Martinez v. Fenn, Civ. A. No. D:87-3067-8.

• Court: United States District Courts. 4th Circuit. United States District Court of South Carolina
• Writing for the Court: F. Mikell Harper, Beaufort, S.C., for plaintiff
• Citation: 702 F. Supp. 126
• Parties: Chris Ann MARTINEZ, Plaintiff, v. Michael R. FENN, Jr., and United States of America, Defendants.
• Docket Number: Civ. A. No. D:87-3067-8.
• Decision Date: 28 December 1988

702 F. Supp. 126

Chris Ann MARTINEZ, Plaintiff,
v.
Michael R. FENN, Jr., and United States of America, Defendants.

Civ. A. No. D:87-3067-8.

United States District Court, D. South Carolina, Beaufort Division.

December 28, 1988.

F. Mikell Harper, Beaufort, S.C., for plaintiff.

Heidi M. Solomon, Asst. U.S. Atty., Charleston, S.C., for defendants.

ORDER

BLATT, Chief Judge.

This matter is before the court on the motion of defendant United States of America to dismiss the complaint, pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or, in the alternative, for summary judgment.

The plaintiff was injured while jogging on the shoulder of Yorktown Boulevard, Marine Corps Depot, Parris Island, South Carolina. The driver of the vehicle was Michael R. Fenn, Jr., a United States Marine. Defendant Fenn pleaded guilty to aggravated assault in a General Courts Martial on August 5, 1986.

702 F. Supp. 127

The United States has raised three grounds in support of its motion to dismiss. The government claims that this suit is barred by the assault exception in the Federal Tort Claims Act, that Fenn was not within the scope of his employment under the doctrine of respondeat superior, and this action is barred by application of the doctrine of res judicata.

The government's first argument for dismissal is that this action is barred by the assault exception to the Federal Tort Claims Act. 28 U.S.C. § 2680(c). This section bars all claims against the United States that arise out of an assault. Doe v. United States, 769 F.2d 174 (4th Cir.1985), and Thigpin v. United States, 618 F.Supp. 239 (D.C.S.C.1985). Defendant Fenn pleaded guilty to aggravated assault. 10 U.S.C. § 928(b)(1). This section states that a person who commits an assault with a dangerous weapon or other means or force likely to produce death or grievous bodily harm is guilty of aggravated assault, which assault may be based upon proof of culpable negligence on the part of the defendant. United States v. Yoakum, 8 M.J. 763 (1980). Defendant Fenn pleaded guilty to conduct constituting culpable negligence. Culpable negligence is synonymous with gross negligence. State v. Barnett, 218 S.C. 415, 63 S.E.2d 57 (1951).

The plaintiff argues that the meaning of "assault" as used in the Federal Tort Claims Act includes only intentional assaults. Under 28 U.S.C. Section 1346(b), the United States may be liable for money damages on claims for "personal injury ... 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, 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."...