Michael N. Sheridan and Mary A. Sheridan v. The United States

Publishing already ap- has been awarded sonable as to shock the conscience of the $300,000 attorneys court, proximately in fees.2 it is unnecessary for the district court to use a Barber v. analy- Kimbrell’s attorneys’ second sis. The evidence in the record is more supplemental petition fee is so unreason than support sufficient the district able and that it shocks the exorbitant con court’s conclusion Publishing that Sun by science of this court as it did the conscience through it’s attorneys3 has over- judge. of the district The record indicates stepped the bounds of reason and con- many lawyers that as as six from three science in their request third for fees. It is significant different firms billed amounts the responsibility of counsel to only preparing hearing of time in for the short necessary services to their clients. Al- simple spent ranged on a issue. The time though counsel in this undoubtedly case did spent by attorney from four hours one job an excellent representation their proofreading attorney’s another work to litigation, the client in the the courts will during expended 138.5hours approximately parties not force pay exorbitant fees by period attorney. a one month another unnecessarily prevailing incurred Milbank, The idea that one associate from party. Tweed, Hadley McCloy billed a month’s AFFIRMED. simple time frаnkly on this motion is unbe partner lievable. It defies reason that a firm, spend

such would eleven hours at simple hour on the

$245 matter of the previous

district court’s review of a bill If attorneys

assessment. these did fact

spend claim, the hours now such time justified by unreasonable not simple presented. one issue Mary Michael N. SHERIDAN and A. dispute governed This fee City Sheridan, Appellants, Rivera, Riverside v. 466, (1986) 91 L.Ed.2d although STATES, Appellee. The UNITED attorneys’ already paid fees exceed the amount damage award a sizeable No. 86-3961. spent by amount. The attorneys time Appeals, United States Court of in Rivera was found to necessary be both Fourth Circuit. reasonable, present in the appeal the time and services claims in the attor Argued Oct. 1986. neys’ supplemental second petition for fees July Decided was found to be “unconscionable” judge who tried the case and awarded the

original fee supplemental and the first fee.

Also, appears apply Rivera to civil cases,

rights object and its encourage is to attorneys

able represent meritorious civ

il rights claimants relatively po with small damage

tential claims. petition this, a fee such as where a

petition for fees is so exorbitant and unrea- fees, $605,- but it was left petition seeking attorneys’ debt of having er fees for directly litigation.

000.00 prevailed attributable to the present appeal. court, By remanding to the district attorney argued would 3. Alan W. Clark is the who create a Publishing situation in appeal, which Sun and neither he nor his firm was in- undoubtedly yet again return with anoth- petitions. volved in the trial inor the fee

SPROUSE, Judge: Circuit Mary A. Michael N. Sheridan and Sheri dan, wife, against brought action his alleging United States that United Navy personnel negligently failed to States firing a naval enlisted man from prevent autоmobile, injuring Mrs. into their rifle The district court dismissed the Sheridan. action, holding Sheridans’ by provisions of the Federal Tort barred 1346(b), Act, 2671- 28 U.S.C. §§ interpreted by this court (4th States, 662 F.2d 219 Hughes v. United Sullivan, Cir.1981), Hughes v. aff'g (E.D.Va.1980). We affirm. enlisted medical Robert W. Carr was an Navy stationed at in the United States aide Maryland. Medical Center Bethesda evening February Carr On consuming after totally inebriated became wine, large rum and other quantity beverages. packed He some alcoholic rifle possessions, including a .22 calibre his ammunition, bag and into a uniform later, time three Some left barracks. unconscious on corpsmen found Carr naval buildings hospital floor of one of emergen- attempted to tаke him to him, corpsmen carried cy room. As the times, falling to the slipped several Carr flight one occasion down and on floor Before reached steps. concrete room, regained conscious- emergency Carr corpsmen, ness, away from the broke them, bag from one of his uniform grabbed his rifle. The displayed the barrel of fled, ei- taking further action corpsmen no any other or to alert to subdue Carr ther was inebriated authority that Carr building and ended Carr left the armed. in front of public street up near shooting passing began hospital. He vehicles, automobile hitting the Sheridans’ Kator, Kator, (Irving Kator Michael J. Mrs. Sheridan. injuring brief), D.C., Heller, on Washingtоn, &Scott brought this action under The Sheridans appellants. for Tort Claims provisions Federal (Breck- Jordan, Atty. Asst. U.S. Gary sovereign immunity P. for Act, waives Baltimore, Willcox, Atty., enridge L. the federal tort claims certain brief), however, Md., appellee. 2680(h), es- Section provid- exception to waiver

tablishes things, that it does among ing, WINTER, Judge, and Before Chief assault, arising out of “[a]ny claim apply to Judges. SPROUSE, Circuit HALL and In requiring personnel 28 U.S.C. battery....” report violations of the district court’s another prohibits we affirmed Hughes pos- govern- session of firearms on dismissal ‍​​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​​​​​‌​​​‌‌​‌‌‌‌‌‌‌‌‍base. The Sheri- exception. argue Congress it fell within this dans ment because did not intend to ” There, employee, while on his postаl “per immunize from liabili- route, girls young postal ty through into his lured two the intentional tort sexual indecencies. immunity, truck and committed waiver of but intended the ex- pled guilty to a previously ception apply primarily He had similar to cases involv- parents ing government of the The children offense. We find no against government brought the merit an action to the Sheridans’ contention that we alleging Tort Act principle under the Federal should establish a that would supervisor negligent 2680(h) postal application al- eliminate of the ex- § employee position ception to remain in lowing “per negligence when in- se” is young he came into contact with volved. whеre court, reasoning children. The district that argue The Sheridans also that arose from the inten- the cause of action and, Carr’s status as an enlisted naval man employee and not from the tional act therefore, government employee, should supervisor, held the claim irrelevant to the issue of the 2680(h). by barred § immunity from liability negli vel non In Thigpen v. United 800 F.2d gently failing prevent injury.1 They (4th Cir.1986), again affirmed the correctly shooting assert that the at the district court’s dismissal of a claim Sheridans’ vehicle was not connected with 2680(h). government by In barred § job responsibility Carr’s or duties as a corpsman Thigpen, a naval had committed government employee. The Sheridans fur girls

sexual indecencies minor with two ther assert if Carr had not been a hospitalized in they while were a naval government employee, a claim would un hospital. brought An action was behalf doubtedly lie Navy contending of the children that the 2680(h) inapplicable. would be Rog § negligently supervise failed to the offend- (4th ers v. United 397 F.2d 12 Cir. There, too, ing corpsman. the district 1968) (holding 2680(h)inapplicable where § court reasoned that resulted probationer alleged negligence by corpsman from the intentional tort of the non-govern United States marshal allowed by supervision not from a lack of employee pro to assault and torture bationer). They is contend it anomаlous to deny simply corps their claim because the argue The Sheridans that their case handling men were in the distinguishable from government employee rather than a first, Hughes. They contend, that the ac citizen.2 corpsmen tions of the three naval present stated, 2680(h) case excep- constituted As we have is an § they Navy general sovereign violated a tion to the waiver of employ- supervise 1. The dissent asserts on the failure to that a focus the assailant. Such a solu- cases, "opens ment status of the assailant the door to a simply tion does not reconcile the range arguments concerning ‘scope exception principle would create an to the employment'” proposed while its rule would arising by § bars suits out of assaults proposed not. At 828-829. The would not rule government employees. "anomoly" An would inquiry "scope employ- eliminate an ment,” however, into the persons by still assaulted exist— simply it would it to the shift differently depend- treated employees alleged negligence whose allowed the allege negligence by on whether could assault to occur. government employees other that allowed the negli- 2. The dissent assault to occur but that did not constitute attempts per- to reconcile this gent supervision prefer of the assailant. We anomаly. proposes ceived It a rule that would precedent follow established Fourth Circuit arising by govern- allow suits out of assaults 2680(h). present employees § hold barred long ment gence by so as the asserted government employees not a immunity 1346(b). in 28 contained U.S.C. tional tort FTCA, § to the 28 U.S.C. waiver, 1346(b) course, 2680(h). relates to words, § other the majority negligent wrongful or acts or omissions of holds that the employment status of the government employees. In negligent su- assailant determines when the United pervision cases a cause of States action will be liable for its negligent mis- person is directed not at the conduct. I who inflicted do not think that this result is injury, supported at the employ- the language or purpose of who, FTCA, ees supervise, failure to byor previous did not this court’s opin- prevent ions Explicit regarding harm. Thigpen, think Hughes and similar cases3 principle is the held subject to suit all alleged bars actions cases where alleging negli- gence of supervising assailant’s when i.e., underlying tort is an a court isolate a status — employee. source of that is based on 394; Hughes, something than the We fortuitous circumstance sufficiently see no that the govern- dif- ment happens to ference be the assailant’s employ- between facts of Thigpen and er. Hughes and the facts justify here to apply-

ing a different rule. There are two lines decision in this Circuit regarding above, 2680(h) view the the decision of battery exception, district neither court is of which directly affirmed. addresses the circumstances of this case. AFFIRMED. Hughes Sullivan, v. 514 F.Supp. 667 WINTER, HARRISON L. Judge, Chief (E.D.Va.1980), sub nom. Hughes v. affd dissenting: States, United (4 662 Cir.1981), F.2d 219 postal involved a worker who sexually as- (FTCA) Federal Tort Act es saulted two young children. Plaintiffs tablished a scheme under which the Feder based their FTCA suit on theory that al sovereign Government waives immunity negligent was in hiring for suits based on its employees’ negli retaining this employee. Nevertheless, gence, but not on their intentional miscon the district court 2680(h) held that barred duct. Cases involve conduct that claiip the assailant was a fed- purely type one оr the other are thus easy eral employee, while recognizing that to resolve. Problems arise neg when both result would differ had the assailant not ligent and intentional play conduct a role employed been 514 producing resulting injury. Where F.Supp. at 669-70. We affirmed. government negligence leads to intentional States, (4 United Cir.1986), 800 F.2d 393 e.g., an assault and battery— misconduct — dealt plaintiff patients who were sexu- party, the courts generally ally by corpsman abused at the Beaufort allow suits States, the United Naval Hospital. Although plaintiffs prem- on negligence. Note, “Section ised their FTCA claims on govern- of the Federal Tort Claims Act: Govern ment’s hiring and supervising ment Liability for thе Negligent Failure to corpsman, these held claims barred Prevent an Assault and Battery by a Fed arising out of assault or Id. at Employee,” eral 394. We noted that “a different may rule But where the same government negli obtain” where the assailant not a federal gence results an assault and battery by employee. Id., n. 3. employee, the majority opinion in this case holds the United States is A different rule obtain in did Rogers v. immune from suit virtue the inten- States, (4 Cir.1968), United 397 F.2d 12 States, 3. See States, Johnson Johnson v. United (5th v. United 776 F.2d Cir. (2d Cir.1986); 1985); States, v. United Wine v. United 705 F.2d Satterfield (6th Cir.1986); (10th Cir.1983). Garcia pendent States marshal allowed where a United basis for a suit govern- spend night plaintiff-probationer ment. It is in this allega- situation that an “unsavory” character —not a feder- with an government negligence tion of legit- proceeded ‍​​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​​​​​‌​​​‌‌​‌‌‌‌‌‌‌‌‍to torture the al imately be seen as an effort to “circum- —who summary judg- plaintiff. reversed We 2680(h) bar; vent” the just it is favor, ruling situation —where liability is agency United States “[w]hen possible only because fortuity task, voluntarily undertakes a it can be happens assailant to receive federal accepted perform- held to have paychecks designed was §—that due care.” 397 that task with F.2d at preclude. 105 S.Ct. at 3042- remanded for a determination 14. We thus 43; Hughes, 668, 669-70; possible breach of of the existence Panella v. United 216 F.2d voluntarily duty. assumed such a Section (2 Cir.1954). 2680(h)’s intentional torts hаnd, On the other “inapplicable”: “If deemed there is a of the assailant’s here, it is founded on valid claim status, possible it is to discern though gence impris- assault or false even (as- two distinct torts: the intentional tort collaterally may onment involved.” Id. battery) sault and neg- at 15. ligence precipitated it. no re- Where illogical say think that the assault placed liance is supervision claim was “collaterally respondeat superior principles, the cause of in Rogers involved” whereas it was con- action cannot real- sidered the essence of the claim in Hughes ly said to “arise out of” the assault and Thigpen and and thus barred battery; govеrn- rather it is on the based simply It makes no sense to assert that a separate legal duty. ment’s breach of a negligence claim “arises out of” an assault States, 1102, Shearer v. United 723 F.2d battery only and claim when the assailant (3 Cir.1983), 1106-08 rev’d on other happens payroll. to on the United States 52, 3039, grounds, 473 U.S. 105 S.Ct. The derivation of an or cause of (1985) (“if an assault and bat- action not turn employment on the tery occurred as a ‘natural result’ of the status of the offender. Bennett v. government’s care, States, (9 failure to exercise due 803 F.2d United 1504 Cir. 1986); Rather, battery may and at assault be deemed to 808-09. depends source of a claim on the have its roots in and nature of therefоre it wrongful in question. scope FTCA”); behavior is within Gibson States, (3 United 1395-97 majority opinion (ante As the concedes at Cir.1972) (§ applicable 822), Hughes Thigpen, and as well as the intentional misconduct was foreseeable upon by majority cases relied consequence government negligence: (ante 1), at n. are all cases where the circumstances, “Under such the attack was purported government negligence was intervening not an act and the tort did not premised solely on claims hir- arise out of the and It had and/or The same was negligence”); its roots in the Government’s true United States v. F.Supp. Loritts v. United (1985).1 87 L.Ed.2d 38 (D.Mass.1980) (citing 1031-32 Gibson and Such essentially grounded claims are Thus, Rоgers); 69 Geo.L.J. at 816. respondeat doctrine of superior. In these cases, F.Supp. 668-70, government’s arises, Hughes, assertion if all, only and 800 F.2d at assault, relationship. If the assailant were not a claim arose out of the employee, there inapposite would be no inde- where the claim White, O’Connor, Eight Rehnquist merely Justices decided the case on Feres doc- grounds. 2680(h) by trine The discussion §of participate. dicta. Justice Powell did not Burger, joined Chief only by Justice Justices premised theory is not on a F.Supp. (D.Alaska United negligent supervision respondeat superi- 1984); Loritts, (D.Mass.1 “Though may or. be true that the as- 980).2 It is also the basis for the view battery sault and serves to attаch conse- concurring advocated opinion in quences negligence, Thigpen: does not analysis tort under traditional “arise out of” assault and when gence legal remains the plain- cause of the “the breach of a recog clear and injury if the assault battery by tiff’s nizable duty_” affirmative 800 F.2d at was a conse- foreseeable J., (Murnaghan, concurring). Although quence negligence.” of that 69 Geo.L.J. at analysis much of the opinion Accord, Thigpen, 808 n. 33. 800 F.2d at persuasive, the Thigpen majority aptly crit (Murnaghan, J., (“The concurring) 399 n. 10 preferred icized the standard as overly occurrence of the actual assault and bat potentially “elastic” arid limitlеss. 800 tery thus serves to establish the ex Indeed, although at 395.3 the concur plaintiff’s injury, tent of the not to estab rence considered to involve such a hospital’s duty”). lish the breach of clear duty, affirmative the majority there used precisely type We have of properly recognized that the cause of ac analysis in FTCA cases where the assailant tion solely was based negli on a claim of Thus, employee. not a in gent supervision, id. at 394-95. Rogers, princi- we invoked traditional tort The two by plaintiffs factors isolated ples examining govern- when whether the distinguish this case from Hughes, Thig owed, breached, duty to trans- pen, Shearer, etc., provide an excellent port plaintiff subsistence to the refining means for the standard advocated opinion with due care. The focus of the by the concurrence in Thigpen. regret was the duty— existence of a presence subsequent say majority opinion not the intention- in this case al tort. The status of the summarily factors, dismisses these without irrelevant, assailant was not because the any attempt analysis address the so private party, assailant was a but because carefully plaintiffs. laid out could isolate a negligence independent source of that was A. Irrelevance of status government’s of the employer, status as Where, here, 1.e., as the circumstances of a liability was not on a claim government’s negli- case are such that the gence would render the United States liable principle I perceive would allow if the were employ- assailant not a federal government suits plain when a ee, the just happens fact that the assailant tiff’s claim is not based on a federally employed to be should not be theory negligent supervision respon- permitted to immunize the United States superior. sup deat Several other circuits applied from suit. The test to be is port See, e.g., this view. Johnson John straightforward: government would the son v. United 788 F.2d 853 n. 8 (2 Cir.), if the denied, -, liable assailant was not a cert. (1986); Gibson, 2680(h) emplоyee? yes, applica- If is not (3 Cir.1972); 457 F.2d 1391 DeLong v. ble. gone "arising

2. The battery" Ninth Circuit has even farther and claims out of assault are [or] permitted government, prem- criticism, suits barred. 800 F.2d at 395-96. This negligent supervision, long ised on government as as the however, point: distinguishing misses the employee’s had notice of the violent factor advocated the concurrence was in- Bennett, (9 Cir.1986). tendencies. 803 F.2d 1502 determining tended as a means for when a (3 Cir.1983). Accord 723 F.2d 1102 legitimately claim can be said to “arise out of sound, approach an assault or This Thigpen majority argued 3. The also that there refinement, principle, requires in further as was no basis in the Act for be- out set infra. tween situations where the owes аn duty” "affirmative and when it does not—all advantages ap- Loritts, this several agree ‍​​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​​​​​‌​​​‌‌​‌‌‌‌‌‌‌‌‍There are Court does not “[t]he proach. judicial It satisfies concerns that escape liability under circumvent the bar will section 2680 because the fortuitous na- by simply framing an assault and ture of following neg- the circumstances part claim in terms of on the ligence.” F.Supp. at 1032 n. 3. See See, e.g., Hughes, Johnson, (“[t]he also 788 F.2d at 853 n. 8 668; F.Supp. 800 F.2d at 394- negligence alleged ... Loritts was [in ] 95; Shearer, 105 S.Ct. at 3042. The government’s supervi- subject only to suit will sion of its and the fact that an cases where it would be liable for the as employee, non-employee, rather than a i.e., private party; sault ”). committed the assault was ‘fortuitous’ government liability premised on some argument In its brief and at oral thing other than the relation government acknowledged irrationality ship. disguise responde- Thus efforts to interpretation of its critical —a superior precluded. claim will be See light concession of the well-established Loritts, (where at 1031-32 that, principle possible,” “whenever stat- providing undertakes task of utes creating should be construed to avoid plaintiff companions, escorts to must “untenable distinctions and unreasonable care; perform task due where attack results.” American Tobacco Co. v. Pat- plaintiff walking occurred was when with terson, escort, out an is not ... the situa “[t]his 71 L.Ed.2d 748 Plaintiffs’ plaintiff by tion where a virtue artful anomaly, alternative avoids this prop- pleading seeks to circumvent section erly wrongfulness focuses on the 2680(h)”). government’s irony conduct. The addition, approach prevent will that, government’s position is in an effort the elevation of form over substance in subjecting to avoid to suit litigation. A may FTCA Plaintiffs & B just of its role employer, goes because injury, suffer the same as the result of the opposite to the extreme and offers immuni- government negligence. same Yet under ty from precisely suit for the same fortui- approach, tous circumstance. fortuity plaintiff hap- A’s assailant pened employee, to be a federal A’s suit B. Presence of would be barred while B’s would not. This precisely leads to particularly situation troubling since one violated statute or was purpose of the FTCA was to establish a designed prevent providing uniformity treatment, scheme system unlike the bills that it distinguish Plaintiffs also seek to cases replacing. Jayson, Handling invoking exception by the intentional tort Federal Tort Claims: Administrative and not, arguing that do contrast to the Remedies, Judicial 66.03 suit, § present involve the violation of government regulations i.e., negligence case, In this had private it been a citizen per correctly points se. Plaintiffs’ brief weapons who wrongfully took the stored that “Hughes out does not answer the room, Mr. Carr’s had it been a question Congress of whether intended the corpsmen citizen who the three found wan- government liability to free of when the dering brandishing rifle, drunk and injury per which arose out of its government’s se liability unques- would be gence majority was actuated the foreseeable opinion tioned. The implicitly con- cedes There commission of an intentional tort.” The persuasive as much. is no disparate reason for the treatment which value of this factor advocates.4 explained supported by Rogers' pro- As other cases is anything, If it makes more sense to hold whom exercises at least some control. Gib 4. son, 1394; 63, liable for intentional torts of its 457 F.2d at 69 Geo.L.J. at 814 n. private parties than 821. —rather —over

827 nouncement voluntary assumption that of a assault or battery.” Shearer, of 105 S.Ct. task entails perform it with due at 3042 (emphasis in original). However, care. 397 at 14. Loritts, Accord 489 this literalist interpretation is belied by the F.Supp. at Surely 1031. the passage of concession in Shearer, Thigpen and regulations concerning weapon storage and Hughes that § does not bar the safety constitutes such a voluntary as- identical claim against sumption of duty. when the assailant is not an employee. As presence The above, noted no makes sense say claim effectively аnswers the claims criticisms lev- “arise out of” assault ied at an approach and battery like that of the claims only when the assailant provides concurrence. happens It bright-line to be a test employee, Bennett, for the existence of might what 1504; otherwise The derivation of a claim be a nebulous “affirmative cannot duty.” It rationally also be said to turn on the satisfies concerns about circumvention of status of the assailant. 2680(h)by ensuring lia- Moreover, statutory language “should bility is based on an independent tort, and not be read in isolation from the context of not on the employment relationship alone. Act,” whole but rather with an eye As with the factor, first this one properly towards the legislation’s “object and poli- focuses attention neg- cy.” Richards v. United 369 U.S. ligent conduct, rather than on the fortuity 1, 11, 82 585, 592, S.Ct. 7 L.Ed.2d 492 assailant’s status. (1962). Accord, Jayson, 69. In case, Superficially, some the language in legislative goal of providing a uniform Hughes, Thigpen and may Shearer appear system for compensating the victims of preclude the approach just outlined. government negligence5 is met only Yet, on inspection, closer the principles an- through the approach by plain- advocated nounced in those cases are perfectly com- Indeed, tiffs. both Hughes and Panella patible with, and arguably better served explicitly rejected, as “out of keeping ‍​​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​​​​​‌​​​‌‌​‌‌‌‌‌‌‌‌‍with by, the position advocated plaintiffs. the rest act,” interpretation literal There are two basic criticisms of plain- “arising out of” that would have barred approach tiffs’ derive from Hughes, suits where the assailant was Thigpen and First, Shearer. it is contend- federally employed. Panella, 216 F.2d ed that the “sweeping language” 624; Hughes, 514 F.Supp. at (quot- any “excludes claim arising out Panella).6 66, Jayson, 66.03, 69; §§ 69 Geo.LJ. at (4 Cir.), 540 F.2d 979, denied, cert. 429 U.S. 812 & n. 49. (1976) (“The L.Ed.2d 588 [FTCA] is remedial and liberally con Court, Supreme Congress’ sensitive to de grant strued to contemplated relief Con sire to use the "mitigate FTCA to unjust [the] gress”); Bennett, (“broad 803 F.2d at 1504 im consequences sovereign immunity," has ex munity is inconsistent primary with the plicitly rejected, purpose context, in the FTCA the tradi Act, the Federal Tort approach tional strictly construing statutory forum for the waivers ing immunity. Jayson, resolution claims (quot §§ Feres federal government’s 135, 139, United caused S.Ct. (1950)). Indeed, negligence”). L.Ed. 152 judicial Accord Kosak, E.g., at 813. trend in years recent U.S. 848 at 853 have been toward an ex n. pansion 1523 n. increasingly via (rejecting strict approach construction as “un- interpretations liberal Note, of the FTCA. helpful,” noting “unduly generous in- "From Feres to Military Stencil: Should Person terpretations exceptions of the [to the waiver of nel Have Access to Reсovery,” FTCA 77 Mich.L. sovereign immunity] run the defeating risk of 1099, 1101, 1104, (1979). Rev. 1106 the purpose central statute”); of the Block Although there are some opin- Fourth Circuit Neal, 289, 298, 75 ions that have adhered to the stricter traditional (1983) (“ exemption ‘The of the sov- approach, rely these cases primarily on deci- ereign from suit hardship involves enough preceded sions that either the recent liberaliza- where consent has been withheld. We are not tion, or are Unique outside the FTCA con- to add rigor to its of refinement construction See, e.g., Thigpen, text. 800 F.2d at 394. where consent has ”) (citations been announced’ omitted). See also Kielwien v. United 828 i.e., where, relationship; to the mаy make sense addition, while negli case, is one for the this claim supervision as unlike negligent for claim

view a Johnson, 788 assault, the See gent the of” “arising out Indeed, of Chief Justice liability is an the thrust at 853. vicarious for this sole basis Shearer, at conduct, S.Ct. this cannot 105 Burger’s opinion assaultive employee’s 3042-43, problems the associated concerns the where be said em- of tort, independent supervision/re- negligent of claims is a distinct with 397 Rogers, liability relationship. imposing See ployment spondeat superior i.e.,— 1395; Lor Gibson, F.2d at 15; 457 of its solely because F.2d at on Thus, un even at F.Supp. itts, Johnson, 788 489 See employer. as status statute, reading of literal Shearer).9 der a (describing at a where allow suit 2680(h) would § can- by plaintiffs advocated criteria The of a claim based on not is of action cause for failure legitimately be faulted not supervision.7 negligent application. for bright lines ap- plaintiffs’ criticism The second a has been violation there Whether Thigpen and Hughes, from derived proach, negligence per se or statute — underly- goals policy Shearer, concerns inquiry. straightforward —involves objec- principal 2680(h). the three Of ing § be liable would Whether exceptions motivating creation tives also private party been the assailant had avoid Unit- desire to FTCA, only the to the The relatively simple assеssment. entails liability ex- for “exposure ... ed States litigat- little trouble currently have courts implicated is claims” or fraudulent cessive involving private assail- cases FTCA ing battery exception is determi- required here All that ants. States, 465 v. United 2680(h). Kosak § legal any basis— there is of whether nation 1525, 1519, U.S. employer as its status apart from —for at 69 Geo.L.J. L.Ed.2d negligent. be finding the however, easily objective, This 46.8 n. deter- for alternative The standard, ensures plaintiffs’ bymet 2680(h), rely- mining applicability tort as of an the existence assail- employment status on ing liability. As Second for basis apply. To focus ant, no easier be would out, the fear recently pointed Circuit door to a opens thе status in on liability is relevant excessive ‘scope concerning the range arguments solely on liability premised cases where are solved liability problems that Hughes citing argues, ernmental government also 7.The by plaintiffs. advocated the standard that a employee’s assault out of’ to “arise deemed (1) govern freeing certain two are 8. The other cause of “immediate” when the assault is However, (i.e., involving delicate this those standard activities plaintiff. ment injury to discretion) on a civil threat of negligence claim from the that a mean exercise suits, (2) the "immediate” reme non-employee’s foreclosing new federal assault —also by § injury аlready be barred adequate cause of relief was dy where in cases —would possibil- clearly rejected that courts have Kosak, Yet the S.Ct. at at available. ity. 1525; n. 46. at 811 Geo.L.J. contributing to "immediacy" of a factor under causation for injury litmus test is not the Burger’s statement Chief Justice Even factors, Multiple principles tort law. basic type of "certain with a Congress concerned others, can all be than immediate some more legal by Govern- attacks situation —deliberate factual long the interven- as causes of an must employees,” 105 S.Ct. or crimi- intentional events—even immediate- statement This in this context. read (2d) Rest. reasonably foreseеable. nal —are Torts, Congress did ly contention follows the Courtney v. (1965), cited in 302 A-B supervision and negligent distinguish between (D.S.C.1983), Remler, claims, precedes the superior respondeat Cir.1984); (4 aff’d, 745 F.2d 50 that it “Congress did not hint conclusion Moreover, this "immedia n. 825-27. 808 & an assault thought Government’s developed context cy” standard was supervi- adequacy of turned claims, con where it was supervision avoid- Clearly, the focus is warnings.” sion necessary circumvention to avoid sidered liability. of vicarious gov- ance resulting expansion of and the employment’ e.g., of does a com battery off-duty mitted anby employee constitute a MILITARY REALTY, SERVICES INC., battery by government pur for Plaintiff-Appellant, poses 2680(h)? Sеe 69 Geo.L.J. at 818-20; Gardner, “The Federal Tort Claims Act,” Clearinghouse (Nov. Rev. REALTY CONSULTANTS OF VIRGI 1982); Jayson, NIA, Chapter 8. The criteria ad LTD.; Rentfrow; Harlan R. by plaintiffs, vocated by rendering Rentfrow; the as Pamela J. Jarvis; Linda Fox sailant’s irrelevant, status Walter; Julie T. will ‍​​‌​‌‌‌‌‌​‌​‌​​‌‌​‌‌‌‌‌‌​​‌‌​​​​​‌​​​‌‌​‌‌‌‌‌‌‌‌‍Martin; Ann Marie actually quagmire.11 avoid this Owens; Sandra George Ayers; Scott P. Ayers, Defendants-Appellees. Conclusion The majority opinion reads intention- No. 86-3130. exception FTCA, al tort 2680(h), United States Court of Appeals, way such a as make the employment Fourth Circuit. status of the assailant determinative of when the United States will be liable for its Argued April 1987. opinion gives misconduct. The July 21, Decided short shrift to the factors isolated plain- tiffs this casе from our

earlier FTCA decisions. doing, In so it reaches comports a result that neither with

logic, statute, nor fundamental notions I equity. respectfully thus dissent. I judgment reverse the for defendant

and remand the case for trial. fact, 10. In majority’s ruling, under the the case voluntarily either assumed imposed or had could well be remanded for examination of this upon by legislative or executive order. issue, very corpsman since the appar- here was words, plaintiffs must establish that ently off-duty at the time when he committed employees, acting within the assault. See 800 F.2d at 394 n. 2 scope obligations employ- their —indeed —of (court’s conclusion that claim was barred ment, would have аcted in a manner that could assault obviated need to ensuing have averted ruling examine district "scope court em- place There is inquiry no for an into whether ployment” requirement 1346(b)). of 28 U.S.C. § particular negligent employees acted within the scope indeed, majority employment; their very asserts that the rule I would adopt plaintiffs would not basis of inquiry eliminate an case is a any into the failure of "scope employment," merely government employee shift the so to approach act. This inquiry to those alleged negli- whose "scope thus employment” avoids quag- gence allowed the assault respectful- to occur. mire mаjority’s alternative invites. ly suggest majority that the misconceives the preceding analysis incorrect, Even if the were nature propose. rule that I it would be no indictment of the rule that I have explained As supra, I read permit worst, proposed. At merely this rule fails to suits the United in circumstances type "scope eliminate the employment” where a employee has committed inquiry majority concedes is necessitat- battery, assault and whenever Thus, approach. ed my proposal while isolate duty, and breach of that may prove apply, no easier to certainly entails duty, independent status as greater no difficulties than the alternative advo- employer. satisfy requirement, To plain- cated majority opinion. tiffs must perform establish failure to ade- . quately some which the has

Case Details

Case Name: Michael N. Sheridan and Mary A. Sheridan v. The United States

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Jul 20, 1987

Citation: 823 F.2d 820

Docket Number: 86-3961

Court Abbreviation: 4th Cir.