Campbell v. U.S.

• Decision Date: 28 September 2001
• Docket Number: No. Civ.A. 00-11942-NMG.,Civ.A. 00-11942-NMG.
• Citation: 167 F.Supp.2d 440
• Parties: James B. CAMPBELL, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Massachusetts

167 F.Supp.2d 440

James B. CAMPBELL, Plaintiff, v.UNITED STATES of America, Defendant.

No. Civ.A. 00-11942-NMG.

United States District Court, D. Massachusetts.

September 28, 2001.

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Edmund M. Pitts, Pitts & Pitts, Lynn, MA, for plaintiff.

Mary Elizabeth Carmody, United States Attorney's Office, Worcester, MA, for defendant.

MEMORANDUM AND ORDER

GORTON, District Judge.

On September 21, 2000, the plaintiff, James B. Campbell("Campbell") filed a complaint in the United States District Court under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b)and2671 et seq., seeking damages in the amount of $800,000 against the defendant, United States of America ("United States").Campbell's claims arise out of injuries he sustained from an assault and battery by an enlistee of the United States Navy, Seaman John Hernandez, Jr., who was stationed, at the time of the assault and battery, aboard the USS Constitution at the Charlestown Navy Yard in Boston, Massachusetts.

Currently pending before this Court are 1) the United States' contested motion to dismiss for lack of subject matter jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1)(DocketNo. 14), 2) Plaintiff's opposition in which he seeks discovery of all standing orders, regulations, and ship orders of the USS Constitution DocketNo. 19), 3) a letter to the presiding judge from the seaman's commanding officer requesting a stay of court proceedings (DocketNo. 18), and 4) Defendants' request for an abeyance of this Court's Order directing John Hernandez, Jr. to disclose his residential and work addresses to the plaintiff(DocketNo. 17).

I.Defendant's Motion to Dismiss

A.Legal Standard

In considering a motion to dismiss for lack of subject matter jurisdiction under Fed.R.Civ.P. 12(b)(1), the Court assumes that all material allegations set forth in the complaint are true.SeeMulloy v. United States,884 F.Supp. 622, 626(D.Mass.1995);Williams v. City of Boston,784 F.2d 430, 433(1st Cir.1986).The averments of the complaint, as well as their proper inferences, are construed in favor of the plaintiff and the claim will not be dismissed unless "it appears beyond doubt that the plaintiff can provide no set of facts in support of his claim which would entitle him to relief."Williams,784 F.2d at 433;seeMulloy884 F.Supp. at 626.

B.Factual Background

The following facts are synthesized from the pleadings and are construed in a light most favorable to the plaintiff.On September 22, 1997, Campbell, a 58-year-old licensed engineering officer in the U.S. Merchant Marine Service with civilian status, was employed as a primary contractor engaged in the renovation of the SS Noboska.The SS Noboska is an historic ferry vessel docked in the Charlestown Navy Yard several hundred feet from where the USS Constitution is generally moored.

Campbell alleges that as he walked along the dock on his way to work on the SS Noboska at approximately 7:00 AM, he was nearly struck by a vehicle recklessly driven by one Seaman Oliver.Although Campbell was not injured, he proceeded towards the USS Constitution to lodge a complaint with members of the crew.Seaman Downes, a female crew member assigned as Officer of the Deck and "watch stander," was located in the guard shack, a small 10-foot-square building located about 25 feet from the foot of the gangway (or "brow") of the USS Constitution.As such, Campbell claims that Downes had the responsibility to guard the USS Constitution, respond to incidents in the dock area and prevent unauthorized persons from boarding the USS Constitution.As Campbell approached the ship shouting at Naval personnel that he wanted Seaman Oliver reported, crew members on the quarter deck of the USS Constitution"jeered" at him.

One of the jeering crew members, Seaman John Hernandez, Jr., came down from the deck of the vessel and entered the guard shack where he picked up a hammer and hid it behind his right leg.Hernandez then approached Campbell, who was about 10 or 15 feet from the gangway of the vessel, and, with the hammer, struck Campbell on the forehead, over his right eye, rendering him unconscious and causing other injuries as he fell to the dock on his back.

Campbell's complaint broadly alleges that the United States is liable for negligence for allowing the assault and battery upon Campbell.It specifically alleges that Seaman Downes and another sailor negligently allowed Hernandez to enter the guard shack and obtain the hammer and that they negligently failed to prevent the ensuing assault and battery.Finally, the complaint alleges that the supervisory personnel, one Lieutenant Commander Bloom and the officers next in the chain of command, negligently failed to assign responsible navy personnel to control the actions of members of the crew in their absence.

C.Analysis

The FTCA waives sovereign immunity and grants federal district courts jurisdiction over claims against the United States:

for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of an employee of the Government while acting within the scope of his office or employment, 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.Scope of Employment

The defendant argues that when Hernandez committed the assault and battery, he was not acting within the scope of his employment with the United States Navy and therefore Plaintiffs claim is not cognizable under the FTCA § 1346(b).The plaintiff does not, however, allege that the government is vicariously liable for the intentional tort of Seaman Hernandez.Rather, he alleges that the government is vicariously liable for the negligence of supervisory personnel who failed to control the actions of Hernandez and failed to appoint a responsible officer to oversee the conduct of members of the crew of the USS Constitution.The appropriate questions the plaintiff would have this Court answer are, therefore, whether Officer Downes was acting within the scope of her employment when she negligently failed to prevent the assault by Hernandez and whether Lt.Cmdr. Bloom and his subordinate officers were acting within the scope of their employment when they failed to assign responsible personnel to supervise the crew of the ship.

The law of the state in which the tortious act allegedly occurred determines whether the employee was acting within the scope of his employment at the time of the alleged negligence.SeeLyons v. Brown,158 F.3d 605, 609(1st Cir.1998);see alsoCardozo v. Graham,848 F.Supp. 5, 7(D.Mass.1994).In Massachusetts, conduct falls within the scope of employment if:

(a) the conduct is of the kind the employee is employed to perform, (b) it occurs substantially within the authorized time and space limits, and (c) it is motivated, at least in part, by a purpose to serve the employer.

Burroughs v. Commonwealth,423 Mass. 874, 877, 673 N.E.2d 1217(1996).

Petty Officer Downes, Lt.Cmdr. Bloom, and the officers next in the chain of command were exercising conduct of the kind they were employed to perform.As the Officer of the Deck and "watch stander," Downes was required to monitor individuals on or around the USS Constitution and to respond to incidents involving visitors to the ship.Therefore, her response to the incident involving the plaintiff constitutes the very conduct she was employed to perform.As supervisory officers, Lt. Cmdr.Bloom and his subordinate officers were responsible for assigning personnel to watches.Their decisions to remain absent from the ship and to fail to assign and supervise responsible personnel, as alleged by the plaintiff, constitute conduct of the kind they were employed to perform.

The conduct of the supervisory personnel occurred within the authorized time and space limits.Downes was aboard the ship working as the "watch stander" at the time the alleged injuries occurred.Lt. Cmdr.Bloom and his subordinate officers committed their allegedly negligent conduct of failing to assign and supervise at the time of the incident.

The third prong of the "scope of employment" test evaluates whether the action was motivated, at least in part, by a purpose to serve the employer.Petty Officer Downes' response to the incident involving the plaintiff was motivated by a purpose to serve her employer, the United States Navy.As Officer of the Deck and "watch stander," the purpose of her response to the disturbance was to protect her crew, bystanders and the ship.Likewise, Lt. Cmdr.Bloom and his subordinate officers made their personnel decisions to serve the U.S. Navy because personnel decisions are intended to ensure the safety of U.S. Navy ships and promote efficient operations.

In summary, the plaintiff has stated facts sufficient to establish, if proved, that the government employees, Petty Officer Downes, Lt.Cmdr. Bloom, and his subordinate officers, were acting within the scope of their employment at the time of the alleged negligence.

2.Assault and Battery Exception to the FTCA's Waiver of Sovereign Immunity

The FTCA excepts certain intentional torts from its general waiver of sovereign immunity, including:

[a]ny claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit or interference with contract rights.

28 U.S.C. § 2680(h).

The United States argues that Campbell's complaint must be dismissed on the grounds that assault and battery are explicitly excepted from the FTCA's waiver of sovereign immunity.Because the claim is one of negligence as opposed to assault and battery, the government's motion to dismiss pursuant to § 2680(h) will, however, be denied.

Although the term "arising out of" is...