Shearer, Louise, Ind. And as Administratrix of the Estate of Shearer, Vernon, Deceased v. United States of America C/o Peter F. Vaira, U.S. Attorney

723 F.2d 1102

Opinions

OPINION OF THE COURT

A. LEON HIGGINBOTHAM, Jr., Circuit Judge.

Once again, we are' asked to decide the rights of a serviceman who, while on autho rized leave and off base, suffered a fatal injury because of, inter alia, the alleged negligence of persons within the command hierarchy of the United States Army (“Army”). We are confronted with the traditional defenses of the Feres¹ doctrine and a claim of the inapplicability of the Federal Tort Claims Act.

Plaintiff-appellant Louise Shearer brought this action against defendant-appellee, the United States, under the Federal Torts Claim Act (“FTCA”), 28 U.S.C. Sections 1346(b), 2671-2680, claiming that the negligence of the Army caused the murder of her son Private Vernon Shearer. Relying on the Feres doctrine, the district court granted the government’s motion for summary judgment. Appellant challenges the district court’s decision presenting two issues for consideration on this appeal: whether either the Feres doctrine or the intentional tort exception to the FTCA bars appellant’s action.

We hold that neither the Feres doctrine nor the intentional tort exception to the FTCA bars appellant’s claim. We therefore will reverse the district court’s order granting summary judgment to the United States and will remand this case to the district court.

I.

For the purposes of this appeal, we must accept as true the following facts pleaded by appellant — the party against whom summary judgment has been ordered: the decedent, Vernon Shearer, was an eighteen-year old private in the Army stationed at Fort Bliss, Texas. Having been in the Army barely four months, on June 2, 1979, while off the military reservation on an authorized leave from his unit, Shearer was “kid- • napped at point of gun and shot to death” in New Mexico by Private Andrew Heard. Heard was also off-duty.² Three years before, while stationed in Germany, Heard also had been prosecuted for what was alleged to be a gruesome murder of a German woman. The indictment alleged that he had “inflicted serious head injuries on the 38-year-old Margarete Hess on the occasion of sexual actions by means of a wrench and a lifting jack.” Appendix (“App.”) at 13a. Heard served three years of a four year sentence in Germany. His attack on Shearer occurred less than four months after his release from prison for the murder of Margarete Hess.

At the time of the kidnapping and murder of Shearer, the Army was well aware of Heard’s record of violence, but had disregarded three of Heard’s superiors who recommended that “Heard be eliminated from the Service under Chapter 14, Army Regulations 635-200.” App. at 14a. His Battalion Commander in Germany, Lieutenant Colonel Rayburn C. Storvall, on December 7, 1978 had declared that “Private Heard is unsuitable for military service as his record discloses.” Id. at 15a. That same day Lieutenant Colonel Storvall’s recommendation was adopted by two other superiors of Heard, Colonel Donald E. Eckelbarger and Brigadier General Charles E. Canidy. Indeed, once Colonel Eckelbarger wrote that Heard’s discharge “would be in the best interest of Private Heard and the United States Army.” Id.

Despite the precise and unequivocal recommendations, the Army failed to make a “final determination” on Heard’s discharge. More important, not until after Heard had murdered Shearer did the Army even bother to conduct a mental evaluation of Heard. Id.

Appellant argued that the Army was negligent in failing to discharge Heard from the Army, in failing to warn other enlisted personnel of Heard’s violent propensities, and in failing to restrict Heard. Appellant’s arguments concluded that the Army’s failure in these regards proximately caused Shearer’s death.

The United States responded to appellant’s allegations by moving to dismiss Shearer’s complaint on two grounds: Shearer’s injury was “incident to military service” and therefore barred under the Feres doctrine. In the alternative, the United States argued that appellant’s claim was one “arising out of assault and battery” and thus barred by the intentional tort exception of the FTCA.

The district court granted the United States’ motion for summary judgment based on the Feres doctrine. The court did not decide the issue of the intentional tort exception to the FTCA.

II.

The FTCA permits suits against the United States for the “negligent or wrongful act” of a government employee. 28 U.S.C. §§ 1346, 2674. The scope of the FTCA, as it applies to the military, has been narrowed in a series of decisions which together comprise the Feres doctrine. The thrust of the Feres doctrine prevents an action against the government for “injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.” U.S. v. Brown, 348 U.S. 110, 112, 75 S.Ct. 141, 143, 99 L.Ed. 139 (1954); Feres v. U.S., 340 U.S. 135, 146, 71 S.Ct. 153, 159, 95 L.Ed. 152 (1950); Jaffee v. U.S., 663 F.2d 1226, 1227 (3d Cir.1981), cert. denied, 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982); See Brooks v. U.S., 337 U.S. 49, 52, 69 S.Ct. 918, 920, 93 L.Ed. 1200 (1949).

The principle underlying this judicially created exemption is that the FTCA mandates minimum judicial interference with the “peculiar and special relationship of the soldier to his superiors. ... ” Stencel Aero Engineering Corp. v. U.S., 431 U.S. 666, 671, 97 S.Ct. 2054, 2057, 52 L.Ed.2d 665 (1977); U.S. v. Brown, 348 U.S. at 112, 75 S.Ct. at 143. Accordingly, Feres insulates the military from FTCA suits arising out of “negligent orders given or negligent acts committed in ,the course of” -an injured serviceman’s military duty. Stencel Aero Engineering Corp. v. U.S., 431 U.S. at 671, 97 S.Ct. at 2057; U.S. v. Brown, 348 U.S. at 112, 75 S.Ct. at 143. The pivotal question under the Feres analysis is whether the serviceman sustained the injury either in the “course of” or “incident to” his military service. U.S. v. Brown, 348 U.S. at 112, 75 S.Ct. at 143; Feres v. U.S., 340 U.S. at 146, 71 S.Ct. at 159; Jaffee v. U.S., 663 F.2d at 1233.

These terms “in the course of” and “incident to,” however, are not self-evident truths that leap out to illuminate any factual situation. Consequently, courts must probe beneath these conclusionary statements and must identify more specific facts to determine whether an injury or death was sustained in the “course of” or “incident to” one’s military service. Application of the doctrine focuses on the relationship between the serviceman and the military at the time and place the injury was sustained. The status and activity of the injured serviceman often seem to be the controlling factors.

The important distinguishing factors accounting for the different outcomes in these two cases are: the status of the injured soldier at the time of injury, the place of the injury, and the nature of the activity engaged in, and whether the injured party was acting under orders or compulsion. These factors control Feres doctrine cases. U.S. v. Brown, 348 U.S. at 112, 75 S.Ct. at 143; Feres v. U.S., 340 U.S. at 146, 71 S.Ct. at 159; Jaffee v. U.S., 663 F.2d at 1232. See Parker v. U.S., 611 F.2d 1007, 1013-15 (5th Cir.1980); Woodside v. U.S., 606 F.2d 134, 138-42 (6th Cir.1979), cert. denied, 445 U.S. 904, 100 S.Ct. 1080, 63 L.Ed.2d 320 (1980); Harten v. Coons, 502 F.2d 1363, 1365 (10th Cir.1974), cert. denied, 420 U.S. 963, 95 S.Ct. 1354, 43 L.Ed.2d 441 (1975).

Generally, an off-duty serviceman not on the military base and not engaged in military activity at the time of injury, can recover under FTCA; an on-duty serviceman, however, is usually barred from recovery. In Brooks, an off-duty serviceman hit by a military vehicle while he was engaged in personal business recovered under FTCA. U.S. v. Brooks, 337 U.S. at 50-52, 69 S.Ct. at 919-920. In Feres, on the other hand, an on-duty serviceman killed in an on-base fire was barred from recovery. Feres v. U.S., 340 U.S. at 136-38, 146, 71 S.Ct. at 154-55, 159.

In this case, appellant argues that the district court improperly applied the Feres doctrine to their claim. Specifically, they argue that the court neglected to focus on Shearer’s activity and status at the time and place of his injury. On review, the record indicates that Shearer was not engaged in or acting incident to any military . activity at the time of his murder. To the contrary, Shearer was on leave in another state (New Mexico) when he was kidnapped. ' The United States does not dispute that Shearer was on authorized leave and off the base at the time of his murder.

The district court’s error stems from its singular focus on the status and activity of the allegedly negligent parties (i.e. Heard’s superior officers) without considering the status and activity of the injured party. Consequently, the district court improperly concluded that appellant’s “allegations relate directly to decisions of military personnel made in the course of the performance of their military duty and, therefore are barred.” App. at 25a.

In support of its conclusion, the district court erroneously relied on Johnson v. U.S., 631 F.2d 34, 36-37 (5th Cir.1980) and Henning v. U.S., 446 F.2d 774, 777 (3d Cir.1971). These two cases did not adopt a tortfeasor status-activity analysis as the lower court suggested. Instead these cases merely restated a basic Feres doctrine rule: Malpractice to an active duty soldier in an army hospital is, by its very nature, considered activity “incident to military service,” and therefore barred under Feres.3 Both Johnson and Henning concerned injuries to servicemen allegedly stemming from their medical treatment in Army hospitals. Although receiving medical treatment in military hospitals may be considered an activity and benefit “incident to military service” and therefore barred under Feres, certainly being kidnapped off base at gun point can never be perceived as one of the activities or anticipated free benefits of being in the armed services. Thus, there is no legitimate basis on which Feres can bar appellant’s claim.

For these reasons, we reverse the district court on this issue.

III.

The United States offers a separate ground, the intentional tort exception to the FTCA, as an independent basis to uphold the district court’s summary judgment. The FTCA does not provide recovery for the intentional tort of assault and battery. Section 2680(h) of the Act carves out an intentional tort exception: “The provisions of this chapter and Section 1346(b) shall not apply to ... (h) [a]ny claim arising out of assault [and] battery .... ” 28 U.S.C. § 2680(h).

The United States argues that appellant’s wrongful death claim falls within the intentional tort exception because it “arises out of” the assault and battery committed by Heard. Appellant disagrees, arguing instead that this action “arises out of” military negligence which proximately caused Shearer’s death.

The FTCA does not necessarily bar a cause of action in negligence, even if the injury is directly caused by the assault and battery of a government employee. The FTCA simply requires that the intentional tort must “have its roots in government negligence,” Gibson v. U.S., 457 F.2d (3d Cir.1972); Underwood v. U.S., 356 F.2d 92, 99-100 (5th Cir.1966). Recovery under this exception could thus be barred if the negligence was a remote cause of the injury, or if the plaintiff, through artful pleadings with conclusionary allegations, attempts to create a negligence issue. Gibson v. U.S., 457 F.2d at 1395-96. See also Hughes v. Sullivan, 514 F.Supp. 667, 669-70 (E.D.Va.1980), aff’d sub nom., Hughes v. U.S., 662 F.2d 219, 220 (4th Cir.1981); Naisbitt v. U.S., 611 F.2d 1350, 1354-55 (10th Cir.1980); U.S. v. Shively, 345 F.2d 294, 296-97 (5th Cir.1965).

In order to withstand dismissal of a suit under the intentional tort exception to the FTCA, a plaintiff must allege sufficient facts which, if proven, would demonstrate that the government should have reasonably anticipated that one of their employees would commit an intentional tort. U.S. v. Shively, 345 F.2d at 296. For example, if an assault and battery occurred as a “natural result” of the government’s failure to exercise due care, the assault and battery may be deemed to have its roots in negligence and therefore it is within the scope of the FTCA. Id.; Gibson v. U.S., 457 F.2d at 1395-96.

In bringing a claim, however, a plaintiff cannot merely point to an assault and battery and then claim, based simply on the occurrence of the intentional tort, that the government was negligent for not having had anticipated the offensive action. See Naisbitt v. U.S., 611 F.2d at 1356; Gibson v. U.S., 457 F.2d at 1395-96. The plaintiff must allege sufficient independent facts to demonstrate that the government knew or should have known that the employee was dangerous prior to the injurious act. Gibson v. U.S., 457 F.2d at 1395-96; Underwood v. U.S., 356 F.2d at 99-100.

In Gibson v. U.S., supra, 457 F.2d at 1395, a government employee assaulted another employee. The district court’s summary judgment order dismissing plaintiff’s FTCA claim, was reversed on appeal. The court of appeals held that the intentional tort exception to the FTCA did not necessarily bar a negligence action against the government, even if the immediate cause of plaintiff’s injury was an assault and battery. It reasoned that because the government knew that the assailants’ class of employees were “dangerously sick,” and because the government “failed to take reasonable measures” to insure plaintiff’s safety, “[t]he attack ... was a foreseeable consequence of the government’s failure to exercise due care... [I]t is not such an intervening act as will sever the necessary casual relation between the negligence and the appellant’s injuries.” Gibson v. U.S., 457 F.2d at 1395. Accord Underwood v. U.S., 356 F.2d at 99-100.

Similarly, in this case, appellant alleges specific facts indicating government knowledge of Heard’s violent propensities. The following facts are critical: Heard had been convicted and imprisoned for killing a civilian while in the Army. He was released from the prison less than four months prior to killing Shearer. Several months before Shearer was murdered, high-ranking military officers, aware of Heard’s violent disposition, recommended his discharge. Nevertheless, Heard remained in the Army and was treated as a member in good standing. Despite Heard’s previous murder and the Army’s knowledge of his disposition, enlisted men, including Shearer, were not warned about his violent past or present disposition. We believe these alleged facts are sufficient to withstand a summary judgment motion based on the intentional tort exception to the FTCA.

The United States relies on Naisbitt v. U.S., 611 F.2d 1350 (10th Cir.1980), to support its motion to dismiss under the intentional tort exception. This reliance is misplaced.

Naisbitt concerned the dismissal of a suit under the intentional tort exception to the FTCA where the alleged negligence was based on mere conclusionary allegations. There, two off-duty air force servicemen committed a number of rapes and murders, but the plaintiff’s complaint failed to assert any facts suggesting that the government knew or should have known either of the prior violent actions by the assailants or of the assailant’s potential violence. Naisbitt v. U.S., 611 F.2d at 1356; Naisbitt v. U.S., 469 F.Supp. 421, 422-23 (D.Utah 1979).

In this case, appellant’s allegations, if proven, would permit a court to find that the government’s negligence proximately caused Shearer’s injury, thus, this case falls closer to the rubric of Gibson facts, not to that of Naisbitt. We therefore reject the United States’ contention that summary judgment was justified under Section 2860(h), the intentional tort exception.

We will therefore reverse the judgment of dismissal of the district court and remand this case for further proceedings consistent with this opinion.

Footnotes

1

. Feres v. U.S., 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The Feres doctrine has been subjected to severe criticism by some commentators. See Tort Remedies for Servicemen Injured by Military Equipment: A Case for Federal Common Law, 55 N.Y.U.L.Rev. 601, 629-35, 631 n. 173 (1980); Note, From Feres to Stencel: Should Military Personnel Have Access to FTCA Recovery? 77 Mich.L.Rev. 1099, 1102-21 (1979). Nonetheless, the Supreme Court has indicated no desire to reconsider this judicially created doctrine.

2

. In a separate action Heard pleaded nolo contendere to the crime of “second degree murder and firearm enhancement.’.’

Appendix (“App.”) at 16a.

3

. See Feres’ two companion cases, Jefferson v. U.S., 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) and U.S. v. Griggs, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950); See Harten v. Coons, 502 F.2d at 1365 n. 6; Lowe v. U.S., 440 F.2d 452-53 (5th Cir.1971).