 U.S. at 52, 69 S.Ct. at 920. Then came Feres, which strongly intimated that the existence of a federal compensation scheme should bar all suits against the United States government by military personnel, just as workers' compensation laws regularly barred injured employees from suing their employers. See Feres, 340 U.S. at 144-45, 71 S.Ct. at 158-59. As we have already noted, the Court's earlier result in Brooks — reaffirmed in later cases — has always seemed out of line with Feres. In fact, however, this seeming inconsistency is more apparent than real.

There is a fundamental difference between the government's compensation scheme for its military "employees" and workers' compensation laws. The government's compensation scheme is not limited to compensating military "employees" who are injured in ways that "arise out of or in the scope of employment." It covers servicemembers' injuries, as well as diseases, that are completely unrelated to the military enterprise. See, e.g., 38 C.F.R. § 3.1(m) (regulation defining "in line of duty" coverage as coverage for "injury or disease incurred or aggravated during a period of active military, naval, or air service unless such injury or disease was a result of the veteran's own willful misconduct."). Workers' compensation laws, instead, only compensate employees for injuries that arise out of or in the course of their employment. And under these laws, it is only this limited class of injuries that give rise to a Feres-like prohibition of suits by employees against their employers.

A helpful way of understanding the significance of this difference is to consider the military's death and disability benefits as essentially two different plans combined into one statutory scheme. The first component is analogous to a workers' compensation system, and covers military employees who are injured in ways that arise out of or in the scope of their employment. The second component is like a supplemental health and disability plan that an employer voluntarily provides to its employees. This latter "plan" covers "employees" regardless of how or when they are injured, and, specifically, whether or not the injury arises out of the employer's enterprise.^[13]

[1045] No one has ever imagined that the existence of a voluntary benefits plan for private employees means that such employees, if they should be injured outside the scope of their employment (but in ways covered by the voluntary plan), may not sue their employers in tort.^[14] Since the compensation provided under such voluntary plans is not a function of workers' compensation laws (because the injuries are not work related), tort actions are not barred.^[15]

Brooks and Feres make the same distinction. Feres bars suits where compensation is given under a military analogue to workers' compensation. Brooks allows suits when compensation occurs, for non-work related injuries, i.e., those that would not be covered by workers' compensation. Read this way, Brooks, Feres and their respective progeny are not only substantially consistent with each other, but they also achieve a rough parity with workers' compensation laws. That is, thus understood, they accomplish the very result that the Court sought in Feres.

Whether this desire to make the FTCA conform with workers' compensation laws was wise, and whether, in any event, it was too willful is, of course, not for us to say. Similarly, it is not for us to say whether Feres, even if wise and appropriate when decided, yields appropriate or sensible results today. We can note, however, that both the military and the workers' compensation schemes have fallen significantly out of line with ordinary tort recoveries^[16] and, thus treat injured employees unlike other injured parties. We can speculate on whether this fact undermines the original intent of such laws to treat injured employees at least as well as other injured parties. See, e.g., Andrea Giampetro-Meyer & Ann M. Balcerzak, Renegotiating the Bargain: An Analysis and Evaluation of Alternatives for Revising the Exclusive Remedy Provision in Maryland's Workers' Compensation Act, 21 U.Balt.L.Rev. 51, 54-55 (1991) (noting that workers' compensation laws were enacted in response to employee-obstacles to recovery for job-related injuries) (hereinafter, "Renegotiating the Bargain"); Prosser & Keeton, § 80 at 572-74 (brief history of workers' compensation legislation). Finally, we may notice that the increasing difference in tort and workers' compensation recoveries has led many state courts to find creative (and perhaps wilful) ways around the traditional statutory bar on employee-employer lawsuits. Notably, if this judicial trend toward permitting employee "end-runs" around the workers' compensation laws continues, see generally, Renegotiating the Bargain, 21 U.Balt.L.Rev. at 57-58; Brad A. Elward, Comment, The Interplay Between Contribution and Workers' Compensation in Illinois: Putting An End to Backdoor Recoveries, 13 S.Ill.U.L.J. 103 (1988), civilian employees will receive greater benefits under porous state statutory schemes than will military employees under the Feres doctrine that ironically, itself, had stretched the FTCA in order to achieve rough parity between military and civilian employees.^[17]

[1046] But such considerations, if they are relevant at all, are for the Supreme Court to ponder. For us it is enough to say that the Feres doctrine remains the law, and that the distinction between Feres, Brooks, and the decisions that followed each, can be understood in the light of Feres's original objectives. Viewed in this way, the distinction becomes an effective guide for district courts adjudicating these types of cases. This distinction, moreover, withstands the after-added factor of military discipline. When used with appropriate moderation, see Johnson, 481 U.S. at 688-91, 107 S.Ct. at 2067-69, discipline can add its own unique flavor to the Feres sauce without destroying the original taste.

D. The Role of Discipline

Even if Feres were not justified by a desire to emulate workers' compensation laws in the military context, we believe that the doctrine could still find a basis in the prudential grounds raised by Professors Bickel and Wellington. In other words, some FTCA suits by military personnel would still be barred because their prosecution would lead to significant judicial interference in military decisions. But what is "significant interference?" In answering this question we must revisit the distinction between discipline issues affecting the injurer and discipline issues affecting the injured military-plaintiff.

Considerations of military discipline that stem from the relationship between the injured servicemember and the military would, at first glance, appear to be quite significant. These types of situations frequently raise issues that many feel the courts should best avoid, such as

[t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.

Brown, 348 U.S. at 112, 75 S.Ct. at 143.

But in fact, examining a claim's "disciplinary" ramifications as a separate Feres factor usually does not add very much. It is like adding a handkerchief to a blanket. As a practical matter, in most such cases the military plaintiff would be barred from suing anyway because any claims that raise disciplinary issues relating to the plaintiff almost always fit within the classic workers' compensation paradigm — that is, they arise out of or in the course of the claimant's military employment. In other words, Feres's bar on claims "aris[ing] out of or in the course of activity incident to service," 340 U.S. at 146, 71 S.Ct. at 159, understood in the light of its workers' compensation rationale, will almost inevitably keep the judiciary out of matters of military discipline. This is not to say that there aren't cases that raise many questions of military policy. But most, if not all claims that could potentially lead to inappropriate court meddling, would be barred in any event because they are also employment-related.

The disciplinary relationship between the government and the injurer is very different. Most of the time it is immaterial for three reasons: the holding in Johnson; the fact [1047] that Feres does not bar civilian plaintiffs; and the nature of tort damage awards.

The first reason is clearly not dispositive. It neither supports nor undermines a Feres bar, but rather simply points out that the relationship between the injurer and the defendant is not an essential part of the Feres analysis. Johnson tells us that the Feres doctrine can bar a servicemember's claim even if the injurer is not a military employee and, thus, no issues of discipline exist as to the injurer. See Johnson, 481 U.S. at 686, 107 S.Ct. at 2066 ("this Court has never suggested that the military status of the tortfeasor is crucial to the application of the doctrine"). This may be because the discipline relationship between the military-plaintiff and the government is already so great that a Feres bar is warranted in any event. Or it may rest on one of the original Feres grounds, such as the workers' compensation analogy.^[18]

One might conclude from this that the military-injurer discipline relationship is irrelevant to Feres. But since all Johnson actually says is that a Feres bar may exist absent a military-injurer, the most that it can mean is that a discipline relationship between the military and the injurer is not a necessary condition for Feres to apply. Johnson obviously does not mean that the existence of such a strong discipline relationship could never justify a Feres result.

The second reason is more compelling. Feres does not bar suits against the government when the injured plaintiff is a civilian. This remains the case even though the injurer is in the military and military discipline is directly involved. See e.g. Sheridan v. United States, 487 U.S. 392, 401, 108 S.Ct. 2449, 2455, 101 L.Ed.2d 352 (1988) (injured civilian shot by drunken serviceman could sue government under FTCA for navy personnel's negligence in knowingly allowing drunken serviceman to leave navy base with rifle); Doggett, 875 F.2d at 689-95 (government may be held liable under the FTCA for injuries sustained by a civilian as a result of Navy's negligent supervision of drunken personnel); Kohn v. United States, 680 F.2d 922, 926 (2d Cir.1982) (Feres — though it precluded recovery by the estate of a murdered serviceman — did not bar claims by his bereaved parents for the Army's alleged infliction of emotional distress on them subsequent to their son's death); but cf. Daberkow v. United States, 581 F.2d 785, 788, (9th Cir.1978) (West German air force pilot killed while conducting joint training mission with U.S. Air Force barred by Feres from suing United States Government for alleged Air Force negligence).

Accordingly, in any number of civilian cases, the alleged judicial inquiry into (and interference with) military affairs, occurs anyway. And if this interference occurs regularly in any event, it cannot possibly raise the constitutional concerns that warrant tortured statutory construction and judicial abstention. Since this type of alleged interference is part and parcel of ordinary court behavior when the plaintiff is not in the military, it is hard to argue that such routine judicial inquiry must be avoided at all costs simply because plaintiff is in the military.

The third and final reason is equally strong. It is difficult to see how FTCA damage awards can, except in the rarest of cases, interfere with a disciplinary relationship between the government and the military tortfeasor. The issue in these cases is typically not whether the military is permitted to do certain things. It is, instead, whether a member of the armed services has behaved negligently or otherwise wrongfully. If that employee committed a tort — did something that if done by a civilian would give rise to liability — and the act was in the scope of government employment, the government is prima facie liable unless something about the injured plaintiff — like military ties — bars liability. If the government is liable the government is held to pay damages. But paying damages does not mean that the military is told by a court that it [1048] must do things differently, or even that it must take steps to control its employees.

Injunctions and regulations tell people what they must do and what they must not do, and it is these types of intrusions that would entangle courts in military affairs. Tort judgments do neither of these things. Of course, the military or other agencies of government may themselves decide to alter some forms of military behavior as a result of a damage award. But that decision, that interference, is not the court's. Pursuant to the FTCA, courts merely determine whether analogous behavior by a private-sector employee would give rise to some form of fault-based vicarious liability on the part of a private-sector employer. And under the FTCA, courts simply hold that similar harms done by military employees of the government are compensable costs of the military enterprise. Whether or not a particular cost is worth incurring is a decision that the military must make. The dynamics of that subsequent decision, moreover, hardly give rise to the prudential concerns regarding the constitutional separation of powers and the integrity of Article III courts that properly worried Bickel and Wellington. See Lincoln Mills supra.

From all of this, one might expect that disciplinary considerations regarding the injurer's military relationship to the government are usually ignored in Feres cases. Instead, many courts — perhaps misled by the Supreme Court's temporary preoccupation with discipline — have examined the military relationship ostensibly to avoid judicial interference in military matters. Indeed, our own prior decisions have, at times, engaged in just such an analysis. See e.g. Sanchez v. United States, 878 F.2d 633, 638 (2d Cir. 1989) (considering the need for Marine Corps officers to testify regarding their policies in hiring allegedly negligent auto repair mechanics); Bozeman v. United States, 780 F.2d 198, 202 (2d Cir.1985) (considering the need for Army officers to testify regarding their policies in staffing and operating a noncommissioned officers' club).

In all these cases, however, there were other grounds that justified a Feres bar — apart from any discipline relationship between the government and injurer. Either the first two Feres factors or, at times, a crucial discipline relationship between the injured plaintiff and the military, were present and sufficiently explained why Feres applied. See Sanchez, 878 F.2d at 637 ("facility at which the alleged negligence occurred was open only to a limited class of military or military related patrons" and thus was an incident of plaintiffs military employment); Bozeman, 780 F.2d at 201 (plaintiff's decedent "was only entitled to be in the NCO club because he had the appropriate rank, was a member of the Army and was on active duty status" and thus his drinking fell squarely within the scope of his employment). And for the doctrine to survive in a coherent way, we conclude that the district courts would do best to look primarily to these other grounds — just as the Supreme Court did in both Brooks and Feres.

Still, there are some very rare cases in which injurer discipline is crucial, and Feres, as it has developed, has left room for them. The doctrine provides a safeguard against the odd case in which truly significant issues of discipline are at stake, and in which, for unusual reasons, the other factors do not result in a Feres bar. In such rare and remarkable cases a discipline relationship, whether between the government and the plaintiff or even between the government and the injurer, is by itself enough to warrant a Feres bar.

In Shearer the Supreme Court applied Feres to bar a mother's FTCA suit for the kidnapping and murder of her son, an off-duty soldier who was off base at the time of his abduction. See 473 U.S. at 53-54, 105 S.Ct. at 3040-41. The mother complained that the Army "failed to exert a reasonably sufficient control over" her son's assailant, a soldier who had a prior record of violent crime. Id. Concluding that the mother's claim struck "at the core" of military discipline, id. at 58, 105 S.Ct. at 3043 ("This allegation goes directly to the `management' of the military; it calls into question basic choices about discipline, supervision, and control of a serviceman"), the Court invoked the Feres doctrine. The decision in Shearer emphasized

[1049] [t]hat to permit this type of suit would mean that commanding officers would have to stand prepared to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions; for example, whether to overlook a particular incident or episode, whether to discharge a serviceman, and whether and how to place restraints on a soldier's off-base conduct.

Id.

Significantly, the Supreme Court specifically distinguished "the negligence alleged in the operation of a vehicle" from the type of claim that gave rise to the serious disciplinary issues that concerned it in Shearer. Id. Thus Shearer seems properly to represent the rare case that warrants a free standing "disciplinary" basis for a Feres bar. As such, it correctly defined itself as the exception rather than the rule.^[19]

We do not doubt that "safeguarding the integrity of military discipline" can be an appropriate basis for justifying, or at least rationalizing, the Court's construction of the FTCA in Feres. And if the Supreme Court had stuck to its guns after Shearer, and continued to exclude all other factors, we would have been quite "disciplined" in our subsequent approach. But after Johnson, which reaffirmed the desirability of a uniform federal rule and the existence of a statutory compensation system as proper Feres considerations, we feel more at liberty to examine the relative importance of each factor and the necessary interplay between them. That examination reveals that discipline considerations, crucial as they may be, need not play an independent role in the majority of cases. Where discipline issues involve the plaintiff and the military, their demands are usually already met by complying with the other factors. Where the discipline issues involve the injurer and the military, they are only relevant in the extreme case, like Shearer, as Shearer itself suggests.

E. An Appropriate Test for Applying Feres

Under Brooks, Feres, Stencel, Shearer, and Johnson, an appropriate test for applying the Feres doctrine must respect: (1) the Supreme Court's stated concern for keeping courts away from delicate questions involving military discipline; (2) Feres's clear intention to replace the contingencies of local tort law with a uniform federal scheme; and (3) Feres's original desire that this uniformity is to be achieved through exclusive recourse to the federal system of military death and disability benefits. We believe that these concerns are, in fact, fully captured by the original language in Feres that barred suits by military claimants for all injuries "aris[ing] out of or in the course of activity incident to service." 340 U.S. at 146, 71 S.Ct. at 159.

As we have noted, this language derives from a familiar phrase ("arising out of or in the course of employment"), which has a well defined meaning in the context of workers' compensation. This definition, moreover, is closely related to the scope of the government's vicarious liability — since workers' compensation and respondeat superior are both concerned with charging costs to the business enterprise that can be fairly said to engender them. See Childers, 190 Cal. App.3d at 801, 235 Cal.Rptr. at 644. Thus, the two issues in this case coalesce. Because respondeat superior requires the government to pay for third-party injuries that are foreseeable costs of the general military enterprise, and because the federal statutory compensation scheme, buttressed by the Feres doctrine, requires the government to pay for all employment-related injuries that are sustained by servicemembers only through a system of workers' compensation payments,^[20] [1050] it is appropriate that courts interpret the test for both in similar ways.^[21]

Because Feres bars a claim for injuries that "arise out of or in the course of activity incident to service," Feres, 340 U.S. at 146, 71 S.Ct. at 159, we conclude that in assessing whether a military plaintiff's FTCA claim is barred, the court should proceed by considering the same question that would determine whether the plaintiff would be entitled to receive standard workers' compensation payments for his injury: was the plaintiff engaged in activities that fell within the scope of the plaintiff's military employment?^[22] Where the answer is "yes," so that the plaintiff would be entitled to receive standard workers' compensation payments, this will mean that the Feres doctrine applies, barring recovery under the FTCA. Conversely, if the answer is "no," so that the plaintiff would have no entitlement to recover standard workers' compensation payments, there should be no Feres bar, absent unusual circumstances that would call into play the Feres discipline rationale. See Shearer, 473 U.S. at 58, 105 S.Ct. at 3043.

F. Taber and Feres

In the case before us, we hold that the link between Taber's activity when he was injured and his military status is too frail to support a Feres bar. Put another way, given the circumstances surrounding Taber's collision with Maine, it is hard to imagine that the government would have been vicariously liable if Taber had driven negligently and injured a third party. If Maine's actions fit the traditional pattern of a "detour," which gives rise to employer liability even where the employee's activity does not directly benefit the employer, so Taber's actions represent the classic "frolic," which describes behavior that is not properly part of the employer's enterprise. See Prosser & Keeton, § 70 at 503-05; Young B. Smith, Frolic and Detour, 23 Col.L.Rev. 444, 716 (1923).

[1051] There is nothing characteristically military about an employee who, after working-hours are done, goes off to spend a romantic weekend with a companion. Nor is there anything particularly military about having dinner with that companion's family at their home, and helping to fix their car. Finally, there is nothing especially military about returning to the companion's house intending to spend the rest of the weekend engaged in more intimate rest and recreation.

The accident that followed, on the open road and on the way to Stills's house had "nothing to do with" Taber's military career and was "not caused by service except in the sense that all human events depend upon what has already transpired." See Brooks, 337 U.S. at 52, 69 S.Ct. at 919-20.^[23] The only difference between Brooks and this case is that the Brooks brothers were on furlough, while Taber was on liberty, and that in Brooks the civilian riding in the car was the Brooks's father, while here it was Taber's girlfriend. There are no Supreme Court or Second Circuit decisions that require us to give significant weight to this difference, or to apply the Feres bar on any other grounds.

In Kohn, 680 F.2d at 925 and in Camassar v. United States, 531 F.2d 1149, 1151 (2d Cir.1976) (per curiam), we held that Feres barred plaintiffs' suits. In both of these cases the injuries occurred on military bases, and the injured servicemembers were engaged in activities that would ordinarily be covered by workers' compensation statutes. See Kohn, 680 F.2d at 924 (plaintiff's decedent was shot to death by military colleague while both were assigned to a military police narcotics unit); Camassar, 531 F.2d at 1150 (decedent navy petty officer killed while he was leaving ship for authorized liberty).

In Bozeman, the claimant asked us to rule that because the deceased servicemember was off duty, on liberty and off base when he was killed in an auto accident, Feres was inapplicable. See 780 F.2d at 200. In response, we noted that although these facts were considerations in our Feres analysis, none was determinative. In applying Feres, we made much of the fact that the servicemember and the tortfeasor (his cohort) got drunk at the NCO club and that the servicemember was "only entitled to be in the NCO club because he had an appropriate rank, was a member of the Army, and was on active duty status." 780 F.2d at 201. Had Bozeman gotten behind the wheel and injured a third party, it would follow from holdings like Bushey, and our own today, that the government would be vicariously liable. Small wonder then that we found Bozeman's link to the military enterprise sufficient to support a Feres bar. But we did this despite the fact that Bozeman was on liberty and the accident occurred "off base."^[24]

In Sanchez v. United States, 878 F.2d 633 (2d Cir.1989) ("Sanchez III"), we applied Feres in a case in which the plaintiff had been injured while riding in a car that had been negligently repaired at a military mechanic's shop. Id. at 634. In coming to our decision, we placed particular importance upon the fact that the Marine Corps garage, whose negligence was allegedly responsible for the accident,

was not open to the public but only to military personnel and certain civilians connected with the base, in recognition of the fact that "[t]he automobile plays a [1052] highly vital role in the life of the military patron and his of her family."

Id. at 637 (citation omitted).

Although we think the facts in Sanchez are at the very fringe of the doctrine's applicability — beyond which we are unwilling to go — we note that the plaintiff's connection to the mechanic's shop was an important incident of his military service. Thus it contributed to our invocation of the Feres bar in that case.

We acknowledge, however, that there is an underlying tension between our reasoning in both Bozeman and Sanchez III and the scope-of-employment test that we have used in deciding this case. In Bozeman, we supported our application of the Feres bar, in part, by invoking tortfeasor-related disciplinary considerations. See 780 F.2d at 201-02. We were concerned in Bozeman that the plaintiff's claims against the government would require the district court to "second-guess" the Army's hiring and supervision of its NCO bartenders. See id. In concluding that Feres applied, we closely followed the Supreme Court's then-recent decision in Shearer — which, while holding for the first time that tortfeasor disciplinary considerations justified a Feres bar, had also cast serious doubt on the vitality of the doctrine's non-discipline related rationales.

We reaffirmed this aspect of Bozeman's holding in Sanchez III, se 878 F.2d at 637-38, but only after expressly recognizing that the Supreme Court in Johnson had revitalized the "three broad rationales underlying the Feres decision," id. at 635 (internal quotation marks omitted). Consequently, it was clear that disciplinary considerations, relating to either the plaintiff or the tortfeasor, had lost their hegemony in the prescribed calculus. Instead, they reassumed their place as simply one of three areas of inquiry in the Feres analysis. See Sanchez v. United States, 839 F.2d 40, 42 (2d Cir.1988) ("Sanchez II") (withdrawing the conclusion that the military discipline rationale "has come to be considered the primary rationale of the Feres doctrine").

It is important to note, though, that our focus on tortfeasor-related discipline in both Bozeman and Sanchez III stemmed primarily from the particular theories of liability that the plaintiffs asserted in those cases. The plaintiff in Bozeman alleged that the NCO bartender negligently served the drunken driver of the car in which Bozeman was killed. See 780 F.2d at 199. Sanchez alleged that the Marine Corps mechanic negligently serviced the car in which Sanchez was injured. See Sanchez III, 878 F.2d at 634. Thus, in both cases, we stated that "defense of the suit[s] could require military officers to defend employment and other decisions related to certain of their policies." Id. at 638.

The present case is critically different. Taber sued the government on a respondeat superior theory that was based solely upon Maine's drunk driving. The government did not originally raise a Feres defense to this claim. In fact, the government contended only that Maine was acting outside the scope of his Naval employment when he caused the accident. It was not until Taber tried to amend his complaint to include Bozeman-like negligence charges stemming from the alleged negligence of certain Navy personnel who permitted Maine to get drunk and drive off base that the government argued a Feres bar.

The district court, on Feres grounds, denied Taber's motion to amend his complaint, and Taber has abandoned those claims on appeal. Thus, the tortfeasor-related discipline issues that concerned us in Bozeman and Sanchez III are simply not present here. Instead, in this case, the government's liability turns on the question of whether Maine was negligent in driving while he was intoxicated. See Shearer, 473 U.S. at 58, 105 S.Ct. at 3043 (distinguishing "negligence alleged in the operation of a vehicle" from claims that raise important disciplinary considerations); cf. Sanchez v. United States, 813 F.2d 593, 595-96 (2d Cir.1987) ("Sanchez I") (comparing the liability theory in Bozeman to the facts of Sanchez and remanding the case for further Feres consideration because "it [did] not appear on the record that the district court [would] find it inevitably necessary to inquire into Marine Corps policies for staffing and operating its auto repair facilities").

[1053] As stated above, we believe that — short of a Shearer-like scenario — the disciplinary relationship between the government and a military tortfeasor is usually irrelevant in determining whether Feres should bar a particular claim. And were a subsequent panel of this court empowered to readjust prior holdings like Bozeman and Sanchez III that suggest otherwise, we would be tempted to do so here. But, appropriately, only when we sit in banc do we have license to abandon our past decisions. In any event, we need not and do not do so in deciding this appeal.

Other than the naked fact that Taber was in the Navy at the time of his injury, there is no government/plaintiff relationship of any significance in this case. Arguably, there is some government/tortfeasor relationship that might entail minimal disciplinary concerns even in this case, but these are both qualitatively and quantitatively different from those that concerned us in Bozeman and Sanchez III, let alone those that troubled the Supreme Court in Shearer. And we conclude that the absence of any government/plaintiff disciplinary issues, together with the fact that Taber's injury occurred in a private car, on an open road and while Taber was on liberty, outweighs whatever significance the negligible presence of a government/tortfeasor relationship might still have after Johnson.

It is true that Taber is covered by the government compensation system as were the plaintiffs in Brooks and in Brown. But as in those cases, Taber's coverage is akin to voluntary employee health and injury benefits that accrue independently of the nature of an employee's injury. As such, they are very different from the type of coverage that is required under workers' compensation schemes. Therefore, as in Brooks and Brown, this type of voluntary coverage will merely serve as a set-off against any FTCA award; it does not bar an FTCA action. See Brown, 348 U.S. at 111, 75 S.Ct. at 142-43; Brooks, 337 U.S. at 53-54, 69 S.Ct. at 920-21.

For all these reasons, we hold that Feres does not apply here.

III. Liability and Damages

The district court found Maine liable to Taber and assessed damages in the amount of $300,000.00. The government, having been exempted from liability under the district court's respondeat superior decision, did not participate at trial and had no opportunity to contest these findings. Maine represented himself in these proceedings. At oral argument, the government's very able attorney requested that, should we determine that the government was vicariously responsible for Maine's actions, and that Taber's suit was not barred by Feres, we vacate that judgment and permit the government to contest both Maine's culpability and Taber's damages.

The government's request apparently stems from its concern that, upon remand, it will be collaterally estopped from disputing either Maine's negligence (on the basis of which the government's liability depends) or the district court's previous calculation of damages. The government undoubtedly raises important questions. None of them, however, has been fully briefed or argued by the parties. We therefore leave entirely to the district court what, if any, preclusive effect the judgment against Maine will have on the government's defense against Taber's assertion of liability under the FTCA.

We further note that Taber currently holds a valid judgment against Maine, from which Maine has not appealed. Had Maine sought review of that judgment, we might have considered whether the Federal Employees Liability Reform and Tort Compensation Act, 28 U.S.C. § 2679 (providing a statutory immunity for federal employees whose employment-related conduct injures others), shielded him from personal liability. Although Maine was not certified by the Attorney General to have been acting within the scope of his employment in accordance with § 2679(d)(1), subparagraph (d)(3) provides that where the Attorney general has failed to certify,

the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment ... [and that upon] such certification by the court, such [1054] action ... shall be deemed to be an action ... against the United States ..., and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(3). In opposition to the government's motion for summary judgment, Maine did submit an affidavit which set forth the undisputed facts upon which we base our present ruling that he acted within the scope of his employment when he injured Taber.

We have previously suggested that substantial compliance with section 2679's procedural conditions may, under certain circumstances, invoke the statutory immunity. See B & A Marine Co. v. American Foreign Shipping Co., 23 F.3d 709, 715-16 & n. 4 (2d Cir.) (defendants' brief, which requested the district court to find that they acted within the scope of their employment, and district court's finding to that effect, "sufficiently complied with the certification requirement"), cert. denied, ___ U.S. ___, 115 S.Ct. 421, 130 L.Ed.2d 336 (1994). It is therefore possible that Maine's affidavit in opposition to summary judgment could be construed to be a "petition" for certification under the statute. See id. at 715 n. 4. And if Maine had appealed from the district court's final judgment, our respondeat superior ruling could be taken to satisfy section 2679's judicial certification requirement. Because he did not seek appellate review, however, we cannot reach the issue.

CONCLUSION

For the reasons stated above, we reverse the district court's judgment and remand the case to the district court for further proceedings consistent with this opinion.

[1] Judge Pratt, originally a member of the panel, resigned on January 31, 1995. The appeal is being decided by the remaining members of the panel pursuant to Local Rule § 0.14(b).

[2] We have found two older cases in which the Ninth Circuit addressed Guam's law of vicarious liability, in the light of California decisions. See Williams, 248 F.2d at 494-95; Johnson, 181 F.2d at 580-81. Neither of these cases (one of which finds liability and the other of which, on facts different from those before us, does not) are particularly persuasive, however, since they predate California's expansive development of the respondeat superior doctrine.

[3] Typically, California courts borrowed this rule from workers' compensation cases. "Under the `bunkhouse rule,' an employee who lives on his employer's premises may be acting in the scope of his employment even while engaged in leisure pursuits of an off-duty day provided the employee is making a reasonable use of the employer's premises." Rodgers, 50 Cal.App.3d at 620, 124 Cal.Rptr. at 150 (citing Argonaut Ins. Co. v. Workmen's Comp. App. Bd., 247 Cal.App.2d 669, 677-78, 55 Cal.Rptr. 810, 816 (4th Dist.1967) (16 year-old ranch hand injured in bunk house horseplay was injured in the course of employment —"The bunk house rule is merely an extension of the general rule that where an employee is injured in his employer's premises as contemplated by his contract of employment, he is entitled to compensation for injuries received during the reasonable and anticipated use of the premises.")).

[4] In fact, this case presents an even stronger factual basis for applying respondeat superior than did either Rodgers or Childers. As the Ninth Circuit observed in a case that held the Government vicariously liable for an off-duty serviceman's failure to control his pet dog:

Military housing presents a unique situation. Unlike employees and residents of cities and towns, the employment relationship of residents of military bases continues even during off-duty, at home hours.

Lutz v. United States, 685 F.2d 1178, 1185 (9th Cir.1982). See also, Blesy v. United States, 443 F.Supp. 358, 362 (W.D.N.Y.1978) (recognizing "Congress's intent to take into consideration the special characteristics of military employment" when determining scope of employment for respondeat superior purposes under the FTCA).

[5] We make no pronouncement on drunkenness in general. Our point here is simply that drinking on base during off-duty hours was a customary incident of Maine's employment relationship with the Navy. This "on-base" drinking included an on-base beach party, cocktails at the enlisted personnel club, and drinking at a barracks party in the room of a superior officer, all on the day of the off-base accident. It is these on-base activities that bring this case within the ambit of Rodgers and Childers, and therefore impose respondeat superior liability on the government. We find instructive the example offered by Judge Friendly, albeit in an admiralty context in Bushey, indicating that employer liability would not be imposed for an off-base tort resulting from drinking at an off-base bar. Like Judge Friendly, we would not deem such an activity incident to the employment relationship. See Bushey, 398 F.2d at 172.

[6] For example, in Elliott v. United States, 13 F.3d 1555 (11th Cir.1994), a serviceman who was seriously injured as a result of a defective heating system in his on base housing, sued the Government for damages under the FTCA. The district court held that Feres did not bar recovery. See Elliott, 13 F.3d at 1557. A panel of the Eleventh Circuit affirmed the district court, despite the fact that the circumstances that led to Elliott's injury were extremely close to the ones involved in the Feres case itself. See Feres, 340 U.S. at 137, 71 S.Ct. at 155 (Feres "perished by fire in the barracks" as a result of a "defective heating plant"). Apparently troubled by the panel's ruling, the Eleventh Circuit vacated the decision and ordered an in banc review. See 28 F.3d at 1076. Unable to resolve whether the Feres doctrine today would bar a latter day Feres from suing the Government, the in banc court divided equally, thereby affirming the district court's ruling by operation of law. See Elliott v. U.S., 37 F.3d 617 (11th Cir.1994) (in banc).

[7] See Paul C. Weiler, Workers' Compensation and Product Liability: The Interaction of a Tort and a Non-Tort Regime, 50 Ohio St.L.J. 825, 852 (1989) ("[T]he long-standing presence of exclusivity in [workers' compensation] had a persuasive influence on the U.S. Supreme Court when, in Feres v. United States, the Court developed a comparable immunity doctrine for the United States government which immunized the government from any liability for `injuries to servicemen when the injuries arise out of or in the course of activity incident to [military] service.'"); Cf. Johansen v. United States, 343 U.S. 427, 432, 72 S.Ct. 849, 853, 96 L.Ed. 1051 (1952) (holding that an injured civilian crew member of a public vessel was not permitted relief under the Public Vessels Act, but rather was eligible for compensation under the Federal Employees Compensation Act: "it is the duty of this Court to attempt to fit the Public Vessels Act as intelligently and fairly as possible, `into the entire statutory system of remedies against the Government available to seamen for personal injuries.'").

[8] Of course, even if Congress insisted, the courts could still refuse to act by holding the law unconstitutional. But this, presumably, would only occur in extreme cases — where Congress instructed the courts to do things that would truly derogate from the judiciary's constitutional mandate.

[9] See, e.g., Stubbs v. United States, 744 F.2d 58, 60-61 (8th Cir.1984) (per curiam) (decedent's estate barred from suing military for sexual harassment of decedent by her staff sergeant, which led to her suicide, because it would raise disciplinary issues regarding sergeant's relationship with higher command), cert. denied, 471 U.S. 1053, 105 S.Ct. 2113, 85 L.Ed.2d 478 (1985); Johnson v. United States, 631 F.2d 34, 36 (5th Cir.1980) (Feres bar applied where claim against government for military's negligent release of suicidal and homicidal soldier from hospital would raise military concerned issues regarding commander's decision to allow soldier to go on leave); Torres v. United States, 621 F.2d 30, 32 (1st Cir.1980) (Feres doctrine barred claim for negligent discharge classification, in part, because "discharge process is itself conducted by military personnel," and noting that "discipline rationale has become so wide as to deprive it of most of its meaning"); cf. Broudy v. United States, 661 F.2d 125, 127, n. 4 (9th Cir.1981) ("The Feres doctrine does not distinguish between claims based on the alleged level of culpability of the tortfeasor ...").

[10] Justice Scalia excoriated the Feres doctrine from its "willful" beginning to its confused present state of development, and made clear that for him limiting Feres was only a first step toward the elimination of a doctrine he found flawed from start to finish. See 481 U.S. at 692-703, 107 S.Ct. at 2069-75 (Scalia, J. dissenting).

[11] It would seem that the Eleventh Circuit came close to doing this in Elliott, given the similarity between facts in that case and those in Feres itself.

[12] The fact that the doctrine can be made workable does not suggest that the Supreme Court ought not abandon the doctrine completely for reasons akin to those given by Justice Scalia in his Johnson dissent.

[13] Like all such plans, exceptions to coverage do exist. See 38 C.F.R. § 3.1(m) (excluding coverage for injury or disease resulting from servicemember's "willful misconduct," or suffered during desertion, while confined under a sentence of court martial, or while confined under a sentence of a civilian court); see also 38 C.F.R. § 3.1(n)(1) (defining willful misconduct as involving deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard for the probable consequences).

[14] Such suits would depend on the employers being liable for these non-work related injuries on some other grounds, like the tortious actions of another employee.

[15] The insurance scheme may, depending on how it is written and on state laws, either be subrogated to or take part of the tort action "by assignment," so that the injured party does not recover twice, but only gets the benefit of the greater of the two sources of compensation — tort recovery or the benefit scheme. The exact same thing occurs in the Brooks line of cases as a result of judicial decisions. See, e.g., Brown, 348 U.S. at 111, n. *, 75 S.Ct. at 143 n. *; Johnson, 704 F.2d at 1441 ("It is well settled that recoveries by military personnel `under the Tort Claims Act should be reduced by the amounts paid by the United States as disability payments under the Veterans Act.'"); Cooper, 609 F.Supp. at 972 (same).

[16] This was not the case when Feres was first decided. Cf. Feres, 340 U.S. at 145, 71 S.Ct. at 158-59 (noting that military death and disability benefits "compare extremely favorably with those provided by most workmen's compensation statutes").

[17] The Feres doctrine may also be subject to a similar "end-run." Military personnel have sued manufacturers of equipment that have caused them injury in the course of their military employment. See Stencel, 431 U.S. at 668, 97 S.Ct. at 2056 (injured fighter pilot sued, inter alia, the manufacturer of allegedly defective airplane components that resulted in personal injury). Significantly, the Supreme Court has attempted to cut off this end-run by prohibiting actions for indemnity against the government by manufacturers in these types of situations. As the Court stated in Stencel:

A compensation scheme such as the Veterans' Benefits Act serves a dual purpose: it not only provides a swift efficient remedy for the injured serviceman, but it also clothes the Government in the "protective mantle of the Act's limitation-of-liability provisions." ... Given the broad exposure of the Government, and the great variability in the potentially applicable tort law, ... the military compensation scheme provides an upper limit of liability for the Government as to service-connected injuries. To permit petitioner's claim would circumvent this limitation, thereby frustrating one of the essential features of the Veterans' Benefits Act. As we stated in a somewhat different context concerning the Tort Claims Act: "To permit [petitioner] to proceed ... here would be judicially to admit at the back door that which has been legislatively turned away at the front door. We do not believe that the [Federal Tort Claims] Act permits such a result.

431 U.S. at 673, 97 S.Ct. at 2058-59 (citations omitted).

Of course, whether this in fact locks the "back door," or instead simply prompts manufacturers to charge the government higher equipment prices across-the-board in order to spread the cost of their lost indemnification rights, is quite another matter.

[18] Either of these, incidentally, would suffice to explain the result in Johnson. For, as the Court noted, "[t]here is no dispute that Johnson's injury arose directly out of the rescue mission, or that the mission was an activity incident to his military service." 481 U.S. at 691, 107 S.Ct. at 2069.

[19] If Shearer is correct, though, and impermissible judicial inquiry into military affairs was there involved, the question inevitably arises: What would happen if the victim in a Shearer-like situation were a civilian? Would that suit also have to be barred? The absence of any alternative non-tort recovery by that civilian plaintiff, however, would make such a result extremely harsh, and fortunately the clear language of the statute has precluded any such extension of Feres. See 28 U.S.C. §§ 1346(b), 2671.

[20] Where an employee of the Government injures servicemembers in a situation that is not related to their service (where the injury does not arise out of or in the course of the servicemembers' service), the Government may well be liable on account of the injurer's relation to the government. Full tort damages are then charged to the injurer's activity which may or may not be military (i.e., Brooks). Where a servicemember in the course of military service is injured by a non-servicemember government employee, there is a Feres bar, and the cost is to the military enterprise but only through the federal statutory compensation scheme (i.e., Johnson).

[21] Not surprisingly, this conclusion finds support in one of the California cases that informed our present holding regarding the Government's vicarious liability. As noted earlier, the court in Childers determined that Abbott — the tortfeasor —was acting within the scope of her employment when she became drunk on the job site, drove off with the plaintiff, and caused an automobile accident. See 190 Cal.App.3d at 806, 235 Cal.Rptr. at 648. Since Childers was also an employee of the defendant, and Childers had engaged in the same activities with Abbott prior to the accident, the court logically concluded that Childers was also acting within the scope of his employment when he was injured. See id. at 815, 235 Cal.Rptr. at 655. Consequently, the court ruled that Childers' legal action against his employer "was necessarily barred by the exclusive remedy provisions of the Workers' Compensation Act." Id. at 810, 235 Cal.Rptr. at 651.

[22] The "scope of employment" under these standard workers' compensation laws is not to be confused with the far broader "line of duty" definition used to demarcate the extent of medical and other coverage generally afforded to military personnel. See 38 C.F.R. § 3.1(m). To guarantee uniformity in applying the Feres doctrine itself, we think that the appropriate workers' compensation definition of "scope of employment" for district courts to use is not some amalgam derived from state workers' compensation laws, but is, rather, the definition applied under the Federal Employers Compensation Act. 5 U.S.C. § 8102 ("FECA").

FECA provides, in relevant part, that the United States shall compensate its employees (as defined by 5 U.S.C. § 8101), for personal injuries sustained "in the performance of his [or her] duty." Id. at § 8102(a). In turn, courts have consistently read the phrase "in the performance of his [or her] duty" to mean, "arising out of or in the course of employment." Chin v. United States, 890 F.2d 1143, 1145 (Fed.Cir.1989); see also Tarver v. United States, 25 F.3d 900, 902 (10th Cir.1994). Under this construction, FECA extends compensation coverage to cases where "the obligations or conditions of [federal] employment created `a special zone of danger' that resulted in injury." Wallace v. United States, 669 F.2d 947, 952, n. 4 (4th Cir.1982); see also Wright v. United States, 717 F.2d 254, 257 (6th Cir.1983); Bailey v. United States, 451 F.2d 963, 967 (5th Cir.1971). As we shall discuss, it is clear that Taber's "military employment" in no way created a "zone of special danger" that gave rise to his injuries. Cf. Bailey, 451 F.2d at 967 (civilian military base laundry employee was not in a zone of special danger created by her employment that FECA would cover injuries such that she sustained in an auto accident after work, away from her job site, and in her own car).

[23] Feres' own description of the Brooks case bears this out.

The injury to Brooks did not arise out of or in the course of military duty. Brooks was on furlough, driving along the highway, under compulsion of no orders or duty and on no military mission. A government owned and operated vehicle collided with him. Brooks' father, riding in the same car, recovered for his injuries and the Government did not further contest the judgment but contended that there could be no liability to the sons, solely because they were in the Army. This Court rejected the contention, primarily because Brooks' relationship while on leave was not analogous to that of a soldier injured while performing duties under orders.

Feres, 340 U.S. at 146, 71 S.Ct. at 159.

[24] Although in Bozeman we also mentioned certain aspects of the tortfeasor/Government relationship, see 780 F.2d at 202, it is important to note that Bozeman preceded Johnson — a decision that we have noted significantly diminished the relevance of the tortfeasor/Government relationship in any Feres analysis.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[380] Carter G. Phillips argued the cause for petitioner. With him on the briefs were Mark D. Hopson, W. Scott Gwin, William J. Hamann, and John S. Coury.

David Rudovsky argued the cause for respondent. With him on the brief were Emanuella Harris Groves and Dexter W. Clark.^[1]

John A. Powell, Steven R. Shapiro, Howard A. Friedman, and Michael Aaron Avery filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.

JUSTICE WHITE delivered the opinion of the Court.

In this case, we are asked to determine if a municipality can ever be liable under 42 U. S. C. § 1983^[2] for constitutional violations resulting from its failure to train municipal employees. We hold that, under certain circumstances, such liability is permitted by the statute.

[381] I

In April 1978, respondent Geraldine Harris was arrested by officers of the Canton Police Department. Mrs. Harris was brought to the police station in a patrol wagon.

When she arrived at the station, Mrs. Harris was found sitting on the floor of the wagon. She was asked if she needed medical attention, and responded with an incoherent remark. After she was brought inside the station for processing, Mrs. Harris slumped to the floor on two occasions. Eventually, the police officers left Mrs. Harris lying on the floor to prevent her from falling again. No medical attention was ever summoned for Mrs. Harris. After about an hour, Mrs. Harris was released from custody, and taken by an ambulance (provided by her family) to a nearby hospital. There, Mrs. Harris was diagnosed as suffering from several emotional ailments; she was hospitalized for one week and received subsequent outpatient treatment for an additional year.

Some time later, Mrs. Harris commenced this action alleging many state-law and constitutional claims against the city of Canton and its officials. Among these claims was one seeking to hold the city liable under 42 U. S. C. § 1983 for its violation of Mrs. Harris' right, under the Due Process Clause of the Fourteenth Amendment, to receive necessary medical attention while in police custody.

A jury trial was held on Mrs. Harris' claims. Evidence was presented that indicated that, pursuant to a municipal regulation,^[3] shift commanders were authorized to determine, in their sole discretion, whether a detainee required medical [382] care. Tr. X-XXX-X-XXX. In addition, testimony also suggested that Canton shift commanders were not provided with any special training (beyond first-aid training) to make a determination as to when to summon medical care for an injured detainee. Ibid.; App. to Pet. for Cert. 4a.

At the close of the evidence, the District Court submitted the case to the jury, which rejected all of Mrs. Harris' claims except one: her § 1983 claim against the city resulting from its failure to provide her with medical treatment while in custody. In rejecting the city's subsequent motion for judgment notwithstanding the verdict, the District Court explained the theory of liability as follows:

"The evidence construed in a manner most favorable to Mrs. Harris could be found by a jury to demonstrate that the City of Canton had a custom or policy of vesting complete authority with the police supervisor of when medical treatment would be administered to prisoners. Further, the jury could find from the evidence that the vesting of such carte blanche authority with the police supervisor without adequate training to recognize when medical treatment is needed was grossly negligent or so reckless that future police misconduct was almost inevitable or substantially certain to result." Id., at 16a.

On appeal, the Sixth Circuit affirmed this aspect of the District Court's analysis, holding that "a municipality is liable for failure to train its police force, [where] the plaintiff . . . prove[s] that the municipality acted recklessly, intentionally, or with gross negligence." Id., at 5a.^[4] The Court of Appeals also stated that an additional prerequisite of this theory [383] of liability was that the plaintiff must prove "that the lack of training was so reckless or grossly negligent that deprivations of persons' constitutional rights were substantially certain to result." Ibid. Thus, the Court of Appeals found that there had been no error in submitting Mrs. Harris' "failure to train" claim to the jury. However, the Court of Appeals reversed the judgment for respondent, and remanded this case for a new trial, because it found that certain aspects of the District Court's jury instructions might have led the jury to believe that it could find against the city on a mere respondeat superior theory. Because the jury's verdict did not state the basis on which it had ruled for Mrs. Harris on her § 1983 claim, a new trial was ordered.

The city petitioned for certiorari, arguing that the Sixth Circuit's holding represented an impermissible broadening of municipal liability under § 1983. We granted the petition. 485 U. S. 933 (1988).

II

We first address respondent's contention that the writ of certiorari should be dismissed as improvidently granted, because "petitioner failed to preserve for review the principal issues it now argues in this Court." Brief for Respondent 5.

We think it clear enough that petitioner's three "Questions Presented" in its petition for certiorari encompass the critical question before us in this case: Under what circumstances can inadequate training be found to be a "policy" that is actionable under § 1983? See Pet. for Cert. i. The petition itself addressed this issue directly, attacking the Sixth Circuit's "failure to train" theory as inconsistent with this Court's precedents. See id., at 8-12. It is also clear — as respondent conceded at argument, Tr. of Oral Arg. 34, 54 — that her brief in opposition to our granting of certiorari did not raise the objection that petitioner had failed to press its claims on the courts below.

As to respondent's contention that the claims made by petitioner here were not made in the same fashion below, that [384] failure, if it occurred, does not affect our jurisdiction; and because respondent did not oppose our grant of review at that time based on her contention that these claims were not pressed below, we will not dismiss the writ as improvidently granted. "[T]he `decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits . . . of the questions presented in the petition.' " St. Louis v. Praprotnik, 485 U. S. 112, 120 (1988) (quoting Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1985)). As we have expressly admonished litigants in respondent's position: "Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent's brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived." Tuttle, supra, at 816.

It is true that petitioner's litigation posture with respect to the questions presented here has not been consistent; most importantly, petitioner conceded below that " `inadequate training' [is] a means of establishing municipal liability under Section 1983." Reply Brief for Petitioner 4, n. 3; see also Petition for Rehearing in No. 85-3314 (CA6), p. 1. However, at each stage in the proceedings below, petitioner contested any finding of liability on this ground, with objections of varying specificity. It opposed the District Court's jury instructions on this issue, Tr. 4-369; claimed in its judgment notwithstanding verdict motion that there was "no evidence of a . . . policy or practice on the part of the City . . . [of] den[ying] medical treatment to prisoners," Motion for Judgment Notwithstanding Verdict in No. C80-18-A (ND Ohio), p. 1; and argued to the Court of Appeals that there was no basis for finding a policy of denying medical treatment to prisoners in this case. See Brief for Appellant in No. 85-3314 (CA6), pp. 26-29. Indeed, petitioner specifically contended that the Sixth Circuit precedents that permitted inadequate training to be a basis for municipal liability on facts similar to these, see n. 3, supra, were in conflict with [385] our decision in Tuttle. Brief for Appellant in No. 85-3314 (CA6), p. 29. These various presentations of the issues below might have been so inexact that we would have denied certiorari had this matter been brought to our attention at the appropriate stage in the proceedings. But they were at least adequate to yield a decision by the Sixth Circuit on the questions presented for our review now.

Here the Sixth Circuit held that where a plaintiff proves that a municipality, acting recklessly, intentionally, or with gross negligence, has failed to train its police force — resulting in a deprivation of constitutional rights that was "substantially certain to result" — § 1983 permits that municipality to be held liable for its actions. Petitioner's petition for certiorari challenged the soundness of that conclusion, and respondent did not inform us prior to the time that review was granted that petitioner had arguably conceded this point below. Consequently, we will not abstain from addressing the question before us.

III

In Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978), we decided that a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue. Respondeat superior or vicarious liability will not attach under § 1983. Id., at 694-695. "It is only when the `execution of the government's policy or custom . . . inflicts the injury' that the municipality may be held liable under § 1983." Springfield v. Kibbe, 480 U. S. 257, 267 (1987) (O'CONNOR, J., dissenting) (quoting Monell, supra, at 694).

Thus, our first inquiry in any case alleging municipal liability under § 1983 is the question whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation. The inquiry is a difficult one; one that has left this Court deeply divided in a series of [386] cases that have followed Monell;^[5] one that is the principal focus of our decision again today.

A

Based on the difficulty that this Court has had defining the contours of municipal liability in these circumstances, petitioner urges us to adopt the rule that a municipality can be found liable under § 1983 only where "the policy in question [is] itself unconstitutional." Brief for Petitioner 15. Whether such a rule is a valid construction of § 1983 is a question the Court has left unresolved. See, e. g., St. Louis v. Praprotnik, supra, at 147 (BRENNAN, J., concurring in judgment); Oklahoma City v. Tuttle, supra, at 824, n. 7. Under such an approach, the outcome here would be rather clear: we would have to reverse and remand the case with instructions that judgment be entered for petitioner.^[6] There can be little doubt that on its face the city's policy regarding medical treatment for detainees is constitutional. The policy states that the city jailer "shall . . . have [a person needing medical care] taken to a hospital for medical treatment, with [387] permission of his supervisor . . . ." App. 33. It is difficult to see what constitutional guarantees are violated by such a policy.

Nor, without more, would a city automatically be liable under § 1983 if one of its employees happened to apply the policy in an unconstitutional manner, for liability would then rest on respondeat superior. The claim in this case, however, is that if a concededly valid policy is unconstitutionally applied by a municipal employee, the city is liable if the employee has not been adequately trained and the constitutional wrong has been caused by that failure to train. For reasons explained below, we conclude, as have all the Courts of Appeals that have addressed this issue,^[7] that there are limited circumstances in which an allegation of a "failure to train" can be the basis for liability under § 1983. Thus, we reject petitioner's contention that only unconstitutional policies are actionable under the statute.

[388] B

Though we agree with the court below that a city can be liable under § 1983 for inadequate training of its employees, we cannot agree that the District Court's jury instructions on this issue were proper, for we conclude that the Court of Appeals provided an overly broad rule for when a municipality can be held liable under the "failure to train" theory. Unlike the question whether a municipality's failure to train employees can ever be a basis for § 1983 liability — on which the Courts of Appeals have all agreed, see n. 6, supra, — there is substantial division among the lower courts as to what degree of fault must be evidenced by the municipality's inaction before liability will be permitted.^[8] We hold today that the inadequacy of police training may serve as the basis for § 1983 liability only where the failure to train amounts to deliberate indifference to the rights of persons with whom the police come into contact.^[9] This rule is most consistent with our admonition [389] in Monell, 436 U. S., at 694, and Polk County v. Dodson, 454 U. S. 312, 326 (1981), that a municipality can be liable under § 1983 only where its policies are the "moving force [behind] the constitutional violation." Only where a municipality's failure to train its employees in a relevant respect evidences a "deliberate indifference" to the rights of its inhabitants can such a shortcoming be properly thought of as a city "policy or custom" that is actionable under § 1983. As JUSTICE BRENNAN's opinion in Pembaur v. Cincinnati, 475 U. S. 469, 483-484 (1986) (plurality) put it: "[M]unicipal liability under § 1983 attaches where — and only where — a deliberate choice to follow a course of action is made from among various alternatives" by city policymakers. See also Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of REHNQUIST, J.). Only where a failure to train reflects a "deliberate" or "conscious" choice by a municipality — a "policy" as defined by our prior cases — can a city be liable for such a failure under § 1983.

Monell's rule that a city is not liable under § 1983 unless a municipal policy causes a constitutional deprivation will not be satisfied by merely alleging that the existing training program for a class of employees, such as police officers, represents a policy for which the city is responsible.^[10] That much [390] may be true. The issue in a case like this one, however, is whether that training program is adequate; and if it is not, the question becomes whether such inadequate training can justifiably be said to represent "city policy." It may seem contrary to common sense to assert that a municipality will actually have a policy of not taking reasonable steps to train its employees. But it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.^[11] In that event, the failure to provide proper training may fairly be said to represent a policy for which the city is responsible, and for which the city may be held liable if it actually causes injury.^[12]

In resolving the issue of a city's liability, the focus must be on adequacy of the training program in relation to the tasks the particular officers must perform. That a particular officer may be unsatisfactorily trained will not alone suffice to fasten liability on the city, for the officer's shortcomings may [391] have resulted from factors other than a faulty training program. See Springfield v. Kibbe, 480 U. S., at 268 (O'CONNOR, J., dissenting); Oklahoma City v. Tuttle, supra, at 821 (opinion of REHNQUIST, J.). It may be, for example, that an otherwise sound program has occasionally been negligently administered. Neither will it suffice to prove that an injury or accident could have been avoided if an officer had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct. Such a claim could be made about almost any encounter resulting in injury, yet not condemn the adequacy of the program to enable officers to respond properly to the usual and recurring situations with which they must deal. And plainly, adequately trained officers occasionally make mistakes; the fact that they do says little about the training program or the legal basis for holding the city liable.

Moreover, for liability to attach in this circumstance the identified deficiency in a city's training program must be closely related to the ultimate injury. Thus in the case at hand, respondent must still prove that the deficiency in training actually caused the police officers' indifference to her medical needs.^[13] Would the injury have been avoided had the employee been trained under a program that was not deficient in the identified respect? Predicting how a hypothetically well-trained officer would have acted under the circumstances may not be an easy task for the factfinder, particularly since matters of judgment may be involved, and since officers who are well trained are not free from error and perhaps might react very much like the untrained officer in similar circumstances. But judge and jury, doing their respective jobs, will be adequate to the task.

To adopt lesser standards of fault and causation would open municipalities to unprecedented liability under § 1983. [392] In virtually every instance where a person has had his or her constitutional rights violated by a city employee, a § 1983 plaintiff will be able to point to something the city "could have done" to prevent the unfortunate incident. See Oklahoma City v. Tuttle, 471 U. S., at 823 (opinion of REHNQUIST, J.). Thus, permitting cases against cities for their "failure to train" employees to go forward under § 1983 on a lesser standard of fault would result in de facto respondeat superior liability on municipalities — a result we rejected in Monell, 436 U. S., at 693-694. It would also engage the federal courts in an endless exercise of second-guessing municipal employee-training programs. This is an exercise we believe the federal courts are ill suited to undertake, as well as one that would implicate serious questions of federalism. Cf. Rizzo v. Goode, 423 U. S. 362, 378-380 (1976).

Consequently, while claims such as respondent's — alleging that the city's failure to provide training to municipal employees resulted in the constitutional deprivation she suffered — are cognizable under § 1983, they can only yield liability against a municipality where that city's failure to train reflects deliberate indifference to the constitutional rights of its inhabitants.

IV

The final question here is whether this case should be remanded for a new trial, or whether, as petitioner suggests, we should conclude that there are no possible grounds on which respondent can prevail. See Tr. of Oral Arg. 57-58. It is true that the evidence in the record now does not meet the standard of § 1983 liability we have set forth above. But, the standard of proof the District Court ultimately imposed on respondent (which was consistent with Sixth Circuit precedent) was a lesser one than the one we adopt today, see Tr. X-XXX-X-XXX. Whether respondent should have an opportunity to prove her case under the "deliberate indifference" rule we have adopted is a matter for the Court of Appeals to deal with on remand.

[393] V

Consequently, for the reasons given above, we vacate the judgment of the Court of Appeals and remand this case for further proceedings consistent with this opinion.

It is so ordered.

JUSTICE BRENNAN, concurring.

The Court's opinion, which I join, makes clear that the Court of Appeals is free to remand this case for a new trial.

JUSTICE O'CONNOR, with whom JUSTICE SCALIA and JUSTICE KENNEDY join, concurring in part and dissenting in part.

I join Parts I and II and all of Part III of the Court's opinion except footnote 11, see ante, at 390, n. 11. I thus agree that where municipal policymakers are confronted with an obvious need to train city personnel to avoid the violation of constitutional rights and they are deliberately indifferent to that need, the lack of necessary training may be appropriately considered a city "policy" subjecting the city itself to liability under our decision in Monell v. New York City Dept. of Social Services, 436 U. S. 658 (1978). As the Court observes, "[o]nly where a failure to train reflects a `deliberate' or `conscious' choice by a municipality — a `policy' as defined by our prior cases — can a city be liable for such a failure under [42 U. S. C.] § 1983." Ante, at 389. I further agree that a § 1983 plaintiff pressing a "failure to train" claim must prove that the lack of training was the "cause" of the constitutional injury at issue and that this entails more than simply showing "but for" causation. Ante, at 392. Lesser requirements of fault and causation in this context would "open municipalities to unprecedented liability under § 1983," ante, at 391, and would pose serious federalism concerns. Ante, at 392.

My single point of disagreement with the majority is thus a small one. Because I believe, as the majority strongly hints, [394] see ibid., that respondent has not and could not satisfy the fault and causation requirements we adopt today, I think it unnecessary to remand this case to the Court of Appeals for further proceedings. This case comes to us after a full trial during which respondent vigorously pursued numerous theories of municipal liability including an allegation that the city had a "custom" of not providing medical care to detainees suffering from emotional illnesses. Respondent thus had every opportunity and incentive to adduce the type of proof necessary to satisfy the deliberate indifference standard we adopt today. Rather than remand in this context, I would apply the deliberate indifference standard to the facts of this case. After undertaking that analysis below, I conclude that there is no evidence in the record indicating that the city of Canton has been deliberately indifferent to the constitutional rights of pretrial detainees.

I

In Monell, the Court held that municipal liability can be imposed under § 1983 only where the municipality, as an entity, can be said to be "responsible" for a constitutional violation committed by one of its employees. "[T]he touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution." 436 U. S., at 690. The Court found that the language of § 1983, and rejection of the "Sherman Amendment" by the 42d Congress, were both strong indicators that the framers of the Civil Rights Act of 1871 did not intend that municipal governments be held vicariously liable for the constitutional torts of their employees. Thus a § 1983 plaintiff seeking to attach liability to the city for the acts of one of its employees may not rest on the employment relationship alone; both fault and causation as to the acts or omissions of the city itself must be proved. The Court reaffirms these requirements today.

Where, as here, a claim of municipal liability is predicated upon a failure to act, the requisite degree of fault must be [395] shown by proof of a background of events and circumstances which establish that the "policy of inaction" is the functional equivalent of a decision by the city itself to violate the Constitution. Without some form of notice to the city, and the opportunity to conform to constitutional dictates both what it does and what it chooses not to do, the failure to train theory of liability could completely engulf Monell, imposing liability without regard to fault. Moreover, absent a requirement that the lack of training at issue bear a very close causal connection to the violation of constitutional rights, the failure to train theory of municipal liability could impose "prophylactic" duties on municipal governments only remotely connected to underlying constitutional requirements themselves.

Such results would be directly contrary to the intent of the drafters of § 1983. The central vice of the Sherman Amendment, as noted by the Court's opinion in Monell, was that it "impose[d] a species of vicarious liability on municipalities since it could be construed to impose liability even if the municipality did not know of an impending or ensuing riot or did not have the wherewithal to do anything about it." 436 U. S., at 692, n. 57 (emphasis added). Moreover, as noted in Monell, the authors of § 1 of the Ku Klux Act did not intend to create any new rights or duties beyond those contained in the Constitution. Id., at 684-685. Thus, § 1 was referred to as "reenacting the Constitution." Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (Rep. Edmunds). Representative Bingham, the author of § 1 of the Fourteenth Amendment, saw the purpose of § 1983 as "the enforcement . . . of the Constitution on behalf of every individual citizen of the Republic . . . to the extent of the rights guaranteed to him by the Constitution." Id., at App. 81. See also Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 617 (1979) ("[Section] 1 of the Civil Rights Act of 1871 did not provide for any substantive rights — equal or otherwise. As introduced and enacted, it served only to insure that an individual had a cause of action for violations of the Constitution"). [396] Thus § 1983 is not a "federal good government act" for municipalities. Rather it creates a federal cause of action against persons, including municipalities, who deprive citizens of the United States of their constitutional rights.

Sensitive to these concerns, the Court's opinion correctly requires a high degree of fault on the part of city officials before an omission that is not in itself unconstitutional can support liability as a municipal policy under Monell. As the Court indicates, "it may happen that . . . the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Ante, at 390. Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied. Only then can it be said that the municipality has made " `a deliberate choice to follow a course of action . . . from among various alternatives.' " Ante, at 389, quoting Pembaur v. Cincinnati, 475 U. S. 469, 483-484 (1986).

In my view, it could be shown that the need for training was obvious in one of two ways. First, a municipality could fail to train its employees concerning a clear constitutional duty implicated in recurrent situations that a particular employee is certain to face. As the majority notes, see ante, at 390, n. 10, the constitutional limitations established by this Court on the use of deadly force by police officers present one such situation. The constitutional duty of the individual officer is clear, and it is equally clear that failure to inform city personnel of that duty will create an extremely high risk that constitutional violations will ensue.

The claim in this case — that police officers were inadequately trained in diagnosing the symptoms of emotional illness — falls far short of the kind of "obvious" need for training [397] that would support a finding of deliberate indifference to constitutional rights on the part of the city. As the Court's opinion observes, ante, at 388-389, n. 8, this Court has not yet addressed the precise nature of the obligations that the Due Process Clause places upon the police to seek medical care for pretrial detainees who have been physically injured while being apprehended by the police. See Revere v. Massachusetts General Hospital, 463 U. S. 239, 246 (1983) (REHNQUIST, J., concurring). There are thus no clear constitutional guideposts for municipalities in this area, and the diagnosis of mental illness is not one of the "usual and recurring situations with which [the police] must deal." Ante, at 391. The lack of training at issue here is not the kind of omission that can be characterized, in and of itself, as a "deliberate indifference" to constitutional rights.

Second, I think municipal liability for failure to train may be proper where it can be shown that policymakers were aware of, and acquiesced in, a pattern of constitutional violations involving the exercise of police discretion. In such cases, the need for training may not be obvious from the outset, but a pattern of constitutional violations could put the municipality on notice that its officers confront the particular situation on a regular basis, and that they often react in a manner contrary to constitutional requirements. The lower courts that have applied the "deliberate indifference" standard we adopt today have required a showing of a pattern of violations from which a kind of "tacit authorization" by city policymakers can be inferred. See, e. g., Fiacco v. Rensselaer, 783 F. 2d 319, 327 (CA2 1986) (multiple incidents required for finding of deliberate indifference); Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985) ("[A] municipality may be liable if it had notice of prior misbehavior by its officers and failed to take remedial steps amounting to deliberate indifference to the offensive acts"); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983) (municipal liability for failure to train requires "evidence at least of a pattern of similar [398] incidents in which citizens were injured or endangered"); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983) ("[A] failure to supervise gives rise to § 1983 liability, however, only in those situations where there is a history of widespread abuse. Only then may knowledge be imputed to the supervisory personnel").

The Court's opinion recognizes this requirement, see ante, at 390, and n. 10, but declines to evaluate the evidence presented in this case in light of the new legal standard. Ante, at 392. From the outset of this litigation, respondent has pressed a claim that the city of Canton had a custom of denying medical care to pretrial detainees with emotional disorders. See Amended Complaint ¶ 28, App. 27. Indeed, up to and including oral argument before this Court, counsel for respondent continued to assert that respondent was attempting to hinge municipal liability upon "both a custom of denying medical care to a certain class of prisoners, and a failure to train police that led to this particular violation." Tr. of Oral Arg. 37-38. At the time respondent filed her complaint in 1980, it was clear that proof of the existence of a custom entailed a showing of "practices . . . so permanent and well settled as to constitute a `custom or usage' with the force of law." Adickes v. S. H. Kress & Co., 398 U. S. 144, 168 (1970); see also Garner v. Memphis Police Department, 600 F. 2d 52, 54-55, and n. 4 (CA6 1979) (discussing proof of custom in light of Monell).

Whatever the prevailing standard at the time concerning liability for failure to train, respondent thus had every incentive to adduce proof at trial of a pattern of violations to support her claim that the city had an unwritten custom of denying medical care to emotionally ill detainees. In fact, respondent presented no testimony from any witness indicating that there had been past incidents of "deliberate indifference" to the medical needs of emotionally disturbed detainees or that any other circumstance had put the city on actual or constructive notice of a need for additional training in this [399] regard. At trial, David Maser, who was Chief of Police of the city of Canton from 1971 to 1980, testified without contradiction that during his tenure he received no complaints that detainees in the Canton jails were not being accorded proper medical treatment. Tr. 4-347 — 4-348. Former Officer Cherry, who had served as a jailer for the Canton Police Department, indicated that he had never had to seek medical treatment for persons who were emotionally upset at the prospect of arrest, because they usually calmed down when a member of the department spoke with them or one of their family members arrived. Id., at 4-83 — 4-84. There is quite simply nothing in this record to indicate that the city of Canton had any reason to suspect that failing to provide this kind of training would lead to injuries of any kind, let alone violations of the Due Process Clause. None of the Courts of Appeals that already apply the standard we adopt today would allow respondent to take her claim to a jury based on the facts she adduced at trial. See Patzner v. Burkett, supra, at 1367 (summary judgment proper under "deliberate indifference" standard where evidence of only single incident adduced); Languirand v. Hayden, supra, at 229 (reversing jury verdict rendered under failure to train theory where there was no evidence of prior incidents to support a finding that municipal policymakers were "consciously indifferent" to constitutional rights); Wellington v. Daniels, supra, at 937 (affirming judgment notwithstanding verdict for municipality under "deliberate indifference" standard where evidence of only a single incident was presented at trial); cf. Fiacco v. Rensselaer, supra, at 328-332 (finding evidence of "deliberate indifference" sufficient to support jury verdict where a pattern of similar violations was shown at trial).

Allowing an inadequate training claim such as this one to go to the jury based upon a single incident would only invite jury nullification of Monell. "To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, [400] would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell." Oklahoma City v. Tuttle, 471 U. S. 808, 831 (1985) (BRENNAN, J., concurring in part and concurring in judgment). As the authors of the Ku Klux Act themselves realized, the resources of local government are not inexhaustible. The grave step of shifting those resources to particular areas where constitutional violations are likely to result through the deterrent power of § 1983 should certainly not be taken on the basis of an isolated incident. If § 1983 and the Constitution require the city of Canton to provide detailed medical and psychological training to its police officers, or to station paramedics at its jails, other city services will necessarily suffer, including those with far more direct implications for the protection of constitutional rights. Because respondent's evidence falls far short of establishing the high degree of fault on the part of the city required by our decision today, and because there is no indication that respondent could produce any new proof in this regard, I would reverse the judgment of the Court of Appeals and order entry of judgment for the city.

[1] Benna Ruth Solomon, Beate Bloch, and Richard K. Willard filed a brief for the International City Management Association et al. as amici curiae urging reversal.

[2]Title 42 U. S. C. § 1983 provides, in relevant part, that:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . ."

[3]The city regulation in question provides that a police officer assigned to act as "jailer" at the city police station

"shall, when a prisoner is found to be unconscious or semi-unconscious, or when he or she is unable to explain his or her condition, or who complains of being ill, have such person taken to a hospital for medical treatment, with permission of his supervisor before admitting the person to City Jail." App. 33.

[4] In upholding Mrs. Harris' "failure to train" claim, the Sixth Circuit relied on two of its previous decisions which had approved such a theory of municipal liability under § 1983. See Rymer v. Davis, 754 F. 2d 198, vacated and remanded sub nom. Shepherdsville v. Rhymer, 473 U. S. 901, reinstated, 775 F. 2d 756, 757 (1985); Hays v. Jefferson County, 668 F. 2d 869, 874 (1982).

[5] See, e. g., St. Louis v. Praprotnik, 485 U. S. 112 (1988); Springfield v. Kibbe, 480 U. S. 257 (1987); Los Angeles v. Heller, 475 U. S. 796 (1986); Oklahoma City v. Tuttle, 471 U. S. 808 (1985).

[6] In this Court, in addition to suggesting that the city's failure to train its officers amounted to a "policy" that resulted in the denial of medical care to detainees, respondent also contended the city had a "custom" of denying medical care to those detainees suffering from emotional or mental ailments. See Brief for Respondent 31-32; Tr. of Oral Arg. 38-39. As respondent described it in her brief, and at argument, this claim of an unconstitutional "custom" appears to be little more than a restatement of her "failure-to-train as policy" claim. See ibid.

However, to the extent that this claim poses a distinct basis for the city's liability under § 1983, we decline to determine whether respondent's contention that such a "custom" existed is an alternative ground for affirmance. The "custom" claim was not passed on by the Court of Appeals — nor does it appear to have been presented to that court as a distinct ground for its decision. See Brief of Appellee in No. 85-3314 (CA6), pp. 4-9, 11. Thus, we will not consider it here.

[7] In addition to the Sixth Circuit decisions discussed in n. 3, supra, most of the other Courts of Appeals have held that a failure to train can create liability under § 1983. See, e. g., Spell v. McDaniel, 824 F. 2d 1380, 1389-1391 (CA4 1987); Haynesworth v. Miller, 261 U. S. App. D. C. 66, 80-83, 820 F. 2d 1245, 1259-1262 (1987); Warren v. Lincoln, 816 F. 2d 1254, 1262-1263 (CA8 1987); Bergquist v. County of Cochise, 806 F. 2d 1364, 1369-1370 (CA9 1986); Wierstak v. Heffernan, 789 F. 2d 968, 974 (CA1 1986); Fiacco v. Rensselaer, 783 F. 2d 319, 326-327 (CA2 1986); Gilmere v. Atlanta, 774 F. 2d 1495, 1503-1504 (CA11 1985) (en banc); Rock v. McCoy, 763 F. 2d 394, 397-398 (CA10 1985); Languirand v. Hayden, 717 F. 2d 220, 227-228 (CA5 1983). Two other Courts of Appeals have stopped short of expressly embracing this rule, and have instead only implicitly endorsed it. See, e. g., Colburn v. Upper Darby Township, 838 F. 2d 663, 672-673 (CA3 1988); Lenard v. Argento,699 F. 2d 874, 885-887 (CA7 1983).

In addition, six current Members of this Court have joined opinions in the past that have (at least implicitly) endorsed this theory of liability under § 1983. See Oklahoma City v. Tuttle, supra, at 829-831 (BRENNAN, J., joined by MARSHALL and BLACKMUN, JJ., concurring in part and concurring in judgment); Springfield v. Kibbe, supra, at 268-270 (O'CONNOR, J., joined by REHNQUIST, C. J., and Powell and WHITE, JJ., dissenting).

[8] Some courts have held that a showing of "gross negligence" in a city's failure to train its employees is adequate to make out a claim under § 1983. See, e. g., Bergquist v. County of Cochise, supra, at 1370; Herrera v. Valentine, 653 F. 2d 1220, 1224 (CA8 1981). But the more common rule is that a city must exhibit "deliberate indifference" towards the constitutional rights of persons in its domain before a § 1983 action for "failure to train" is permissible. See, e. g., Fiacco v. Rensselaer, supra, at 326; Patzner v. Burkett, 779 F. 2d 1363, 1367 (CA8 1985); Wellington v. Daniels, 717 F. 2d 932, 936 (CA4 1983); Languirand v. Hayden, supra, at 227.

[9] The "deliberate indifference" standard we adopt for § 1983 "failure to train" claims does not turn upon the degree of fault (if any) that a plaintiff must show to make out an underlying claim of a constitutional violation. For example, this Court has never determined what degree of culpability must be shown before the particular constitutional deprivation asserted in this case — a denial of the due process right to medical care while in detention — is established. Indeed, in Revere v. Massachusetts General Hospital,463 U. S. 239, 243-245 (1983), we reserved decision on the question whether something less than the Eighth Amendment's "deliberate indifference" test may be applicable in claims by detainees asserting violations of their due process right to medical care while in custody.

We need not resolve here the question left open in Revere for two reasons. First, petitioner has conceded that, as the case comes to us, we must assume that respondent's constitutional right to receive medical care was denied by city employees — whatever the nature of that right might be. See Tr. of Oral Arg. 8-9. Second, the proper standard for determining when a municipality will be liable under § 1983 for constitutional wrongs does not turn on any underlying culpability test that determines when such wrongs have occurred. Cf. Brief for Respondent 27.

[10] The plurality opinion in Tuttleexplained why this must be so:

"Obviously, if one retreats far enough from a constitutional violation some municipal `policy' can be identified behind almost any . . . harm inflicted by a municipal official; for example, [a police officer] would never have killed Tuttle if Oklahoma City did not have a `policy' of establishing a police force. But Monell must be taken to require proof of a city policy different in kind from this latter example before a claim can be sent to a jury on the theory that a particular violation was `caused' by the municipal `policy.' " 471 U. S., at 823. Cf. also id., at 833, n. 9 (opinion of BRENNAN, J.).

[11] For example, city policymakers know to a moral certainty that their police officers will be required to arrest fleeing felons. The city has armed its officers with firearms, in part to allow them to accomplish this task. Thus, the need to train officers in the constitutional limitations on the use of deadly force, see Tennessee v. Garner,471 U. S. 1 (1985), can be said to be "so obvious," that failure to do so could properly be characterized as "deliberate indifference" to constitutional rights.

It could also be that the police, in exercising their discretion, so often violate constitutional rights that the need for further training must have been plainly obvious to the city policymakers, who, nevertheless, are "deliberately indifferent" to the need.

[12] The record indicates that city did train its officers and that its training included first-aid instruction. See App. to Pet. for Cert. 4a. Petitioner argues that it could not have been obvious to the city that such training was insufficient to administer the written policy, which was itself constitutional. This is a question to be resolved on remand. See Part IV, infra.

[13] Respondent conceded as much at argument. See Tr. of Oral Arg. 50-51; cf. also Oklahoma City v. Tuttle, supra, at 831 (opinion of BRENNAN, J.).