Wine v. U.S.
| Decision Date | 11 April 1983 |
| Docket Number | No. 81-1359,81-1359 |
| Citation | 705 F.2d 366 |
| Parties | Deborah WINE, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Thomas J. Constantine, Englewood, Colo. (Neil E. Lipson, Denver, Colo., with him on brief), for plaintiff-appellant.
Joseph Dolan, U.S. Atty., and Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendant-appellee.
Before SETH, Chief Judge, McWILLIAMS, Circuit Judge, and BROWN, Senior District Judge. *
Appellant brings this appeal from the Order of the district court granting the motion of the United States to dismiss the action. The facts are not in dispute, and may be briefly stated. On February 20 and 21, 1978, appellant and her companion, Stuart Smolin, were kidnapped by Dana E. Morgan. Morgan assaulted and fatally shot Mr. Smolin and sexually assaulted and shot appellant. At the time of the incident, Morgan was a sergeant in the United States Air Force, stationed at Lowry Air Force Base in Denver, Colorado. It is admitted that Morgan was off duty and was not acting within the scope of his employment with the United States when he committed the criminal acts described above.
For the purpose of its motion, the United States also admitted that the Air Force, through Morgan's supervisors, had failed to provide Morgan with psychiatric care, and had placed unreasonable pressure and stress upon Morgan in the performance of his duties. Appellant filed an administrative claim with the Air Force, claiming negligence of Morgan's supervisors, which was denied. She then brought this action alleging the same negligence under the Federal Tort Claims Act, 28 U.S.C. Sec. 1346(b) and Sec. 2671 et seq. The sole basis on which the district court granted dismissal was its finding that appellant's claim was barred by 28 U.S.C. Sec. 2680(h), as that section was construed by this Court in Naisbitt v. United States, 611 F.2d 1350 (10 Cir.), cert. denied 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980). 28 U.S.C. Sec. 2680(h) provides an exception to the general waiver of sovereign immunity contained in the Federal Tort Claims Act where the claim arises out of assault, battery, or various other enumerated torts.
Naisbitt, supra, arose on facts very similar to those at bar. There, two off-duty airmen committed various assaults, rapes, batteries, and murders against the plaintiffs and their decedents. In Naisbitt, as here, plaintiffs argued that their action against the United States sounded in negligence, not in the assaults and batteries of the government employees. Thus, they contended that the bar of Sec. 2680(h) did not apply. The Naisbitt Court refuted that contention, noting that while Sec. 2680(h) did not apply to cases in which the assailant was not a government employee, it did bar suit against the government in all cases where the intentional tort was committed by a government employee.
Since the government has waived liability only in negligence cases and has retained its immunity in intentional tort cases in accordance with Sec. 2680(h), an attempt to establish liability on a negligence basis is indeed an effort to circumvent the retention of immunity provided in Sec. 2680(h).
Naisbitt, supra, 611 F.2d at 1355.
Appellant concedes that where the government could be sued for the intentional torts of its employees under the doctrine of respondeat superior but for Sec. 2680(h), Naisbitt is right in considering a claim of negligence in those circumstances to be an effort to circumvent Sec. 2680(h). However, she argues, where employees are off duty and the government therefore could not in any case be held liable under respondeat superior for their intentional torts, the claim of negligence is not an attempt to circumvent Sec. 2680(h). Thus, that section should not bar the claim. In short, appellant argues that off-duty employees should be treated as non-employees, and suits brought in negligence, arising out of the intentional torts of either group, should be allowed as within the Tort Claims Act's waiver of sovereign immunity.
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...frequency. See, e.g., cases collected in Lambertson v. United States, 528 F.2d 441, 444 (2d Cir.1976); see also Wine v. United States, 705 F.2d 366, 366-67 (10th Cir.1983); Hughes v. Sullivan, 662 F.2d (4th Cir.1981), aff'g 514 F.Supp. 667, 669-70 (E.D.Va.1980); Naisbitt v. United States, 6......
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