An obviously intoxicated off-duty serviceman (Carr) fired
several rifle shots into petitioners' automobile on a public street
near the Bethesda Naval Hospital where Carr worked, causing
physical injury to one of the petitioners and damage to the car.
Petitioners filed suit against the Government under the Federal
Tort Claims Act (FTCA) in Federal District Court, 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 facts, as alleged in the complaint and as
supplemented by discovery, were that, after finishing his work
shift, Carr consumed a large amount of alcoholic beverages; that
naval corpsmen found him in a drunken stupor in a hospital building
and attempted to take him to the emergency room; that the corpsmen
fled when they saw a rifle in his possession; that the corpsmen
neither took further action to subdue Carr nor alerted the
appropriate authorities that he was intoxicated and brandishing a
weapon; and that he fired the shots into petitioners' car later
that evening. The District Court dismissed the action on the ground
that the claim was barred by the FTCA's intentional tort exception,
28 U.S.C. § 2680(h), which provides that the Act's provisions
subjecting the Government to liability for the negligent or
wrongful act or omission of a Government employee while acting
within the scope of his employment shall not apply to any claim
"arising out of " an assault or battery. The court rejected
petitioners' argument that § 2680(h) was not applicable 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 Court of Appeals affirmed.
Held: Petitioners' claim is not barred by § 2680(h).
Although the words "any claims arising out of " an assault or
battery are broad enough to bar all claims based entirely on an
assault or battery, in at least some situations, the fact that
injury was directly caused by an assault or battery will not
preclude liability against the Government for negligently allowing
the assault to occur.
Cf. United States v. Muniz,
374 U. S. 150.
Even assuming that, when an intentional tort is a
sine qua
non of recovery, the action "arises out of" that tort,
nevertheless the § 2680(h) exception does not bar recovery in this
case. The intentional tort exception is inapplicable
Page 487 U. S. 393
to torts that fall outside the scope of the FTCA's general
waiver of the Government's immunity from liability. Since the FTCA
covers actions for personal injuries caused by the negligence or
wrongful act or omission of any Government employee "while acting
within the scope of his office or employment," if nothing more was
involved here than Carr's conduct at the time he shot at
petitioners, there would be no basis for imposing liability on the
Government. 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. Assuming 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, the mere fact that Carr
happened to be an off-duty federal employee would not provide a
basis for protecting the Government from liability that would
attach if Carr had been a non-Government employed patient or
visitor in the hospital. The fact that Carr's behavior is
characterized as an intentional assault, rather than a negligent
act, is also irrelevant. Pp.
487 U. S.
398-403.
823 F.2d 820, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J.,
filed a concurring opinion,
post, p.
487 U. S. 403.
KENNEDY, J., filed an opinion concurring in the judgment,
post, p.
487 U. S. 404.
O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
and SCALIA, J., joined,
post, p.
487 U.S. 408.
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
Page 487 U. S. 394
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).
[
Footnote 1]
I
When it granted the Government's motion to dismiss, the District
Court accepted petitioners' version of the facts as alleged
Page 487 U. S. 395
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
Page 487 U. S. 396
393 (CA4 1986), [
Footnote 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
Page 487 U. S. 397
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
473 U. S. 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
Page 487 U. S. 398
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.
[
Footnote 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,
Page 487 U. S. 399
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. [
Footnote 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).
Page 487 U. S. 400
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). "
Page 487 U. S. 401
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, [
Footnote 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,
350 U. S. 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. [Footnote 6] See Cort
v.
Page 487 U. S. 402
Ash, 422 U. S. 66,
422 U. S. 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. [
Footnote
7]
Page 487 U. S. 403
In a case of this kind, [
Footnote 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.
[
Footnote 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."
[
Footnote 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).
[
Footnote 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).
[
Footnote 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
374 U. S.
152.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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.
[
Footnote 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.
JUSTICE WHITE, concurring.
In
United States v. Shearer, 473 U. S.
52 (1985), four Justices, including myself, were of the
view that 28 U.S.C. § 2680(h) barred recovery for damage caused
from an assault by a Government employee said to be the result of a
negligent act by another employee. But we did not address whether
the assaulter was acting within the scope of his employment or
whether that factor made a difference in applying
Page 487 U. S. 404
the § 2680(h) exclusion. In any event, to the extent the views I
shared there are inconsistent with my present understanding, I
think the Court's opinion, which I join, has the better of it.
JUSTICE KENNEDY, concurring in the judgment.
The question before us is how to interpret the intentional tort
exception in the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b) and
2671-2680, when a plaintiff's injury is caused both by an
intentional tort and by negligence that precedes it. The
intentional tort exception, 28 U.S.C. § 2680(h), provides, in
pertinent part, that the United States shall not be liable for
"[a]ny claim arising out of assault, battery. . . ." Both the
majority and the dissent provide persuasive reasons for their
conclusions. I write separately to set forth the bases for my
differences with those opinions, and for my conclusion that the
Court correctly decides that the judgment of the Court of Appeals
must be reversed.
I
In an adaptation of Judge Harlan's analysis in
Panella v.
United States, 216 F.2d 622 (CA2 1954), the Court asks whether
the tortfeasor's actions occurred "while acting within the scope of
his office or employment."
Ante at
487 U. S. 400.
Since
"[t]he 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,"
the Court concludes that the intentional tort exception is
inapplicable to this case.
Ante at
487 U. S.
401-403. In my view, this analysis is misdirected.
Petitioners' claim here is that the Government acted negligently,
quite apart from the intentional tort of its employee. The issue
then is how to give effect to the Act's express authorization of
suits grounded in negligence without eviscerating the Act's
prohibition of claims "arising out of" intentional torts. Whether
or not the intentional tortfeasor
Page 487 U. S. 405
was on duty will not necessarily resolve this question. The
proper inquiry must depend on an analysis of the Government's acts
or omissions and of the theory on which the Government's negligence
is predicated.
The Court seems to recognize as much when it states that it
would allow a claim against the Government if based on negligence
"of other Government employees . . . entirely independent of [the
intentional tortfeasor's] employment status."
Ante at
487 U. S. 401.
The Court, however, fails to clarify the meaning of "independent"
negligence, or to explain how the legal significance of antecedent
negligence somehow changes with the employment status of the
intentional tortfeasor. Although its opinion asserts that it avoids
the question of whether a negligent supervision claim may be
pressed against the Government in such a case,
ante at
487 U. S. 403,
n. 8, that issue is unavoidable, both as an analytic matter and on
the facts of this case. As I explain more fully below, our inquiry
should address whether a finding of liability for negligent
supervision would undermine substantially the intentional tort
exception.
The dissenting opinion is correct to focus on the statutory
language, but I submit, with all respect, that it reaches the wrong
result. The dissent's fundamental premise seems to be that any
injury in which an intentional act is a substantial cause
necessarily arises only from that intentional act. This contradicts
the basic rule that the same injury can arise from more than one
wrongful act:
"Where voluntary acts of responsible human beings intervene
between defendant's conduct and plaintiff's injury, the problem of
foreseeability is the same, and courts generally are guided by the
same test. If the likelihood of the intervening act was one of the
hazards that made defendant's conduct negligent -- that is, if it
was sufficiently foreseeable to have this effect -- then defendant
will generally be liable for the consequences. . . . So far as
scope of duty . . . is concerned, it should make no difference
whether the intervening actor is negligent or intentional
Page 487 U. S. 406
or criminal."
2 F. Harper & F. James, Law of Torts § 20.5, pp. 1143-1145
(1956) (footnotes omitted).
See also Restatement (Second)
of Torts §§ 447-449 (1965). The dissent's approach implies the
converse: that an intentional act somehow obliterates the legal
significance of any negligence that precedes or follows it. It must
be noted that the phrase "arising out of" refers to claims, not
suits. Congress did not bar any
suit arising out of
intentional torts; it barred only
claims arising out of
such wrongs. 28 U.S.C. § 2680(h) ("Any
claim arising out
of assault, battery. . .") (emphasis added). Whatever uncertainty
surrounds the intentional tort exception, it is unlikely that
Congress intended it, as the dissent suggests, to bar suits for
"all injuries associated in any way with an assault or battery."
Post at
487 U. S. 409.
It is standard tort doctrine that a reasonably foreseeable injury
can arise from multiple causes, each arising from a breach of a
different duty and each imposing liability accordingly. The
dissent's position violates this basic principle by stating:
"If we were to construe the words according to their ordinary
meaning, we would say that a claim 'arises out of' a battery in any
case in which the battery is essential to the claim."
Post at
487 U.S.
408.
II
I am in substantial agreement with the opinion of Chief Judge
Winter, who wrote the dissenting opinion when this case was before
the Court of Appeals. To determine whether a claim arises from an
intentional assault or battery, and is therefore barred by the
exception, a court must ascertain whether the alleged negligence
was the breach of a duty to select or supervise the
employee-tortfeasor or the breach of some separate duty independent
from the employment relation.
See 823 F.2d 820, 824, 828
(CA4 1987). If the allegation is that the Government was negligent
in the supervision or selection of the employee, and that the
intentional tort occurred as a result, the intentional tort
exception of § 2680(h)
Page 487 U. S. 407
bars the claim. Otherwise, litigants could avoid the substance
of the exception, because it is likely that many, if not all,
intentional torts of Government employees plausibly could be
ascribed to the negligence of the tortfeasor's supervisors. To
allow such claims would frustrate the purposes of the
exception.
The Court is wrong to imply that this issue is somehow removed
from the facts of this case. It is squarely implicated here, and
the trial court should be advised how to deal with it, not left to
wonder. It is quite plausible to argue that Carr was missupervised
by Government officers who had authority over him and had, we may
assume, the duty to control his unauthorized behavior and enforce
the Government regulations restricting the possession of firearms
on the naval base. Absent the exception set forth in § 2680(h), the
Government could be held negligent for failing to supervise Carr in
a way such that the rifle would be discovered. We should state
explicitly that this is not a theory that petitioners are free to
pursue on remand.
An alternative theory of liability, however, is the Government's
negligent performance of its Good Samaritan duty under the state
law of Maryland, which I assume, as the Court does, provides for
such liability if Carr had been a private person.
Ante at
487 U. S.
401-403. On this theory, the Government's negligence is
independent of its employment relation with Carr. The Government's
duty to control the behavior of individuals on the naval base
extended to all individuals, employee and nonemployee alike. This
theory of liability does not depend on the employment status of the
intentional tortfeasor. When the Government would be liable even if
the tortfeasor had been a private person, say an individual who
wandered onto the naval base, there is little danger that § 2680(h)
will be circumvented. The intentional tort exception does not
preclude recovery under a theory of independent governmental
negligence, despite the presence of a (barred) negligent
supervision claim.
Cf. 460 U. S.
Neal, 460
Page 487 U. S. 408
U.S. 289,
460 U. S.
297-298 (1983) ("[T]he partial overlap between these two
tort actions [of negligent misrepresentation and of negligent
supervision regarding the construction of plaintiff's home] does
not support the conclusion that, if one is excepted under the Tort
Claims Act, the other must be as well").
In sum, I would hold that, where the plaintiff's tort claim is
based on the mere fact of Government employment, a
respondeat
superior claim, or, a short step further, on the conduct of
the employment relation between the intentional tortfeasor and the
Government without more, a negligent supervision or negligent
hiring claim, § 2680(h)'s exception applies, and the United States
is immune.
See also post at
487 U. S. 411.
I concur in the Court's judgment insofar as it finds that § 2680(h)
does not bar tort claims based on the independent negligence of the
Government. For these reasons, I agree that the judgment of the
Court of Appeals must be reversed.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA
join, dissenting.
Petitioners seek to recover money damages under a section of the
Federal Tort Claims Act (FTCA) that authorizes claims against the
Government 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."
28 U.S.C. § 1346(b). That section is subject to an exception for
any claim "arising out of" an assault or battery. 28 U.S.C. §
2680(h). Despite the unqualified language of this exception, the
Court today holds that it does not protect the Government from
liability for a battery committed by a Government employee who
acted outside the scope of his employment if other Government
employees had a duty to prevent the battery.
If we were to construe the words according to their ordinary
meaning, we would say that a claim "arises out of" a battery in any
case in which the battery is essential to the claim. Thus when the
Court construed another exception to
Page 487 U. S. 409
the FTCA for claims "arising in respect of . . . the detention
of any goods" by customs or law enforcement officials, 28 U.S.C. §
2680(c), we equated "arising in respect of" with "arising out of,"
and decided that the phrase includes "all injuries associated in
any way with the
detention' of goods." See Kosak v. United
States, 465 U. S. 848,
465 U. S. 854
(1984). A parallel construction of the exception at issue here
leads to the conclusion that it encompasses all injuries associated
in any way with an assault or battery. Indeed, four Justices
described the exception essentially in this way in United
States v. Shearer, 473 U. S. 52
(1985). That case involved a claim against the Army for negligent
supervision of a serviceman who kidnaped and murdered another
serviceman. The plurality explained, in terms equally applicable
here, why it thought the claim was barred.
"Respondent cannot avoid the reach of § 2680(h) by framing her
complaint in terms of negligent failure to prevent the assault and
battery. Section 2680(h) does not merely bar claims
for
assault or battery; in sweeping language, it excludes any claim
arising out of assault or battery. We read this provision
to cover claims like respondent's, that sound in negligence but
stem from a battery committed by a Government employee. Thus, 'the
express words of the statute' bar respondent's claim against the
Government.
United States v. Spelar, 338 U. S.
217,
338 U. S. 219 (1949)."
Id. at
473 U. S. 55
(emphasis in original).
The Court acknowledges that the exception for claims arising out
of assault or battery is phrased in broad terms.
Ante at
487 U. S. 398.
The Court believes, however, that we recognized implicit
limitations on that exception in
United States v. Muniz,
374 U. S. 150
(1963). One of the cases consolidated for decision in
Muniz was brought by a prisoner who alleged that negligent
Government employees failed to prevent other inmates from
assaulting and beating him. The Court rejected the Government's
argument that Congress
Page 487 U. S. 410
did not intend to allow prisoners to bring claims under the
FTCA.
Id. at
374 U. S. 158.
The majority infers from this decision that the Government can be
liable under the FTCA when Government employees fail to prevent
nonemployees from committing assault or battery.
Ante at
487 U. S.
398-399. But that inference is unnecessary, because the
Court in
Muniz expressly reserved judgment on whether one
of the exceptions of § 2680 barred the prisoner's claim. 374 U.S.
at
374 U.S. 163.
The Court's decision in this case extends its erroneous
interpretation of
Muniz. The Court develops a theory to
explain why the assault and battery exception does not bar a claim
based on the negligent failure of Government employees to prevent a
battery by a nonemployee, and shows why that theory applies with
equal force to a battery by a Government employee like Carr, who
was not acting within the scope of his employment.
Ante at
487 U. S. 400.
Because I reject the interpretation of
Muniz on which the
majority's argument is premised, I reject this extension as
well.
There is no support in the legislative history for the
limitation of the assault and battery exception that the Court
adopts today. When Congress enacted the exception, it was concerned
with a particular factual situation.
See Shearer, supra,
at
473 U. S. 55.
Mr. Holtzoff, a Special Assistant to the Attorney General, told the
Senate in general terms that the torts of assault and battery were
excluded from the FTCA. Tort Claims Against the United States:
Hearings on S. 2690 before a Subcommittee of the Senate Committee
on the Judiciary, 76th Cong., 3d Sess., 39 (1940). At the House
hearings, Mr. Holtzoff explained that
"[t]he theory of these exemptions is that, since this bill is a
radical innovation, perhaps we had better take it step by step and
exempt certain torts and certain actions which might give rise to
tort claims that would be difficult to defend, or in respect to
which it would be unjust to make the Government liable."
Tort Claims Against the United States: Hearings on H.R. 7236
before Subcommittee No. 1 of the House Committee on the
Page 487 U. S. 411
Judiciary, 76th Cong., 3d Sess., 22 (1940). Interpreting this
remark, the Solicitor General suggests that Congress reasonably
might have concluded that it would be unjust to make the Government
liable for claims arising out of an assault or battery merely
because Government employees other than the tortfeasor were
negligent, since the individual tortfeasor plainly is the more
culpable party. Indeed, intentional torts sometimes are found to be
superseding causes that relieve a negligent party of liability.
Restatement (Second) of Torts § 448 (1965). This analysis applies
whether the person committing the intentional tort is a Government
employee, a nonemployee, or a Government employee acting outside
the scope of his office.
The Court stops short of adopting petitioners' most ambitious
argument, according to which the Government can be liable for
negligently supervising a Government employee who commits an
assault or battery while acting within the scope of his employment.
Ante at
487 U. S. 403,
n. 8. I trust that the courts will preserve at least this core of
the assault and battery exception. I dissent from the Court's
decision to confine the exception to such a narrow scope.