Unpublished Disposition, 894 F.2d 409 (9th Cir. 1990)

MEMORANDUM^* 

Johanna Salcido Perez, by and through her guardian ad litem, appeals the summary judgment in her action against the United States under the Federal Tort Claims Act, 28 U.S.C. § 1346. She sustained a gunshot wound when Sergio Gonzalez (Gonzalez), an employee of the Immigration and Naturalization Service (INS), negligently left a gun loaded with INS-supplied ammunition on a bedroom dresser in his home, where children were playing. She contends that the United States is liable for her injuries because Gonzalez was acting within the scope of his employment at the time he left the loaded gun on his dresser, or, in the alternative, because the United States negligently failed to train Gonzalez in home firearm safety. We affirm the judgment.

The Federal Tort Claims Act waives the government's immunity from suit for personal injuries caused by the negligence of a government employee while acting within the scope of his employment. 28 U.S.C. § 1346(b); Washington v. United States, 868 F.2d 332, 333 (9th Cir.), cert. denied, 58 U.S.L.W. 3369 (1989). Whether a government employee was acting within the scope of employment is controlled by the respondeat superior principles of the state where the tort was committed. Proietti v. Civiletti, 603 F.2d 88, 90 (9th Cir. 1979), quoting United States v. McRoberts, 409 F.2d 195, 197 (9th Cir. 1969), cert. denied, 396 U.S. 1014 (1970).

Because the alleged tort occurred in California, California law controls. Under California law, whether an employee committed a tort during the course of his employment turns on whether (1) the act performed was either required or incident to his duties, or (2) the employee's misconduct could reasonably be foreseen in any event. Jeffrey Scott E. v. Central Baptist Church, 197 Cal. App. 3d 718, 721, 243 Cal. Rptr. 128, 130 (Cal.App.1988), quoting Martinez v. Hagopian, 182 Cal. App. 3d 1223, 227 Cal. Rptr. 763, 766 (Cal.App.1986).

(a) Required or Incident to Employee's Duties

In determining whether an employee's negligent act is required or incident to his duties, " [t]he fact that an employee is not engaged in the ultimate object of his employment at the time of his wrongful act does not preclude attribution of liability to an employer." Alma W. v. Oakland Unified School Dist., 123 Cal. App. 3d 133, 139, 176 Cal. Rptr. 287, 289 (Cal.App.1981). An employee's minor deviations for personal or private purposes do not bring him outside the scope of employment. Avila v. Standard Oil Co., 167 Cal. App. 3d 441, 448, 213 Cal. Rptr. 314, 318 (Cal.App.1985). Where an employee substantially deviates from his duties for personal purposes, however, the doctrine of respondeat superior will not be invoked to hold the employer liable for the employee's torts. Id., 167 Cal. App. 3d at 448, 213 Cal. Rptr. at 319.

The complaint reveals no connection between Gonzalez's job duties and his negligence in leaving a loaded gun on his bedroom dresser. There is no evidence that Gonzalez's conduct was actuated by a purpose to serve the INS. His purpose in leaving the gun on the dresser--to go practice shooting that afternoon with friends--was prompted by personal motivations and bore no relation to his job duties.

(b) Foreseeable

An employee's negligent act is foreseeable if, "in the context of the particular enterprise 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." Rodgers v. Kemper Construction Co., 50 Cal. App. 3d 608, 619, 124 Cal. Rptr. 143, 149 (Cal.App.1975). The test is not whether an employee might at some time act in such a way as to give rise to civil liability, but instead whether the employee's act is foreseeable in light of the duties the employee is hired to perform. Martinez v. Hagopian, 182 Cal. App. 3d 1223, 1229, 227 Cal. Rptr. 763, 767 (Cal.App.1986).

Gonzalez's negligence in leaving a loaded gun on his bedroom dresser in preparation for practice shooting with his friends was not foreseeable in light of the duties he was hired to perform as an immigration inspector. Gonzalez was not on duty at the time of his negligent act. Even when on duty he was not required to carry firearms. His decision to leave the loaded gun on his dresser was not an outgrowth of his employment relationship with the INS. See id., 182 Cal. App. 3d at 1229-30, 227 Cal. Rptr. at 767 (employer not liable where visitor to worksite stabbed by employee at worksite during after-hours dispute because the dispute had no connection with the employee's job of harvesting grapes).

We also reject Johanna Perez's contention that the United States is liable for her injuries because the INS negligently failed to train Gonzalez in home firearm safety. A person generally has no duty to control the off-duty conduct of others. See Tarasoff v. Regents of University of Cal., 17 Cal. 3d 425, 435, 131 Cal. Rptr. 14, 23, 551 P.2d 334, 343 (1976); 6 Witkin, Summary of Cal.Law, Torts, Sec. 997 (9th ed. 1988). Exceptions to the general rule exist where there is a special relationship between the defendant and the tortfeasor or the plaintiff, where a statute imposes liability, or where the defendant negligently entrusts a dangerous instrumentality to another. 6 Witkin, Summary of Cal.Law, Torts, Sec. 997 (9th ed. 1988).

Johanna Perez offers no justification for departing from the common law rule that a person has no duty to control the off-duty conduct of others. The INS does not stand in a special relationship with Gonzalez during his off-duty hours which would require the INS to train Gonzalez in home firearm safety. Cf. Doggett v. United States, 875 F.2d 684, 693-94 (9th Cir. 1989) (enlisted Naval officers with whom enlisted member was drinking did not have special relationship under California law which would require superior officers to warn enlisted member that he was too intoxicated to drive safely.) Johanna Perez points to no statute which would impose a duty to train on the INS.

Finally, although Johanna Perez cites several negligent entrustment cases, she admits that the INS never entrusted Gonzalez with a gun. Apparently the INS did supply ammunition under certain circumstances. But this alleged generosity does not make the service responsible for the user's behavior at home.

We also note that the INS's failure to train Gonzalez was not the proximate cause of Johanna Perez's injuries. Gonzalez was clearly aware of home firearm safety techniques. His deposition reveals that he had trained his daughter to avoid firearms and that it was his standard procedure to unload his gun upon arriving home from work. His deposition further reveals that the gun which caused Johanna Perez's injuries was one of a large collection of guns which Gonzalez kept in his home.¹  Accordingly, the district court's judgment is

AFFIRMED.