Kerry Senger v. United States

(Scalia, J., exception apply at 2140 dis- the bad faith does not Id. omitted). (citations case, the senting) bad faith issue should not have been jury. reasons, submitted to the For these holding for our We infer we vacate the district court’s award of attor- majority opinion, today from the Chambers ney fees. imposed ap that “the sanctions stated which oc plied only to sanctionable acts which III. Conclusion proceedings with the curred connection Id. at 111 S.Ct. at the trial court.”18 Accordingly, judgment the District Court’s statement, combined with the 2138. This part is part affirmed and reversed in adjudi explicit of the Court’s denial the ease is remanded to the district court for attorney applicability fees for cation damages. a new trial on contract, prelitigation breach of leads us to power the district court’s inherent hold that attorney for bad

to award fees as sanction pre-litigation

faith conduct does not extend to

conduct. case, present faith

In the the bad

conduct, specifically, the bad faith or more contract, part was administration Kerry SENGER, Plaintiff-Appellant, fact, underlying substantive claim. originally pleaded con Lamb a breach of upon tract claim based NPPD’s contract ad America, UNITED STATES ministration, subsequently but dismissed it Defendant-Appellee. voluntarily. Compl., App. Am. Second Appellant developed during at 12. As oral No. 94-35688. argument, claim for reasonable and Lamb’s Appeals, States Court damages

proper under the contract’s termi Ninth Circuit. essentially nation clause is a breach of con claim, pay tract as NPPD did not what Argued and Submitted Oct. says Lamb it owed Lamb under the termi Decided Dec. damages nation clause. cannot cir Lamb McLarty by voluntarily cumvent rule claim,

dismissing original substantive but

using upon the conduct which that claim was attorney

based as means obtain fees.

Thus, we hold that NPPD’s bad faith ad- pre-litigation contract

ministration of the upon underlying

conduct substan- clause claim is

tive termination based. Un- McLarty, provide such conduct

der does not upon

a basis which the court use its attorney power

inherent to award fees. 6

F.3d 545. Because the bad faith is law,

inapplicable to this ease as a matter of

we see no reason review the district finding factual faith adminis-

court’s bad Similarly,

tration of the contract. because suit," ing petitioner considered 18. One incidence of Chambers' bad and thus was Inc., NASCO, faith conduct was his transfer of as- fraudulent proceeding. Chambers v. sets, which, although place it "took before 32, 55 n. 2138 n. filed, it occurred after Chambers was suit L.Ed.2d 27 notice, rule, pend- given pursuant to court OR; Adamson, Oswego, Barry L. Lake Mitchell, Mitchell, Hedges F. Charles OR, City, plaintiff-appellant. Frank, Steinmeyer Anthony and Steven J. Justice, Department of United States Wash- DC; Youngman, ington, William Assis- W. Portland, OR, Attorney, tant United States defendant-appellee. NELSON, WALLACE, Before: D. W. BRUNETTI, Judges. Circuit NELSON, Judge: D. Circuit W. Kerry Senger brings this action Appellant pursuant the U.S. Government (“FTCA”). He Federal Tort Claims Act injuries allegedly damages for claims inflicted Postal Service em- attempt- him he ployee who assaulted as was employee’s post ing to tow the car from the parking neg- three office lot. asserts (1) (2) ligence negligence hiring; claims: negligence supervision; fail- court dismissed ure to warn. district claims for lack of first two jurisdiction pursuant to the “assault and bat- tery” exception to the FTCA. See 28 U.S.C. 2680(h). granted The district court sum- mary judgment in favor of the United States warn, on the claim of failure employ- finding as a matter of law that the unforeseeable. ee’s attack on Senger appeals both the dismissal of first summary judg- grant of two claims and the jurisdic- on the third claim. We have reverse The district court held with 1291. We under 28 U.S.C. first two theories that under and remand. Sheridan v. United (1988), 101 L.Ed.2d did not BACKGROUND jurisdiction. The court February Kerry Senger, precluding a tow read Sheridan as assertion negligent hiring supervision and Towing, responded claims Speed’s for truck driver government against upon the U.S. based request from Postal Service to re- to a battery” “assault and to the illegally parked vehicle from move an district court FTCA.2 noted that Sheri- in Port- parking lot of the Main Post Office The dan had overruled a line of Ninth Circuit land, Oregon. alerted the When someone finding subject jurisdiction cases matter be- postal employee to whom the vehicle alleged plaintiffs injuries arising from Brown, that his vehicle longed, Ervin Lee negligent hiring or of United towed, being post ran out of the Brown government employees. States See Morrill truck, building grabbed tow office (9th Cir.1987) U.S., 821 F.2d 1427 kill Senger by the neck and threatened to (holding that the “assault and ex- put if not the car down. The him he did ception preclude government did not U.S. security immediately guard Postal Service’s liability Navy go-go where the hired a dancer separated Senger. and intervened and Brown perform to in a club for enlisted men but Police, Portland who Senger then called the provide adequate supervision failed to and charged him with as- arrested Brown and raped by was assaulted and dancer menacing.. Brown was later con- sault and restroom); enlisted man in the women’s menacing suspended and from victed of States, Kearney v. United 815 F.2d days. work for 82 (9th Cir.1987) (holding that the “assault and exhausting After his administrative reme- battery” exception preclude gov did not U.S. dies, government for Senger sued the U.S. liability negli ernment under the FTCA for $5,000 $8,100 wages, in lost medical ex- gent supervision army being where an officer $500,000 dam- penses rape gov and in non-economic held for was released another ages arising military incident. He claimed ernment in violation of jurisdiction pursuant regulations subsequently and murdered the the district court wife); 1346(b).1 States, plaintiffs alleged § Bennett v. United Senger three 28 U.S.C. (9th Cir.1986) (1) (holding negligence: The Postal theories of Ser- and the “assault negligently employed vice and retained preclude government not the FTCA did it or Brown because either knew should liability damages arising kidnap for from the danger- known that Brown had violent and ping raping of several children Senger disposition posed ous a risk to government teacher hired where the (2) negli- others. Service or have known knew should gently supervised Brown because it failed to it. him that had a when hired the teacher steps protect public take from the risk molestation). child posed and to thwart the assault on (3) before occurred. The Postal With warn, negligently to warn failure to the district court found failed dangerous propensities. and re- it had 1346(b) provides place part: act or omission 1. 28 U.S.C. in relevant law of the where the n occurred. [T]he district courts ... shall have exclusive against of civil actions claims on States, money damages ... the United battery exception is contained The assault property, injury injury personal or or loss of or provides in relevant in 28 U.S.C. wrongful death caused or act part: any employee or omission of of the Govern- 1346(b) provisions chapter of this acting scope while of his within the office apply not this title shall employment under circumstances where the or (h) Any arising bat- private person, [or] claim out of assault if a United would be tery. with the ... liable claimant in accordance summary judgment granted district court briefing and affidavits quested additional claim. These briefs oppose this claim. suggest that Brown had a his- and affidavits Among facts

tory of violent behavior. OF REVIEW STANDARD (and by the by Senger uncontested States) his- regarding Brown’s violent review determinations We (1) tried following: Brown was tory are the jur concerning court district (no charges date murder acquitted Persons v. United isdiction de novo. committed to a provided); Brown was Cir.1991). also We being facility in after found psychiatric summary judgment de grant review insanity on an assault guilty reason Jesinger v. Nevada Federal Credit novo. attack charge arising from an Union, wife, allegedly her and Brown beat standard, allegations all of mate this Under (3) knife; lunged a kitchen at her with true complaint fact in are taken as rial psychiatric facilities to other was committed light in the most favorable to and construed post-traumatic stress because he suffered Buckey County nonmoving party. in the with his service disorder associated (9th Cir.), 791, Angeles, 968 F.2d 794 Los (4) War; in Brown was convicted Vietnam denied, 599, 999, 121 113 cert. 506 U.S. S.Ct. disorderly in being 1971 for drunk 536 L.Ed.2d harassment; arrested 1977for Brown was job post office on in 1985 while on the at ex-girlfriend.

charges of assault filed DISCUSSION provided affidavits government The U.S. Subject Negli- I. Matter Jurisdiction Over personnel in from Postal Service Supervision gent Hiring and Claims in no that Brown was involved its contention Senger’s court held that The district job acts of abusive behavior while negligence hiring, retaining claims of However, of the affida- post office. one Sheridan, supervising Brown are barred 1986, January after vits reveals 2449, 101 L.Ed.2d arrest, 487 U.S. con- Brown’s 1985 requiring it read that in order to determine investigation ducted an internal battery” employment whether Brown had falsified his to fall outside of the “assault and According FTCA, to the Postal Ser- application. alleged negli exception to the investigator, investigation “re- vice’s own government must be unrelated gence of the prior police that Mr. Brown had had vealed who employment status of the actor of arrests and resulting contact a number injury. Reasoning that claims inflicted convictions____ re- two misdemeanor hiring supervision are re pro- was a sult of the internal status, employment the dis lated to be removed posed notice that Mr. Brown subject matter that it lacked trict court held In Service].” from the Febru- [U.S. jurisdiction to these claims. ary proposed notice of removal was 1986 this noted The district court also that Sheridan expla- no The affidavit contains withdrawn. a series of Ninth Circuit cases overruled nation for the withdrawal. involving negligent hiring supervision on government part of the that hold although The district court concluded pre battery” exception does not “assault and invitee and thus enti- was business Morrill, liability under the FTCA. See clude (the applies law that tled under law 537; 1427; Kearney, F.2d at F.2d at claim) warning concerning the fore- to this Bennett, court F.2d at 1505. The district parties, acts of third seeable intentional subject finding that there is no bases its could not have foreseen Postal Service negligent jurisdiction over Senger because “Mr. Brown’s assault on flawed supervision claims on a hiring and episodes primarily Brown’s violent hold that the dis- disputes.” reading of Sheridan. We the context of domestic contingent employment over these because does have claim was trict court claims. relationship); Guccione v. United (2d Cir.1988), denied, reh’g Background and Bat- A. “Assault (2d 32, 33 Cir.1989), denied, cert. tery” Exception U.S. 107 L.Ed.2d 739 scope of the “assault and (1990) (barring claim that United States was has been the exception FTCA faffing supervise undercover disagreement years, in recent both of much agent under intentional tort be among Court the Justices “entirely cause claim was not independent” of and between the circuits. United States employment relationship); Thigpen v. Shearer, 52, 59, 105 395-96 3043-44, (1985), 87 L.Ed.2d 38 the Court held Cir.1986) (barring assertion of a government that the U.S. could be held claim United States negligently hable under the FTCA for retain sexually who were children assaulted na mur ing and a serviceman who supervising hospital employee). val away from dered another serviceman while military plurality A of the Court base. However, the Ninth Circuit chose not to claim the “as held that the was barred adopt position plurality. of the Shearer sault and to the FTCA Bennett, Instead, 803 F.2d at 1503. was a because the assailant found 54-57, 105 employee. Id. at S.Ct. at 3041 - 43. involving FTCA in several eases of claims battery” exception to It read the “assault and negligent hiring and where a arising “any claim out of assault or exclude government employee committed assault or battery [including] respon ... claims like Morrill, battery against plaintiff. the See negligence stem dent’s that sound but 1427; 537; Kearney, 821 F.2d at 815 F.2d at by battery a committed a Government Bennett, at 1505. These cases dis- (em 55, employee.” Id. at at 3041 S.Ct. tinguish negligence entirely between based phasis original). It noted that the “assault (which respondeat superior theory on a of battery” exception preclude gov and did give liability part cannot rise to on the of the liability negligently failing ernment for United States under the FTCA for the inten- prevent non-envploy the intentional torts of government employees) tional torts of supervision. ees under its Id. at S.Ct. independent negligent by acts or omissions at 3042. government proximate the that are causes of However, unwilling several Justices were (which give liability the harm can rise to battery” exception to read the “assault and part the States under the United 59-60, broadly. so Id. at at 3044. S.Ct. govern- for Instead, FTCA the intentional torts of they relied on the Feres doctrine to Bennett, employees). reach the same result. Id. also Feres v. ment 803 F.2d at See See 135, 146, 340 U.S. latter, 1504. In the case of the this court has (holding 95 L.Ed. 152 that a granting immunity held that broad would be serviceman not recover under FTCA the FTCA, purpose inconsistent with the injuries which “arise out of or are in the “provide which is to a forum for the resolu- service”). Thus, activity course of incident to government tion of claims the federal majority agreed a of the Court in Shearer injury government’s negli- caused the military that because the victim in the gence.” Id. service, the claim was barred the' Feres Sheridan, In 108 S.Ct. 57-59, Id. 473 at at doctrine. again 101 L.Ed.2d Court scope “as- addressed the issue of the Shearer, In the wake of numerous circuits sault and the as- adopted plurality’s reading of the “as- There, government employee. sailant is a exception. e.g. sault and intoxicated, off-duty serviceman fired a rifle Franklin v. United street, public injuring into a car on a (10th Cir.1993) (barring negli- (who plaintiff government employ- was not a gence against the United States case of ee). battery by evening, group navy hospital employees medical V.A. Earlier in the Senger’s claim of supervision claims. attempted to take the service- eorpsmen had retaining is hiring he emergency room but fled when to an man in Bennett. them, they governed by this court’s decision did weapon brandished Bennett, held that the United In the court any action. Court held further .The not take immunity respect to a with liable States had waived government could be held alleging negligent hiring. See 803 notwithstanding claim the “as- under the FTCA kidnapping negli- at 1505. The case arose from battery” exception because it sault and children from a Bureau raping of several good Samaritan duties gently carried out the Boarding a teach- eorpsmen Indian Affairs School navy it had assumed when plain- government. The emergency er hired the U.S. assailant to the tried to take the government knew at 2455. The tiffs Id. at room. known of the assailant’s the existence should have also its decision on Court based govern- and that possession of child molestation regulation prohibiting of a negligent failure to conduct reason- requiring all ment’s on a naval base and firearm it the teacher any when hired report presence fire- able personnel to injury. held, Id. at proximate was a cause regulation, the Court creat- arm. This allegation Senger makes a similar government ed a Brown, gov- arguing that the negligently. performed Id. disposition knew of Brown’s violent ernment found mat- the Court Sheridan negli- assaulted him and well before Brown the FTCA based ter under gently spite of this knowl- retained Brown part of the or omissions on the acts causing edge, proximately thus the assault government that were to the em- unrelated occur. relationship with ployment the assailant. However, implied .that it did while the Court Senger’s negligent supervision claim is liability under not favor holding in governed this court’s Morrill. involving claims of There, FTCA cases “go-go plaintiff was a dancer” who explicitly hiring supervision, it declined and Navy perform at an was hired to question. this id. at 403 n. break, to address During a she enlisted man’s club. (“Because at 2456 n. 8 assail- [the man in raped was and an enlisted beaten employment status is irrelevant to the ant’s] dancer the women’s restroom. The outcome, case to appropriate it is not this failing Navy that was negligent hiring, negligent whether consider and adequately supervise the enlisted men may negligent training ever supervision, or that it have known that “the combina- should provide liability for under basis scantily a clad tion of drunken sailors and battery Morrill, for a foreseeable assault and FTCA performer explosive.” was by government employee.”) a The court held that the “assault FTCA did not to the Further, recently that this court has held government immune from such make the good law and that “the assault Bennett is still case, Senger claim. Id. at 1427. this battery exception does not immunize the invitee, plaintiff in Mor- a business like the liability negligently hir Government rill, invited the Postal Service to who was supervising employee.” ing and Brock history of of an with a tow the car Cir. allegation that Senger’s violent behavior. 1995). Thus, the district court this case provide adequate failed to incorrectly Bennett and the cases held that in a supervision to a business invitee situa- Morrill, it, Kearney and that followed might Brown’s violent behavior overruled Sheridan. analogous neg- predicted is have been does ligence alleged in Morrill and therefore Battery Application B. of the Assault and ex- not fall under the “assault Exception in this Case ception to the FTCA. Bennett, Kearney, and Mor Under finding that rill, court’s We reverse the district the district court has re- Senger’s negligent hiring it lacked with over negligent hiring super- Strangways, Senger’s Whelchel spect Or. P.2d 1231-32 (adopting vision claims. Restate- f).- 2d, § ment of Torts 344 emt.& Negligent Summary Judgment on Fail- II. ease, In this appears there to be no ure to Warn Claim dispute Senger that a special had relation ship with the aas business invi Summary judgment properly granted is Thus, tee. the United States genuine when there is no issue of material failing Senger to warn if the'Postal Service applied fact and the district court has the law knew or had reason to know that the assault Co., correctly. Fargo Rose v. & Wells Senger presented was about to occur. has may We F.2d extensive evidence of violent behavior and respect uphold summary judgment with instability mental of Brown which only Senger’s negligent failure to warn claim apparently the United States does not dis if a matter of the attack was unforeseeable as pute. Senger also asserts that the Post Of is, law, if no could find reasonable knowledge fice had actual violent attack was foreseeable. past because of an internal con France, Lindahl v. Air ducted the Post Office after Brown was (9th Cir.1991). Senger required is not Further, job. arrested while on the ;prove that the attack was foreseeable or- United States’ own affidavit indicates that summary judg- der to overcome motion for investigation gave rise to a rec internal Rather, only spe- ment. he need “set forth ommendation to dismiss Brown. While the showing genuine cific facts there is a Post Office not have been aware of 56(e). trial.” issue for Fed.R.Civ.P. every violent incident listed in summary party moving is on the burden affidavits, pleadings supporting judgment genu- to establish that there is no presented enough specific has facts create issue of material fact. Id. Because Sen- ine genuine concerning issue of fact the fore indicating ger presented specific has facts seeability of the assault. the Post Office had actual or at least granted summary judg The district court knowledge constructive of' Brown’s violent many ment because of the violent acts com conduct, past genuine dispute there is a by Brown mitted involved domestic violence foreseeability of Brown’s as- Although whereas this case not. does Ore Senger, key sault on which is a issue under gon require giving act law does rise applicable negligence law. the dis- complaint past be the same granting summary judg- trict court erred foreseeable, acts make the act the Ore grounds ment on the that the Postal Service gon Supreme Court has made clear that could not have foreseen assault. the “foresight precise does not demand the me imagination Goldberg.” chanical of a Rube failure to Fazzolari, Rather, at 1338. “the P.2d governed by Oregon warn is law because the concept foreseeability generalized of refers to acts of occurred Ore injuries of the of risks incidents 1346(b). gon. law See U.S.C. predictability that occurred rather than provides may duty that a defendant have a to sequence the actual of events.” Id. A rea special relationship warn either virtue of a sonable could conclude that some of plaintiff between the and the defendant or past acts of violence similar to general requirement because of a to avoid Senger, reflecting tendency his attack on unreasonably conduct that creates foresee angry. become violent when plaintiff. able risk to the v. Port Fazzolari 1J, presented specific land School Dist. No. 303 Or. 734 P.2d has Given (1987). possessor suggesting may A of land has facts the Post Office duty to warn business invitees of the inten have been aware of Brown’s of violent parties tional of third “if in- acts he knows or behavior and serious and chronic mental finding stability, has to know that the acts of the third the district court erred in reason person occurring, are or are about to occur.” a matter of law that Brown’s assault on general jurisdiction under the FTCA’s waiver We not have been foreseen. Senger could immunity, at “the United States id. the district court’s decision reverse

therefore applicability proving the bears the burden summary judgment in favor of the grant gen exceptions to FTCA’s of one of the the Senger’s negli- respect to States with United immunity.” Id. at 702. eral waiver of claim. gent failure to warn summary has declined to affirm this court discretionary Discretionary Function Under FTCA judgment III. on the basis is insuffi exception when the record function if argues that even States The United ciently Seyler v. developed. See foreseeable, the deci- Brown’s behavior was public like members sion warn case, argued the United States has this dangerous propensities Senger of Brown’s appeal that the district court and on both discretionary excep- function under the falls negligent failure to warn claim is barred and, therefore, tion to the FTCA exception. discretionary function by the not have court does district However, has men- while United States claim. See 28 U.S.C. over this passing decision to warn tioned in 2680(a)3. ad- The district court did not public employees would involve of violent issue, summary granting this instead dress issues, policy is no evidence in .there respect to the failure to warn judgment with ¡that “specific neg- showing acts record foreseeability lack of claim based on the directly from ligence [alleged here] flowed may Although we affirm Brown’s conduct. employ- policy choices” of Postal Service summary judg- grant of the district court’s Prescott, 973 F.2d at 703. There- ees. See supported by the rec- any grounds oh fore, court for remand to the district we ord, University Co-op. Students Oscar v. this issue. consideration of Cir.1992), Ass’n, to the discre- record in this case CONCLUSION tionary provide an ade- exception does reasons, foregoing For the we reverse quate to affirm. basis holding district court that does not has a two- Court established over Sen- discretionary applying func part test for ger’s negligent hiring claims. First, “in exception. does the conduct tion assault on We further hold that because the of'judgment or choice?” volve an element foreseeable, the dis- have been 531, 536, Berkovitz v. United summary granted improperly trict court 1954, 1958, 100 L.Ed.2d 531 Fi- judgment in favor of the United States. instance, if there is a federal statute or For failed to nally, because the district court prescribes a course of action regulation that question any address the of whether follow, discretionary might those have had warn apply. Id. exception does not Sec function employees’ violent Senger’s position of its ond, “judicial liability give rise to ‘sec would discretionary func- tendencies falls legislative ond-guessing’ of and administra FTCA, we remand for social, grounded in economic tive decisions question. further consideration political policy?” Id. at WALLACE, concurring Judge, Circuit dissenting: an act or determination of whether The majority opinion, part I I of the concur discretionary func- omission falls II, part and would not respectfully dissent to exception “requires particularized a part III. reach the issues decided fact-specific inquiry.” Prescott v. United 696, fact, foreseeability, Al- Questions 973 F.2d 703 of like are inappro- plaintiff per- generally and are though the burden is on the issues for the summary judgment. priate to court that it has decide suade the 2680(a) duty agency or an of a provides that the United or federal 3. 28 U.S.C. Government, "[a]ny claim ... based States is not liable for whether or not the upon performance or or the failure exercise involved be abused.” discretion discretionary perform a function to exercise or

1445 (Second) Torts, gives ini- Enterpris statement International v. Newton Thomas Cir.1994). (9th guidance types as to what of acts come 1266, There tial es, 1269 duty owner’s to warn within a business busi- however, allegedly tor are, cases where Id. The comment states that ness invitees. Oregon eourts that so remote tious act is ordinarily property of a “is under an owner as a matter act unforeseeable ruled the duty any until he Albertson’s, Inc., no to exercise care knows See, v. e.g., Uihlein of law. know that the acts of the (1978) (Uihlein). or has reason to 631, 580 P.2d 1014 282 Or. person occurring, or are about to third are portion carefully considered I have occur.” known to the history of violent acts , the Postal Service or which Postal Service identify f to comment cer The illustrations is no reasonably have known. There should that a business owner tain intentional acts fact of whether issue of material genuine acts, “reasonably anticipate.” These should under was foreseeable harm suffered warn, are fore which fall within Neely v. Paul Fire Oregon law. St. seeable, predictable with estab behaviors Co., 345 Cir. Marine Ins. histories, crowding hour lished like rush 1978) (“[i]n rights and defining primary 344 raises a railroad cars. section diversity in a suit aris parties obligations question whether the Postal preliminary law, including a warn, elements ing from state actually a.duty regard owed of. are, course, action, we cause of plaintiffs act was less of whether Brown’s foreseeable law of the apply the substantive obligated majority not solve in this instance. The does state”). case, a matter of law any Oregon I conclude as problem for us. and would unforeseeable legally Brown’s attack was in order to be law states that case rejection of foreseeable, court’s Sen affirm the district or a harm must be of the negligent failure to warn. See ger’s anticipated kind of harm that could be Carlsbad, 439, 441 City 58 allegedly Warren v. tortious conduct. See Ollison of cert. — denied, -, (9th Cir.1995), Ass’n, Weinberg Racing Or.App. 69 688 (1984) (Ollison) (“the question L.Ed.2d 209 P.2d general kind to is whether the harm is that a defendant provides law conduct”). anticipated from the be of his duty to warn either virtue have a relationship plaintiff or be- special only Brown’s act itself I focus on whether requirement to avoid con- general inquiry of a initial legally cause foreseeable. The unreasonably a actually creates foreseeable or duct that knew is what the Postal Service v. Portland plaintiff. Fazzolari at the risk have known of Brown’s should 1J, P.2d majority 303 Or. Senger. School Dist. No. oh time of the attack (1987) (Fazzolari). The Postal Service although “the Postal Service asserts invitee, duty to Senger, every a owed a business aware of violent may not have been of third sup- him intentional acts Senger’s pleadings warn listed incident affidavits, presented kn[ew] “if or persons Service] has porting [the the acts of the genuine reason to know enough specific ha[d] facts to create occurring, foreseeability person [were] concerning [were] third issue of fact Strangways, about to occur.” Whelchel the assault.” P.2d 275 Or. that the Postal Ser- establishes The record (Whelchel) adopting Oregon (quoting and had January of 1986 that Brown vice knew and com- of Torts 2d law Restatement several, and two misde- unspecified arrests f). majority rules that apparently resisting police officer meanor convictions: duty to warn owed a Sen- Further, harassment in 1971 and invitee and ger because he was business resulting there was an internal foreseeability. general there was not because dis- that Brown be in a recommendation therefore, discussion, my I limit will his misde- his failure to state missed due to actions a matter of law Brown’s whether as job application convictions on his meanor duty warn were foreseeable Last, work in arrested at Brown was form. invitees. business against his ex- charge of assault on a majority’s position is specifically girlfriend. Oregon courts foreseeable f, Brown’s attack was Re- either that comment adopted section Service, only arrests, would the Postal Service Postal unspecified knowledge of the misdemeanors, arrest, temperament or out- Brown’s violent specified know of history should have complete on Brown’s His behavior the work environment. side Service and to the Postal tendency been known to- absolutely no job displayed fore- history made the attack complete Oregon law does violence. While ward seeable. foreseeable with require that the harm be Fazzo- Goldberg”-like precision, see legal proposition, “Rube accept, as a I cannot offenses, unspeci- lari, require that knowledge of misdemeanor P.2d at it does job arrests, false submissions injury fied foreseeable. general type of be genuine issue of gives rise to applications Ollison, 1019; Uihlein, 580 P.2d attack was foresee- fact of whether Brown’s actu- the Postal Service’s P.2d at 851. Given Postal known to the Service able. The facts knowledge it knowledge, and even al type act hardly Brown’s establish had, could not should have which, under regular behavior predictable, on-the-job violence foresee law, Oregon case the Restatement here. occurred foreseeable. See could find rational unforeseeable, Brown’s acts were Because France, Air Lindahl v. question I would not reach Cir.1991). Numerous factors discretionary functions under the Service’s my conclusion. Tort Claims Act. Federal above, First, indicates the record as stated a far from com- had that the Postal Service instability mental

plete knowledge of Brown’s behavior, nor did the Postal Ser-

and violent investigate his violent reason to

vice have spot- tendency, work behavior was since his CO., CASTING COLUMBIA STEEL less. Oregon corporation, INC., an Second, the Postal Service knew the events Plaintiff-Appellee, (the known two misdemeanor or should have arrests, convictions, unspecified ELECTRIC GENERAL PORTLAND on-the-job of his ex- arrest in 1985 assault corporation, COMPANY, an 6 and 20 girlfriend) all occurred between Defendant-Appellant. tempo- years prior to the attack. These acts’ do not establish that ral remoteness CO., CASTING COLUMBIA STEEL violent, they nor do even es- regularly Oregon corporation, INC., an fact as to whether Brown tablish a material Plaintiff-Appellant, job. would be violent only to those harmful inten- warn extends persons that “are occur- tional acts of third ELECTRIC GENERAL PORTLAND Whelchel, ring, COMPANY, Oregon corporation; or are about to occur.” Considering temporal re- P.2d at 1232. Utility of the State Public Commission acts, past violent moteness of Brown’s Defendants-Appellees. Oregon, his attack on cannot be said that 93-35902, 93-35958. Nos. to occur.” “about Appeals, United States Court Third, January 1986 the Postal Service’s Ninth Circuit. investigation Brown revealed he internal 3,May 1995. Argued a number of arrests and two misdemean- had Submitted convictions; however, July Decided at whether Brown had falsified was directed Dec. Opinion Withdrawn There is no evi- employment record. 27, 1996. Decided Dec. investigation put the Postal dence of Brown’s violent behavior. notice Last, knowledge of if we were to attribute history constructively full

Case Details

Case Name: Kerry Senger v. United States

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 27, 1996

Citation: 103 F.3d 1437

Docket Number: 94-35688

Court Abbreviation: 9th Cir.