FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD A. SHARROCK; CHRISTINA 

M. SHARROCK, No. 10-16425

Plaintiffs-Appellants, D.C. No.  v. 1:08-cv-00013

UNITED STATES OF AMERICA, OPINION

Defendant-Appellee. 

Appeal from the United States District Court

for the District of Guam

Frances Tydingco-Gatewood, Chief District Judge, Presiding

Submitted February 15, 2012*

Honolulu, Hawaii

Filed March 14, 2012

Before: Alfred T. Goodwin, Stephen S. Trott, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Goodwin

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

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COUNSEL

Wayson W.S. Wong, Hagatna, Guam, for the plaintiffsappellants.

Anne Murphy, Civil Division, Department of Justice, Washington, D.C., for the defendant-appellee.

OPINION

GOODWIN, Circuit Judge:

Plaintiff Richard Sharrock was injured when the automobile in which he was traveling on Route 1, Naval Base, Guam,

collided with an automobile owned and driven by Quinten

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McCoy, an off-duty sailor whose negligence was conceded.

Sharrock and his wife, Christina, (the “Sharrocks”) brought

suit against the United States on a theory of respondeat superior. The district court granted summary judgment for the

government, and the Sharrocks appeal. The district court held

that McCoy “was not acting in the course and scope of his

employment, was not going about the business of his

employer, and was not therefore acting in the line of duty.”

We review de novo, and we affirm.

I. Facts and Proceedings Below

Gunner’s Mate McCoy, at noon on the day of the accident,

was given the rest of the day off. At the time of the accident,

he was driving, in his own car, to a basketball practice at a

facility furnished by the Navy as part of its Morale, Welfare

& Recreation (“MWR”) Program. In Guam, McCoy was

assigned to the crew of the U.S.S. Frank Cable. McCoy’s

shipmates were planning to participate in a “Captain’s Cup”

basketball tournament scheduled to take place about two

weeks after the date of the accident. The record does not

reveal whether the ship’s captain was the sponsor of the Captain’s Cup tournament. 

The MWR Program was directed by a paid staff person

whose deposition established that the Captain’s Cup sports

program also included volleyball, softball, flag football, and

soccer. The MWR program also included less strenuous recreation like motion pictures, guitar lessons, billiards, and card

games. Commanding officers encouraged, but did not require,

participation in MWR activities. Physical exercise sessions,

on the other hand, were a mandatory part of McCoy’s general

military duties, and were scheduled during on-duty time with

participants required to wear appropriate uniforms. 

The district court had before it the above undisputed facts,

among others, and was faced with the problem of deciding

whether, on those facts, McCoy’s negligence occurred while

3082 SHARROCK v. UNITED STATES
he was acting within the scope of his employment, as California courts frame the question, or “in the line of duty” as the

Federal Tort Claims Act (“FTCA”) frames the question. We

have held that both characterizations have the same meaning

where the employee is a member of the military. Lutz v.

United States, 685 F.2d 1178, 1182 (9th Cir. 1982).

II. Law and Analysis

We review a grant of summary judgment de novo. See Universal Health Servs., Inc. v. Thompson, 363 F.3d 1013, 1019

(9th Cir. 2004). Because the facts of the accident are undisputed, the scope of employment issue here is suitable for

determination as a matter of law. See id.; see also Washington

v. United States, 868 F.2d 332, 333-34 (9th Cir. 1989). 

[1] Scope of employment for FTCA purposes extends liability “under circumstances where the United States, if a private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.”

28 U.S.C. § 1346(b)(1); see generally Hartzell v. United

States, 786 F.2d 964, 966 (9th Cir. 1986). We apply California law because of the dearth of Guam case law on point, and

because Guam’s doctrine of respondeat superior, codified in

18 Guam Code Ann. § 20309, is identical to California Civil

Code § 2338. See Sumitomo Constr. Co., Ltd. v. Zhong Ye,

Inc., 1997 Guam 8; 1997 WL 471506, at *2 (Guam 1997)

(“[W]hen a legislature adopts a statute which is identical or

similar to one in effect in another jurisdiction, it is presumed

that the adopting jurisdiction applies the construction placed

on the statute by the originating jurisdiction.”); see also

Fajardo v. Liberty House Guam, 2000 Guam 4; 2000 WL

38719, at *4-5 (Guam 2000) (applying California case law

where the Guam statute mirrored a California statute and

“there is no compelling reason to deviate from [California’s]

interpretation of th[e] statute[ ].”). 

[2] The “going and coming rule” generally precludes an

employer’s liability for the torts of an employee committed

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during the employee’s commute to and from work. See Sprinkles v. Assoc. Indem. Corp., 188 Cal. App. 4th 69, 79 n.4

(2010). The Sharrocks invoke the special errand exception to

this rule, however, which provides for respondeat superior

liability where the employee is commuting to or from work on

a special errand either as part of his regular duties or at the

order or request of his employer. See Jeewarat v. Warner

Bros. Entm’t, Inc., 177 Cal. App. 4th 427, 436 (2009). 

Ultimately, the whole bundle of facts must be considered

in deciding whether McCoy’s errand involved a risk to the

traveling public that “may fairly be regarded as typical of or

broadly incidental to the enterprise undertaken by the employer.” See Jeewarat, 177 Cal. App. 4th at 434 (internal quotation marks and emphasis omitted). To determine this inherent

risk, courts ask whether the accident was a foreseeable consequence of the employment. Farmers Ins. Group v. Cnty. of

Santa Clara, 11 Cal. 4th 992, 1004 (1995). Foreseeability in

this context amounts to whether “an employee’s conduct is

not so unusual or startling that it would seem unfair to include

the loss resulting from it among other costs of the employer’s

business.” Id. at 1004.

On one hand, under California law, the scope of employment for respondeat superior purposes has been interpreted

broadly. See id. California courts have extended respondeat

superior liability in a variety of circumstances, such as in an

accident occurring after a company banquet, Boynton v.

McKales, 139 Cal. App. 2d 777, 789 (1956); an accident

occurring after an office Christmas party, Harris v. Trojan

Fireworks Co., 120 Cal. App. 3d 157, 164 (1981); an afterhours fight on company property, Rodgers v. Kemper Constr.

Co., 50 Cal. App. 3d 608, 624 (1975); and in numerous workers’ compensation cases, see, e.g., Dimmig v. Workmen’s

Comp. Appeals Bd., 6 Cal. 3d 860, 869 (1972) (employee

returning home from night school classes).

On the other hand, courts applying California law have

refused to find respondeat superior liability for injuries sus3084 SHARROCK v. UNITED STATES
tained under comparable circumstances. See Chapin v. United

States, 258 F.2d 465, 470-71 (9th Cir. 1958) (service member

driving between permanent duty stations); Concepcion v.

United States, 374 F. Supp. 1391, 1394-95 (D. Guam 1974)

(service member driving on base after being released from

duty for the day); Blackman v. Great Am. First Sav. Bank,

233 Cal. App. 3d 598, 605 (1991) (employee driving to night

school from work); Robbins v. Hewlett-Packard Corp., 26

Cal. App. 3d 489, 495 (1972) (employee attending company

picnic). In finding no respondeat superior liability here, the

district court applied local precedent as stated in Concepcion.

The disparate outcomes described above reflect the underlying difficulty in defining the contours of respondeat superior liability in close cases, as here. Thus, it is helpful to rule

out authority that rests on non-analogous grounds. Cf. Farmers, 11 Cal. 4th at 1005 (“To aid us in our application of these

principles, we find it helpful to compare the types of situations in which the respondeat superior doctrine has and has

not been applied.”). 

A subset of California respondeat superior cases in our circuit have involved service members whose negligent driving

was the direct consequence of voluntary intoxication. See,

e.g., Doggett v. United States, 875 F.2d 684 (9th Cir. 1989),

abrogated by United States v. Olson, 546 U.S. 43 (2005).

Along these lines, the Second Circuit, applying California

law, broadly extended liability in holding that damage caused

by a drunk-driving service member in Guam was a foreseeable risk of military base operations. See Taber v. Maine, 67

F.3d 1029, 1036-37 (1995). Taber has been cited by this circuit, however, only for its detailed analysis of the Feres doctrine which bars servicemembers’ FTCA claims for injuries

sustained during the course of military service. See id. at

1037-53; see also Costco v. United States, 248 F.3d 863, 866-

67, 869 (9th Cir. 2001); Dreier v. United States, 106 F.3d

844, 850 n.6 (9th Cir. 1996). The Feres doctrine was not

raised by the parties and is not at issue in this case. Moreover,

SHARROCK v. UNITED STATES 3085
the military branches have specific regulations dealing with

personnel who become intoxicated and thereafter become

involved in automobile accidents. These circumstances have

their own unique questions of rights and duties, and there is

no occasion here to expand upon what has been written in

military personnel drunk-driving cases.

Similarly, we decline to base our consideration on the

workers’ compensation cases in which scope of employment

is broadly interpreted in order to carry out the legislative policy of providing medical care and replacement of wages lost

due to injuries from industrial accidents. See, e.g., Munyon v.

Ole’s Inc., 136 Cal. App. 3d 697, 702-03 (1982) (“An

employee can suffer an injury that is compensable under

workers’ compensation laws and at the same time not be

within the scope of employment under the doctrine of

respondeat superior.”). Although the inquiry is related and

workers’ compensation cases may be persuasive in certain circumstances, they are not controlling and do not aid our analysis here. 

[3] On the facts of this case, we are required to determine

whether the Navy created and maintained an environment

which made McCoy’s conduct at the time and place of the

accident reasonably foreseeable. See Jeewarat, 177 Cal. App.

4th at 435. The Sharrocks contend that the special errand

exception applies because McCoy was “requested” to attend

the MWR program. In support of this argument, the Sharrocks

point to the deposition testimony of McCoy’s supervising

officer that participation in the basketball tournament related

to McCoy’s general duties as a sailor and McCoy’s testimony

that the Navy stressed the virtues of physical fitness. The

Sharrocks further cite Department of Defense Instructions that

require the United States military to create MWR programs.

The Sharrocks believe that these facts give rise to a clear

inference that the Navy requested and encouraged McCoy to

participate in the MWR program. However, these facts are

3086 SHARROCK v. UNITED STATES
inadequate to establish that McCoy was acting in the scope of

his employment at the time of the accident.

[4] The Department of Defense Instructions mandate only

the creation of MWR programs, not servicemember attendance at such programs. See Dep’t of Def., Instruction No.

1015.10 (Nov. 3, 1995) (as amended through Change 2, Oct.

31, 2007). Moreover, even if the Navy encouraged McCoy to

participate in MWR programs, the record does not reflect any

evidence that the Navy “required” or “ordered” him to do so.

To the contrary, by all accounts McCoy’s MWR participation

was voluntary. McCoy himself stated that his participation in

the Captain’s Cup program was not required. 

[5] The facts of this case thus appear most closely analogous to Blackman v. Great American First Savings Bank, 284

Cal. App. 3d 598 (1991). In Blackman, the court affirmed

summary judgment for the employer where the employee

injured the plaintiff in a car accident on the way to night

classes at a local university. The court held that the accident

was not a special errand within the scope of employment

where the employee’s classroom attendance was not part of

her regular duties and was encouraged but not required. Id. at

602-03. Although the employer paid for the classes and the

employee’s classwork did accrue to the employer’s benefit

over time, the court held that attendance at the classes was not

a special errand because any benefit to the employer was

“broadly collateral” and had “no direct impact” on the

employer’s daily operations. Id. at 604. Similarly here, the

Navy’s support of MWR programs and any incidental benefit

to the Navy from service members’ participation therein, does

not make McCoy’s attendance at the basketball practice comparable to a special errand. To endorse government liability

for the Sharrocks’ injuries in this instance would exceed the

permissible scope of that exception. 

In sum, the Sharrocks’ theory of liability, as the district

court correctly noted, would impose upon the military a burSHARROCK v. UNITED STATES 3087
den far broader than that imposed upon any private employer,

and in excess of the limited waiver contemplated by the

FTCA. See Lutz v. United States, 685 F.2d 1178, 1183 (9th

Cir. 1982). We have, in several cases, resisted subjecting the

military to expansive respondeat superior liability. See

Clamor v. United States, 240 F.3d 1215, 1217 (9th Cir. 2001)

(no respondeat superior liability where Navy civilian

employee “was not engaged in any errand for his employer,

but was leaving work and free to do whatever he wished”);

Hartzell v. United States, 786 F.2d 964, 967 (9th Cir. 1986)

(fact that servicemember’s travel “was in some part intended

to serve the Air Force . . . is not sufficient to bring her within

the scope of employment”); Chapin v. United States, 258 F.2d

465, 468 (9th Cir. 1958) (military’s unique authority over servicemembers is insufficient to extend liability beyond that of

a private employer).

III. Conclusion

[6] We conclude that a servicemember en route to participation in a recreational activity, where participation is encouraged by the Navy but not required, is not acting in the line of

duty. 

AFFIRMED.

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