PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-2212
MARIA NICOLE DURDEN,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Raleigh. James C. Dever III,
Chief District Judge. (5:11-cv-00442-D)
Argued: September 19, 2013 Decided: November 20, 2013
Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Niemeyer and Judge Gregory concurred.
ARGUED: Nathan Harrill, WAKE FOREST UNIVERSITY SCHOOL OF LAW,
Winston-Salem, North Carolina, for Appellant. Joshua Bryan
Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee. ON BRIEF: Joseph L. Anderson, ANDERSON
PANGIA & ASSOCIATES, PLLC, Winston-Salem, North Carolina;
Douglas P. Desjardins, TRANSPORTATION INJURY LAW GROUP,
Washington, D.C., for Appellant. Thomas G. Walker, United
States Attorney, Jennifer P. May-Parker, Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North
Carolina, for Appellee.
FLOYD, Circuit Judge:
On December 13, 2009, U.S. Army Specialist Aaron Pernell
unlawfully entered the home of Maria Durden while inebriated and
raped Durden in front of her children. Durden subsequently sued
the government pursuant to the Federal Tort Claims Act (FTCA),
28 U.S.C. § 1346(b), alleging that the Army was negligent and
therefore is liable for the sexual assault against her. The
government moved to dismiss Durden’s complaint for lack of
subject matter jurisdiction and, alternatively, for failure to
state a claim upon which relief can be granted. The district
court granted the government’s motion with respect to subject
matter jurisdiction, and Durden appealed. For the reasons set
forth below, we affirm.
I.
A.
Pernell joined the Army at age eighteen and was deployed to
Iraq after he completed his initial training in Georgia and a
two-day stay at Fort Bragg, North Carolina. Upon returning to
Fort Bragg subsequent to his deployment, Pernell struggled
emotionally and began using drugs and abusing alcohol. In March
and August of 2009, Pernell told his staff sergeant that he
desired to kill himself and eleven current and former members of
his unit. After each instance, the sergeant discouraged Pernell
2
from seeking mental-health treatment and cautioned Pernell that
receiving such treatment could blemish Pernell’s military
record. In September 2009, Pernell confided in a fellow soldier
that he was unable to sleep due to his drug and alcohol use; the
solider also advised Pernell not to seek mental-health treatment
because it could “mess up [Pernell’s] career.”
On September 10, 2009, Pernell burglarized a home in
Fayetteville, North Carolina (which is adjacent to Fort Bragg)
and assaulted the home’s occupants with a pellet gun. Civilian
law enforcement arrested Pernell and charged him with burglary
and assault. Pernell was then detained at a civilian jail from
September 11 to October 22, 2009, at which time his parents
posted bail on his behalf and his platoon leader retrieved him
and returned him to Fort Bragg. During the transport back to
Fort Bragg, Pernell again expressed a desire to kill himself and
eleven members of his unit.
Immediately upon Pernell’s return to Fort Bragg, the Army
began the process of administratively separating him. According
to Durden, Pernell’s commanding officer issued orders on
October 22, 2009, that Pernell was to have a noncommissioned
officer escort at all times—both off and on Fort Bragg—and was
to be checked on hourly to ensure that he remained in his
barracks. Durden alleges that the orders were given to “prevent
harm to innocent base residents.” Durden also claims that these
3
orders were not enforced. Specifically, Durden claims that
Pernell was permitted to leave his barracks at night to use
drugs and consume alcohol and, further, that Pernell’s superior
officers knew that Pernell violated the orders but did not act
to ensure that the orders were followed.
The government paints a somewhat different picture of the
restrictions placed on Pernell following his release from
civilian jail and the reasons for the restrictions. According
to the government, Pernell was not required to have an escort
while on Fort Bragg, was not confined to his barracks, and was
not required to be checked on hourly; rather, Pernell was
required to have an escort only when he left Fort Bragg, which
he could not do without first obtaining permission. Through an
affidavit, the government asserts that revoking a soldier’s
leave-and-pass privilege off Fort Bragg is common while the
soldier undergoes the process of being administratively
separated, or subsequent to being in civilian confinement, “to
ensure that the soldier [is] available for administrative
proceedings and [does] not go absent without leave.” The
government also notes that Pernell received event-oriented
counseling on October 22, 2009, at which time Pernell’s
commanding officer first learned of Pernell’s desires to harm
himself and others. The government claims that Pernell recanted
these desires at that time; however, out of an abundance of
4
caution, the Army ordered that Pernell be checked on every two
hours during the evening while in his barracks to ensure that he
did not harm himself. Pernell then underwent a scheduled
mental-health evaluation on October 30, 2009, after which it was
determined that, inter alia, Pernell exhibited a low potential
for self-harm and harm to others. As a result of this
assessment, Pernell’s commanding officer lifted the bihourly
evening checks.
Pernell raped Durden on December 13, 2009, at Durden’s
residence on Fort Bragg. In January 2010, Pernell became a
suspect in Durden’s rape and consented to giving a DNA sample
that was used to identify him as Durden’s assailant. Pernell
was also identified at that time as being involved in burglaries
and sexual assaults that occurred in 2008 and 2009 in
Fayetteville. Pernell subsequently requested mental-health
treatment, and it was then determined that Pernell posed a
medium risk of harm to himself and others. Following this
evaluation, the Army—for the first time, according to the
government—placed Pernell on barracks restriction and ordered
that he be monitored at all times.
On December 8, 2010, a general court-martial convicted
Pernell of raping Durden. As a result, Pernell was sentenced to
fifty years’ imprisonment, had his military rank reduced, and
was dishonorably discharged from the Army. On August 11, 2011,
5
Durden sued the government. Durden alleged that the Army was
aware that Pernell posed a safety risk to others, had a duty to
protect her from Pernell, and breached that duty by failing to
execute the October 22, 2009 orders that, according to Durden,
required that Pernell be escorted at all times while on Fort
Bragg and be checked on hourly when in his barracks.
The government moved to dismiss Durden’s complaint for lack
of subject matter jurisdiction and, alternatively, for failure
to state a claim. Specifically, the government asserted that
the Army did not breach any duty owed to Durden under North
Carolina law and that Durden’s complaint is barred by the FTCA’s
intentional-tort exception, 28 U.S.C. § 2680(h). The district
court granted the government’s motion, and Durden appealed.
This Court has jurisdiction over Durden’s appeal pursuant to
28 U.S.C. § 1291.
B.
This Court reviews de novo a district court’s decision on a
motion to dismiss for lack of subject matter jurisdiction.
Cooksey v. Futrell, 721 F.3d 226, 234 (4th Cir. 2013). A
defendant may contest subject matter jurisdiction in one of two
ways: by attacking the veracity of the allegations contained in
the complaint or by contending that, even assuming that the
allegations are true, the complaint fails to set forth facts
6
upon which jurisdiction is proper. Kerns v. United States, 585
F.3d 187, 192 (4th Cir. 2009). Here, despite presenting a
version of the facts that differs from Durden’s version with
respect to the restrictions placed on Pernell, the government’s
challenges to jurisdiction arise under the latter framework.
Specifically, the government contends that Durden’s allegations,
even if true, do not establish that the Army acted negligently.
Additionally and alternatively, the government argues that
Durden’s complaint is barred by the FTCA’s intentional-tort
exception. Because these are facial—as opposed to factual—
challenges to the complaint, Durden “is afforded the same
procedural protection as [s]he would receive under a
Rule 12(b)(6) consideration,” Kerns, 585 F.3d at 192 (i.e., we
“assume the truthfulness of the facts alleged,” id. at 193).
On appeal, Durden opposes each of the government’s bases
for dismissal. We address these bases in turn.
II.
A.
“As a sovereign, the United States is immune from all suits
against it absent an express waiver of its immunity.” Welch v.
United States, 409 F.3d 646, 650 (4th Cir. 2005). The FTCA
provides for one such waiver, wherein
7
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.
28 U.S.C. § 1346(b)(1).
“An action [for negligence] under the FTCA may only be
maintained if the Government would be liable as an individual
under the law of the state where the negligent act occurred.”
Kerns, 585 F.3d at 194 (citing 28 U.S.C. § 1346(b)(1)). In
North Carolina—where the Army’s alleged negligent act or
omission occurred—a defendant cannot be held liable for
negligence absent a duty owed to the plaintiff and breach of
that duty. Stein v. Asheville City Bd. of Educ., 626 S.E.2d
263, 267 (N.C. 2006). Accordingly, dismissal of Durden’s
complaint on the theory that the allegations are insufficient to
give rise to a negligence claim requires us to look beyond the
four corners of the complaint and to assess whether, under North
Carolina law, the Army owed any duty to Durden and, if it did,
whether it breached that duty.
This Court considered appeals arising under the same
procedural posture as Durden’s appeal in Kerns and Rivanna
Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236 (4th
8
Cir. 1988), but resolved those cases differently. In Kerns,
this Court vacated the district court’s dismissal for lack of
subject matter jurisdiction, stating that where “the
jurisdictional facts and the facts central to a tort claim are
inextricably intertwined, the trial court should ordinarily
assume jurisdiction and proceed to the intertwined merits
issues.” 585 F.3d at 193. Notably, the government in Kerns
challenged the truthfulness of the allegations in the
plaintiff’s complaint—not merely their legal sufficiency, see
id.—and this Court concluded that discovery “could” reveal
information that might assist the plaintiff on the intertwined
merits issue, id. at 196. By contrast, this Court in Rivanna,
despite recognizing that the issue at hand was “both a question
of subject matter jurisdiction and an element of appellants’
asserted claims,” treated the district court’s dismissal for
lack of subject matter jurisdiction as one for failure to state
a claim that had been converted into a motion for summary
judgment. 840 F.2d at 239.
This case is more akin to Rivanna than Kerns insofar as the
government argued—and the district court held—that, even
assuming that Durden’s allegations are true, the complaint still
fails to establish that the Army breached a duty to her under
North Carolina law. See Durden v. United States, No. 5:11-CV-
442-D, 2012 WL 3834934, at *8 (E.D.N.C. Aug. 31, 2012) (“Durden
9
satisfies the subject matter jurisdiction requirement that the
government owed her a duty before the intentional tort was
committed. . . . Durden’s alleged facts do not establish that
the government breached a duty that it owed to her.” (citation
omitted)); id. at *10 (“Even accepting as true Durden’s
allegations regarding the ways that the government restricted
Pernell after Pernell returned to Fort Bragg following his
September 10, 2009 arrest, Pernell’s tendency to commit violent
acts did not cause Pernell to be in the government’s custody.”);
id. at *13 (“[A]ccepting as true Durden’s allegations regarding
the government’s efforts to restrain Pernell, these allegations
do not establish the existence [of] a duty owed by the
government to Durden under North Carolina’s version of the Good
Samaritan Doctrine.”). Moreover, as we explain in greater
detail below, Durden’s discovery requests, even if granted,
would not assist her on the merits of the underlying negligence
issue. Thus, despite the district court’s “technically
incorrect statement” purporting to dismiss Durden’s complaint
for lack of subject matter jurisdiction, “the court considered
the [negligence] issue as though it were the basis of a motion
to dismiss for failure to state a claim that had been converted
into a motion for summary judgment.” Rivanna, 840 F.3d at 239
(Powell, J. (Ret.), sitting by designation).
10
We turn now to whether the district court correctly
determined that the government is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a) (standard for granting
summary judgment). In doing so, we examine in turn Durden’s
three theories of a duty that the Army owed to her under North
Carolina law and allegedly breached.
B.
1.
In North Carolina, “a landlord has a duty to exercise
reasonable care to protect his tenants from third-party criminal
acts that occur on the premises if such acts are foreseeable.”
Davenport v. D.M. Rental Props., Inc., 718 S.E.2d 188, 189–90
(N.C. Ct. App. 2011). Durden’s first theory of negligence,
then, is that the Army, as landlord of Fort Bragg, breached a
duty to protect her from Pernell’s reasonably foreseeable
attack.
The most probative evidence on the question of whether
a criminal act was foreseeable is evidence of prior
criminal activity committed. However, certain
considerations restrict [courts] as to which evidence
of prior criminal activity is properly considered.
General considerations are [1] the location where the
prior crimes occurred, [2] the type of prior crimes
committed, and [3] the amount of prior criminal
activity.
11
Connelly v. Family Inns of Am., Inc., 540 S.E.2d 38, 41 (N.C.
Ct. App. 2000) (citations omitted). Foreseeability may also be
established by a landlord’s knowledge of a specific threat
against individuals. See Davenport, 718 S.E.2d at 191. Durden
identifies two incidents that she believes render Pernell’s rape
of her foreseeable: Pernell’s repeated expressed desires to kill
himself and members of his unit (viewed collectively) and
Pernell’s September 10, 2009 burglary and assault in
Fayetteville. 1 For the reasons set forth below, however, we hold
that these incidents are not sufficient to render Pernell’s rape
of Durden “foreseeable” under North Carolina law.
As an initial matter, we reject for two reasons Durden’s
argument that Pernell’s prior expressed desires to kill himself
and members of his unit established foreseeability of the rape.
First, even assuming that Pernell’s desires tend to show that he
had a propensity for violence, Durden has still failed to
demonstrate how such desires fall within the purview of “prior
criminal activity.” See Connelly, 540 S.E.2d at 41 (emphasis
1
Although Durden does not raise this argument, we note that
Pernell’s alcohol abuse and drug use, even if criminal acts, do
not qualify as “prior criminal activity” for purposes of
determining whether Pernell’s rape of Durden was foreseeable for
at least the reason that they are not the same type of prior
crimes. See Connelly, 540 S.E.2d at 42 (“instances of public
drunkenness, shoplifting, vandalism[,] and disorderly conduct”
are not the types of incidents to be considered for purposes of
establishing foreseeability of armed robbery).
12
added). To wit, Durden has not alleged what “crime” the mere
desire to harm or kill another person, without more,
constitutes, 2 and North Carolina courts require more than the
mere wishing of harm upon another person to establish criminal
liability. See, e.g., State v. Merrill, 530 S.E.2d 608, 612–13
(N.C. Ct. App. 2000) (“evidence [of] defendant’s expressions of
her desire that the victim be dead,” absent assent to the murder
plan, insufficient to support a conspiracy-to-murder charge);
see also State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996) (crime
of attempt requires an overt act that “must reach far enough
towards the accomplishment of the desired result to amount to
the commencement of the consummation”). Second, setting aside
the criminality (or not) of Pernell’s desires, Durden has not
demonstrated that the Army should have gleaned from those
desires the notion that Pernell would sexually assault any
tenant on Fort Bragg, let alone Durden specifically. See
Davenport, 718 S.E.2d at 191 (citing Anderson v. 124 Green
Street LLC, No. 09-2626-H, 2011 WL 341709, at *3 (Mass. Super.
2
Durden characterizes Pernell’s desires to kill himself and
others as “threats.” Pernell, however, did not state in his
affidavit that he ever intended to act on his desires or that he
communicated the desires to those members of his unit whom he
wished to harm; rather, Pernell indicated that he expressed the
desires to his staff sergeant and platoon leader in an effort to
receive mental-health treatment because, according to Pernell,
“[he] knew a report of that kind ought to automatically trigger
[his] commitment to a mental health facility.”
13
Ct. Jan. 21, 2011) (“A duty to evict . . . may arise where the
landlord knows of a specific threat that one tenant poses to
another . . . .”)).
Turning now to the September 10, 2009 burglary and assault—
indeed, a prior criminal activity—we are satisfied that it meets
the second of Connelly’s three foreseeability criteria insofar
as it qualifies as the same “type of prior crime[]” as Pernell’s
subsequent rape of Durden. See, e.g., Murrow v. Daniels, 364
S.E.2d 392, 397–98 (N.C. 1988) (prior crimes of armed robbery,
kidnapping, assault, vehicle theft, and larceny deemed relevant
for determining whether sexual assault against plaintiff was
foreseeable). With respect to the first prong—“the location
where the prior crimes occurred”—the North Carolina Supreme
Court has been clear that “evidence pertaining to the
foreseeability of [a] criminal attack shall not be limited to
prior criminal acts occurring on the premises,” and “criminal
acts occurring near the premises in question may be relevant to
the question of foreseeability.” Id. at 397 (citation omitted)
(internal quotation marks omitted). However, decisions
subsequent to Murrow have fashioned Murrow’s language as an
“exception” limited to “criminal activity in the area
immediately surrounding [the] defendant[’s] premises.” Purvis
v. Bryson’s Jewelers, Inc., 443 S.E.2d 768, 770 (N.C. Ct. App.
1994) (considering only prior criminal activity that occurred
14
within three blocks of defendant’s property); see Bennett v.
Equity Residential, 692 S.E.2d 489 (N.C. Ct. App. 2010)
(unpublished table decision) (considering only prior criminal
activity that occurred within the defendant’s apartment complex
where plaintiff resided).
Here, there is no indication in the record regarding the
physical distance between the site of the September 10, 2009
burglary and assault in Fayetteville and the site of Pernell’s
rape of Durden on Fort Bragg. Although one incident occurred
off the military installation and the other on the military
installation, North Carolina courts do not appear to be
concerned with such formal line-drawing. See Connelly, 540
S.E.2d at 42 (considering, for a crime that occurred in North
Carolina, prior criminal activity that occurred at the same
interstate-highway intersection but on the South Carolina side
of the intersection). Nevertheless, it is possible that if the
September 10, 2009 burglary and assault was sufficiently far
away from Pernell’s rape of Durden, then it is “too remote to
guide [the] determination” of foreseeability. Id. at 41
(excluding from a foreseeability analysis prior crimes that
occurred in a neighboring town twenty miles away). Absent
additional information about the distance between the locations
of the incidents, however, we are unable to determine how
relevant—if at all—the September 10, 2009 incident is in a
15
foreseeability calculus with respect to Pernell’s rape of
Durden.
Regardless, even assuming that Pernell’s September 10, 2009
burglary and assault is sufficiently near in proximity to the
rape, Durden’s argument that the rape was foreseeable fails on
Connelly’s third criterion—“the amount of prior criminal
activity.” Durden does not identify any additional criminal
activity—other than Pernell’s expressed desires to kill himself
and others, which we have already excluded categorically—that
occurred prior to the rape and that should have alerted the Army
that it was foreseeable that she would be attacked. Cf. Murrow,
364 S.E.2d at 397–98 (“The plaintiff presented evidence that one
hundred incidents of criminal activity at the [relevant]
intersection area had been reported to the sheriff’s department
[during the four and a half years leading up to the crime].”);
Connelly, 540 S.E.2d at 42 (“The evidence in this case . . .
indicates that in the five years preceding the armed robbery
. . . , one hundred instances of criminal activity bearing on
the issue of foreseeability occurred at the [relevant]
intersection.”); Urbano v. Days Inn of Am., Inc., 295 S.E.2d
240, 242 (N.C. Ct. App. 1982) (denying summary judgment on
negligence claim where defendant “knew of at least 42 episodes
of criminal activity taking place on its motel premises during a
period of three years preceding the date of plaintiff’s injury,”
16
and “[a]t least 12 of the episodes occurred during the three and
one half months preceding plaintiff’s injury”). Rather, Durden
points to a single incident—Pernell’s September 10, 2009
burglary and assault—which is not sufficient in hindsight to
render a future attack foreseeable for purposes of landlord
liability. See Davenport, 718 S.E.2d at 191 (citing Anderson,
2011 WL 341709, at *3 (“A duty to evict . . . may arise . . .
where there is a history of violence by one tenant against other
tenants.” (emphasis added))).
Accordingly, Durden has failed to establish that Pernell’s
rape of her was foreseeable under North Carolina law, and thus
the Army did not breach a duty owed to her as landlord of Fort
Bragg.
2.
“In general, there is neither a duty to control the actions
of a third party, nor to protect another from a third party.”
Scadden v. Holt, 733 S.E.2d 90, 92 (N.C. Ct. App. 2012).
However, certain “[s]pecial relationships create a
responsibility to take affirmative action for the aid or
protection of another, and they arise only in narrow
circumstances.” Bridges v. Parrish, 742 S.E.2d 794, 797 (N.C.
2013) (citation omitted) (internal quotation marks omitted). A
“special relationship” can arise between the defendant and the
17
plaintiff, or between the defendant and a third-party
tortfeasor. Scadden, 733 S.E.2d at 93 n.2. When the latter
type of special relationship exists, “there is a duty upon the
actor to control the [tortfeasor’s] conduct and to guard other
persons against his dangerous propensities.” King v. Durham
Cnty. Mental Health Developmental Disabilities & Substance Abuse
Auth., 439 S.E.2d 771, 774 (N.C. Ct. App. 1994) (citation
omitted) (internal quotation marks omitted). Durden’s second
theory of negligence, then, is that the Army had a special
relationship with Pernell, owed to her a duty to protect her
from Pernell pursuant to that relationship, and breached that
duty when Pernell raped her.
Durden claims that the Army had a special relationship with
Pernell insofar as the Army (1) ”[knew] or should [have] know[n]
of [Pernell’s] violent propensities” and (2) “ha[d] the ability
and opportunity to control [Pernell] at the time” that he raped
Durden. Stein, 626 S.E.2d at 269 (setting forth the two-pronged
test for a special relationship). Even assuming, arguendo, that
Durden can satisfy both prongs of the special-relationship test
and, moreover, that the government was negligent in failing to
control Pernell, Durden’s claim that the government is liable
pursuant to the FTCA still fails. That is because “[t]he
ability and opportunity to control [a third party] must be more
than mere physical ability to control. Rather, it must rise to
18
the level of custody, or legal right to control.” Scadden, 733
S.E.2d at 93. The FTCA is clear, however, that the government
is liable only “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)(1) (emphasis added). Thus, setting aside
the Army’s ability to control Pernell that attached solely
pursuant to his employment status as a soldier, the Army must
have had some other legal authority to control him. But Durden
cannot demonstrate (nor has she alleged) that the Army had the
ability to control Pernell pursuant to some legal authority
independent of Pernell’s employment status and, accordingly, the
Army cannot be said to have a “special relationship” with him
for purposes of an FTCA claim. See Stein, 626 S.E.2d at 269.
Durden’s second theory of negligence therefore also fails.
3.
“[U]nder certain circumstances, one who undertakes to
render services to another which he should recognize as
necessary for the protection of a third person, or his property,
is subject to liability to the third person for injuries
resulting from his failure to exercise reasonable care in such
undertaking.” Quail Hollow E. Condo. Ass’n v. Donald J. Scholz
Co., 268 S.E.2d 12, 15 (N.C. Ct. App. 1980). Durden’s final
19
theory of negligence, then, is that by undertaking the task of
monitoring and controlling Pernell following his release from
civilian confinement, the Army voluntarily assumed a duty to
protect her from Pernell and breached that duty when Pernell
raped her. However, this theory of a duty fails for two
reasons.
First, Durden cannot demonstrate that the Army should have
recognized that enforcing the October 22, 2009 orders, as Durden
alleges, was necessary for the protection of others. On this
issue, Lumsden v. United States, 555 F. Supp. 2d 580 (E.D.N.C.
2008), is instructive. In Lumsden, Marine corpsmen returned to
the tortfeasor (also a corpsman) his vehicle after the vehicle
was impounded when it was discovered that he was inhaling ether.
Id. at 582. Upon the return of his vehicle, the corpsman became
intoxicated on ether that remained in his vehicle and, as a
result, he injured the plaintiffs and killed one other person.
Id. The court denied the government’s motion to dismiss the
plaintiffs’ FTCA claim and allowed the lawsuit to proceed on a
general negligence theory. See id. at 589–90. Specifically,
the court noted that,
If the plaintiffs can show that the Government’s
agents knew or had reason to know that upon being
provided the keys to his car and a canister of ether,
[the corpsman] would become intoxicated at his first
opportunity and immediately would attempt to drive on
a public street while so intoxicated, then the agents’
20
“behavior thus triggers duty [because] the risk is
both unreasonable and foreseeable.”
Id. at 589 (second alteration in original) (quoting Mullis v.
Monroe Oil Co., 505 S.E.2d 131, 136–37 (N.C. 1998)).
In contrast to the tortfeasor in Lumsden, Pernell had been
released from civilian confinement for more than six weeks prior
to raping Durden, and there is nothing in the record to indicate
that the Army should have known that Pernell was a threat to
Durden’s safety based solely on the September 10, 2009 incident
or his prior expressed desires to kill himself and members of
his unit. At the time that Pernell raped Durden, the Army had
no reason to suspect that Pernell committed the burglaries and
sexual assaults that occurred in 2008 and 2009 in Fayetteville;
indeed, it was only after Pernell raped Durden and became a
suspect in that rape that authorities also identified him as
being involved in the prior incidents. It might be a different
case if the Army knew that it was one of its own soldiers, and
Pernell specifically, that committed the 2008 and 2009 sexual
assaults in Fayetteville. Under those circumstances, the Army
may have had reason to know that Pernell was a serial offender
and thus owed to Durden a duty to control Pernell upon his
release from civilian confinement. Cf. id. at 582 (“[T]he Marine
Corps, through its agents or officers, were aware that [the
tortfeasor] had, on several occasions, acquired and inhaled the
21
chemical compound, ether, belonging to the Government.”
(emphasis added)). Durden does not dispute, however, that the
Army did not become aware that Pernell was involved with the
2008 and 2009 crimes until after Pernell raped her.
Second, Durden has not presented any authority suggesting
that, “under similar circumstances, a private person in North
Carolina would be found to have owed a duty of ordinary care to
persons in [Durden’s] position.” Id. at 589–90; see 28 U.S.C.
§ 1346(b)(1) (holding the government liable only “under
circumstances where the United States, if a private person,
would be liable”). Stated otherwise, Durden has presented no
authority suggesting that a private person—even knowing of
Pernell’s September 10, 2009 burglary and assault, Pernell’s
expressed desires to kill himself and members of his unit, and
Pernell’s frequent drug and alcohol abuse—would have been
required (or permitted, for that matter) by law to place Pernell
under twenty-four-hour surveillance and to confine him to his
barracks or a civilian equivalent thereto. To hold otherwise
would render every private individual liable for the intentional
torts of another person against unknown third parties simply
because the individuals knew that the tortfeasor abused alcohol
and drugs and committed a violent crime at some point in the
past.
22
Accordingly, Durden’s argument that the government breached
a voluntarily assumed duty to protect her fails.
C.
Durden also argues that “[t]he District Court abused its
discretion by transforming the [Rule] 12(b)(1) motion into a
judgment on the merits without the opportunity for discovery or
cross-examination of the witnesses making affidavits, and
especially where the jurisdictional question and the merits of
the appellant’s claim were intertwined.” In particular, Durden
seeks discovery pertaining primarily to what Pernell’s
commanding officers knew regarding Pernell’s allegedly violent
propensities and the extent of the restrictions placed upon him.
But Durden has failed to set forth what additional information
might be uncovered through discovery beyond the statements in
Pernell’s affidavit and, moreover, how that information might
render the government liable under any of her three theories of
negligence. For even if Durden were granted the discovery that
she requests, and even if her allegations regarding the orders
given by Pernell’s commanding officer were confirmed, her
theories of negligence would still fall short of the Army being
liable for her injuries. Accordingly, the district court did
not abuse its discretion by ruling on the government’s motion
without granting discovery to Durden. See Carefirst of Md.,
23
Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402–03
(4th Cir. 2003) (standard of review for decisions regarding
jurisdictional discovery).
First, with respect to Durden’s theory of negligence based
on landlord liability, Durden does not seek discovery regarding
the Army’s knowledge of any and all incidents of “prior criminal
activity” on Fort Bragg that might render Pernell’s rape of
Durden “foreseeable” under North Carolina law, see Connelly, 540
S.E.2d at 41; rather, Durden’s discovery requests pertain to
“the full extent of [the] awareness [of Pernell’s commanding
officer], or the awareness of others in the chain of command, of
the dangerous propensities of Pernell,” and any “regulations,
procedures, and policies regarding the duties of the [Army] as
landlord.” But Durden has not shown how information pertaining
to Pernell, specifically, and military policy, generally, comes
to bear on the foreseeability of a rape on Fort Bragg. See id.
(foreseeability determined by “prior criminal activity,” which
is limited to “[1] the location where the prior crimes occurred,
[2] the type of prior crimes committed, and [3] the amount of
prior criminal activity”).
Second, with respect to Durden’s theory of negligence based
on a “special relationship” between the Army and Pernell, Durden
simply has not demonstrated how factfinding would assist her in
developing a new legal theory under which the Army had the
24
ability to control Pernell independent from his status as a
soldier (i.e., government employee). See Scadden, 733 S.E.2d
at 93; see also 28 U.S.C. § 1346(b)(1).
And third, with respect to Durden’s theory of negligence
pursuant to a voluntarily assumed duty, Durden has not set forth
what additional information the Army might have known about
Pernell prior to the rape and that she might learn during
discovery that would render the government liable. Presumably,
Pernell made known in his affidavit all facts relevant to his
criminal history and any propensity for violence or, at a
minimum, Durden would have alleged that Pernell had such a
criminal history. Discovery, then, would serve the purpose of
determining whether the Army knew of Pernell’s criminal history;
however, discovery is not for the purpose of learning new
information about Pernell that the Army would have had no reason
to know or undisputedly did not know prior to Pernell’s rape of
Durden. Pernell’s affidavit does not state that he committed
any prior crimes that should have put the Army on notice that he
was a serial offender, and Durden does not dispute the
government’s claim that it was only after Pernell raped Durden
and gave a DNA sample that Pernell was linked to the 2008 and
2009 burglaries and sexual assaults in Fayetteville. Thus,
although Durden’s claim that relevant evidence is “held
exclusively within the walls of the defendant” might be true
25
with respect to what the Army knew about Pernell prior to the
rape, Durden has not put forth any facts or information about
Pernell that she believes that the Army knew in the first
instance and that she would know by way of Pernell.
Accordingly, discovery would serve no purpose, and it was not
error for the district court to reach the merits of Durden’s
claim at this stage of the litigation.
III.
As an alternative basis for dismissing Durden’s complaint,
the district court held that the fact that the Army gained
knowledge of Pernell’s allegedly violent propensity via his
government employment was enough to nullify Durden’s claims
pursuant to the FTCA’s intentional-tort exception. The district
court overstated the exception’s reach, however, and therefore
we conclude that the district court erred in dismissing Durden’s
complaint on this alternative basis.
The FTCA carves out an exception to its own general waiver
of immunity that bars recovery for “[a]ny claim arising out of
assault[] [or] battery.” 28 U.S.C. § 2680(h). The Supreme
Court defined the scope of the intentional-tort exception in
Sheridan v. United States, 487 U.S. 392 (1988). In Sheridan,
three naval corpsmen encountered the tortfeasor, also a naval
employee, in a drunken stupor in the hallway of a naval
26
hospital. Id. at 394–95. The corpsmen “attempted to take [the
tortfeasor] to the emergency room, but he broke away, grabbing
[his] bag and revealing the barrel of the rifle.” Id. at 395.
The corpsmen then fled from the scene and took no further action
to restrain the tortfeasor or to alert authorities that the
tortfeasor was intoxicated and in possession of a firearm. Id.
The tortfeasor later shot and injured one of the plaintiffs and
damaged the plaintiffs’ vehicle. Id. The plaintiffs then sued
the government by way of the three corpsmen for negligently
allowing the tortfeasor to leave the hospital with a gun while
“obviously intoxicated.” Id. at 393–94.
The district court in Sheridan dismissed the plaintiffs’
complaint as barred by the intentional-tort exception, and this
Court affirmed, holding that Ҥ 2680(h) bars actions alleging
negligence of the supervising employees when the underlying tort
is an assault or battery by a government employee.” Sheridan v.
United States, 823 F.2d 820, 823 (4th Cir. 1987). The Supreme
Court, however, reversed and allowed the plaintiffs’ claim
against the government to proceed, reasoning that
the mere fact that [the tortfeasor] happened to be an
off-duty federal employee should not provide a basis
for protecting the Government from liability that
would attach if [he] 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
27
the Government because of the happenstance that [the
tortfeasor] was on a federal payroll.
Sheridan, 487 U.S. at 402.
Here, the district court below held that, unlike in
Sheridan—where the drunken tortfeasor’s status as a government
employee was wholly irrelevant to imposing liability on the
government for the corpsmen’s negligence—Pernell’s status as a
government employee was a but-for element of Durden’s negligence
claim, thus barring the claim. Specifically, the district court
held that “even if the government’s knowledge of Pernell’s
tendency to commit criminal acts made Pernell’s assaulting
Durden foreseeable to the government before December 13, 2009,
section 2680(h) still negates the court’s subject matter
jurisdiction. After all, the government only acquired such
knowledge in the course of Pernell’s employment.” Durden, 2012
WL 3834934, at *9; see id. (“[B]ecause the government’s
knowledge of [Pernell’s] tendency to commit criminal acts
stemmed solely from [his] government employment, the
government’s breach of any duty owed to [Durden] was not
independent of the employment relationship.” (citing Bajkowski
v. United States, 787 F. Supp. 539, 541–42 (E.D.N.C. 1991) (“If
[the tortfeasor] were not an employee of the Army, the Army
would not have had . . . knowledge of his prior criminal and
assaultive behavior . . . .”))). The same could be said,
28
however, about the corpsmen’s knowledge of the intoxicated
tortfeasor in Sheridan: presumably, the corpsmen alleged to have
acted negligently would not have been present in the naval
hospital that night—and thus would not have gained knowledge of
the drunken tortfeasor and put themselves in a position to be
negligent in the first instance—were it not for their government
employment.
Accordingly, we hold that, although the government’s
ability (i.e., legal duty) to control a tortfeasor must be
independent of the tortfeasor’s status as a government employee,
knowledge of the tortfeasor’s propensity for violence or
criminal history gained as a result of such status does not, per
se, nullify an FTCA claim. The district court’s dismissal on
this alternative basis was therefore erroneous.
IV.
For the reasons set forth above, we affirm the district
court’s grant of summary judgment to the government.
AFFIRMED
29