Feds settle negligent-entrustment claim over ether-huffing marine

By SYLVIA ADCOCK, Staff Writer

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In a negligent-entrustment case that took a turn when discovery revealed new evidence, the U.S. government has agreed to a $6.675 million settlement in a lawsuit filed by families involved in a fatal car crash caused by a Camp Lejeune marine who was high on ether from the base.

The marine had been huffing ether when he drove head-on into the path of an oncoming car in Onslow County, killing an 18-year-old girl and seriously injuring four others.

Two weeks before the 2004 accident, the marine’s car had been impounded when he was found in his car huffing ether. But when military officials returned the car to him, it still contained two containers of the substance, which is used to start tanks in cold weather.

The case, Lumsden v. U.S., was filed as a wrongful-death and personal-injury case under the federal Tort Claims Act, with the plaintiffs basing their liability arguments on a set of theories that included negligent entrustment. As a negligent-entrustment case, the plaintiffs had to be able to show that the government was negligent in allowing the marine to have ether in his car and that they had reason to believe he would abuse the substance again.

Plaintiffs’ attorney Joseph Anderson said the case took a dramatic turn earlier this year when discovery revealed “an unexpected cache of documents” and he learned that one of the witnesses he was set to depose had evidence showing that military officials knew the marine, Pvt. Lucas Borges, was a habitual substance abuser and had questioned his ability to serve in the military. Anderson practices with Anderson Pangia & Associates in Winston-Salem.

U.S. District Judge James C. Fox of the Eastern District filed an order in June saying that the evidence “produced so recently and so close to trial sheds new light on the factual premises for this lawsuit, painting what appears to be a far more compelling case for the plaintiffs.”

The witness was a retired master sergeant who had in his personal possession more than 260 pages of documents that included three handwritten statements by the marine’s former supervisors saying that they had serious concerns about Borges’ “character and behavior, his fitness to serve in the armed services, and his shameless commitment to a lifestyle of drug abuse at all costs.”

Anderson said his ability to get the settlement for his clients was due in part to “what I perceive to be the court’s appreciation for the revelations in discovery as described in Judge Fox’s order.”

Fox noted that the government had earlier insisted in a response to a motion for partial summary judgment that there was no way the plaintiffs would be able to show that the government or its agents knew that the marine would abuse the substance again. But one supervisor, the judge noted, said that “the hour he would be able to, [Borges] would commit the same offense.”

The case was settled a few months after Fox filed the order.

Asst. U.S. Attorney Ed Gray, who represented the government, said the evidence Fox referred to “did not play a huge role in the resolution of the case.” He said he couldn’t comment on aspects of the case that were outside the public record, but said, “This was a case where we evaluated the facts and circumstances to make an appropriate determination.”

Other evidence came to light that showed the marine was given access to hazardous-materials areas where he could routinely obtain ether. Borges is now serving a 32-year-sentence for second-degree murder in the death of the 18-year-old.

Most cases of negligent entrustment involve automobiles or firearms. When Fox allowed the lawsuit to go forward in a 2006 ruling, he said he could not find any support for the idea that motor vehicles or firearms are the only instruments that can be negligently entrusted.

In that opinion, Judge Fox wrote that the plaintiffs had alleged that the government failed to exercise the ordinary reasonable care of a “reasonably prudent person” by making the ether available to the private by delivering it to him along with his car keys, and said that if the plaintiffs could show the government knew or had reason to know that upon being provided with the ether and his car, the private would become intoxicated at first chance and attempt to drive, it would trigger that duty.

Settlement Report 

Type of action: Wrongful death, negligent entrustment

Injuries alleged: Death, serious injuries

Case name: Lumsden v. U.S.

Case number: 7:06-CV-60-F

Court: U.S. District Court, Eastern District of North Carolina

Judge: Hon. Judge James C. Fox

Verdict or settlement: Settlement

Date: Nov. 1, 2010

Amount: $6.675 million     

Plaintiff’s attorney: Joseph Anderson of Anderson Pangia & Associates (Winston-Salem)

Editor’s note: The information in Lawyers Weekly’s verdicts and settlements reports was submitted by the counsel for the prevailing party and represents the attorney’s characterization of the case.