Pennington v. United States, 74 C 810.

• Decision Date: 23 January 1976
• Docket Number: No. 74 C 810.,74 C 810.
• Citation: 406 F. Supp. 850
• Parties: Dianne PENNINGTON, as Administratrix of the goods and chattels of the Estate of Edward Joseph Pennington, Deceased, and Dianne Pennington, Individually, Plaintiff, v. The UNITED STATES of America et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

406 F. Supp. 850

Dianne PENNINGTON, as Administratrix of the goods and chattels of the Estate of Edward Joseph Pennington, Deceased, and Dianne Pennington, Individually, Plaintiff, v. The UNITED STATES of America et al., Defendants.

No. 74 C 810.

United States District Court, E. D. New York.

January 23, 1976.

Dreher & Stanziale, Brooklyn, N. Y., for plaintiff.

David G. Trager, U. S. Atty., E. D. N. Y., by Cyril Hyman, Asst. U. S. Atty., Leo E. Berson, New York City, for defendants.

OPINION AND ORDER

PLATT, District Judge.

This is an action by plaintiff to recover for injuries allegedly inflicted upon her husband by defendant Jerry Miller, which injuries are further alleged to have led to her husband's death. The complaint charges that Miller, then a Deputy United States Marshal, maliciously, wantonly, and recklessly shot plaintiff's husband on or about July 19, 1973, and that Miller at the time was intoxicated. The complaint then states that the United States, the United States Department of Justice, the United States Marshal's Service and Benjamin Butler, the United States Marshal for the Eastern District of New York, were negligent in that they allowed Miller to carry a firearm despite their knowledge of his alleged dangerous propensities toward violence and drunkenness, and in that they failed properly to supervise Miller so as to prevent him from carrying a firearm. Also joined as defendants are the bar where Miller allegedly drank and the owner of the bar.

The federal defendants have moved for dismissal or, alternatively, for summary judgment. Plaintiff now concedes that the Department of Justice, the Marshal's Service, and Benjamin Butler are not proper parties to this action, and the complaint will therefore be dismissed as to them.

The remaining issue between the parties is whether this suit may be maintained against the United States, which has invoked the doctrine of sovereign immunity, contending that waivers of immunity under the Federal Tort Claims Act are not relevant here because of the exception of 28 U.S.C. § 2680(h). That section (since amended) provided at the time of the events here relevant that the federal government's immunity from suit was not waived as to "any claim arising out of assault, battery . .." Plaintiff argues in response that while its claim against defendant Miller may be one for assault and battery, its claim against the United States is predicated upon negligent performance of duties, which negligent performance made possible assault and battery. The question for this Court is whether such a negligence claim is one "arising out of" assault or battery within the meaning of 28 U.S.C. § 2680(h).

It is by now well settled that where negligent performance of duties owed by the government to certain individuals makes possible assaults on those individuals by non-employees of the government, § 2680(h) will not bar a negligence claim against the government (although an absence of proximate cause might of course still be found). For example, in Panella v. United States, 216 F.2d 622 (2d Cir. 1954) (Harlan, J.), an inmate at a United States drug hospital was allegedly assaulted by another inmate because of negligence of employees of the United States in not providing sufficient numbers of guards, or other adequate supervision over inmates. Although the cause of action in a sense "arose out of" assault and battery, the Court narrowly interpreted the § 2680(h) exception to the waiver of tort immunity to permit the action grounded not on assault but on negligent supervision. See also e. g. Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972); Rogers v. United States, 397 F.2d 12 (4th Cir. 1968); 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).

On the other hand, it seems that where the claim against the government is based on alleged inadequate training or negligent supervision of an on-duty government employee, which allows or causes the employee to commit an assault, the language of § 2680(h) is applicable and the claim is barred. Panella v. United States, supra; Davidson v. Kane, 337 F.Supp. 922 (E.D.Va.1972); Collins v. United States, 259 F.Supp. 363 (E.D.Pa. 1966). The question that remains, and the one controlling here, is, does § 2680(h) apply to disallow suits against the government for inadequate training or negligent supervision of an off-duty government employee. For the reasons to follow, we believe that it does.

It seems that among the Circuits only the Fifth has decided the controlling issue, and that Court has done so inconsistently. In United States v. Shively, 345 F.2d 294 (5th Cir.), cert. denied, 382 U.S. 883, 86 S.Ct. 177, 15 L.Ed.2d 124 (1965), a government pistol was negligently issued to an off-duty Army sergeant who used it to injure his former wife and take his own life. The Court held that under Georgia law, the issuance of the pistol was not the proximate cause of the injury to the wife, and that the wife's claim was one "arising out of assault" and thus barred by § 2680(h). In Underwood v. United States, 356 F.2d 92 (5th Cir. 1966), an off-duty airman was negligently permitted to obtain a pistol with which he killed his former wife. The Court held that under Alabama law and under the circumstances of the case, the issuance of the pistol was a proximate cause of the wife's death. The Court then stated that Shively's comments about § 2680(h) had been unnecessary to the decision, and ruled that the § 2680(h) exemption did not apply. The Court's authority was 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), and it was obvious that off-duty servicemen were considered to be for these purposes in a category with non-employees.

We believe that the opinion of the Court in Shively states the correct rule. We assume, as we must, the validity of the holdings that an action against the government for negligence in permitting an assault by a non-employee is not one "arising out of assault", but that an action for permitting an assault by an on-duty employee is one "arising out of assault." And we note that the distinction which we might draw between a non-employee and an off-duty employee is not entirely a satisfactory one. But less satisfactory is the distinction plaintiff asks us to draw between on-duty and off-duty employees. We cannot believe Congress meant to bar suits arising out of assaults only by on-duty employees when it exempted claims "arising out...