Thigpen v. United States

MURNAGHAN, Circuit Judge,

concurring:

The majority holds that the present action is barred by 28 U.S.C. § 2680(h), which contains an exception, applicable to claims “arising out of assault [and] battery,” to the Federal Tort Claims Act’s general waiver of sovereign immunity. I disagree with that conclusion. Although I do not quarrel with the majority in its finding that Rodriguez’ conduct constituted assault and battery on the plaintiffs, my view is that the plaintiffs’ claims did not “arise out of” Rodriguez’ assaults and batteries, but rather are traceable to violation of an independent affirmative duty owed to them by the Navy hospital. I, in the end, nevertheless concur in the majority’s judgment that the action is barred by sovereign immunity, because I believe that the case falls within the doctrine enunciated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), and further elucidated in United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985).

I.

It is well settled that the United States, as sovereign, is absolutely immune from suit in the absence of an express statutory waiver of immunity. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1976); Radin v. United States, 699 F.2d 681, 685 (4th Cir.1983). With the Federal Tort Claims Act, Congress expressly waived sovereign immunity with respect to claims against the United States for injury to person or property under circumstances where the United States, if a private party, would be liable under local tort law. 28 U.S.C. § 1346(b). That waiver of immunity was qualified, however, by an exception providing that the waiver would not apply to claims “arising out of assault [and] battery.” 28 U.S.C. § 2680(h).

In my view, the category of claims “arising out of” assault and battery is properly limited to those where the liability of the United States would effectively be based on vicarious responsibility, through the doctrine of respondeat superior, for the violent act of another. A claim does not “arise out of” an assault and battery where it is based directly on the breach of a clear and recognizable affirmative duty, owed by the United States to the plaintiff, to protect the plaintiff from the harmful conduct of others.

The distinction drawn here may appear subtle at first consideration, but it is, nevertheless, quite real. In the absence of a special affirmative duty of protection owed by the United States to the plaintiff, the plaintiff has no claim against the United States directly. The law does not impose a general affirmative duty, applicable *399to all members of the public, to act to protect a person in peril from the intentional harmful conduct of another. Prosser and Keeton on Torts, § 56 at 373-85 (5th ed. 1984) (collecting cases). Allegations of “negligent supervision” on the part of government officials are also insufficient, because the United States owes no general duty to the public to supervise its employees or agents with care.

On the other hand, the United States may assume an affirmative duty to protect a plaintiff from the violent conduct of others by entering into a special relationship with that plaintiff. Such affirmative duties arising out of special relationships between plaintiff and defendant are recognized in most jurisdictions. See Prosser and Keeton, supra; Restatement Second of Torts, §§ 315, 320.7 Special relationships giving rise to an affirmative duty to prevent the harmful conduct of others include the relationship between a hospital or medical center and its patients. Johnson v. Misericor-dia Community Hospital, 90 Wis.2d 708, 301 N.W.2d 156 (1981); Bezark v. Kostner Manor, Inc., 29 Ill.App.2d 106, 172 N.E.2d 424 (1961); Sylvester v. Northwestern Hospital of Minneapolis, 236 Minn. 384, 53 N.W.2d 17 (1952).8 In such a situation, the legal obligation of the hospital is based on grounds quite independent of those making liable the person who actually commits the harmful attack.9 Consequently, a claim based on the hospital’s breach of its affirmative duty should not be viewed as “arising out of” a related assault and battery.10 The assault and battery may insulate the United States from vicarious liability for the hospital corpsman’s acts. It does not immunize the government from liability for the Navy hospital’s tortious inattention to its responsibilities to protect its patients.

Such a view is by no means foreclosed by the Supreme Court’s opinion in United States v. Shearer, — U.S.-, 105 S.Ct. *4003039, 87 L.Ed.2d 38 (1985). In Shearer, an Army serviceman was kidnapped and murdered by another serviceman. The victim’s mother sued the United States under the Federal Tort Claims Act, claiming that the Army had acted negligently in supervising the murderer. Eight of the Justices participated in the decision.11 While all agreed that the doctrine of Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950) barred recovery, only four of the eight Justices agreed with the alternative proposition that § 2680(h) operated to bar all claims stemming in any fashion from a factual situation involving assault or battery. An equal number of Justices explicitly refrained from announcing a principle related to actions arising out of assault or battery which might prove an unnecessary source of trouble at some future date. Consequently, the discussion of § 2680(h) was nothing more than a dictum supported by only four members of the Court.12 While even a dictum from four Justices merits serious and respectful attention, the weight to be attributed to such a dictum is lessened where four different members of the Court appear to hold a contrary view.

Moreover, I do not believe that the previous decisions of this circuit compel the conclusion that § 2680(h) operates to bar claims based on the United States’ breach of an affirmative duty to protect the plaintiff from the conduct of others. The decision in Hughes v. United States, 662 F.2d 219 (4th Cir.1981), heavily relied on by the majority, is readily distinguishable. There, the government had never voluntarily entered into a special relationship of trust and protection with the plaintiffs. Consequently, the government owed them no duty to take affirmative action to protect them from the harmful conduct of others. Because no claim of an independent, affirmative duty could be made out against the United States, the only possible basis for a judgment against the government would have been vicarious liability for the acts of a deviant postal employee. This court properly concluded that such a claim was barred by § 2680(h). Hughes, then, is perfectly consistent with an interpretation of § 2680(h) that would allow actions based on distinct claims of breach of an affirmative duty to protect, separate from the assault and battery itself.

Other decisions of this circuit provide more direct support for the position I take. In Rogers v. United States, 397 F.2d 12 (4th Cir.1968), the court held that § 2680(h) posed no obstacle to an action for negligent failure to prevent an assault and battery carried out by another where the government had voluntarily assumed an affirmative duty to protect the plaintiff, a probationer in the custody of a United States Marshal. Section 2680(h) was inapplicable, we explained, because “[i]f there is a valid claim here, it is founded on negligence even though assault or false imprisonment may be collaterally involved.” Id. at 15. Similarly, in Andrews v. United States, 732 F.2d 366 (4th Cir.1984), a case somewhat closer to the present one on its facts, we found a waiver of sovereign immunity where Navy physicians had failed to carry out their affirmative duty to protect a patient from harm at the hands of a physician’s assistant.13

*401Decisions from other circuits also lend support to the view that § 2680(h) does not bar an action based on an affirmative duty owed by the United States. In Gibson v. United States, 457 F.2d 1391 (3d Cir.1972), for example, the Third Circuit found no sovereign immunity bar to a claim against the United States brought by an instructor in a federal Jobs Corps program for the mentally ill who had been attacked by an enrollee in the program. In ordinary circumstances, the court pointed out, the United States is under no duty to act for the protection of others. However, where the United States had voluntarily undertaken a program of instruction and rehabilitation of mentally disturbed trainees, it had assumed an affirmative duty to protect program instructors from harm at the trainees’ hands. A breach of that affirmative duty could form a basis for the instructor’s claim independent of the assault and battery itself. Id. at 1394-95. In Jablon-ski v. United States, 712 F.2d 391 (9th Cir.1983), the Ninth Circuit held that the daughter of a murder victim could maintain an action against the United States for its failure to warn her mother of her danger, where the killer had been a psychiatric outpatient at a Veterans Administration hospital and government psychiatrists had assumed responsibility for his care. Similarly, in Hicks v. United States, 511 F.2d 407 (D.C.Cir.1975), the District of Columbia Circuit found no bar to a claim against the United States based on the negligent decision of a government hospital to release a dangerous mental patient who subsequently shot and killed his wife.14

Applying those principles to the present case, I conclude that the plaintiffs’ claims are not barred by § 2680(h). The plaintiffs have sufficiently shown that the United States, through its agents, voluntarily entered into a special, protective relationship with Thigpen and Kramber when they were admitted to the Beaufort naval hospital.15 That relationship involved the assumption by the United States of an affirmative duty to protect them against the harmful conduct of others. Hospital patients stand in particular need of protection from the insti*402tution responsible for their care. Weakened by disease or by the after-effects of surgery, they are peculiarly unable to protect themselves. They are also psychologically unprepared to meet a physical attack, especially one coming from a member of the medical staff. Relying on the belief that hospital personnel are concerned solely with their welfare, patients view staff members with trust and obediently submit to their authority. As patients, then, Kramber and Thigpen were entitled to expect the government hospital to protect them from harm at the hands of a medical corpsman, who was authorized by the Navy to enter their hospital room and to come into physical contact with them. Because their claims are based on an alleged violation of that duty, they do not “arise out of” assault and battery and are not within the ambit of § 2680(h).

It is noteworthy, moreover, that the record indicates that Kramber and Thigpen might well be able to prove that the United States violated its affirmative duty to them. It would, of course, be premature to decide the merits of that question at the present stage, when only jurisdiction is at issue. Indications of the strength of the plaintiffs’ case are relevant, however, to show that their affirmative-duty claims are not merely a pretext to circumvent § 2680(h), but possess a substance of their own. Typically, a plaintiff alleging a violation of an affirmative duty of protection must show, in addition to the existence of a special relationship giving rise to the duty, that the defendant knew or should have known of the danger threatened by the assailant; that the plaintiff was a foreseeable victim of attack; that the defendant did not take the necessary steps to prevent harm to the plaintiff; and that the defendant’s negligence was a proximate cause of the plaintiff's injury. Jablonski v. United States, 712 F.2d 391, 397 (9th Cir.1983); see also Hicks v. United States, 511 F.2d 407, 417-22 (D.C.Cir.1975).

The record here suggests that the Navy was actually aware of Rodriguez’ abusive tendencies long before the events involving Kramber and Thigpen. Prior to his enlistment in the Navy, Rodriguez had been prosecuted in Texas for his sexual abuse of a ten-year-old girl. He pled guilty to the Texas crime of indecency with a child, and was sentenced to thirty days of incarceration and indefinite probation with psychiatric counseling. Nevertheless, Rodriguez was allowed to enlist in the Navy instead of serving his sentence, and he was subsequently assigned to the Beaufort hospital. It seems entirely possible, even probable, then, that the plaintiffs could show that Rodriguez’ superiors knew or should have known of his aberrant proclivities. At least they should have had the opportunity to explore the matter by discovery. The plaintiffs would probably also be able to show that Rodriguez’ superiors could and should have foreseen that, as preadolescent girls, they were likely victims of Rodriguez’ abuse. In those circumstances, the hospital’s failure to take steps to remove Rodriguez from the plaintiffs’ care would have amounted to a negligent breach of its duty.16 Plainly, the plaintiffs’ suit may not be regarded as merely an effort to contrive a claim in order to avoid the bar of § 2680(h).

II.

Despite my expression of dissatisfaction with the rationale employed by the majority for reaching the result, I nevertheless concur, because I believe that the plaintiffs’ actions are barred by sovereign immunity for an entirely different reason. In a series of cases, the Supreme Court has indicated that the United States will not be found to have waived sovereign immunity with respect to claims that “would involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness” by challenging a military “decision of command.” United States v. *403Shearer, — U.S. -, 105 S.Ct. 3039, 3044, 87 L.Ed.2d 38 (1985); see also Chap-pell v. Wallace, 462 U.S. 296, 298-304, 103 S.Ct. 2362, 2364-2368, 76 L.Ed.2d 586 (1983); Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 673, 97 S.Ct. 2054, 2058, 52 L.Ed.2d 665 (1977).

The scope of that doctrine, which originated in Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), has expanded as its rationale has evolved. In Feres, the Court decided only that the waiver of sovereign immunity inherent in the Federal Tort Claims Act did not extend to the claims of servicemen for injury due to the acts of their superior officers. In reaching that conclusion, the Court relied primarily on two factors. Because the relationship between the United States and members of its armed forces is “distinctively federal in character,” the Court concluded that the government’s tort liability to servicemen should not be determined by local law. 340 U.S. at 143, 71 S.Ct. at 158. In addition, the enactment of federal statutes establishing a comprehensive compensation scheme for members of the armed services suggested to the Court that Congress had not intended to permit servicemen to pursue a tort remedy against the United States. Id. at 144, 71 S.Ct. at 158.

The Court expanded the rationale underlying Feres in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954). In that case, the Court emphasized that the Feres rule against suits brought by servicemen was based on “(t]he peculiar and special relationship of the soldier to his superiors, the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty ...” Id. at 112, 75 S.Ct. at 143. With Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977), which applied the sovereign immunity bar to a claim for indemnity by the manufacturer of malfunctioning military equipment, the Court again shifted its focus, pointing not only to a potential negative effect on the relationship between an individual serviceman and his superiors, but also to the more pervasive undermining of military authority that could stem from judicial “second-guessing” of military orders. Id. at 673, 97 S.Ct. at 2058. In Chappell v. Wallace, 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586 (1983), where the Court held that an analogous immunity barred Bivens-type actions17 against military officers, the Court continued to emphasize its reluctance to subject military command decisions to judicial review. Id. at 301-02, 103 S.Ct. at 2366-67.

The discussion of the Feres doctrine in United States v. Shearer, — U.S. -, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), which was joined by all eight Justices participating in the decision, indicates that the doctrine no longer rests primarily on the interest in maintaining the relationship of authority between an individual member of the military and his superiors, but rather on a concern that the courts should not interfere with “the ‘management’ of the military,” or “call[ ] into question basic choices about the discipline, supervision, and control of a serviceman.” Id. 105 S.Ct. at 3043. Courts should be hesitant to entertain suits that would require commanding officers “to convince a civilian court of the wisdom of a wide range of military and disciplinary decisions” which should properly be left to the officers’ professional judgment. Id. at 3044. After Shearer, then, the Feres doctrine must mean that no waiver of sovereign immunity may be found with respect to any claim, whether brought by a serviceman or by a civilian, that challenges a military “decision of command” relating to the effective management of military personnel and resources.

Most disputed matters in the law fall along a spectrum and, in fashioning a rule *404or principle applicable to a particular case, one must exercise care to appreciate just where along the spectrum the case falls. Certainly, some decisions made by military officers will be far enough removed from the core of military operations that their questioning in judicial proceedings could not be said to threaten military effectiveness. The recruitment and assignment of servicemen, however, clearly fall within the insulated category of decisions. A military officer must be free to make choices concerning the most effective deployment of the servicemen under his command without second-guessing by the judiciary. Consequently, while the decision to assign Rodriguez to his position at the Beaufort naval hospital without taking precautions for the safety of young female patients was certainly ill-considered, it cannot afford a basis for a Federal Tort Claims Act suit. Accordingly, I concur in the decision of the majority, but solely on the ground that the present case is within the scope of the Feres doctrine as that doctrine has been developed in United, States v. Shearer.

. A defendant may also assume an affirmative duty to protect the plaintiff by entering into a special relationship with the plaintiffs assailant. For example, where the assailant is a violent patient in the custody or care of hospital psychiatric staff, the hospital is held to assume an affirmative duty to protect any person who might foreseeably become a victim of the patient’s attacks. Lipari v. Sears, Roebuck & Co., 497 F.Supp. 185 (D.Neb.1980); Bradley Center, Inc. v. Wessner, 250 Ga. 199, 296 S.E.2d 693 (1982); McIntosh v. Milano, 168 N.J.Super. 466, 403 A.2d 500 (L.Div.1979); Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334 (1976). Where the hospital or medical center is operated by the federal government, that duty of protection is assumed by the United States. Jablonski v. United States, 712 F.2d 391, 397-98 (9th Cir.1983); Hicks v. United States, 511 F.2d 407, 415-22 (D.C.Cir.1975). See generally Prosser and Keeton on Torts, § 56 at 383-84 (5th ed. 1984).

. Other such relationships may include those between innkeepers and guests, landlords and tenants, jailers and prisoners, schools and pupils, and, in certain cases, employers and employees, and business establishments and their customers. See Prosser and Keeton, supra, at 383 (collecting cases).

. Of course, the law that would be applicable here is that of South Carolina. No South Carolina case appears to have addressed the question of a hospital’s duty to protect its patients. It is noteworthy, however, that the South Carolina Supreme Court has held that a storeowner is under an affirmative duty to protect its customers from the acts of third parties where the storeowner knows or has reason to know of the danger. Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977). That holding suggests that the South Carolina courts would be likely to recognize a similar affirmative duty in the even closer and more protective relationship between a hospital and its patient. The exact scope of the South Carolina duty is a matter to be inquired into in the adjudication of the merits of the plaintiffs’ action. For the purposes of determining whether sovereign immunity applies, however, it should be sufficient that the plaintiffs have presented a colorable claim.

. Indeed, an actual assault or battery is not necessary to a violation of the hospital’s duty. A defendant violates its affirmative duty to protect when it allows the creation of a foreseeable risk that a third party may harm the plaintiff, without either warning the plaintiff of that risk so that the plaintiff may take steps to avoid the danger, or, where the plaintiff is incapable of taking such steps, taking action to control the third party's conduct. E.g., Jablonski v. United States, 712 F.2d 391, 397 (9th Cir.1983). The occurrence of the actual assault and battery thus serves only to establish the extent of the plaintiffs injury, not to establish the hospital’s breach of duty.

. Justice Powell did not participate.

. The four Justices who deemed the "arising out of assault [or] battery” exclusion applicable may not even be described as a plurality, because the Court was evenly divided on an issue which was unnecessary to its decision. A "plurality" commonly means a position held by more of the court members than those adopting any other position which combines with different views arriving at the same ultimate result to afford a majority necessary to a holding. In the instant case, the majority necessary to decision reached agreement on a totally alternative basis for the result — the Feres doctrine.

. It was also held, in Andrews, that the physician’s assistant’s conduct did not amount to an assault or battery. The assistant had deluded the patient into believing, over a long period of time, that a sexual relationship with him would be a helpful course of treatment for her depression. Such conduct amounted to medical malpractice, not assault and battery. Id. at 371. While that ruling alone was enough to support the conclusion that § 2680(h) did not operate to bar the action, the opinion also made the point that the claim against the government was based not on vicarious liability for the assist*401ant’s acts, but on the supervising physicians’ breach of their independent duty. Id. at 370.

. It has been suggested that such cases may be distinguished on the ground that the assailant responsible for the actual assault and battery was not a government employee. Johnson by Johnson v. United States, 788 F.2d 845, 850-52 (2d Cir.1986); Garcia v. United States, 776 F.2d 116, 117-18 (5th Cir.1985); Naisbitt v. United States, 611 F.2d 1350, 1352-56 (10th Cir.1980). The difficulty with such a distinction, however, is that the words "arising out of assault [and] battery” in § 2680(h) must mean the same thing whether the assailant is a government employee or not. If any claim related to a factual situation involving assault and battery, regardless of its legal theory, may be said to "arise out of’ the assault and battery, the claim must be barred by § 2680(h) regardless of whether the assailant was or was not on the United States payroll. Conversely, if a claim "arises out of’ an assault and battery only where it is based on the assailant’s tort and not on the government’s breach of an independent affirmative duty, then § 2680 poses no obstacle to an affirmative-duty claim, distinct from the assault and battery tort itself, regardless of the employment status of the assailant.

. The application of § 2680(h) is, like all questions involving sovereign immunity, a jurisdictional issue. A challenge to the court’s jurisdiction under Fed.R.Civ.P. 12(b)(1) may be raised in either of two ways. The defendant may argue that the allegations of the complaint are facially insufficient to sustain the court's jurisdiction. Confronted with a motion of that kind, the court must proceed as it would on a motion to dismiss for failure to state a claim under Rule 12(b)(6). The allegations in the complaint are taken as true, and materials outside the pleadings are not considered. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir.1982); Williamson v. Tucker, 645 F.2d 404, 412-13 (5th Cir.1981). Alternatively, the defendant may contend that the plaintiffs jurisdictional allegations, though facially adequate, are factually untrue. Such a motion requires the court to consider evidence outside the pleadings to determine whether the facts support the jurisdictional allegations. Adams v. Bain, 697 F.2d at 1219; Mortensen v. First Federal Savings & Loan Ass'n, 549 F.2d 884, 890-91 (3d Cir.1977). Depending upon the kind of Rule 12(b)(1) motion, then, either an allegation or a showing that the United States voluntarily assumed a protective duty towards the plaintiff should be sufficient to take a case outside the scope of § 2680(h) and thus defeat jurisdictional attack. Here, because the government has made a factual challenge to the court’s jurisdiction, the plaintiffs were obliged to make an evidentiary showing concerning the relationship between them and the Navy hospital.

. The hospital’s breach of duty would thus have occurred when Rodriguez first crossed the portal of the plaintiffs' hospital room, regardless of whether the patent threat which existed did in fact materialize.

. In Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that the Constitution itself provides a cause of action for persons whose constitutional rights have been violated by federal officials.