Sheridan v. United States, 487 U.S. 392 (1988)

JUSTICE STEVENS delivered the opinion of the Court.

On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the Bethesda Naval Hospital. Petitioners brought suit against the United States, alleging that their injuries were caused by the Government’s negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action -- and the Court of Appeals affirmed -- on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA). The question we granted certiorari to decide is whether petitioners’ claim is one "arising out of" an assault or battery within the meaning of 28 U.S.C. § 2680(h).{1}

I

When it granted the Government’s motion to dismiss, the District Court accepted petitioners’ version of the facts as alleged in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car.

The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The District Court assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if Carr had not been a Government employee. Nevertheless, although stating that it was "sympathetic" to petitioners’ claim, App. to Pet. for Cert. 26a, it concluded that Fourth Circuit precedents required dismissal because Carr "happens to be a government employee, rather than a private citizen," id. at 23a.

The Court of Appeals affirmed. 823 F.2d 820 (CA4 1987). Like the District Court, it concluded that the Circuit’s prior decisions in Hughes v. United States, 662 F.2d 219 (CA4 1981) (per curiam), and Thigpen v. United States, 800 F.2d 393 (CA4 1986),{2} foreclosed the following argument advanced by petitioners:

The Sheridans also argue that Carr’s status as an enlisted naval man and, therefore, a government employee, should [be] irrelevant to the issue of the government’s immunity vel non from liability for negligently failing to prevent the injury. They correctly assert that the shooting at the Sheridans’ vehicle was not connected with Carr’s job responsibility or duties as a government employee. The Sheridans further assert that, if Carr had not been a government employee, a claim would undoubtedly lie against the government and § 2680(h) would be inapplicable. See Rogers v. United States, 397 F.2d 12 (4th Cir.1968) (holding § 2680(h) inapplicable where probationer alleged that negligence by United States marshal allowed nongovernment employee to assault and torture probationer). They contend it is anomalous to deny their claim simply because the corpsmen were negligent in the handling of a government employee rather than a private citizen.

823 F.2d at 822 (footnotes omitted).

In dissent, Chief Judge Winter argued that cases involving alleged negligence in hiring or supervising Government employees are not applicable to a situation in which the basis for the Government’s alleged liability has nothing to do with the assailant’s employment status. He wrote:

As the majority opinion concedes, . . . Hughes and Thigpen, as well as the other cases relied upon by the majority . . are all cases where the purported government negligence was premised solely on claims of negligent hiring and/or supervision. The same was true in United States v. Shearer, [473 U.S. 52 (1985)]. Such claims are essentially grounded in the doctrine of respondeat superior. In these cases, the government’s liability arises, if at all, only because of the employment relationship. If the assailant were not a federal employee, there would be no independent basis for a suit against the government. It is in this situation that an allegation of government negligence can legitimately be seen as an effort to "circumvent" the § 2680(h) bar; it is just this situation -- where government liability is possible only because of the fortuity that the assailant happens to receive federal paychecks -- that § 2680(h) was designed to preclude. See Shearer, [473 U.S. at 54-57]; Hughes, 514 F.Supp. at 668, 669-70; Panella v. United States, 216 F.2d 622, 624 (2 Cir.1954).

On the other hand, where government liability is independent of the assailant’s employment status, it is possible to discern two distinct torts: the intentional tort (assault and battery) and the government negligence that precipitated it. Where no reliance is placed on negligent supervision or respondeat superior principles, the cause of action against the government cannot really be said to "arise out of" the assault and battery; rather it is on the government’s breach of a separate legal duty.

Id. at 824 (footnote omitted).

The difference between the majority and the dissent in this case is reflected in conflicting decisions among the Circuits as well.{3} We therefore granted certiorari to resolve this important conflict. 484 U.S. 1024 (1988).

II

The FTCA gives federal district courts jurisdiction over 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). However, among other limitations, the Act also provides that this broad grant of jurisdiction "shall not apply to . . . [a]ny claim arising out of assault, battery" or other specified intentional torts. 28 U.S.C. § 2680(h).

The words "any claim arising out of" an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence. Nonetheless, it is both settled and undisputed that, in at least some situations, the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Thus, in United States v. Muniz, 374 U.S. 150 (1963), we held that a prisoner who was assaulted by other inmates could recover damages from the United States because prison officials were negligent in failing to prevent the assault that caused his injury.{4}

Two quite different theories might explain why Muniz’ claim did not "arise out of" the assault that caused his injuries. First, it might be assumed that, since he alleged an independent basis for tort liability -- namely, the negligence of the prison officials -- the claim did not arise solely, or even predominantly, out of the assault. Rather, the attention of the trier of fact is focused on the Government’s negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury. Under this view, the assailant’s individual involvement would not give rise to Government liability, but antecedent negligence by Government agents could, provided of course that similar negligent conduct would support recovery under the law of the State where the incident occurred. See Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo. L.J. 803, 822-825 (1981) (advocating this view and collecting cases).

In response to this theory, the Government argues that the "arising out of" language must be read broadly, and that the Sheridans’ negligence claim is accordingly barred, for, in the absence of Carr’s assault, there would be no claim. We need not resolve this dispute, however, because, even accepting the Government’s contention that, when an intentional tort is a sine qua non of recovery, the action "arises out of " that tort, we conclude that the exception does not bar recovery in this case. We thus rely exclusively on the second theory, which makes clear that the intentional tort exception is simply inapplicable to torts that fall outside the scope of § 1346(b)’s general waiver.

This second explanation for the Muniz holding, which is narrower but not necessarily inconsistent with the first, adopts Judge (later Justice) Harlan’s reasoning in Panella v. United States, 216 F.2d 622 (CA2 1954). In that case, as in Muniz, a prisoner claimed that an assault by another inmate had been caused by the negligence of federal employees. After recognizing that the

immunity against claims arising out of assault and battery can literally be read to apply to assaults committed by persons other than government employees,

id. at 624, his opinion concluded that § 2680(h) must be read against the rest of the Act. The exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity. Since an assault by a person who was not employed by the Government could not provide the basis for a claim under the FTCA, the exception could not apply to such an assault; rather, the exception only applies in cases arising out of assaults by federal employees.

In describing the coverage of the FTCA, Judge Harlan emphasized the statutory language that was critical to his analysis. As he explained, the Act covers actions for personal injuries

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. . . . (Italics supplied).

Id. at 623. We need only move the emphasis to the next phrase -- "while acting within the scope of his office or employment" -- to apply his analysis to the assault and battery committed by the off-duty, inebriated enlisted man in this case. If nothing more was involved here than the conduct of Carr at the time he shot at petitioners, there would be no basis for imposing liability on the Government. The tortious conduct of an off-duty serviceman, not acting within the scope of his office or employment, does not in itself give rise to Government liability, whether that conduct is intentional or merely negligent.

As alleged in this case, however, the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of Carr’s employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm,{5} and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to "perform [its] `good Samaritan’ task in a careful manner." Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955). The District Court and the Court of Appeals both assumed that petitioners’ version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person. Although the Government now disputes this assumption, it is not our practice to reexamine a question of state law of that kind or, without good reason, to pass upon it in the first instance.{6} See Cort v.Ash, 422 U.S. 66, 73, n. 6 (1975). On this assumption, it seems perfectly clear that the mere fact that Carr happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if Carr had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate the Government because of the happenstance that Carr was on a federal payroll.{7}

In a case of this kind,{8} the fact that Carr’s behavior is characterized as an intentional assault, rather than a negligent act, is also quite irrelevant. If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent, but not when he or she was malicious. In fact, the human characteristics of the dangerous instrument are also beside the point. For the theory of liability in this case is analogous to cases in which a person assumes control of a vicious animal, or perhaps an explosive device. Cf. Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Because neither Carr’s employment status nor his state of mind has any bearing on the basis for petitioners’ claim for money damages, the intentional tort exception to the FTCA is not applicable in this case.

The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

1. Title 28 U.S.C. § 2680 provides in part:

The provisions of [28 U.S.C. §§ 2671-2680] and section 1346(b) of this title shall not apply to --

* * * *

(h) 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: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of [28 U.S.C. §§ 2671-2680] and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For the purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.

Title 28 U.S.C. § 1346(b) provides in part:

Subject to the provisions of [28 U.S.C. §§ 2671-2680], the 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.

2. The Court of Appeals explained its prior decisions as follows:

In Hughes, we affirmed the district court’s dismissal of a claim against the government because it fell within [the intentional tort] exception. There, a postal employee, while on his route, lured two young girls into his postal truck and committed sexual indecencies. He had previously pled guilty to a similar offense. The parents of the children brought an action against the government under the Federal Tort Claims Act, alleging the postal supervisor was negligent in allowing the employee to remain in a position where he came into contact with young children. The district court, reasoning that the cause of action arose from the intentional act of the employee, and not from the negligence of the supervisor, held the claim barred by § 2680(h).

. . . In Thigpen, a naval corpsman had committed sexual indecencies with two minor girls while they were hospitalized in a naval hospital. An action was brought on behalf of the children, contending that the Navy negligently failed to supervise the offending corpsman. There, too, the district court reasoned that the injury resulted from the intentional tort of the corpsman, and not from a lack of supervision by the government.

823 F.2d 820, 822 (CA4 1987).

3. See, e.g., Doe v. United States, 838 F.2d 220 (CA7 1988); Morrill v. United States, 821 F.2d 1426 (CA9 1987) (per curiam); Kearney v. United States, 815 F.2d 535 (CA9 1987); Bennett v. United States, 803 F.2d 1502 (CA9 1986); Hoot v. United States, 790 F.2d 836 (CA10 1986); Johnson v. United States, 788 F.2d 845 (CA2), cert. denied, 479 U.S. 914 (1986).

4. Muniz involved two separate suits consolidated for our consideration. We described the relevant facts of one of the actions as follows:

Respondent Muniz alleged that he was, in August 1959, a prisoner in a federal correctional institution in Danbury, Connecticut. On the afternoon of August 24, Muniz was outside one of the institution’s dormitories when he was struck by an inmate and then pursued by 12 inmates into another dormitory. A prison guard, apparently choosing to confine the altercation instead of interceding, locked the dormitory. The 12 inmates who had chased Muniz into the dormitory set upon him, beating him with chairs and sticks until he was unconscious. Muniz sustained a fractured skull and ultimately lost the vision of his right eye. He alleged that the prison officials were negligent in failing to provide enough guards to prevent the assaults leading to his injuries and in letting prisoners, some of whom were mentally abnormal, intermingle without adequate supervision.

374 U.S. at 152.

5. Allegedly, Carr’s roommate was aware that Carr improperly possessed a firearm prior to the shooting incident, yet failed to comply with Navy regulations requiring that he report this violation to the appropriate authorities.

6. The Government did not challenge this assumption before the District Court or the Court of Appeals. Its failure to do so may well simply be a product of the Government’s view that the District Court was without jurisdiction, and thus, presumably, had no basis for considering whether the alleged facts might state a claim under Maryland law. Moreover, in now challenging this assumption, the Government cites no Maryland law. We think it appropriate, at least in the first instance, to allow the District Court to pass upon whether the complaint states a cause of action under Maryland law.

7. The Government’s responsibility for an assault may be clear even though the identity of the assailant is unknown. For example, the Court of Appeals for the Seventh Circuit concluded in Doe v. United States, 838 F.2d 220 (1988), that an action could be maintained under the FTCA even though discovery failed to reveal whether or not the assailant was a Government employee. The court described the factual setting of the case as follows:

Plaintiffs in these consolidated cases are two minor children and their parents. During the fall of 1984, the children were sexually molested by unknown parties while in the care of the Scott Air Force Base Day Care Center. It is not clear from the incomplete record on appeal whether the incidents occurred at the day care center or the children were removed from the premises during the day, assaulted, then returned.

. . . The complaint alleged, in essence, that the government assumed a duty to care for the children and that it breached that duty, allowing the unidentified attacker to molest the youths. Child molestation is, of course, a form of assault and battery.

Id. at 221 (emphasis supplied). The Court of Appeals was certainly correct in holding that it would be irrational to bar recovery if the assailant happened to be a Government employee, while permitting relief if he was not. Moreover, as the Court of Appeals also correctly noted, courts should strive to avoid attributing absurd designs to Congress, particularly when the language of the statute and its legislative history provide little support for the proffered, counterintuitive reading.

8. Because Carr’s employment status is irrelevant to the outcome, it is not appropriate in this case to consider whether negligent hiring, negligent supervision, or negligent training may ever provide the basis for liability under the FTCA for a foreseeable assault or battery by a Government employee.