Verran v. U.S.
| Decision Date | 23 February 2004 |
| Docket Number | No. 02-73337.,02-73337. |
| Citation | 305 F.Supp.2d 765 |
| Parties | Michelle VERRAN, Plaintiff, v. UNITED STATES of America, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
Scott P. Batey, Esq., Bingham Farms, for plaintiff.
Peter A. Caplan, Esq., Terri T. Thomas, Esq. AUSA Detroit, for defendant.
Plaintiff Michelle Verran commenced this suit in this Court on August 16, 2002, asserting claims against the Defendant United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., stemming from the brutal assault and rape of Plaintiff by Sergeant Robert Johnson, a United States Marine Corps recruiter.1 This Court has exclusive jurisdiction over this action pursuant to 28 U.S.C. § 1346(b).
As Defendant acknowledges, this is "a disturbing and sordid case," (Defendant's Motion to Dismiss, Br. in Support at 1), involving allegations of extreme brutality by a U.S. military officer at a Marine Corps recruiting office. Nonetheless, by a motion filed on November 6, 2002, and a renewed motion filed on February 18, 2003, Defendant seeks the dismissal of Plaintiff's claims under the intentional tort exception to the FTCA, 28 U.S.C. § 2680(h). Under this statutory provision, claims "arising out of" an assault, battery, or other enumerated intentional torts are excluded from the reach of the FTCA, and hence are barred by sovereign immunity. Defendant argues that Plaintiff's various formulations of her claims in this case, under such tort theories of recovery as premises liability, negligent supervision, and nuisance, all fail to take this case outside the intentional tort exclusion. In responses filed on December 12, 2002 and April 14, 2003, and through an amended complaint filed on January 21, 2003, Plaintiff asserts that she has pled theories of recovery and supporting allegations that avoid the intentional tort exclusion, and that instead rest upon independent duties owed to Plaintiff by fellow government employees of Sergeant Johnson. Defendant filed a reply brief in further support of its motion on January 7, 2003.
On October 30, 2003, the Court held a hearing on Defendant's initial and renewed motions to dismiss. Having reviewed the parties' written submissions and the record as a whole, and having considered the arguments of counsel at the October 30 hearing, the Court now is prepared to rule on Defendant's motions. For the reasons set forth below, the Court finds that Plaintiff's claims fall victim to an unfortunate confluence of Michigan's premises liability law and the FTCA's intentional tort exclusion.
Under the present procedural posture, the Court accepts as true the allegations of the complaint. In particular, the Court looks primarily to the First Amended Complaint filed on January 21, 2003.
In August of 1999, Plaintiff Michelle Verran met Sergeant Robert Johnson of the United States Marine Corps at a local fair. Johnson introduced himself as a Marine Corps recruiter who was working at a recruiting booth at the fair. The two became friendly, and saw each other regularly over the next several months. This relationship was wholly personal; there is no indication that Verran was contemplating enlistment in the military.
On November 4, 2000, Sergeant Johnson lured Plaintiff to a Marine Corps recruiting office in Lapeer, Michigan where he was assigned at the time, under the guise that Plaintiff could observe Johnson as he met with a recruit and delivered his recruiting pitch. When Plaintiff arrived at the office, however, only Johnson was present, and no recruits. Johnson proceeded to pull Plaintiff into a back room and brutally rape her with his fist. When Johnson was finished with this assault, he removed Plaintiff from the recruiting office, where she was left to find her way home. Plaintiff nearly bled to death as a result of the injuries sustained in the rape.
According to the complaint, Navy and Marine Corps officials were fully aware that Sergeant Johnson had a history of excessive drinking, harassment, and physical assaults of women. Plaintiff alleges, upon information and belief, that Johnson was removed from his prior position with the Marine Corps as a result of his excessive drinking and abusive treatment of women. Plaintiff further alleges that the Navy and Marine Corp "received multiple reports from no fewer than five women complaining that Sergeant Johnson had harassed and physically assaulted them." (First Amended Complaint at ¶ 12.)2
Based on these allegations, Plaintiff's First Amended Complaint asserts four theories of recovery. First, Plaintiff advances a premises liability claim, alleging that she had the status of an invitee at the Lapeer recruiting office on the day of Sergeant Johnson's assault, and that Johnson's presence at this office constituted an "unsafe and dangerous condition on the premises" that gave rise to a duty to inform Plaintiff of this condition or make the premises safe. (First Amended Complaint at ¶¶ 17, 24-25.) Count II of the complaint is similar, alleging that two particular Navy officers, Scotty Arias and Kenneth Kuchler, worked at the Lapeer recruiting office, knew of Sergeant Johnson's propensity for harassing and physically assaulting women, and yet failed to discharge their affirmative duties to warn Plaintiff about Johnson's propensities and to exercise reasonable care to keep the premises safe.
Under Count III, Plaintiff alleges that the United States Marine Corps and the Department of the Navy negligently hired and failed to properly supervise Sergeant Johnson, in light of his known history of harassment and physical assault of women. Finally, in Count IV of the First Amended Complaint, Plaintiff alleges that Sergeant Johnson's presence and conduct at the Lapeer recruiting office constituted a nuisance that Defendant was obliged to abate but did not.
Defendant has moved for the dismissal of all of Plaintiff's claims pursuant to Fed.R.Civ.P. 12(b)(1) and 12(b)(6). Regarding the first of these rules, Fed.R.Civ.P. 12(b)(1), Defendant has mounted a wholly facial challenge to the subject matter jurisdiction of the Court — that is, Defendant has "question[ed] the sufficiency of the pleading" as a basis for establishing the Court's jurisdiction. Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir.1990). In resolving such a jurisdictional challenge, the Court "takes the allegations in the complaint as true," and determines whether the facts as alleged give rise to a claim within the Court's subject matter jurisdiction. 922 F.2d at 325. "Where subject matter jurisdiction is challenged pursuant to Rule 12(b)(1), the plaintiff has the burden of proving jurisdiction in order to survive the motion." Moir v. Greater Cleveland Regional Transit Auth., 895 F.2d 266, 269 (6th Cir.1990).
Next, in considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief can be granted, the Court is required to accept as true the well-pleaded factual allegations set forth in Plaintiff's complaint. Morgan v. Church's Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987); Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). However, the Court "need not accept as true legal conclusions or unwarranted factual inferences." Morgan, 829 F.2d at 12. "Under Rule 12(b)(6), a complaint may be dismissed only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." 829 F.2d at 12 (footnote, internal quotations and citations omitted). The Court will apply these standards in resolving Defendant's motion.
It is a familiar principle that the United States enjoys sovereign immunity from suit except to the extent that it consents to be sued. See United States v. Mitchell, 463 U.S. 206, 212, 103 S.Ct. 2961, 2965, 77 L.Ed.2d 580 (1983). Moreover, "the existence of consent is a prerequisite for jurisdiction," Mitchell, 463 U.S. at 212, 103 S.Ct. at 2965, and any "waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign," Lane v. Pena, 518 U.S. 187, 192, 116 S.Ct. 2092, 2096, 135 L.Ed.2d 486 (1996).
By its express terms, the Federal Tort Claims Act ("FTCA") constitutes a limited waiver of the federal government's sovereign immunity. Specifically, it provides:
[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ..., for injury or loss of property, or personal injury or death 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.
28 U.S.C. § 1346(b)(1). This consent to suit is limited in various respects, however. Of particular relevance here, it does not extend to "[a]ny claim arising out of assault, battery," or various other intentional torts. 28 U.S.C. § 2680(h).
Consequently, as to the most plain and egregious instance of lawlessness alleged in this case, Sergeant Johnson's brutal rape and assault of Plaintiff, it is evident that any recovery from Defendant is barred by the FTCA's intentional tort exclusion. Plaintiff acknowledges as much, omitting any sort of assault claim from her complaint, and disclaiming any reliance on Johnson as the source of the "negligent or...
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