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Demello v. United States

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

April 10, 2018

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

          ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING MOTION TO CONTINUE TRIAL AS MOOT

          BENJAMIN H. SETTLE UNITED STATES DISTRICT JUDGE

         This 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.[1]

         I. BACKGROUND

         This case involves a shooting on Joint Base Lewis-McChord (“JBLM”) which resulted in the death of a child, Alexander Demello.

         The 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.

         Throughout 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. 50-2, 50-4.

         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. 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.

         On 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 id.

         On June 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.

         On 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. Id.

         On 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 dangers. Id.

         On 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.

         II. DISCUSSION

         A. ...


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