Naisbitt v. U.S., s. 79-1237

• Decision Date: 02 January 1980
• Docket Number: Nos. 79-1237,79-1240 and 79-1241,79-1239,79-1238,s. 79-1237
• Citation: 611 F.2d 1350
• Parties: Byron H. NAISBITT, Executor of the Estate of Carol Naisbitt, Deceased; Byron H. Naisbitt, As Guardian Ad Litem of Cortney Naisbitt, Laura W. Sword, Administratrix of the Estate of Sherry Michelle Ansley, Deceased; Orren W. Walker, Jr.; and Orren W. Walker, Jr., Administrator of the Estate of Stanley O. Walker, Deceased, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1350

611 F.2d 1350

Byron H. NAISBITT, Executor of the Estate of Carol Naisbitt Deceased; Byron H. Naisbitt, As Guardian Ad Litem of Cortney Naisbitt, Laura W. Sword, Administratrix of the Estate of Sherry Michelle Ansley, Deceased; Orren W. Walker, Jr.; and Orren W. Walker, Jr., Administrator of the Estate of Stanley O. Walker, Deceased, Plaintiffs-Appellants, v. The UNITED STATES of America, Defendant-Appellee.

Nos. 79-1237, 79-1238, 79-1239, 79-1240 and 79-1241.

United States Court of Appeals Tenth Circuit.

Argued July 30, 1979.

Decided Jan. 2, 1980.

C. C. Patterson, Joseph H. Bottum and Bruce R. Baird, Ogden, Utah, for plaintiffs-appellants.

Barbara Allen Babcock, Asst. Atty. Gen., Washington, D. C., Ronald L. Rencher, U. S. Atty., Salt Lake City, Utah and Robert E. Kopp and Phyllis Jackson Lee, Civil Division, Dept. of Justice, Washington, D. C., for defendant-appellee.

Before McWILLIAMS, DOYLE and LOGAN, Circuit Judges.

WILLIAM E. DOYLE, Circuit Judge.

This action was brought by personal representatives of a number of persons who were victims of crimes committed by two airmen, Dale S. Pierre and William Andrews, who were assigned to duty at Hill Air Force Base near Ogden, Utah. The case arose under 28 U.S.C. §§ 1346 and 2671 Et seq. There are five different lawsuits which have been consolidated for trial and for appeal.

The incidents here occurred on April 22, 1974, when two off-duty airmen entered a privately-owned retail store in Ogden, Utah, and committed a variety of atrocious acts including assaults, rapes, batteries and murders against the plaintiffs and the plaintiffs' decedents. Five persons were shot and three were killed.

The theory of plaintiffs' cases is that the United States 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. The United States moved to dismiss the actions claiming lack of subject matter jurisdiction under the Federal Tort Claims Act, 28 U.S.C. § 2680(h), which excepts the government's waiver of immunity where the liability claim arises from assault and battery.

A further legal argument of the government is that under 28 U.S.C. § 2674, there must have been a legal duty running from the government to the person injured in order to render the government liable in the same manner and to the same extent as a private individual under like circumstances.

Plaintiffs amended their complaint so as to include § 1346(b) as a part of its jurisdictional basis. This section merely says that subject to Chapter 171 of the title, the district court has exclusive jurisdiction of civil actions in claims against the United States for money damages or injury to property or personal injury or death caused by the negligence of any employee of the government while acting within the scope of his office or employment under circumstances where the United States or a private person would be liable to the claimant in accordance with the laws of the place where the act or omission occurred.

The district court granted the defendant's motion to dismiss, on the ground that the claim actually arose from assault and battery and was therefore barred by 28 U.S.C. § 2680(h), the immunity exception. This provides that the waiver of immunity shall not apply to "Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights."

THE ISSUES

The first question to be considered is whether the above-described deaths and injuries which resulted from batteries and which are presented on the theory of negligence of the government in failing to protect the public from the viciousness of servicemen can be maintained under the Federal Tort Claims Act notwithstanding that intentional torts are within the immunity retained in § 2680(h).

A second question arises only if we hold that there existed a duty on the part of the United States to protect the persons who were killed from the injuries which were suffered. This remaining question would be whether Utah recognizes a cause of action in negligence where criminal acts of third persons intervened.

THE TRIAL COURT'S DECISION

The trial court rested its judgment of dismissal on the principle that a distinction is to be drawn between assaults committed by government employees and assaults which were committed by non-government employees. Section 2680(h), the court said, has been construed to apply and to bar suits against the United States which were based on intentional wrongs committed by employees notwithstanding that the alleged liability is said by the plaintiff to rest on the negligence of government officials charged with the duty of supervision or control of the employees who committed the assault. The court cited Pennington v. United States, 406 F.Supp. 850 (E.D.N.Y.1976), and Panella v. United States, 216 F.2d 622 (2d Cir. 1954). The courts take a different view as to the applicability of § 2680(h) when the intentional wrongs are committed by non-government employees where there has existed a governmental duty to supervise and control. The court cited Muniz v. United States, 305 F.2d 285 (2d Cir. 1962), Aff'd 374 U.S. 150, 83 S.Ct. 1850, 10 L.Ed.2d 805 (1963).

The court noted that although the plaintiffs' claims sounded in negligence, ¹ they were barred because their true nature and character were of intentional torts. Negligence, the court continued, was invoked merely to avoid § 2680(h), the court was reluctant to recognize this negligence theory as a matter of policy because to do so would destroy the effectiveness of § 2680(h) where intentional torts were committed by employees of the government. Under this analysis, sovereign immunity is waived notwithstanding § 2680(h), in situations such as where federal prison employees negligently fail to supervise or control prisoners or hospital employees fail to supervise patients as a result of which an assault and battery or other intentional tort is perpetrated by the uncontrolled patient or prisoner.

The trial court embraced the employee as opposed to the non-employee distinction. It stated:

The sole basis for imposing liability on the government is the fact that two government employees committed Intentional wrongs against plaintiffs and their decedents. Thus, this is unlike the case in which the government is sued for failure to adequately supervise non-employees. There the sole basis for liability is the negligence of the government officials charged with the duty of supervision. In such a case, negligence is not merely an alternative theory of liability; it is the only basis upon which the government can be held responsible. The intentional wrong cannot itself be the basis of liability because that act was not committed by a government official. Here, in contrast, government liability is possible only because government employees committed the intentional act. Thus, although plaintiffs' complaint is drawn in terms of negligence, the essence of the cause of action is an assault and battery committed by two individuals who were government employees at the time of the wrongful acts. The claim arises Only because of the Intentional wrong committed by employees of the sovereign and is, therefore, a claim "arising out of" an assault and battery and is within the scope of § 2680(h). Plaintiff's negligence theory is, in this case, merely an alternate theory of liability. Panella v. United States, 216 F.2d 622 (2d Cir. 1954); Pennington v. United States, 406 F.Supp. 850 (E.D.N.Y.1976); Collins v. United States, 259 F.Supp. 363 (E.D.Pa.1966). (Emphasis in original)

DOES 28 U.S.C. § 2680(h) BAR THE PRESENT ACTION?

We are constrained to hold that it does. The leading case on the applicability of 28 U.S.C. § 2680(h) is Panella v. United States, 216 F.2d 622 (2d Cir. 1954). The author of the opinion in Panella was Judge John Marshall Harlan. The district court for the Eastern District of New York had granted the government's motion for summary judgment. It had done so on the ground that the action involved a claim arising out of assault which was held to have been barred under § 2680(h) of the Tort Claims Act. The trial court had determined that § 2680(h) embraced assaults by persons not employed by the government as well as those committed by government employees. The part of the district court's decision holding that the non-waiver of immunity contained in § 2680(h) applied to non-government employees was reversed and the court in effect held that in the non-employee case § 2680(h) did not preclude recovery. The plaintiff in this case had been sentenced for a drug offense, but upon his election to undertake treatment he was sent to the Public Health Service Hospital in Lexington, Kentucky, a government institution. While there he was assaulted by another inmate. He sued the United States under the Federal Tort Claims Act contending that the assault was caused by the negligence of employees of the United States in failing to provide adequate guards and by neglecting to properly supervise those confined in the institution. The Second Circuit holding was that a claim sounding in negligence could be prosecuted against the United States where, as in Panella, the assailant was not an employee of the government. The court said that if § 2680(h) was to be read literally, it would apply to assaults committed by persons other than government employees, but that such a reading was out of harmony with the rest of the act. "For in the present case the only basis of liability against the Government is the negligence of its employees, not their deliberate torts, * * * It is therefore important to distinguish cases in which it was sought to hold the Government liable on a negligence theory for assaults committed by Government employees."...