United States District Court, W.D. Washington, Tacoma
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT AND DENYING MOTION TO CONTINUE TRIAL AS
BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE
matter comes before the Court on the motion for summary
judgment of Defendant the United States of America
(“Government”). Dkt. 47. 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.
case involves a shooting on Joint Base Lewis-McChord
(“JBLM”) which resulted in the death of a child,
area of JBLM 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.” Dkt. 29 at 3-4. The
fence separates a wooded area of undeveloped JBLM property
from the adjacent civilian residential area (“Woodbrook
neighborhood”). Id. Just beyond the fence
there is a trail through the undeveloped wooded area of JBLM
that Woodbrook neighborhood residents frequently used as a
dog-walking trail and park. Id. at 4-5. It was known
in the community that the area was also frequented by teenage
children. Id. There has been a “6-foot by
3-foot hole” in the fence since 2007. Id.
Defendant Adonis Brown (“Brown”) had frequently
used the hole in the fence to access the trail on JBLM
property. Id. at 6. The hole is positioned only 20
feet from the end of the fence, which extends across the end
of a county road, meaning that the fence prevented vehicles
from entering the woods from the road, but did not prevent
pedestrians from simply walking around the fence and into the
wooded area. Dkt. 21 at 5.
the thousands of undeveloped acres on JBLM, the military
posts signs stating that the area is owned by JBLM, that
access is restricted to authorized personnel only, and no
trespassing is allowed. Dkt. 50 at 2; see also Dkt.
50-1. The military also maintains a permitting system for
adults, authorizing limited access to the undeveloped areas
of JBLM to members of the public who register and sign a
release of liability. Dkt. 50 at 2-3; see also Dkts.
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.
Plaintiffs allege that while the boys were walking on a trail
through the undeveloped wooded area, Brown “found a gun
under some brush” and accidently fired it, striking
Alexander Demello “in the face just below his right
eye.” Id. at 6-7. There is some evidence in
the record to support this version of events. See
Dkt. 20. There is also evidence in the record suggesting that
Brown brought the gun with him, already loaded with both
bullets and blanks, and accidently shot Alexander Demello
when he mistook the order of ammunition. See Id. at
35. On October 25, 2015, Alexander Demello died at Mary
Bridge Children's Hospital in Tacoma, Washington.
August 26, 2016, Plaintiffs Jaime Demello, the Estate of
Alexander Demello, Michael Demello, and minor children A.D.
and O.D. (collectively “Plaintiffs”), filed their
original complaint against the Government, Adonis Brown
(“Brown”), and several unnamed others. Dkt. 1.
Plaintiffs asserted claims for common-law negligence, premise
liability, wrongful death, and negligent infliction of
emotional distress. Specifically, Plaintiffs alleged 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. See
1, 2017, the Government moved to dismiss the original
complaint. Dkt. 17. On August 9, 2017, the Court granted the
motion to dismiss. Dkt. 27. Specifically, the Court found
that the factual allegations in the original complaint
focused exclusively on the Government's decision not to
maintain the base's perimeter fence and that the
Government's decision was the exercise of a discretionary
function. Id. Accordingly, the Court lacked
jurisdiction to consider such a claim under the Federal Tort
Claims Act (“FTCA”). However, the Court also
found that Plaintiffs, while they had failed to adequately
allege a claim based on a failure to warn of known hazards,
had nonetheless sufficiently referenced such a claim as to
warrant leave to file an amended complaint. Id.
October 4, 2017, Plaintiffs filed their second amended
complaint. Dkt. 28. The second amended complaint alleges that
the Government knew of frequent criminal activity taking
place in the area where Alexander Demello was shot and
nonetheless failed to remedy or warn of known dangers
inherent to such an area of frequent criminal conduct, such
as the presence of weapons or other dangerous criminal
paraphernalia. Id. 8-9. The second amended complaint
also renewed Plaintiffs' allegations that the Government
is liable for its decision not to repair the hole in the
perimeter fence or maintain adequate security patrols.
November 16, 2017, the Government moved to dismiss the second
amended complaint for lack of jurisdiction on the same theory
as before. Dkt. 31. On January 31, 2018, the Court granted
the motion in part and denied it in part. Dkt. 44.
Specifically, the Court again dismissed Plaintiffs'
claims predicated on a theory that the Government was liable
for not repairing the fence, but denied the motion as it
pertained to Plaintiffs' claims that the Government was
negligent in failing to warn Alexander Demello of known
February 20, 2018, the Government filed its present motion
for summary judgment. Dkt. 47. On March 9, 2018, Plaintiffs
responded. Dkt. 54. On March 16, 2018, the Government
replied. Dkt. 55.