Lobisch v. United States

ANNA LOBISCH, Individually, and as Personal Representativefor the Estate of Abigail Lobisch, a Minor, Deceased,and as Next Friend of Zachariah Lobisch, a Minor;and JAMES LOBISCH, Individually, Plaintiffs, v. UNITED STATES OF AMERICA; ISLAND PALM COMMUNITIES, LLC;DOE DEFENDANTS 1-10, Defendants.

CIV. NO. 20-00370 HG-KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

March 31, 2021

ORDER DENYING DEFENDANT UNITED STATES' MOTION TO DISMISS

(ECF No. 36)

Plaintiffs James Lobisch and Anna Lobisch, Individually, and as Personal Representative for the Estate of her deceased daughter, Abigail Lobisch, and as Next Friend of her son, Zachariah Lobisch, filed suit against the Defendants the United States of America and Island Palm Communities, LLC.

Plaintiffs claim that their 7-month old child, Abigail, died while she was in the care of Denise "Dixie" Villa ("Villa"), who was allegedly operating an unauthorized child care business in on-base military housing. Plaintiffs assert that Villa gave their daughter a lethal dose of Benadryl while she stayed in Villa's child care overnight in February 2019.

Plaintiffs claim that Villa operated the unauthorized childcare business out of military housing located on the Aliamanu Military Reservation in Honolulu, Hawaii.

The First Amended Complaint alleges that the Defendant United States' employees and military personnel, acting within the course and scope of their employment, were aware of the unauthorized childcare business operated by Villa. Plaintiffs claim the Defendant United States had notice that the childcare facility had exposed numerous children to dangerous conditions and neglect.

Plaintiffs claim that Defendant Island Palm Communities, LLC was the property manager responsible for the use and maintenance of the homes located on the military base where Villa operated her child care.

Plaintiffs assert that despite Defendants' knowledge of the dangerous conditions and unauthorized activities by Villa, Defendants and their employees failed to shut down Villa's childcare business. In addition, Plaintiffs claim Defendants failed to warn parents of child endangerment and neglect at Villa's business and failed to contact Child Protective Services of the State of Hawaii.

Plaintiffs' First Amended Complaint asserts claims against the Defendants United States and Island Palm Communities, LLC for negligence, wrongful death, negligence per se, negligent infliction of emotional distress, and loss of consortium.

Defendant United States moves to Dismiss on two separate bases.

First, the United States asserts that Plaintiffs' tort claims are barred by sovereign immunity pursuant to Fed. R. Civ. P. 12(b)(1). The United States asserts that the Federal Tort Claims Act waives sovereign immunity for certain tort claims against the United States and its employees, but it argues there is an exception in this case. The United States argues that the Discretionary Function Exception to the Federal Tort Claims Act's waiver of sovereign immunity bars Plaintiffs from bringing their claims here. Specifically, the United States argues that Plaintiffs' claims involve discretionary decisions by the United States and its employees that may not be challenged in court.

Second, the United States argues that Plaintiffs have alleged insufficient facts to state a claim pursuant to Fed. R. Civ. P. 12(b)(6). The United States asserts that it had no duty to protect the Plaintiffs' child. Further, the United States argues that the child's death at an unlicensed child care on the military base was not foreseeable or preventable.

The Defendant United States' Motion to Dismiss (ECF No. 36) is DENIED.

PROCEDURAL HISTORY

On August 26, 2020, Plaintiffs filed their Complaint. (ECF No. 1).

On the same date, Plaintiffs filed an Ex Parte Motion forLeave to Proceed Under Pseudonyms. (ECF No. 4).

On August 31, 2020, the Magistrate Judge issued an ORDER DENYING PLAINTIFFS' EX PARTE MOTION FOR LEAVE TO PROCEED UNDER PSEUDONYMS. (ECF No. 9).

On September 1, 2020, Plaintiffs filed the FIRST AMENDED COMPLAINT. (ECF No. 10).

On January 6, 2021, Defendant United States filed its Motion to Dismiss. (ECF No. 36).

On January 8, 2021, the Court issued a briefing schedule. (ECF No. 37).

On January 28, 2021, Plaintiffs filed their Opposition. (ECF No. 41).

On February 2, 2021, Defendant Island Palm Communities, LLC filed its Statement of No Opposition. (ECF No. 44).

On February 16, 2021, Defendant United States filed its Reply. (ECF No. 46).

On February 24, 2021, the Court held a hearing on Defendant's Motion to Dismiss. (ECF No. 49).

BACKGROUND

UNITED STATES ARMY REGULATION 608-10 GOVERNS THE OPERATION OF CHILDCARE FACILITIES ON MILITARY BASES

The United States Army has enacted various regulations governing conduct on its military bases. One such Regulation, Army Regulation 608-10, governs the policies and procedures for providing childcare services on military bases. (United StatesArmy Regulation ("AR") 608-10 § 6-1, available at https://armypubs.army.mil/epubs/DR pubs/DR a/pdf/web/ARN3218 AR608-10 Web FINAL.pdf).

Pursuant to Chapter 6 of Army Regulation 608-10, a Family Child Care Office must be established on military bases to oversee certification of childcare businesses on its premises. The Family Child Care Office is required to investigate and close unauthorized childcare operations. Id. at § 6-38(a), (b), (e), (f)(3).

Army Regulation 608-10 requires that childcare businesses operating out of owned or leased quarters or privately owned housing located on military bases must be certified by the Family Child Care Office. Id. at § 1-8(e).

UNITED STATES ARMY REGULATION 420-1 GOVERNING ARMY FACILITIES MANAGEMENT

United States Army Regulation 420-1 governs the policies and procedures for the operation of U.S. Army housing. AR 420-1 § 1-1. Section 3-18 addresses termination of family housing, and provides that Government housing may be terminated at the discretion of the garrison commander for violation of the housing rules. Id. at § 3-18(a)(2).

FACTS ALLEGED IN PLAINTIFFS' FIRST AMENDED COMPLAINT

The following facts are alleged in the First Amended Complaint and are treated as true for purposes of the DefendantUnited States' Motion to Dismiss:

Villa Operated an Unlicensed Child Care Business on a Military Base in Washington State in 2015

According to the First Amended Complaint, in 2015, Denise "Dixie" Villa ("Villa") and her husband Chief Petty Officer Aaron Villa and their children resided in housing provided by the Defendant United States within Naval Air Station Whidbey Island in Washington State. (First Amended Complaint ("FAC") at ¶ 21, ECF No. 10).

Plaintiffs allege that Villa operated an unauthorized childcare center from her residence on the military base in Washington State in violation of Department of Defense regulations. (Id. at ¶ 22). Plaintiffs claim that Villa's unauthorized business was reported both to the Family Child Care Office at the military base and to her husband's chain of command. (Id. at ¶¶ 22-24). The First Amended Complaint asserts that Chief Petty Officer Villa was instructed by his superior to "shut it down." (Id. at ¶ 25).

Villa Family Relocated To Hawaii In 2017

In 2017 Chief Petty Officer Villa was stationed at Joint Base Pearl Harbor Hickam and his family relocated to Honolulu. (Id. at ¶ 26).

The First Amended Complaint alleges that despite the Army's prior knowledge that Denise Villa had previously operated anunauthorized childcare center in on-base military housing, the United States provided Chief Petty Officer Villa and his family with on-base military housing in Hawaii on the Aliamanu Military Reservation located at 4675 Ke Street, Honolulu, Hawaii. (Id. at ¶ 27).

Plaintiffs claim that Chief Petty Officer Villa and/or Denise Villa signed a lease with Defendant Island Palm Communities, LLC, which was the entity responsible for managing the property. (Id. at ¶ 28). According to the First Amended Complaint, the lease instructed the residents who wished to provide childcare services in their homes to comply with United States Army Regulation 608-10 and to do so under the direction of the Family Child Care Office of the Aliamanu Military Reservation. (Id. at ¶ 29).

A Neighbor Of Villa Repeatedly Reported The Operation Of Villa's Unauthorized Child Care Business To U.S. Army Officials Between December 2017 And April 2018

The First Amended Complaint alleges that in early December 2017, a neighbor of Denise Villa notified Defendant Island Palm Communities, LLC that Villa was operating an illegal childcare facility from her home on the military base without authorization and in violation of United States Army regulations. (Id. at ¶ 31). Plaintiffs claim that a representative from Defendant Island Palm Communities, LLC informed the neighbor that she needed to report the issue to the Family Child Care Office forthe military base. (Id.)

The First Amended Complaint alleges that on December 18, 2017, Villa's neighbor, identified as "K.C.," called the Family Child Care Office at the Aliamanu Military Reservation and spoke with Marjorie Williams, an employee in the Office. (Id. at ¶ 32). Plaintiffs assert that Ms. Williams confirmed that Villa was not registered or approved to operate a childcare facility at her residence on base. (Id.) Plaintiffs claim that the neighbor reported to Ms. Williams that she had seen multiple instances of child neglect. (Id. at ¶ 33). Plaintiffs allege that Ms. Williams stated that she would inform her supervisor and that her office would investigate Villa. (Id.)

Plaintiffs allege that K.C. called Ms. Williams at the Family Child Care Office again on January 3, 5, 8, and 11, 2018, to report Villa's unauthorized childcare activities. (Id. at ¶¶ 34-44). K.C. reported numerous incidents, including seeing a young boy at Villa's home holding a lighter and attempting to light a trampoline on fire, prompting Military Police to go to Villa's residence. (Id. at ¶ 38-42). K.C. also...