Wise v. U.S., No. 2:97CV610.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Writing for the CourtRebecca Beach Smith
Citation8 F.Supp.2d 535
Decision Date09 June 1998
Docket NumberNo. 2:97CV610.
PartiesDonald G. WISE, Administrator of the Estate of Jennifer Evans, Deceased, Edd A. Evans, Jr. and Delores P. Evans, Parents of Jennifer Evans, Deceased, Plaintiffs, v. UNITED STATES of America, Billy Joe Brown, Dustin A. Turner, Virginia Hotel Corporation, and Radisson Hotels International, Incorporated, Defendants.
8 F.Supp.2d 535
Donald G. WISE, Administrator of the Estate of Jennifer Evans, Deceased, Edd A. Evans, Jr. and Delores P. Evans, Parents of Jennifer Evans, Deceased, Plaintiffs,
v.
UNITED STATES of America, Billy Joe Brown, Dustin A. Turner, Virginia Hotel Corporation, and Radisson Hotels International, Incorporated, Defendants.
No. 2:97CV610.
United States District Court, E.D. Virginia, Norfolk Division.
June 9, 1998.

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Donald Grant Wise, Portsmouth, VA, Melvin Jay Radin, Norfolk, VA, for plaintiffs.

Michael A. Rhine, Assistant U.S. Attorney, Norfolk, VA, for defendant USA.

Jamie A. Stalnaker, Williams, Kelly & Greer, Norfolk, VA, for defendants Virginia Hotel Corp. and Radisson Hotels International, Inc.

OPINION

REBECCA BEACH SMITH, District Judge.


This matter is before the court on various dispositive motions: defendant United States' motions to dismiss; defendant Virginia Hotel Corporation's motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; defendant Radisson Hotels International, Incorporated's motion to dismiss, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure; and, a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, filed jointly by defendants Virginia Hotel Corporation and Radisson Hotels International, Incorporated. For the reasons stated below, the court GRANTS defendant United States' motions to dismiss, and GRANTS the motion for summary judgment filed jointly by defendants Virginia Hotel Corporation and Radisson Hotels International, Incorporated.

I. Factual and Procedural History

On the night of June 18, 1995, Jennifer Evans was a patron of the Bayou Lounge, a bar located in the Radisson Virginia Beach Hotel, which at all relevant times was owned, operated and supervised by defendant Virginia Hotel Corporation ("VHC"). Defendant Radisson Hotels International, Incorporated ("Radisson") had general supervision over defendant VHC.1 Defendants Dustin A. Turner ("Turner") and Billy Joe Brown ("Brown") were also patrons of the Bayou Lounge that night. While at the Bayou Lounge, Jennifer Evans remained with and close by defendant Turner. Bishop Dep. at 1542 (Pls.' Ex. in Response to Ds.' Summ. J.

Page 539

Motion). Plaintiffs allege that Brown told Kristin Bishop ("Bishop"), a waitress at the Bayou Lounge, that he would entice Jennifer Evans from the premises, so that Turner and Brown could take advantage of her sexually.2 At approximately 1:25 a.m., Jennifer Evans left the Bayou Lounge with Turner. Bishop Dep. at 12 (Ex. A to Memo. in Support of Ds.' Summ. J. Motion). Sometime after leaving the Bayou Lounge, Turner and Brown raped and killed Jennifer Evans. Plaintiffs allege that the criminal acts took place, or at least began, in the parking lot adjacent to the Radisson Virginia Beach Hotel. Turner and Brown are currently serving prison sentences in a Virginia state penitentiary for these crimes.

Plaintiffs initiated this suit on June 18, 1997. An amended complaint was filed on July 30, 1997.3 The three plaintiffs are Donald G. Wise, administrator of the estate of Jennifer Evans; Edd A. Evans, father of Jennifer Evans; and, Delores P. Evans, mother of Jennifer Evans. The amended complaint named five defendants: the United States; Billy Joe Brown ("Brown"); Dustin A. Turner ("Turner"); Virginia Hotel Corporation (t/a Radisson Hotel Virginia Beach) ("VHC"); and Radisson Hotels International, Incorporated ("Radisson"). Plaintiffs are suing the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiffs are suing the remaining defendants for wrongful death under Virginia tort law.

Plaintiffs are suing the United States because, at the time of the incident, Turner and Brown were members of a Navy SEAL (SEa Air Land) team.4 Plaintiffs allege that but for this training, defendants Turner and Brown would not have raped and killed Jennifer Evans. Plaintiffs allege that the SEAL training program produces "violent side effects," according to at least one government study. Amended Complaint ("Am.Compl.") at 5, ¶ 19. Plaintiffs further allege that the purpose of SEAL training is to turn the trainee into a "lethal weapon," and to instill in the individual "a sense of invincibility as well as euphoria, implying that he can do no wrong." Id. at 5, ¶ 20. On this view, the United States "by virtue of the special and lethal nature of said training ... had a special obligation to protect the plaintiff's decedent." Id. at 6, ¶ 22.

The amended complaint alleges that, prior to the night of June 18, 1995, Brown exhibited violent tendencies, about which the United States knew or should have known. Prior to his enlistment in the Navy, Brown was allegedly discharged from the United States Coast Guard for assaulting a superior officer. Id. at 6, ¶ 24. Despite Brown's dishonorable discharge, the United States "negligently" allowed Brown to enlist in the Navy. Id. at 6, ¶ 25. By subsequently training Brown as a SEAL, plaintiffs contend that the United States created "not merely a lethal weapon, but a highly volatile lethal weapon which should not have been released in public." Id. at 6, ¶ 26.

The amended complaint also alleges that Turner and Brown had a "propensity" to engage in group sex with a female, and the United States knew or should have known of this propensity; other members of the men's SEAL team, including their supervisors, allegedly knew that such incidents had previously occurred in Navy barracks. Id. at 6,

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¶ 27. According to plaintiffs, Turner's and Brown's supervisors knew the two men were "incorrigible," and knew or should have known that they were unfit for SEAL training. Id. at 6, ¶ 28.

Plaintiffs are suing the hotel defendants on two theories of liability.5 First, plaintiffs argue that defendants breached a duty to warn or protect Jennifer Evans from the known dangers posed by Turner and Brown. Alternatively, plaintiffs argue that defendants breached their duty as hotel owners and operators to provide for their guests' safety. Plaintiffs claim that defendants' negligence proximately caused Jennifer Evans' death.

Plaintiffs seek monetary damages, including but not limited to the following:

sorrow, mental anguish, and solace which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent, compensation for reasonably expected loss of income of the decedent and services, protection, care and assistance provided by the decedent, reasonable funeral expenses and travel, lodging, transportation and incidentals of the criminal trial proceeding.

Id. at 7, ¶ 30. Plaintiffs seek $5 million in compensatory damages, $10 million in punitive damages from defendants Turner and Brown, and the costs of suit. Id. at 7, ¶ 31.

On July 30, 1997, defendant VHC filed an answer to the amended complaint, a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and a memorandum in support of its motion to dismiss. On August 4, 1997, defendant Radisson filed an answer to the complaint, a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, and a memorandum in support of its motion to dismiss.

On August 14, 1997, plaintiffs submitted a memorandum in opposition to defendants VHC and Radisson's motions to dismiss. On August 26, 1997, VHC and Radisson jointly submitted a reply brief in response to plaintiffs' memorandum in opposition to their motions to dismiss.

On September 30, 1997, defendant United States filed a motion to dismiss the original complaint, and a memorandum in support of its motion to dismiss the original complaint.6 On November 3, 1997, plaintiffs submitted a response to the United States' motion to dismiss the original complaint. On December 30, 1997, the United States filed a motion to dismiss the amended complaint, and a memorandum in support of the motion, as well as a reply to plaintiffs' response to the United States' motion to dismiss the original complaint. On January 23, 1998, plaintiffs submitted a response to defendant United States' motion to dismiss the amended complaint.

On February 10, 1998, defendants VHC and Radisson jointly filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, accompanied by a memorandum in support of the motion. On February 23, 1998, plaintiffs submitted a response to the motion for summary judgment. Defendants submitted a reply to plaintiffs' response to the motion for summary judgment on February 27, 1998.

A hearing on the four motions to dismiss and the motion for summary judgment was held on March 19, 1998. The matter is now ripe for decision by the court.

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II. Analysis

A. United States' Motions to Dismiss

The United States filed a motion to dismiss the original complaint, and a motion to dismiss the amended complaint. As discussed below, the court GRANTS defendant's motions to dismiss, on two alternative bases. First, section 2680(h) of the Federal Tort Claims Act ("FTCA") bars plaintiffs' claim. Second, even if section 2680(h) did not bar plaintiffs' claim, plaintiffs fail to state a cause of action under the FTCA upon which relief may be granted.

1. Standard of Review

The United States presents one argument that implicates both Rule 12(b)(1) and Rule 12(b)(6) of the Federal Rules of Civil Procedure. The government attacks the court's subject matter jurisdiction by arguing that plaintiffs have failed to state a cause of action under the FTCA.

With regard to the United States' Rule 12(b)(1) motion challenging jurisdiction, the burden is on the plaintiff, as the party asserting jurisdiction, to prove that federal jurisdiction is proper. McNutt v. General Motors Acceptance Corp., 298 U.S. 178, 189, 56 S.Ct. 780, 80 L.Ed. 1135 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th...

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14 practice notes
  • Boles v. United States, No. 1:13CV489.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • February 26, 2014
    ...father met with the who refused the father's request to have the his delivery duties. Hughes, 662 F.2d at 220. 3.Wise v. United States, 8 F.Supp.2d 535, 542–43 (E.D.Va.1998), cited by the Government, also involved an attempt to hold the United States liable on theories of respondeat superio......
  • Ryan v. U.S., No. 00 C 6075.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 30, 2001
    ...Guccione v. United States, 847 F.2d 1031, 1035-37 (2d Cir.1988), reh'g denied, 878 F.2d 32, 33 (2d Cir.1989); Wise v. United States, 8 F.Supp.2d 535, 544 (E.D.Va.1998); Pottle v. United States, 918 F.Supp. 843, 848-49 (D.N.J.1996); Harris v. United States, 797 F.Supp. 91, 95 (D.P.R.1992). O......
  • Klay v. Panetta, Civil Action No. 12–0350 (ABJ).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 7, 2013
    ...merely because of the military command's general right to control the conduct of military personnel.’ ”); Wise v. United States, 8 F.Supp.2d 535, 549 (E.D.Va.1998) (rejecting the argument that under tort law principles, soldiers have a “special relationship” with the government sufficient t......
  • Chang–williams v. Dep't of The Navy, Civil Action No. DKC 10–0783.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 2, 2011
    ...Section 2680(h) barred respondeat superior claim where servicemember used excessive force in shooting civilian); Wise v. United States, 8 F.Supp.2d 535, 542 (E.D.Va.1998) (holding Section 2680(h) barred direct liability claim premised on servicemembers' sexual assault and murder of civilian......
  • Request a trial to view additional results
14 cases
  • Boles v. United States, No. 1:13CV489.
    • United States
    • United States District Courts. 4th Circuit. Middle District of North Carolina
    • February 26, 2014
    ...father met with the who refused the father's request to have the his delivery duties. Hughes, 662 F.2d at 220. 3.Wise v. United States, 8 F.Supp.2d 535, 542–43 (E.D.Va.1998), cited by the Government, also involved an attempt to hold the United States liable on theories of respondeat superio......
  • Ryan v. U.S., No. 00 C 6075.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • July 30, 2001
    ...Guccione v. United States, 847 F.2d 1031, 1035-37 (2d Cir.1988), reh'g denied, 878 F.2d 32, 33 (2d Cir.1989); Wise v. United States, 8 F.Supp.2d 535, 544 (E.D.Va.1998); Pottle v. United States, 918 F.Supp. 843, 848-49 (D.N.J.1996); Harris v. United States, 797 F.Supp. 91, 95 (D.P.R.1992). O......
  • Klay v. Panetta, Civil Action No. 12–0350 (ABJ).
    • United States
    • United States District Courts. United States District Court (Columbia)
    • February 7, 2013
    ...merely because of the military command's general right to control the conduct of military personnel.’ ”); Wise v. United States, 8 F.Supp.2d 535, 549 (E.D.Va.1998) (rejecting the argument that under tort law principles, soldiers have a “special relationship” with the government sufficient t......
  • Chang–williams v. Dep't of The Navy, Civil Action No. DKC 10–0783.
    • United States
    • United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Massachusetts
    • February 2, 2011
    ...Section 2680(h) barred respondeat superior claim where servicemember used excessive force in shooting civilian); Wise v. United States, 8 F.Supp.2d 535, 542 (E.D.Va.1998) (holding Section 2680(h) barred direct liability claim premised on servicemembers' sexual assault and murder of civilian......
  • Request a trial to view additional results

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