Lm ex rel. Km v. U.S.

• Decision Date: 24 September 2003
• Docket Number: No. 02-3583.,02-3583.
• Citation: 344 F.3d 695
• Parties: Lm, Guardian on Behalf of Km, a Minor, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

344 F.3d 695

Lm, Guardian on Behalf of Km, a Minor, Plaintiff-Appellant, v. United States of America, Defendant-Appellee.

No. 02-3583.

United States Court of Appeals, Seventh Circuit.

Argued February 27, 2003.

Decided September 24, 2003.

Thomas C. Marszewski, Montgomery & Associates, Chicago, IL, for Plaintiff-Appellant.

Lisa M. Noller, Office of the United States Attorney, Chicago, IL, for Defendant-Appellee.

Before KANNE, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

No one can condone the sexual abuse of a young child. Nevertheless, however deplorable such behavior is, the question here is whether someone other than the perpetrator him- or herself is responsible for the resulting injury. Specifically, we must decide whether the United States is liable under the Federal Tort Claims Act (FTCA) for a mail carrier's sexual abuse of a seven-year-old girl who lived in a home on his mail delivery route. The answer is yes only if the United States Postal Service (USPS or Postal Service) undertook a voluntary, Good Samaritan duty to protect the girl and other children from the mail carrier when it temporarily assigned him to desk duty pending the investigation of earlier sexual abuse allegations, and then if it breached that duty when it later reassigned the mail carrier to a delivery route in a nearby suburb. The district court dismissed the complaint filed by the girl's father on the government's motion, finding a lack of jurisdiction. FED. R. CIV. P. 12(b)(1). Although we feel great sympathy for the child and family involved, we must affirm the district court's judgment.

I

LM filed a lawsuit invoking the FTCA, 28 U.S.C. §§ 1346, 2671 et seq., after exhausting his administrative remedies by submitting a claim to the USPS, and then filing a written request for reconsideration after his claim was denied. The facts set forth in LM's complaint were properly taken as true by the district court in deciding the government's motion to dismiss. Transit Express, Inc. v. Ettinger, 246 F.3d 1018, 1023 (7th Cir.2001). We do the same on appeal. Thompson v. Illinois Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir.2002).

From some time prior to 1990 until after August 11, 1998, the USPS employed a mail carrier, Leslie Tucker. Tucker came to be called "Lester the Molester" by his co-workers because of his notorious sexual abuse of the children who lived along his routes. LM is the father and guardian of KM, a minor, who resides in Park Forest, Illinois. He brought this lawsuit on his daughter's behalf, alleging that she was sexually abused by Tucker when she was seven years old. LM claimed that on August 11, 1998, a neighbor observed Tucker lure KM behind his truck where he "repeatedly inserted his hands inside her pants, intermittently removing, smelling, and tasting his fingers, before proceeding again numerous times over a period of approximately eight minutes." The neighbor who witnessed these events called 911. Tucker was subsequently prosecuted by the state, pleaded guilty to criminal charges, and was still in prison at the time LM filed his complaint.

According to LM, during the course of Tucker's career with the Postal Service, he sexually abused at least 10 minor girls who ranged in age from two to twelve years old. LM further alleged that the USPS learned of Tucker's inappropriate and criminal conduct toward young girls both through numerous complaints from relatives of his various victims and through notice from the Richton Park police that Tucker was being investigated for sexually molesting a two-year-old girl and a four-year-old girl. LM alleged that at some point in 1990, in response to this information, the USPS removed Tucker from his mail delivery route. During this period Tucker was assigned to desk duty. Some time after 1990, Tucker was reassigned to a postal route. Well before 1998, when the events giving rise to this appeal occurred, the authorities responsible for the Park Forest branch post office were notified by a concerned grandmother that Tucker was a known child molester, and that he was observed delivering mail in Park Forest.

Based on these facts, LM sued, initially claiming that the USPS had negligently hired, screened, and retained Tucker, a known child molester. LM asserted that by removing Tucker from his assigned route, the USPS "assumed responsibility to keep Tucker out of the neighborhoods." When Tucker was subsequently given another delivery route, LM continued, the Postal Service breached "an affirmative duty to protect the public, given its knowledge of Tucker's sexual molestation of children while on his carrier routes." In response to the government's motion to dismiss his complaint, LM disavowed the portion of his complaint that sought relief for the USPS's negligent hiring, supervision and retention of Tucker. Instead, he confined himself to the argument that USPS was liable because it had breached an affirmative, voluntarily assumed duty to protect the children who lived along Tucker's mail carrier route. The district court, finding no support in Illinois law for LM's claim that the Postal Service undertook a voluntary duty to protect children from harm based on its knowledge of the risk that Tucker may have posed, dismissed LM's complaint.

II

The U.S. government, like other sovereign entities, enjoys sovereign immunity from liability for its agents' tortious acts. Doe v. United States, 838 F.2d 220, 221 (7th Cir.1988). Congress waived this immunity for a wide range of tort claims when it enacted the Federal Tort Claims Act. Id. at 221. The FTCA permits a tort suit against the United States "where injury to person or property is `caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.'" Id. (quoting 28 U.S.C. § 1346(b)). While this waiver of sovereign immunity is broad, it is not without limit. Calderon v. United States, 123 F.3d 947, 948 (7th Cir.1997) (explaining that "many important classes of tort claims are excepted from the Act's coverage"). For example, the government has not consented to be sued for the intentional torts of its employees and agents. 28 U.S.C. § 2680(h); Sheridan v. United States, 487 U.S. 392, 395, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988). The FTCA contains a jurisdictional limitation that specifies that its "broad grant of jurisdiction `shall not apply to ... [a]ny claim arising out of assault, battery' or other specified intentional torts." 487 U.S. at 398, 108 S.Ct. 2449 (quoting 28 U.S.C. § 2680(h)) (alterations in original).

The so-called "assault and battery" exception to the FTCA has been the subject of judicial and scholarly interpretation because the phrase "arising out of assault, battery" is susceptible to both a broad and narrow interpretation. Id. at 399-400, 108 S.Ct. 2449 (citing 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, 822-25 (1981)); Senger v. United States, 103 F.3d 1437, 1441-42 (9th Cir.1996); see also Rebecca L. Andrews, Note, So the Army Hired an Ax-Murderer: The Assault & Battery Exception to the Federal Tort Claims Act Does Not Bar Suits for Negligent Hiring, Retention and Supervision, 78 WASH. L. REV. 161, 168-70 (2003); Geri Ann Benedetto, Note, Torts—The Talismanic Language of Section 2680(h) of the Federal Tort Claims Act, 60 TEMP. L.Q. 243 (1987). As the Court explained in Sheridan, this phrase could be interpreted literally as a bar to recovery for any claim that originates in an assault or battery, but it need not be. 487 U.S. at 400, 108 S.Ct. 2449. And the phrase offers little guidance where a plaintiff seeks to recover for the government's ordinary negligence when it occurs in conjunction with an employee's assault or battery. Id. Despite this ambiguity, a majority of the Court in Sheridan believed that § 2680(h) should not be interpreted so broadly that it serves as a bar against relief where a plaintiff demonstrates that the government, in violation of a duty it owed to the victim, negligently allowed an intentional tort to occur independently of its employment relationship with the tortfeasor. Id. at 401-02, 108 S.Ct. 2449; see also Leleux v. United States, 178 F.3d 750, 757 (5th Cir.1999) ("Sheridan stands for the principle that negligence claims related to a Government employee's § 2680(h) intentional tort may proceed where the negligence arises out of an independent, antecedent duty unrelated to the employment relationship between the tortfeasor and the United States.").

LM relies heavily on Sheridan and Doe in support of his claim that the USPS breached a duty that it owed his daughter that was unrelated to its employment relationship with Tucker. In Sheridan, an off-duty member of the military injured the plaintiff when he fired shots at the plaintiff's car as the plaintiff drove by the Bethesda Naval Hospital. Id. at 393-94. The Court found the government liable for the plaintiff's injuries because earlier in the evening several naval corps members found the off-duty serviceman drunk and in possession of a loaded rifle, both in violation of navy rules. Their subsequent failure to take any steps to alert base authorities that the serviceman was drunk and wielding a gun, combined with the Navy's voluntary decision to draft rules under which such conduct was prohibited, formed the basis of the government's tort liability. As the Court explained: "the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of Carr's [the off-duty Naval corps member] employment status." Id. at 401, 108 S.Ct. 2449 (emphasis added). The Court distinguished the source of liability in the case before it from the hypothetical case in which an off-duty member of...