Coffey v. United States
| Decision Date | 08 January 1975 |
| Docket Number | Civ. No. H-74-248. |
| Citation | 387 F. Supp. 539 |
| Court | U.S. District Court — District of Connecticut |
| Parties | Stephen James COFFEY v. UNITED STATES of America. |
Joseph E. Fazzano, Hartford, Conn., for plaintiff.
Henry S. Cohn, Asst. U. S. Atty., Hartford, Conn., for defendant.
RULING ON DEFENDANT'S MOTION TO DISMISS
This is an action seeking damages from the United States under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680 (1970) for injuries which the plaintiff alleges that he sustained as a consequence of being shot in the back by a Marine guard at the United States Marine Reserve Center in Hartford. The defendant moves to dismiss the action on the ground of governmental immunity. When Congress enacted the Tort Claims Act to alleviate the harshness of this rule based upon the antiquated doctrine that "the king can do no wrong" it expressly limited the scope of the Act's remedies. The gravamen of the plaintiff's complaint falls within those claims expressly excepted from the Act, to wit, "any claim arising out of assault, battery" etc. See 28 U.S.C. § 2680(h) (1970).
The defendant has sought to avoid the net of this exception by alleging negligence on the part of the Marine guard. Thus, in this case, he alleges that the guard was "grossly negligent" and "careless" in that "he negligently discharged his revolver when not necessary in view of all the conditions existing at the aforesaid time and place." Complaint ¶ 7(e). However, this suit is permissible only by virtue of the government's consent as manifested in the Tort Claims Act. In construing the reach of that consent a plaintiff cannot overcome the exceptions in § 2680(h) merely by the artistry of his pleading. "It is, of course, the substance of the claim, and not the language used in stating it, that controls." Blitz v. Boog, 328 F.2d 596, 599 (2d Cir. 1964). In Nichols v. United States, 236 F.Supp. 260, 263 (N.D. Miss.1964), in rejecting a similar claim sought to be brought under the same Act, it was held that in determining the scope of the exception:
See United States v. Faneca, 332 F.2d 872 (5th Cir. 1964); Klein v. United States, 268 F.2d 63 (2d Cir. 1959); Smith v. United States, 330 F.Supp. 867 (E.D.Mich.1971). It is clear that plaintiff's claim "in substance and essence" arises...
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...arises out of an assault and battery." Nichols v. United States, 236 F.Supp. 260, 263 (N.D.Miss.1964), quoted in Coffey v. United States, 387 F.Supp. 539, 540 (D.Conn.1975) (emphasis An examination of the Naisbitt case from the Tenth Circuit and the Hughes case from the Fourth Circuit revea......
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...450 U.S. 966, 101 S.Ct. 1482, 67 L.Ed.2d 614 (1981); Gaudet v. United States, 517 F.2d 1034 (5th Cir.1975); Coffey v. United States, 387 F.Supp. 539, 540 (D.Conn.1975) (quoting Nichols v. United States, 236 F.Supp. 260, 263 The plaintiffs here only offered a conclusory allegation that "the ......
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...cert. denied, 380 U.S. 971, 85 S.Ct. 1327, 14 L.Ed.2d 268 (1965); Klein v. United States, 268 F.2d 63 (2d Cir.1959); Coffey v. United States, 387 F.Supp. 539 (D.Conn.1975)). In so doing courts must always protect against "judicially admitting at the back door that which has been legislative......
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Bryson v. United States
...v. United States, 528 F.2d 441 (2d Cir.), cert. denied 426 U.S. 921, 96 S.Ct. 2627, 49 L.Ed.2d 374 (1976), and Coffey v. United States, 387 F.Supp. 539 (D.Conn.1975). The plaintiffs in both of these cases sought to characterize offensive conduct as negligence to avoid section 2680(h). In ea......