Hoot v. U.S.

• Decision Date: 12 May 1986
• Docket Number: No. 85-1774,85-1774
• Citation: 790 F.2d 836
• Parties: Diane HOOT, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 836

790 F.2d 836

Diane HOOT, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

No. 85-1774.

United States Court of Appeals, Tenth Circuit.

May 12, 1986.

James W. Winchester, Asst. U.S. Atty. (Robert N. Miller, U.S. Atty., with him on brief), Denver, Colo., for defendant-appellant.

Ronald G. Crowder, Colorado Springs, Colo., for plaintiff-appellee.

Before HOLLOWAY, Chief Judge, and ANDERSON and McWILLIAMS, Circuit Judges.

McWILLIAMS, Circuit Judge.

Diane Hoot was physically assaulted by Kevin Firth, a soldier in the United States Army stationed at Ft. Carson, Colorado. The assault occurred in Ms. Hoot's apartment in Colorado Springs, Colorado. Hoot and Firth apparently were not acquainted, and Firth had entered Hoot's apartment, in her absence, by stealth.

Based upon the incident, which was most violent in nature, Hoot brought the present action under the Federal Tort Claims Act, 28 U.S.C. Sec. 2671, et seq., in the United States District Court for the District of Colorado, against the United States. Hoot alleged in her complaint, inter alia, that she "was physically assaulted by Kevin Firth, threatened with a deadly weapon, bound, held captive, eventually strangled into unconsciousness and left for dead." Further, in connection with what she described in her complaint as an "assault and battery" on the part of Firth, Hoot alleged that her various injuries were the "direct and proximate result" of the negligence of the United States and its employees. Specifically, it was alleged by Hoot that for some time prior to the assault Firth himself recognized that he was "mentally unbalanced" and that in connection therewith, he, on several occasions, sought treatment from his superiors in the military and that the latter refused his request for medical and mental examination and treatment.

The United States filed a motion to dismiss the action on the ground that it was barred by the assault and battery exclusion of 28 U.S.C. Sec. 2680(h) ¹. The trial court denied the motion, 598 F.Supp. 1116. A motion to reconsider its ruling was also denied by the trial court. Immediate appellate review of the propriety of the order denying the motion to reconsider was granted pursuant to the provisions of 28 U.S.C. Sec. 1292(b).

In denying the motion to dismiss, the trial court distinguished Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980) on the basis that in Naisbitt there was only a "generalized allegation" that the United States had negligently failed to supervise military personnel who had, when off duty, assaulted non-military persons, whereas, in the instant case, Hoot alleged specific acts of negligence on the part of the United States, i.e., Firth had asked his superiors for medical examination and treatment and had been refused.

In its motion for reconsideration, the United States for the first time cited Wine v. United States, 705 F.2d 366 (10th Cir.1983) and argued that it was dispositive of the matter. In Wine, the plaintiff alleged that the United States Air Force had negligently failed to provide psychiatric treatment for an enlisted man who, when off duty, assaulted a non-military person. The trial court declined to follow Wine, believing that Wine "dramatically expanded" the ambit of Naisbitt far beyond its underlying rationale. We disagree and believe that Wine and Naisbitt, particularly Wine, control the present case.

In Naisbitt, two off-duty airmen committed a variety of atrocious assaults, batteries, rapes, and murders against non-military personnel. Actions sounding in tort were brought against the United States. The theory of the plaintiffs' cases was that the United States itself was guilty of "actionable negligence in failing to supervise and curtail the two airmen in question in that it was reasonably foreseeable that they would, unless restrained, perpetrate serious injuries." 611 F.2d at 1351. A motion to dismiss filed by the United States based on the "assault and battery" exception contained in 28 U.S.C. Sec. 2680(h) was granted by the trial court. On appeal, we affirmed. In so doing, we commented as follows:

In summary: There is a strong thread running through most of these cases ... which recognizes the immunity of the government where the assailant is an employee of the government. This is applied regardless of whether the employee is on duty. The district court here considered the fact that Pierre and Andrews were employees to be a compelling reason for holding that Sec. 2680(h), applied. The rationale for this appears to be that where the intervening assailant is an employee, the tort with which the government is charged is in fact as well as law an intentional one subject to the Sec. 2680(h) provision. There is a dearth of authority allowing an action to be prosecuted against the government under the Tort Claims Act where the intervening assailant was an employee. In any case in which the employee has intentionally injured another, the tort asserted against the government, regardless of whether it is called negligence, is indeed an intentional tort attributable to the government. This may well be because of the doctrine of respondeat superior or because the employee is closely related to the government. It would appear to be the proximity of the employee which gives the government's role its intentional quality.

611 F.2d at 1356.

The Wine case is in our view even more on point. In Wine, a non-military person was cruelly assaulted and shot by a military serviceman who at the time was off duty and, of course, not acting within the scope of his employment with the United States. The victim sued the United States alleging, which was accepted as true, that the Air Force personnel had "failed to provide Morgan [the assaulter in that case] with psychiatric care, and had placed unreasonable pressure and stress upon Morgan in the performance of his duties." 705 F.2d at 366. Such "failure" was necessarily a "negligent failure," otherwise there would be no possible case against the United States. In Wine, as in Naisbitt, the trial court granted a motion to dismiss, holding that the "assault and battery" exception contained in 28 U.S.C. Sec. 2680(h) barred the action against the United States. On appeal, we affirmed. In Wine, we stated that Naisbitt barred "suit against the government in all cases where the intentional tort was committed by a government employee." 705 F.2d at 367. Wine governs the present case.

Our disposition of this appeal is in accord with the rationale of section IIA of United States v. Shearer, --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), which section was joined in by four justices, with four justices not joining therein, and one justice taking no part in the decision of the case. "[The claimant] cannot avoid the reach of Sec. 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery." 105 S.Ct. at 3042 (emphasis in the original).

Believing that adherence to Wine requires a reversal, we reverse and remand with direction to the trial court to grant the motion to dismiss and to dismiss the action. The issue may not be free from all doubt, as other courts have taken a different position on the matter. ² However, at the same time, there are cases supportive of the result reached in Wine and Naisbitt. ³ We need not repeat here all the nuances made by other courts in other cases. It is sufficient here merely to observe that, in our view, Hoot's claim is one "arising out of assault, battery...." 28 U.S.C. Sec. 2680(h). Absent the assault and battery perpetrated on Hoot by Firth, there would be no claim. Clearly, in our view, the claim "arose out of" the assault and battery and no amount of "semantics" can change it. See 105 U.S. at 3042.

Judgment reversed and case remanded with direction that the trial court grant United States' motion to dismiss and then dismiss the action.

HOLLOWAY, Chief Judge, concurring in the result:

The majority opinion outlines the nature of the complaint and the challenge to it by the Government under 28 U.S.C. Sec. 2680(h). However, a more detailed focus on the complaint will help to explain my concerns about the case.

The complaint states, among other things, the following allegations. Plaintiff Diane Hoot was not an employee or agent of the Government. The defendant through its agents and employees in 1979 and 1980 negligently failed and refused to provide medical and mental treatment to Kevin Firth, a soldier at Ft. Carson, Colorado, who on or about October 25, 1980, committed assault and battery against plaintiff. Sgt. Wilhite, Lt. Ronningen, and Platoon Sgt. Lang, Firth's immediate supervisors, were employees of the Government stationed at Fort Carson.

In 1979, well prior to the October 1980 assault on Diane Hoot, Firth knew he was mentally unbalanced as a result of suicidal ideations, inter alia, and sought mental health treatment at a health center in Colorado Springs. He was refused treatment because of his military status and encouraged to seek help through the Army.

Firth then asked for help through his immediate supervisor, Sgt. Ray, who took the necessary steps to obtain an appointment for Firth with the Army Community Services (ACS). Firth understood he needed an appointment to go to the ACS, open only during duty hours, and an appointment had to be arranged through his supervisors. When Firth appeared for his appointment he was screened by an unknown private, "Jane Doe," and was refused access to a doctor.

Paragraph 12 of the complaint avers that "Firth's mental problems worsened; he irrationally fired a pistol round through the floor of a friends automobile; in the field he pulled a grease gun (automatic rifle) on a fellow soldier, and...