*1 Before CUDAHY MANION, Judges, WILL, Circuit Senior *2 2680(h): provisions “The section of this Judge.* District 1346(b) chapter and section of this title CUDAHY, Judge. Circuit (h) Any arising apply shall not to ... claim assault, battery____” 28 U.S.C. are in these consolidated cases Plaintiffs (1982). question The central on this Dur- parents. § their minor children and two appeal plaintiffs’ is the whether claim 1984, sexu- ing the the children were fall of” an assault or In parties "aris[es] ally while molested unknown construing imprecise language, this “we Day care Air Force Base the of the Scott should, hand, give on full the one in- is from the Center. It not clear Care relinquishment of the Government’s its his- inci- complete appeal record on whether the suit, the immunity toric from and on other or day at the care center dents occurred hand, narrowing provisions avoid the prem- from the children were removed the Congress set forth situations which has assaulted, re- day, during the then ises immunity.” seen fit to retain that Panella turned. States, 622, (2d v. United ap- complaints filed with the Plaintiffs Cir.1954) J.). (Harlan, Fortunately, dowe Those propriate administrative bodies. upon A not write a blank slate. number of denied; plaintiffs insti- complaints so were issue, struggled have this courts under Federal present the action the tuted rely heavily upon guidance. their we 1346(b), Act, Tort Claims U.S.C. §§ (1982)(the "FTCA”). complaint case, The In the is seq. et this attacker unidenti essence, government alleged, might the easier that fied. case be much if we Panella, identity. to care for the children knew his assumed a 625, allowing Judge (later Justice) the duty, it Harlan that that breached that held youths. battery exception molest the not unidentified attacker to the assault and does course, is, by persons form of on molestation claims based assaults Child bar discovery employed by failed Al government. assault and After the identity, though statutory language dis- reveal the assailant’s the the does not result, government’s sum- granted compel Judge court Harlan stated trict ground provision mary judgment motion on the did not intend jurisdic- legal entire plaintiffs failed to surmount the embrace “actions whose on failure tional obstacle the FTCA’s foundation rests battery exception, perform 28 U.S.C. its duties.” § words, (1982). appeal grant (emphasis of sum- In other Plaintiffs against mary judgment, and now is we reverse. when negligence, solely on its section This apply. I. should not narrow holding uniformly has been fol Panella reasons, Traditionally, for number of See, e.g., lowed. Brown v. United from was immune suit Cir.1973); (8th Rogers 486 F.2d 288-89 agents. the torts of its The FTCA was 397 F.2d Cir. sover- enacted to effect a broad waiver of 1968). eign immunity injury person or where Panella, however, property or does not answer the is “caused wrongful employee question or now before us. Panella is silent act omission acting is the issue of when a claim barred of the Government while within on is, be, employment.” may govern- scope of his office or where assailant 1346(b) 1346(b)(1982). argue is ment Plaintiffs U.S.C. Section § is, however, jurisdictional govern- occurred grant; a broad these assaults due supervise exceptions limited certain contained ment’s failure to victims. contend, assailant, identity they here is The 2680. The at issue Will, sitting by designation. *The L. Senior District Honorable Hubert Illinois, Judge District of is for the Northern (D.Mass.1980); govern F.Supp. see also John to their claims. irrelevant ment, hand, son v. n. 8 on other contends — Cir.1986), denied, (2d -, cert. U.S. identity determinative of the assailant is (1987). 107 S.Ct. 93 L.Ed.2d Citing recent jurisdictional question. Supreme dictum in States v. Court facts of almost Scott are identical to 54-57, 105 S.Ct. case. Children molested at the were (Burger, C.J., (1985) 87 L.Ed.2d 38 Development Center, Point West Child al- *3 Justices),1 argues that if the for four legedly governmental due to failure to ade- government employee, the attacker was a Scott, supervise quately the victims. 652 urges The us to claim is defendant barred. alleged at 550. in- F.Supp. attackers employee line draw an absolute between government employees both and cluded attackers, barring non-employee all and non-employees. holding Id. In that the government the assailant is a where battery exception apply did not circumstances, empha- under the the court special relationship the sized between the II. victim, government and the the fact that government’s proffered respect the

We duty “the Government assumed a to safe- is approach. application Its ease of obvi- guard plaintiffs long the infant before the nonetheless, ous; rough path a it cuts too giving events rise to this action.” at unnecessarily con- apparent and thwarts 551.3 Hence, gressional join every intent. we Likewise, in the court found sec- Loritts question court to have decided the narrow 2680(h)inapplicable tion “West Point where extreme, presented creating here a less voluntarily providing undertook task of the unambiguous, yet rule.2 group plain- escorts to the choral of which precise helpful It is reformulate the Loritts, a F.Supp. tiff was member.” 489 question us. The whether a issue before is assuming duty, After that at 1031. the solely claim on the of an breach government provide failed to an escort for victim, expressly affirmative to the plaintiff's sleeping quarters; walk to her government, by the by assumed is barred raped by she assaulted and an was acade- 2680(h)where leads case, section that breach to my govern- cadet. Id. As this government employee. an assault voluntarily ment assumed a directly ques prior The two courts reach this victim to the assault. The assault tion barred. duty, have held claim is not from the resulted breach that Scott, (S.D.N.Y. F.Supp. special relationship See Doe v. 652 549 arose from 1987); government 489 and the Loritts between victim. Shearer, off-duty part 1. In the victim was soldier at took an 105 S.Ct. 3044. Justice Powell Only murdered another The victim's the decision. Id. at S.Ct. at 3044. serviceman. action, brought Rehnquist, joined alleging mother an FTCA Justices O’Connor and White portion Burger’s government negligent opin- supervising was the FTCA of Chief Justice attacker, ion. past had a violent record of acts. 53-54, 473 U.S. at Court, 105 S.Ct. at 3041-42. opinion by Burger, urged rejection Chief Justice 2. Several commentators have Note, jurisdiction rigid held that was barred the Feres employee/non-employee rule. See Feres v. Language doctrine. See 340 U.S. Torts — The Talismanic Section (1950). Act, Temp. 95 L.Ed. Chief Claims Federal Tort Note, Burger (1987); L.Q. also Justice stated that the claim would Section battery Liability be barred the FTCA’s and Federal Tort Claims Act: Government joined Negligent exception, opinion ain section of the Prevent an Failure to Assault 54-57, Battery by Employee, three other Justices. 473 U.S. at Federal 69 Geo.LJ. (1981). S.Ct. at 3042-43. Justice filed a brief Brennan opinion, joined by Justice Blackmun and Ste vens, concurring judgment in the on Feres doc distinguished 3. The Court Shearer and other grounds joining opin part trine that where on cases the claim was based Scott, ion. Id. supervision F.Supp. at 105 S.Ct. at 3044. Justice Mar of the tortfeasor. distinction, joined shall also in the concurred result and See our of this at 551. discussion portion opinion. pp. Feres doctrine Id. at 223-24. infra boundless, capture any read it to be of these cases is clear. lesson assault; tangentially to an related affirmatively as Where the however, recognized long the courts have prior duty to the victim sumes language must that this be construed in assault, breaches statute, light of the entire to effect its victim, can duty causing injury to the we Panella, See, purposes. e.g., say her claim arises out of the 624; at see also 473 U.S. Rather, it arises the breach assault. at 105 S.Ct. 3042-43. The most obvious duty. “The occurrence case, example of Panella. thus of the actual assault 2680(h)’s Judge limited Harlan section only to establish extent serves employ- to assaults injury, not to establish Panella, F.2d He ees. at 625. did so duty.” [government’s] Thigpen breach literally the statute because read would n. 10 jurisdiction for remove actions “whose en- J., Cir.1986)(Murnaghan, concurring in legal tire rests on foundation case, result) added). (emphasis In this *4 perform failure the Government to its duty and the claim arose the was breached (emphasis duties.” allegedly left the government the when alone, neglecting voluntarily as its children argument That same the construc- favors protect and them. duty sumed to watch give statute in this case. Here tion we the they only The fact were assaulted that solely govern- the the claim arises due to ne damage to the from that serves show alleged neglect of the children. In ment’s glect. fact, unique case the facts this make point crystal clear. No one knows help may A to illus hypothetical and Doe. assaulted John Alexis Plain- point. If John and Alexis Doe trate may prevail in tiffs this case without ever assaulted, in not had been but assaults, proving who committed the be- had the and wandered into street stead relationship from the cause the claim arises government employee’s a been struck victim, government the the between and car, they undisputed it is could sue the government and the the tortfeasor. not negligence government on its in al Further, lowing away legislative history unsu is in the children wander the not re his pervised. This claim would be allowed consistent with this construction. That negli “meagre,” gardless tory of whether the driver was has been described as Pan and, matter, ella, “sparse,” ref gent for that without and Shear quality er, the con at To erence the driver’s 473 U.S. at 3042. this; government yet, helpful, points it is at all it duct. The admits the extent that it Congress in us believe that the used the would have toward notion suit, very language tended this based on the same section so that broader act, solely disguise respondeat to be barred because not su could assault, negligence perior “negligent supervision” led the to an claims as govern claims, through a might sneaking been committed them the court have argument This is at ment absurd. house back door. See government principled offers no basis 105 S.Ct. at 3042. urges for the us to draw. We distinction it, no apply the rule as we there is Under congressional irrationality not un will infer pleading. In of such risk selective Shearer statute, something legisla less the cases, “negligent supervision” other compels history tive or the case law alleged duty to the result. only arises at the of the assault victim time See, e.g., Thig because of the assault.

III. J., (Murnaghan, con pen, 800 F.2d at 398 result) (“The “arising curring in not statutory language, law does assault,” certainly enough sup- general duty, applica impose is broad reading. public, government’s to all to act to port the One could ble members person peril duty protect plaintiff prior from the intention- protect a another.”); Indeed, al harmful only conduct see also assault. nexus between Scott, (“In F.Supp. [negligent at 551 plaintiff was the supervision] relationship cases the between assault itself. only arose victim Government cases cited Several point alleged at language supporting contain our result in assault.”). If because of the Johnson, example, this case. 2680(h), plaintiff bring section would distinguished Second Circuit a case where superior away respondeat action. Take negligence alleged indepen- ... was “[t]he duty the assault and there is no and no government’s supervision dent of the of its breach, negli- two central elements of a employees employee, and the fact that an gence negligence There claim. is non-employee, rather than committed the not “arise of” the that does assault. ” Johnson, assault was ‘fortuitous.’ Here, contrast, if we remove the as- Loritts, (citing F.2d at 853 n. 8 F.Supp. equation, government’s sault from the 1030).4 Thus, the Scott court found that duty duty still exists. That was assumed holding its was consistent with Johnson prior independent to and of the assault. Scott, F.Supp. and Shearer. at 551- Likewise, regardless occurs breach Further, concurrence, Thigpen his duty the assault. The breach of was the Judge Murnaghan that “the states government’s alleged supervise failure to may States assume an affirmative

the children in its care. This protect plaintiff from the violent conduct sepa- is claim based on a and breach by entering special of others into a relation- rate from the assault. The line we draw *5 ship plaintiff.” Thigpen, 800 with firm, clear and and it serves the dual con- J., (Murnaghan, F.2d at concurring 399 gressional purposes allowing legitimate result). independent negligence claims while fore- closing disguised respondeat superior Finally, nothing should we note that claims. opinion is inconsistent with Chief Jus- Shearer, Burger’s opinion tice 473 U.S. cites numerous cases to 52, is, opinion 105 S.Ct. 3039. That matter, support position its in this but ev course, dictum, only joined by since it is ery allegations one of those cases involves three other Justices and the case decid- was negligent supervision negligent hiring Nonetheless, grounds. ed on other a num- See, Shearer, of the e.g., 473 tortfeasor. reasoning per- ber of courts have found its 54, 3041; U.S. at 105 at S.Ct. Sheridan v. See, e.g., Thigpen, suasive. 800 F.2d at States, (4th Cir.1987); United 823 F.2d 820 395; Hoot, 838; Garcia, 790 F.2d at 776 394; Thigpen, 800 F.2d at Miele v. United Kearney F.2d at 117. But see States, (2d Cir.1986); 800 F.2d 50 Hoot v. States, 535, (9th Cir.1987) 815 F.2d 536 States, 836, (10th 790 United F.2d 837 Cir. (refusing dictum); to follow 1986); Johnson, 847; Shearer Ben- Satter States, 1502, nett v. 803 F.2d 1503 v. 788 F.2d field (9th Cir.1986) (same). above, Cir.1986); As noted Garcia v. United (5th Cir.1985). Those negligent supervision 116-17 involved Shearer F.2d cases, a by Burger all driven the concern tortfeasor and Chief Justice with dis was guised claims, respondeat superior primarily disguised concerned respon- are dis tinguishable Scott, superior on their supra p. facts. See 652 deat claims. See F.Supp. at 551. In analysis respects none of these cases did Our here that concern assume an holdings and remains consistent with the language 4. There is some broad in Johnson to vision of the tortfeasor. See id. at n. any the effect that section bars (distinguishing cases that "did not involve injuries where the are an caused assault. See allegations negligent supervision where the Nonetheless, opinion 788 F.2d at 850. read negligence only encompasses of the as- entirety in its makes clear that the court was government employee"). sault a only negligent super- concerned with claims of invoking reconciling past party As the the district decisions court’s prior cases while plaintiffs goals. jurisdiction, had to furthering FTCA’s establish that 2680(h) did their not bar claims. See IV. generally Corp. Hausermann, Grafon (7th Cir.1979). Plaintiffs decision, today’s narrow we To reiterate by showing could have met this burden government affirma- hold that where that their claims “arose out of” protect person tively a a assumes person an assault committed who is assault, independent of prior to and employed government. See alleged an breach and where Panella v. United person, leads to assault on whether (2d (Harlan, J.); see also Cir.1954) 624-26 government employee, or not Shearer, United States v. U.S. government’s negli- out of the claim arises 3039, 3042-43, 87 L.Ed.2d gence, does not bar and 28 U.S.C. § (1985) (plurality). plaintiffs Because the Therefore, summary the cause of action. preliminary meet did not their burden of granted in this judgment improperly was establishing that someone other than a and remand the cause case. We reverse government employee committed the as- proceedings opin- with this consistent sault, correctly the district court entered ion. judgment government. favor and Remanded. Reversed United States v. MANION, Judge, dissenting. Circuit (1985), 105 S.Ct. 87 L.Ed.2d eight plurality sitting four-member respectfully majority’s I dissent from justices stated that the bring can conclusion that suit, brought by barred a against their the United States. serviceman, alleged survivor of correctly concluded that The district court government negligently failed to jurisdiction un- plaintiffs failed to establish kidnap and prevent the serviceman’s mur- prop- Act Tort Claims der Federal Writing der another serviceman. summary judgment in erly favor entered plurality, Burger Justice rea- Chief government. I would affirm. soned: *6 Act The Federal Tort Claims waives The Act’s Federal Tort Claims waiver sovereign immunity government’s federal sovereign immunity not apply does or injuries persons property to suits for ‘[a]ny arising of assault claim out [or] otherwise be recoverable under would 2680(h), and battery,’ it is 28 U.S.C. § 1346(b). That state tort law. 28 U.S.C. § claim arises out respondent’s clear 2680(h) by 28 U.S.C. qualified waiver is § by committed service- battery [the against the United States which bars suits guilty man No semantical murder]. arising out of “[a]ny for claim assault [or] recasting of events can alter fact battery____” As an battery was the immediate cause sovereign government’s waiver of immuni and, consequently, death [the victim’s] nature, see 2680(h) in ty, jurisdictional § respondent’s the basis of claim. States, 845, 788 F.2d Johnson v. United — denied, (2d U.S. —, cert. Cir.), Respondent avoid the reach of 850 cannot 2680(h) 315, (1986), framing complaint in by 93 L.Ed.2d 288 and all her S.Ct. § prevent in ambiguities resolved terms of failure to must be favor 2680(h) Thigpen v. government. assault Section States, Cir.1986). merely does not 800 F.2d bar claims assault or for “Only battery; sweeping language it clearly has and un in ex- when arising out of equivocally expressed its suits cludes consent claim against may provision the United States courts enter We read (citing respondent’s tain cover claims like sound such actions.” 1, 4, King, States v. negligence battery in from a 395 U.S. S.Ct. but stem (1969)). by 23 L.Ed.2d 52 committed a Government Thus, express ‘the are words of statute’ based on the breach of an “affirmative respondent’s against bar duty” arising “special out of a relation- Spelar, government. United States ship” between the and the vic- 10, 11, prior [70 tim to the assault. This distinction (1949). L.Ed. 3] statutory has foundation in the lan- guage. 2680(h) plainly Section and unam- 54-55,105 (plurali- 473 U.S. at S.Ct. at biguously “arising claims bars out of as- ty opinion) (emphasis Al- battery.” sault though justices exempt It does not participating the four other [or] negligence arising join portion the case failed to in this claims from breaches of opinion, the Chief imposed Justice’s none of them “affirmative duties” as a result of Rather, separately “special wrote on this issue. Thigpen, See relationships.” justices simply agreed these with an alter- (rejecting F.2d at 395-96 “affirmative ground native for decision in the Jus- Chief duty” distinction in pa- cases where minor opinion tice’s the claims also were sexually being tients were assaulted after —that by the Feres doctrine (barring barred placed in hospital). By the care of a naval by claims servicemen that arise out of or in focusing government’s duty on the the ma- activity service). the course of incident to jority fails to take into account plain language of the Shearer plurality opinion is not statute focuses on immediate cause Except injuries, isolated on this issue. view for the Circuit, Kearney see v. United Ninth the actions of remote individuals. As the States, (9th Cir.1987) Second Circuit Johnson: stated (§ 2680(h) does not bar claim on al- plain language, ‘arising statute’s leged negligent supervision that resulted of,’ reflects by Congress an intent sexual assault and murder a service- against bar a suit man), addressing all the circuits this issue caused injuries employ- 2680(h) have held that bars such claims. § ee’s commission of an assault and bat- Thigpen See v. United 800 F.2d 393 tery. equally It is clear that the claim (4th Cir.1986) (§ 2680(h) negligence bars injuries here is for employ- caused patients hospital minor in naval that, ee’s absent sexually were assaulted naval battery, the assault and no claim could corpsman Navy who had entered the in lieu exist. The is a matter § serving indecency sentence for with a permit of federal law. To such a claim child); Johnson v. United 788 F.2d to be stated in terms of a (2d Cir.1986) (§ bars claim theory prior foreseeability based on negligent supervision postal based on Congress’ purpose would defeat in enact- child); worker who assaulted a 2680(h). claim, ing although stat- Satterfield negligence, ed in terms of would still be (6th Cir.1986) (§ 2680(h) negli- 399-400 bars injuries arising caused *7 gent supervision negligent and failure to the assault and warn brought by claims estate of service- (citations omitted) (em- 788 F.2d at 850-51 man beaten to off-duty death three ser- phasis vicemen); Garcia v. United (5th Cir.1985) (§ 2680(h) bars majority’s duty” “affirmative dis- negligent supervision based on tinction also cannot be reconciled with the military recruiter sexually assaulted a plurality’s reasoning in Shearer or with potential recruit); Wine v. United Johnson, Thigpen, Satterfield, Garcia (10th Cir.1983) (§ 2680(h) Wine. In each plaintiffs of those cases bars negligent claim based on supervision sought upon relief based a breach of an of serviceman who shot and as- duty” protect “affirmative them from plaintiff). saulted the acts that injuries. resulted their As notes, The majority majority impose states that it does the law not mat- does not ter whether the general assault was committed on individuals or entities to employee protect persons because the claims from the intentional torts battery pre- on and Keeton of another. See Prosser Treasury acting the Federal from as 1984). vents Torts, ed. 56 at 373-85 § deep pocket intentional torts commit- for an seeking recovery cases negligence excep- by government employees. The ted plaintiff must party, a third assault broadly prevent drawn tion is de- allegedly negligent that the establish paying from the same dam- obligation to had an fendant simply plaintiffs recast their ages because prevent Without steps to the assault. take to recover based on claims duty” there establishing some “affirmative other, culpable employ- less the actions and, therefore, negligence. no is no majority’s “exception-to- ees. While the argue in terms of “relation- While the-exception” may policy abe reasonable government, the attack- ships” between the choice, Congress, courts, not must only victims, relationships er such amending the statute. make choice duty” go exists to whether “affirmative duty. Those rela- extent of that change not the nature of the tionships do sought or theory under relief is

tort injuries.

the immediate cause majority attempts distinguish holding that decisions numerous § TAYLOR, Petitioner, Hubert C. arising claims negligent supervision bars ground on an assault or PEABODY COAL COMPANY su negligent involved that those decisions Director, Office Workers’ tortfeasor, pervision of the not the victim. Compensation, Respondents. has Although majority succeeded 86-2590. No. creatng a factual distinction between decisions, dis appellate other case and of Appeals, United States Court under the statute. tinction has relevance Seventh Circuit. unambiguously any claim The statute bars Argued Oct. 1987. arising out of an It Decided Jan. permit a distinction between vari does supervision ous claims. Cf. 55, 105 473 U.S. at S.Ct. at

(“There Congress is no dis indication ‘negligent

tinguished supervision’ between claims, respondeat superior

claims and only the Act. latter excluded under the appears believed

Instead arising would bar type factual a certain situation—delib employees.”) attacks

erate Government I

Finally, hypo- do not believe example of the child who wanders

thetical demonstrates the “ab-

out into street position. If

surdity” government’s car, her accidentally child is struck

injuries do not “arise out of” an assault assaulted, If the child is injuries

her do out of” “arise This distinction is mandated statutory language and is reason-

able.