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Demello v. United States

United States District Court, W.D. Washington, Tacoma

August 9, 2017

JAIME DEMELLO, et al., Plaintiffs,
UNITED STATES OF AMERICA, et al., Defendants.



         This matter comes before the Court on Defendant United States of America's (“Government”) motion to dismiss. Dkt. 17. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


         On August 26, 2016, Plaintiffs Jaime Demello, the Estate of Alexander Demello, Michael Demello, and minor children A.D. and O.D. (collectively “Demellos”), filed a complaint against the Government, Adonis Brown (“Brown”), and several unnamed others. Dkt. 1 (“Compl.”). The Demellos assert claims for common law negligence, premise liability, wrongful death, and negligent infliction of emotional distress (“NIED”). Id. at 6. On October 13, 2016, the Government answered. Dkt. 10. On December 13, 2016, default was entered against Brown. Dkt. 15.

         On June 1, 2017, the Government filed a motion to dismiss. Dkt. 17. On June 12, 2017, the Demellos responded. Dkt. 24. On June 16, 2017, the Government replied. Dkt. 25.


         This case involves a shooting on Joint Base Lewis-McChord (“JBLM”) which resulted in the death of minor civilian, Alexander Demello. The Demellos allege that the Government's failure to secure the perimeter separating the base from a civilian neighborhood, despite safety complaints and knowledge of criminal activity in the area, breached a duty owed to Alexander Demello and proximately caused his death and the other injuries alleged.

         The perimeter at issue is marked by a chain-link fence that stands “at the end of Woodbrook Drive SW just beyond 150th St SW, in Lakewood, WA.” Compl. at ¶ 3.1. The fence separates a wooded area of undeveloped JBLM property from the adjacent civilian residential area (“Woodbrook neighborhood”). Id. As of October 20, 2015, there was no signage along the fence to indicate that the property beyond belonged to JBLM. Id. at ¶ 3.3. Just beyond the fence there is a trail through the undeveloped wooded area of JBLM that Woodbrook neighborhood residents used as a dog-walking trail and park. Id. at ¶ 3.2. There has been a“6-foot by 3-foot hole” in the fence since 2007. Id. at ¶¶ 3.1, 3.2. Brown had frequently used the hole in the fence to access the trail on JBLM property. Id. at 3.5. The hole and civilian use of the property beyond it were documented in “complaints to the Security Specialist of JBLM on May 18, 2011, ” which indicated that the hole was “a safety risk and security issue” and should be repaired “ASAP.” Id. at ¶ 3.12. There have also been reports of criminal activity in the area around the compromised fence. Id. at ¶¶ 3.2, 3.11.

         On October 20, 2015, 14-year-old A.D. and his 13-year-old brother, Alexander Demello, followed their 17-year-old friend, Brown, onto the undeveloped wooded area of JBLM property. The Demellos and Brown were residents of the Woodbrook neighborhood, and “had no knowledge that the wooded property adjacent to their neighborhood belonged to JBLM or that it was Government Property.” Id. at ¶¶ 3.4, 3.5. While the boys were walking the trail through the undeveloped wooded area of JBLM property, Brown “found a gun under some brush.” Compl. at ¶ 3.7. In the hands of Brown, the gun accidently fired, striking Alexander Demello “in the face just below his right eye.” Id. On October 25, 2015, Alexander Demello died at Mary Bridge Children's Hospital in Tacoma, Washington. Id. at ¶¶ 3.9, 3.10.


         A. Standard

         Defendant moves to dismiss for lack of subject matter jurisdiction. Motions to dismiss brought under Rule 12(b)(1) of the Federal Rules of Civil Procedure may challenge jurisdiction factually by “disputing the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction, ” or facially by “asserting that allegations in the complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). For facial challenges, a plaintiff's allegations are assumed as true and the complaint is construed in his favor. Id. Federal courts are presumed to lack jurisdiction and on a motion to dismiss pursuant to Rule 12(b)(1) the burden of proof is on the plaintiff to establish subject matter jurisdiction. Stock West, Inc. v. Confederated Tribes, 873 F.2d 1221, 1225 (9th Cir. 1989). To meet this burden in an action against the Government, a plaintiff “must point to an unequivocal waiver of sovereign immunity.” Blue v. Windall, 162 F.3d 541, 544 (9th Cir. 1998) (citing Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983)).

         B. Discretionary Function Exception

         The Demellos bring claims against the Government pursuant to the Federal Tort Claims Act (“FTCA”). The FTCA is a limited waiver of sovereign immunity that allows claims to be brought against the Government for “the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment.” 28 U.S.C. § 2675(a). Congress has designated numerous exceptions to the FTCA's waiver of sovereign immunity by exempting the Government from liability for certain types of claims. See 28 U.S.C. § 2680. These statutory exceptions must be construed strictly in favor of the Government. U.S. v. Nordic Village, 503 U.S. 30, 34 (1992) (citing McMahon v. U.S., 342 U.S. 25, 27 (1951) (“statutes which waive immunity of the Government from suit are to be construed strictly in favor of the sovereign.”); F.D.I.C. v. Craft, 157 F.3d 697, 707 (9th Cir. 1998) (“the FTCA's waiver of sovereign immunity is ...

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