Bailor v. Salvation Army

• Citation: 51 F.3d 678
• Decision Date: 03 April 1995
• Docket Number: No. 94-2660,94-2660
• Parties: Adela T. BAILOR and Darryl Bailor, Plaintiffs-Appellants, v. SALVATION ARMY and United States of America, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 678

51 F.3d 678

Adela T. BAILOR and Darryl Bailor, Plaintiffs-Appellants, v. SALVATION ARMY and United States of America, Defendants-Appellees.

No. 94-2660.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1994.

Decided April 3, 1995.

Robert O. Vegeler, Beers, Mallers, Backs & Salin, Fort Wayne, IN, Timothy J. Kennedy (argued), Miller, Muller, Mendelson & Kennedy, Indianapolis, IN, for plaintiffs-appellants.

John R. Wilks (argued), Thomas L. Wooding, Wilks & Kimbrough, Fort Wayne, IN, for Salvation Army, Inc.

Deborah M. Leonard, Office of the U.S. Atty., Fort Wayne, IN, William G. Cole (argued), Dept. of Justice, Civil Div., Appellate Section, Washington, DC, for U.S.

Before BAUER, REAVLEY ^* and RIPPLE, Circuit Judges.

RIPPLE, Circuit Judge.

Adela Bailor was assaulted brutally and raped by William Holly on May 9, 1991, while Ms. Bailor was working as an administrative assistant at the Fort Wayne office of Prison Fellowship Ministries. At the time of the rape, Holly was serving the final six months of his prison sentence at a Salvation Army "halfway house" in Chicago. Ms. Bailor sued the Salvation Army on the basis of common law negligence and later amended her complaint to bring an action against the United States under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346. The district court granted the Salvation Army's motion for summary judgment and granted the Government's motion to dismiss for lack of jurisdiction. For the reasons stated below, we affirm.

I BACKGROUND

A. Facts

William Holly, a convicted felon, ¹ violated the conditions of his work release from prison The Bureau of Prisons sent Holly to the Metropolitan Correctional Center ("MCC"), a secure facility for federal inmates in Chicago, to serve his term. ³ After Holly had served some time at the Correctional Center, he completed an application for transfer to a community corrections center, a halfway house in which federal inmates can spend the last six months of their sentence. These halfway houses are designed to ease the transition for inmates from prison to society.

                in December 1988 when he left Fort Wayne, Indiana and travelled to Indianapolis for a weekend. 2  Federal marshals were notified, and Holly was picked up and arrested December 12, 1988 on an escape charge for which he later received a twenty-four-month sentence
                

In December 1990, a Bureau of Prisons group recommended that Holly be transferred to the Salvation Army facility. The group expressed concern over Holly's placement because of a prior conviction for bank robbery. However, the acting warden of the Correctional Center approved the application after reviewing Holly's file and learning that the warden had previously discussed Holly's placement and had expressed an intent to approve the transfer. The file included sentence monitoring reports, progress reports, a FBI record sheet, and the U.S. Probation Department's pre-sentence report prepared in connection with Holly's escape charge.

The entire referral packet was reviewed by the intake officer at the Salvation Army facility. The Salvation Army has the right to reject applicants, but, generally, individuals with a history of "excessive violence" constitute the only rejections. ⁴ Additional information from the Bureau of Prisons was requested, but none was made available. With the exception of a 1966 rape charge, Holly's history was deemed unremarkable, and his transfer was approved. On January 21, 1991, Holly was transferred to the Salvation Army facility.

At the Salvation Army facility, as in other community correction centers, Holly was free to leave the facility as long as he returned by 11:00 p.m., participated in a counseling program, and submitted to random drug testing. In April, Holly's drug test revealed traces of cocaine. The Salvation Army personnel had two options upon the failure of a drug test. They could draft an incident report, give Holly a copy, and proceed to a disciplinary hearing. Holly would be able to remain at the facility until the resolution of such a proceeding. In the alternative, if the personnel believed Holly presented a risk of harm to himself or other residents, or was a potential escapee, the personnel could request, without any notice or hearing, that the United States Marshals Service immediately detain him. The Salvation Army personnel believed Holly did not present an immediate risk and informed him on May 6, 1991 about the disciplinary violation. Approximately eight minutes later, Holly left the facility after being warned by the Salvation Army shift manager about the consequences of such an action. At the time, Holly stated, "I'm out of here. I'm not going back to no MCC."

The Bureau of Prisons was immediately notified of Holly's escape. The Bureau in On May 9, 1991, Holly called Jackson's office numerous times. Jackson and his staff, with the exception of Adela Bailor, were not present in the office. Holly ultimately arrived at the offices in the afternoon; he was told by Ms. Bailor that he could wait for Mr. Jackson. Holly became increasingly agitated and hostile. He eventually raped and beat Ms. Bailor.

turn notified the federal marshals for the Northern District of Illinois. Two days later, Holly contacted Ken Jackson of the Prison Fellowship Ministries in Fort Wayne for assistance. Holly informed him that he was released and was coming for assistance. Mr. Jackson asked Holly to telephone him when he arrived into town.

B. District Court Proceedings

On May 6, 1993, the Bailors filed their complaint against the Salvation Army, the Prison Fellowship Ministries, and Ken Jackson. They alleged common law negligence against the Salvation Army, and common law intentional tort and Sec. 1983 claims against Mr. Jackson and the Prison Fellowship Ministries. Jurisdiction was based on diversity of citizenship. In November 1993, the Bailors filed an amended complaint, adding the United States pursuant to the Federal Tort Claims Act.

In June 1994, the district court issued its judgment. The court granted the summary judgment motions of the Salvation Army, Jackson, and the Prison Fellowship Ministries. It also granted the United States' motion to dismiss for lack of jurisdiction. The Bailors appeal only the judgments in favor of the Salvation Army and the United States.

II ANALYSIS

A. The Salvation Army

Our examination of the district court's decision to grant summary judgment to the Salvation Army is governed by the de novo standard of review. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). The record must be viewed, and inferences must be drawn, in the light most favorable to the nonmoving party. Schultz v. General Elec. Capital Corp., 37 F.3d 329, 333 (7th Cir.1994). The judgment will be affirmed if there exists no genuine issue of material fact and if judgment for the Salvation Army is proper as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).

As a preliminary matter, we note that, because Holly attacked Ms. Bailor in Indiana, the substantive law of Indiana should be applied to this case. Maroon v. State, Dep't of Mental Health, 411 N.E.2d 404, 409 (Ind.Ct.App.1980); see In re Estate of Bruck, 632 N.E.2d 745, 747 (Ind.Ct.App.1994) (citing Hubbard Mfg. Co. v. Greeson, 515 N.E.2d 1071 (Ind.1987)). In any event, both Ms. Bailor and the Salvation Army agree that Indiana law should be applied in this case. Under Indiana law, Ms. Bailor must establish three elements to allege a negligence claim: (1) a duty of the Salvation Army to conform conduct to a standard of care arising from its relationship with Ms. Bailor; (2) a failure of the Salvation Army to conform conduct to the requisite standard of care arising from the relationship; and (3) a showing that Ms. Bailor's attack was proximately caused by the Salvation Army's failure to conform to the standard of care. See Webb v. Jarvis, 575 N.E.2d 992, 995 (Ind.1991).

The first element, whether the Salvation Army owed Ms. Bailor a duty, is a question of law which we determine de novo. Sports, Inc. v. Gilbert, 431 N.E.2d 534, 535 (Ind.Ct.App.1982) (citing Neal v. Home Builders, Inc., 232 Ind. 160, 111 N.E.2d 280 (1953)). Three factors should be considered in determining whether a duty existed: (1) the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public policy concerns. Webb v. Jarvis, 575 N.E.2d at 995 (Ind.1991).

1. The Relationship between Ms. Bailor and the Salvation Army

Absent privity deriving from a special consensual relationship between Ms. Bailor and the Salvation Army, there must exist another independent basis to impose a duty of care on the Salvation Army. "When addressing the duty to control the conduct of others, the courts of Indiana generally follow the principles set forth in the Restatement (Second) of the Law of Torts." Cole v. Indiana Dep't of Correction, 616 N.E.2d 44, 46 n. 1 (Ind.Ct.App.1993). The general rule is set forth in Sec. 315. That section provides in relevant part:

There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless

(a) a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or

(b) a special relationship exists between the actor and the other which gives to the other a right of protection.

Section 319 elaborates on these general criteria in the context before us today. That section, entitled "Duty of Those in Charge of Person Having Dangerous Propensities," provides:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.

To establish the special relationship...