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Tort/Negligence – Claim that contamination at Camp Lejeune caused a death is dismissed

Where a widow alleged her husband’s death was caused by his exposure to contaminated water and environmental toxins while he was stationed at Camp Lejeune, her complaint was dismissed. The alleged exposure occurred in the course of the decedent’s day-to-day, active-duty service and was thus barred by the rule announced in Feres v. United States, 340 U.S. 135 (1950).

Background

Carol V. Clendening filed suit against the United States for her husband’s wrongful death allegedly caused by his exposure to contaminated water and environmental toxins while stationed at the Marine Corps Base Camp Lejeune in Jacksonville, North Carolina. Her complaint also asserted claims against the United States for its subsequent fraudulent concealment and failure to warn relevant personnel of the severity, scope and impact of said exposure.

The government moved to dismiss under Rule 12(b)(1), arguing that plaintiff’s claims were barred by the rule announced in Feres, the Federal Tort Claims Act, or FTCA’s “discretionary-function” exception or both. The district court dismissed all claims for lack of subject-matter jurisdiction. It concluded (1) that the Feres doctrine barred plaintiff’s tort claims for Clendening’s exposure to contaminated water and other toxins while living at Camp Lejeune and (2) that to the extent a failure-to-warn claim survived Feres, it was also barred under the discretionary-function exception.

Feres doctrine

The Feres doctrine holds that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” The “focus” of the Feres doctrine “is not upon when the injury occurs or when the claim becomes actionable, rather it is concerned with when and under what circumstances the negligent act occurs.”

With one exception, plaintiff’s claims fall squarely within Feres purview. The exposure cited as the cause of Clendening’s death occurred in the course of his day-to-day, active-duty service while on base at Camp Lejeune. Clendening’s injuries thus “[stemmed] from the relationship between [Clendening] and [his] service in the military.” Moreover, the military’s provision of water and accommodations to its troops is clearly activity “incident to service.” Thus, in Feres, as in this case, death allegedly resulted from unsafe living conditions on base. Numerous other courts evaluating claims related to Camp Lejeune agree.

Plaintiff attempts to distinguish Feres in three ways, arguing that Clendening’s injuries were not related to a military objective and thus not “incident to service”; that another case is more on-point and that the negligence of Feres is distinguishable from the intentional acts here. None of these arguments are persuasive.

Plaintiff also implores this court to overrule, or at least abrogate, Feres. However, despite the rampant criticism, the Feres doctrine still stands, and this court is bound by it. The district court’s judgment that Feres bars all of plaintiff’s claims premised upon Clendening’s initial exposure to toxic substances is affirmed.

Failure-to-warn

Plaintiff alleges that, even after Clendening was discharged, the government had a duty to warn Clendening of the health risks posed by his exposure to contaminants at Camp Lejeune, especially as the government learned more about those risks over the years. The government concedes that Feres does not bar this claim, and this court agrees. Any duty on the part of the government to warn Clendening arose years after he left the service in 1973 and would constitute a “separate” and “independent” tort not incident to his military service.

However, it is otherwise barred by another exception to FTCA liability, the discretionary-function exception. First, the government’s failure to warn was the product of discretion as opposed to mandate. And the government’s decision of how and when to warn implicates policy decisions.

Affirmed.

Clendening v. United States (Lawyers Weekly No. 001-204-21, 25 pp.) (James A. Wynn Jr., J.) Case No. 20-1878. Nov. 30, 2021. From E.D.N.C. at Wilmington (W. Earl Britt, S.J.) Nicholas Frederick Baker for Appellant. Daniel Tenny for Appellee.


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