Michael N. Sheridan and Mary A. Sheridan v. The United States

823 F.2d 820, 1987 U.S. App. LEXIS 9785

• Court: Court of Appeals for the Fourth Circuit
• Decided: July 20, 1987
• Docket: 86-3961
• Status: Published

Opinions

SPROUSE, Circuit Judge:

Michael N. Sheridan and Mary A. Sheridan, his wife, brought this action against the United States alleging that United States Navy personnel negligently failed to prevent a naval enlisted man from firing a rifle into their automobile, injuring Mrs. Sheridan. The district court dismissed the Sheridans’ action, holding that it was barred by provisions of the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, as interpreted by this court in Hughes v. United States, 662 F.2d 219 (4th Cir.1981), aff'g Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980). We affirm.

Robert W. Carr was an enlisted medical aide in the United States Navy stationed at the Bethesda Medical Center in Maryland. On the evening of February 6, 1982, Carr became totally inebriated after consuming a large quantity of wine, rum and other alcoholic beverages. He packed some of his possessions, including a .22 calibre rifle and ammunition, into a uniform bag and left the barracks. Some time later, three naval corpsmen found Carr unconscious on the floor of one of the hospital buildings and attempted to take him to the emergency room. As the corpsmen carried him, Carr slipped several times, falling to the floor and on one occasion down a flight of concrete steps. Before they reached the emergency room, Carr regained consciousness, broke away from the corpsmen, grabbed his uniform bag from one of them, and displayed the barrel of his rifle. The corpsmen fled, taking no further action either to subdue Carr or to alert any other authority that Carr was inebriated and armed. Carr left the building and ended up near the public street in front of the hospital. He began shooting at passing vehicles, hitting the Sheridans’ automobile and injuring Mrs. Sheridan.

The Sheridans brought this action under the provisions of the Federal Tort Claims Act, which waives sovereign immunity for certain tort claims against the federal government. Section 2680(h), however, establishes an exception to the waiver providing, among other things, that it does not apply to “[a]ny claim arising out of assault, battery....” 28 U.S.C. § 2680(h). In Hughes we affirmed the district court’s dismissal of a claim against the government because it fell within this 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 v. United States, 800 F.2d 393 (4th Cir.1986), we again affirmed the district court’s dismissal of a claim against the government as 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.

The Sheridans argue that their case is distinguishable from Thigpen and Hughes. They contend, first, that the actions of the three naval corpsmen in the present case constituted per se negligence because they violated a Navy regulation requiring personnel to report violations of another regulation that prohibits the possession of firearms on base. The Sheri-dans argue that Congress did not intend to immunize “per se ” negligence from liability through the intentional tort exception to waiver of immunity, but intended the exception to apply primarily to cases involving government supervision. We find no merit to the Sheridans’ contention that we should establish a principle that would eliminate application of the § 2680(h) exception when “per se” negligence is involved.

The Sheridans also argue that Carr’s status as an enlisted naval man and, therefore, a government employee, should irrelevant to the issue of the government’s immunity vel non from liability for negligently failing to prevent the injury.¹ 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 non-government 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.²

As we have stated, § 2680(h) is an exception to the general waiver of sovereign immunity contained in 28 U.S.C. § 1346(b). The § 1346(b) waiver, of course, relates to negligent or wrongful acts or omissions of government employees. In negligent supervision cases a plaintiffs cause of action is directed not at the person who inflicted the injury, but at the government employees who, by failure to supervise, did not prevent the harm. Explicit in Thigpen, Hughes and similar cases³ is the principle that § 2680(h) bars actions alleging negligence of the supervising employees when the underlying tort is an assault or battery by a government employee. Thigpen, 800 F.2d at 394; Hughes, 514 F.Supp. at 670. We see no sufficiently distinguishing difference between the facts of Thigpen and Hughes and the facts here to justify applying a different rule.

In view of the above, the decision of the district court is affirmed.

AFFIRMED.

1 . The dissent asserts that a focus on the employment status of the assailant "opens the door to a range of arguments concerning the ‘scope of employment'” while its proposed rule would not. At 828-829. The proposed rule would not eliminate an inquiry into the "scope of employment,” however, it would simply shift it to the employees whose alleged negligence allowed the assault to occur.

2 . The dissent attempts to reconcile this perceived anomaly. It proposes a rule that would allow suits arising out of assaults by government employees so long as the asserted negligence by the government employees is not a failure to supervise the assailant. Such a solution does not reconcile the cases, it simply would create an exception to the principle that § 2680(h) bars suits arising out of assaults by government employees. An "anomoly" would still exist — persons assaulted by a government employee would be treated differently depending on whether they could allege negligence by other government employees that allowed the assault to occur but that did not constitute negligent supervision of the assailant. We prefer to follow established Fourth Circuit precedent and hold the present claim barred by § 2680(h).

3 . See Johnson by Johnson v. United States, 788 F.2d 845, 850 (2d Cir.1986); Satterfield v. United States, 788 F.2d 395, 399 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983).