Sheridan v. U.S.

• Decision Date: 20 July 1987
• Docket Number: No. 86-3961,86-3961
• Parties: Michael N. SHERIDAN and Mary A. Sheridan, Appellants, v. The UNITED STATES, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 820

823 F.2d 820

Michael N. SHERIDAN and Mary A. Sheridan, Appellants, v. The UNITED STATES, Appellee.

No. 86-3961.

United States Court of Appeals Fourth Circuit.

Argued Oct. 8, 1986.

Decided July 20, 1987.

Michael J. Kator (Irving Kator, Kator, Scott & Heller, Washington, D.C., on brief), for appellants.

Gary P. Jordan, Asst. U.S. Atty. (Breckenridge L. Willcox, U.S. Atty., Baltimore, Md., on brief), for appellee.

Before WINTER, Chief Judge, and HALL and SPROUSE, Circuit Judges.

SPROUSE, Circuit Judge:

Michael N. Sheridan and Mary A. Sheridan, his wife, brought this action against the United States alleging that United States Navy personnel negligently failed to prevent a naval enlisted man from firing a rifle into their automobile, injuring Mrs. Sheridan. The district court dismissed the Sheridans' action, holding that it was barred by provisions of the Federal Tort Claims Act, 28 U.S.C. Secs. 1346(b), 2671-2680, as interpreted by this court in Hughes v. United States, 662 F.2d 219 (4th Cir.1981), aff'g Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980). We affirm.

Robert W. Carr was an enlisted medical aide in the United States Navy stationed at the Bethesda Medical Center in Maryland. On the evening of February 6, 1982, Carr became totally inebriated after consuming a large quantity of wine, rum and other alcoholic beverages. He packed some of his possessions, including a .22 calibre rifle and ammunition, into a uniform bag and left the barracks. Some time later, three naval corpsmen found Carr unconscious on the floor of one of the hospital buildings and attempted to take him to the emergency room. As the corpsmen carried him, Carr slipped several times, falling to the floor and on one occasion down a flight of concrete steps. Before they reached the emergency room, Carr regained consciousness, broke away from the corpsmen, grabbed his uniform bag from one of them, and displayed the barrel of his rifle. The corpsmen fled, taking no further action either to subdue Carr or to alert any other authority that Carr was inebriated and armed. Carr left the building and ended up near the public street in front of the hospital. He began shooting at passing vehicles, hitting the Sheridans' automobile and injuring Mrs. Sheridan.

The Sheridans brought this action under the provisions of the Federal Tort Claims Act, which waives sovereign immunity for certain tort claims against the federal government. Section 2680(h), however, establishes an exception to the waiver providing, among other things, that it does not apply to "[a]ny claim arising out of assault battery...." 28 U.S.C. Sec. 2680(h). In Hughes we affirmed the district court's dismissal of a claim against the government because it fell within this exception. There, a postal employee, while on his route, lured two young girls into his postal truck and committed sexual indecencies. He had previously pled guilty to a similar offense. The parents of the children brought an action against the government under the Federal Tort Claims Act alleging the postal supervisor was negligent in allowing the employee to remain in a position where he came into contact with young children. The district court, reasoning that the cause of action arose from the intentional act of the employee and not from the negligence of the supervisor, held the claim barred by Sec. 2680(h).

In Thigpen v. United States, 800 F.2d 393 (4th Cir.1986), we again affirmed the district court's dismissal of a claim against the government as barred by Sec. 2680(h). In Thigpen, a naval corpsman had committed sexual indecencies with two minor girls while they were hospitalized in a naval hospital. An action was brought on behalf of the children contending that the Navy negligently failed to supervise the offending corpsman. There, too, the district court reasoned that the injury resulted from the intentional tort of the corpsman and not from a lack of supervision by the government.

The Sheridans argue that their case is distinguishable from Thigpen and Hughes. They contend, first, that the actions of the three naval corpsmen in the present case constituted per se negligence because they violated a Navy regulation requiring personnel to report violations of another regulation that prohibits the possession of firearms on base. The Sheridans argue that Congress did not intend to immunize "per se " negligence from liability through the intentional tort exception to waiver of immunity, but intended the exception to apply primarily to cases involving government supervision. We find no merit to the Sheridans' contention that we should establish a principle that would eliminate application of the Sec. 2680(h) exception when "per se " negligence is involved.

The Sheridans also argue that Carr's status as an enlisted naval man and, therefore, a government employee, should irrelevant to the issue of the government's immunity vel non from liability for negligently failing to prevent the injury. ¹ They correctly assert that the shooting at the Sheridans' vehicle was not connected with Carr's job responsibility or duties as a government employee. The Sheridans further assert that if Carr had not been a government employee, a claim would undoubtedly lie against the government and Sec. 2680(h) would be inapplicable. See Rogers v. United States, 397 F.2d 12 (4th Cir.1968) (holding Sec. 2680(h) inapplicable where probationer alleged that negligence by United States marshal allowed non-government employee to assault and torture probationer). They contend it is anomalous to deny their claim simply because the corpsmen were negligent in the handling of a government employee rather than a private citizen. ²

As we have stated, Sec. 2680(h) is an exception to the general waiver of sovereign immunity contained in 28 U.S.C. Sec. 1346(b). The Sec. 1346(b) waiver, of course, relates to negligent or wrongful acts or omissions of government employees. In negligent supervision cases a plaintiff's cause of action is directed not at the person who inflicted the injury, but at the government employees who, by failure to supervise, did not prevent the harm. Explicit in Thigpen, Hughes and similar cases ³ is the principle that Sec. 2680(h) bars actions alleging negligence of the supervising employees when the underlying tort is an assault or battery by a government employee. Thigpen, 800 F.2d at 394; Hughes, 514 F.Supp. at 670. We see no sufficiently distinguishing difference between the facts of Thigpen and Hughes and the facts here to justify applying a different rule.

In view of the above, the decision of the district court is affirmed.

AFFIRMED.

HARRISON L. WINTER, Chief Judge, dissenting:

The Federal Tort Claims Act (FTCA) established a scheme under which the Federal Government waives sovereign immunity for suits based on its employees' negligence, but not on their intentional misconduct. Cases which involve conduct that is purely one type or the other are thus easy to resolve. Problems arise when both negligent and intentional conduct play a role in producing the resulting injury. Where government negligence leads to intentional misconduct--e.g., an assault and battery--by a private party, the courts generally allow suits against the United States, based on its negligence. Note, "Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee," 69 Geo.L.J. 803, 804 (1981). But where the same government negligence results in an assault and battery by a federal employee, the majority opinion in this case holds that the United States is immune from suit by virtue of the intentional tort exception to the FTCA, 28 U.S.C. Sec. 2680(h). In other words, the majority holds that the employment status of the assailant determines when the United States will be liable for its negligent misconduct. I do not think that this result is supported by the language or purpose of the FTCA, or by this court's previous opinions regarding Sec. 2680(h). I think that the government should be held subject to suit in all cases where its alleged liability is independent of the assailant's employment status--i.e., where a court can isolate a government duty and source of negligence that is based on something other than the fortuitous circumstance that the government happens to be the assailant's employer.

There are two lines of decision in this Circuit regarding the Sec. 2680(h) assault and battery exception, neither of which directly addresses the circumstances of this case.

Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980), aff'd sub nom. Hughes v. United States, 662 F.2d 219 (4 Cir.1981), involved a postal worker who sexually assaulted two young children. Plaintiffs based their FTCA suit on the theory that the government was negligent in hiring and retaining this employee. Nevertheless, the district court held that Sec. 2680(h) barred the claim because the assailant was a federal employee, while recognizing that the result would differ had the assailant not been employed by the government. 514 F.Supp. at 669-70. We affirmed. Thigpen v. United States, 800 F.2d 393 (4 Cir.1986), dealt with plaintiff patients who were sexually abused by a corpsman at the Beaufort Naval Hospital. Although plaintiffs premised their FTCA claims on the government's negligence in hiring and supervising the corpsman, we held these claims barred as arising out of assault or battery. Id. at 394. We noted that "a different rule may obtain" where the assailant is not a federal employee. Id., n. 3.

A different rule did obtain in Rogers v. United States, 397 F.2d 12 (4 Cir.1968) where a United States marshal allowed plaintiff-probationer to spend the night with an "unsavory" character--not a federal employee--who proceeded to torture the plaintiff. We reversed a summary judgment in the government's favor, ruling that "[w]hen an agency of the United States voluntarily...