Petition — Gibson v. United States

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Supreme Court of the United States

Ocroszr Term, 1977

RONALD GIBSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

S.M. Corrs Franzsiav,

Attorney for Petitioner,

1180 Raymond Boulevard,

Newark, New Jersey 07102

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

PAGE

SratuTes INVOLVED salaed ~_— 2

QueEsTIONS PRESENTED ..... os 3

ConsmeraTions Perrraininc To Rute 19 or THE

SuprEME Court * a

PRELIMINARY STATEMENT ian 5

STATEMENT OF THE CasE ‘ 10

SD © scincitcsiccissiciiciiieniitegitcbiiataaniaistinnedaian 20

APPENDIX:

A-—Opinion of the United States Court of Ap

peals for the Third Circuit . la

B—Judgments of the United States Court of

Appeals for the Third Circuit 35a

C—Order Denying Petition for Rehearing of

the United States Court of Appeals for the

Third Circuit 38a

D—Opinion of the United States District Court

for the District of New Jersey 40a

E—Prior Opinion of the United States Court

of Appeals for the Third Cireuit —....000...... 75a

F—Relevant Statutes ...... 88a

Cases Cited

Logue v. U.S., 421 U.S. 521 (1973) 02. eee 3

McGarry v. U.S., 549 F.2d 587 (9th Cir. 1976), cert.

den. 98 S.Ct. 398 (October 31, 1977) 002... 3,4

ii TABLE OF CONTENTS

Statutes Cited

28 U.S.C. (Federal Tort Claims Act):

See. 1346 ..

TP cnttantscecsienptapaiiaitiaihidagseaaiiin

PAGE

So rw WwW bt

—

IN THE

Supreme Court of the United States

Ocroser Term, 1977

—-—

RONALD GIBSON,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

To the Honorable Chief Justice and Justices of the Su-

preme Court of the United States:

Petitioner, Ronald Gibson, respectfully prays for the issu-

ance of a writ of certiorari directed to the United States

Court of Appeals for the Third Circuit.

1. On December 15, 1977, an opinion and judgment

thereon were filed in the Court of Appeals which reversed

a judgment entered in the U.S. District Court for the Dis-

trict of New Jersey dated June 15, 1976 which had ad-

judged the U.S. liable for plaintiff’s injuries. (Garth, C.J.

and Layton, D.J. for the majority; Adams, C.J. dissent-

ing). (la; 35a)

2. On February 1, 1978 the Court of Appeals filed an

order denying plaintiff’s motion for rehearing in bane or

by the panel. (38a) One judge voted for rehearing

(Rosenn, C.J.)

3. Jurisdiction over this application for certiorari is

based on 28 U.S.C. See. 1254(1) and See. 2101 (ce).

4. Plaintiff brought suit under the Federal Tort Claims

Act which vested exclusive jurisdiction in the U.S. District

Court, sitting without a jury. (28 U.S.C. See. 1346 (b)).

5. In 1972, the Court of Appeals for the Third Circuit

reversed an Order of the District Court which had dis-

missed the complaint. The Court of Appeals opinion re-

versing the dismissal is reported at 457 F2d 1391 (3rd Cir.

1972). (75a)

Statutes Involved

Economic Opportunity Act of 1964, 42 U.S.C. See. 2711

et seq. (90a).

Federal Tort Claims Act, 28 U.S.C. Sec. 1346, 2670, 2680.

(88a)

Questions Presented

Is the U.S. immune from liability to employees of an

independent contractor under the Federal Tort Claims Act

because O.E.O., a U.S. agency, entered into a contract with

an independent contractor to manage O.E.O.’s Job Corps

Center on a Federal reservation and to provide vocational

training to educatable young men who were employees of

the U.S. and who were selected by O.E.O. as educatable?

Is the U.S. liable for the failure or omission of O.E.O.’s

operational employees on the Federal reservation to pro-

vide adequate measures and facilities for the safety of in-

structor employees of the contractor against a danger cre-

ated by O.E.O. after the contractor commenced work?

Did the U.S. owe a duty to “exercise reasonable care to

see that the contractor take proper precautions to protect

those who might sustain injury from their work” at the

Federal reservation?

Is the liability arising from breach of such a duty

“strict” or “vicarious”?

Was there evidence regarding a breach by Government

employees of the relevant duty of care to take reasonable

measures to guarantee that adequate security was main-

tained at the Federal reservation (Job Corps Center) and

that one of the Center’s employees was injured as a result

of a foreseeable risk stemming from such a breach?

Was the duty to provide adequate security measures a

discretionary or operational function?

Was there direct negligence of an operational employee

of the U.S.?

Is the determination by the Court of Appeals in conflict

with McGarry v. U.S., 549 F2d 587 (9th Cir. 1976) cert.

den. October 31, 1977 and Logue v. U.S., 421 U.S. 521

(1973) ?

Considerations Pertaining to Rule 19 of the

Supreme Court

Cireuit Judge Adams, in his dissenting opinion (22a)

points out that the record

“does support the theory that the United States it-

self breached a duty of care to (plaintiff); that

“5. United States v. Orleans, 425 U.S. 807 (1976),

which the majority relies upon in rejecting the

theory of the government’s vicarious liability, has

nothing to do with the theory of the government’s

direct negligence in this case.” (25a)

And Cireuit Judge Adams cites McGarry v. U.S., 549

F 2d 587 (9th Cir. 1976) cert. den. 98 S.Ct. 398, October 31,

1977 where the trial court had found that

“the AEC had failed to exercise reasonable or any

care to see that proper safety precautions were

taken by REECO with reference to werk performed

' in the neighborhood of the power line” (27a) and

that

“Liability of the government for a breach of the

duty of care articulated in McGarry is not fore-

closed by a claim of sovereign immunity” (27a)

Preliminary Statement

As part of the Economic Opportunity Act of 1964, Con-

gress established the Job Corps for the purpose of assist-

ing low-income, disadvantaged young people by establish-

ing rural and urban centers in which enrollees would

participate in programs of education, vocational training,

work experienc: and other activities. 42 U.S.C. See. 2711

(now 29 U.S.C. See. 911).

By virtue of 42 U.S.C. See. 2714, the Director of the

Office of Economie Opportunity was authorized to prescribe

rules for the screening and selection of applicants for en-

rollment in the Job Corps; 42 U.S.C. Sec. 2715 provided

that no individual was to be selected as an enrollee unless

it was determined that “he is not likely to engage in

actions or behavior that would prevent other enrollees

from receiving the benefit of the program or be incompati-

ble with the maintenance of sound discipline ...” Section

2720 provided that “within the Job Corps centers, stand-

ards of conduct and deportment shall be provided and

stringently enforced.”

On December 1, 1964, a contract was entered into be-

tween the O.E.0. and the Federal Electric Corporation

(F.E.C.) by which F.E.C. agreed to operate a Job Corps

residential training center for boys at Camp Kilmer,

Edison, New Jersey.

Relevant portions of the contract appear in appendix A

of the trial judge’s Opinion. (68a)

Camp Kilmer (at Edison, N.J.) was a former Army

barracks consisting of 50 old dormitory buildings plus

other buildings to be used as classrooms and ai adminis-

tration building. (CT 2:107, 108)

O.E.0O. selected, enrolled the recruits as Federal em-

ployees throughout the country and delivered many of

them to Camp Kilmer for vocationa! training.

In the first few months, the enrollees who arrived at

Camp Kilmer were basically sincere, educatable young

men. (CT 2:165)

Thereafter, a large proportion of the new enrollees were

drug addicts and juvenile offenders with records for vio-

lent crimes. (CT 2:185)

The result was that, prior to November 5, 1966 (when

Gibson was injured), there were numerous fights involving

up to 100 or more men and a narcotics problem at the

Camp. (CT 1:63, 2:123)

In 1966, Security was provided by 4 unarmed guards

for each shift with 1,000 or more enrollees. There was

no detention or isolation facility at the Camp. (CT 2:107,

109)

Since Camp Kilmer was a Federal reservation under the

sole, exclusive jurisdiction of the U.S., requests were made

to deputize the guards as U.S. Marshals and to provide

an isolation or detention facility, it being noted that similar

authority and an isolation facility were provided at Job

Corps Camps in other states. Only the U.S. could depu-

tize the guards as U.S. Marshals. (CT 2:172, 174)

O.E.0.’s operational employees for Camp Kilmer were

a Contracting Officer, a Project Manager, an On Site rep-

resentative with an office in the Administration Building

together with various investigators and inspectors at least

3 of whom were at the Camp every week. (CT 4:45)

The deterioration in the type of enrollee, the fights, the

narcotics problem, the lack of adequate safety facilities

and precautions were well known to all of the above opera-

tional employees of O.E.O.

In September, 1966, the Job Corps Director issued an

“internal memorandum” to all O.E.0. Project Managers

and On Site Representatives, that

“The Center will provide an on site facility for the

isolation of those corpsmen whose behavior consti-

tutes a threat to themselves or any other person or

property.” (Fogelman CT 4:78)

However, 0.E.0.’s operational employees for Camp Kil-

mer failed to implement this directive, though in June,

1966 they had been advised that:

“Kilmer proposes that some form of arrest authority

be obtained for its security guards. In turn, a

facility will be required to retain personnel for

short periods of time in emergency cases. There

have been cases in which Corpsmen were returned

to the Center two or more times in one night because

there is no physical means for restricting them to

the Center.” (Ex. P7)

Thus, on November 5, 1966, Jessie, the job Corpsman

who was placed by the Security guards in the makeshift

dormitory room—substituting for an isolation facility—

promptly walked right out and thereafter drove the screw

driver into Gibson’s brain. (Gibson CT 12, 14)

In 1967, after these O.E.O. operational employees were

replaced, the U.S. did deputize the guards as U.S. Mar-

shals and did provide a detention facility. (CT 1:121, 122)

Plaintiff, Gibson was employed as a group leader to live

in the dormitories with corpsmen and had daily group

meetings with the corpsmen assigned to him. His chosen

profession was sociology and in 1966 he was 26 years old.

The trial judge found:

1. That Camp Kilmer was a Federal Reservation over

which the U.S. had sole and exclusive jurisdiction (and

owned and had title to all buildings, facilities and equip-

ment thereon, (47a)

2. That O.E.O. did the selecting of trainees throughout

the country and sent them to Camp Kilmer, as Federal

employees, for vocational training by F.E.C. (48a)

3. That the quality of the trainees steadily deteriorated

so that known drug addicts and criminal offenders were

sent to Camp Kilmer by O.E.0O. and F.E.C. complained to

O0.EO. (49a)

4. That there were only 4 unarmed security guards at

each shift for 1000 trainees and there was no isolation or

detention facility provided. (48a)

5. That reports of all incidents and the conditions at

the Camp were made at least once a week by O.E.O.’s on

site representative and were known to O.E.O.’s contracting

officer and to the Project Manager for Camp Kilmer who

was also aware that a narcotics addiction problem existed

at the Camp. (48)

6. That prior to the attack upon plaintiff, “there were

numerous incidents of corpsmen’s misbehavior, including

fights sometimes involving 100 or more enrollees and in-

toxication due to aleohol and drugs. Security personnel

were concerned over the possibility of a riot but managed

to contain all incidents before general riots developed.”

(48a)

7. That at the request of the Contracting officer, the

Kilmer Center staff in June, 1966 prepared a “Kilmer

Improvement Plan” which stressed the need for deputiza-

tion and a detention facility “because there is no physical

means for restricting them to the Center.” 0.E.0.’s Proj-

ect Manager was aware of the Plan. (49a, Ex. P. 7)

8. That in September, 1966, O.E.0. (Washington) issued

(“an internal memorandum” to its Project Managers, on

site representatives and other operational employees)

which required each Job Corps Center to provide an on

site facility for the isolation of corpsmen “whose conduct

constituted a threat to themselves, other persons or prop-

erty.” “The bulletin, however, was never implemented.”

(50a) (It was not implemented until after O.E.O.’s

then operational officers at Kilmer were replaced in 1967

by a new Contracting Officer and a new Project Manager.

In 1967 the U.S. did deputize the security guards as U.S.

Marshals and did provide a detention or isolation facility.

(Thomas CT 6:15-5; James CT 1:121, 122)

The trial judge did find that “although 0.E.0. had broad

supervisory authority over the Camp Kilmer Job Corps

Center, control over the Center’s day to day operations

resided in F.E.C.” (47a)

The Court concluded that O.E.0. had reserved to itself

the right to control the manner in which the work is to be

performed (65a); and that “The Government breached

its duty when it failed to provide for adequate safety pre-

cautions.” (67a) The trial Court thereupon adjudged

the U.S. liable for the injuries sustained by plaintiff.

We submit that the uncontradicted facts in the record

support the trial judge’s determination that the U.S. is

liable.

Under applicable New Jersey law, the U.S., as owner of

the land, the buildings, all facilities, equipment, and sup-

plies thereon and employer of the 1000 or more enrollees,

is liable to employees of an independent contractor for a

dangerous situation O.E.O. itself created by selecting and

placing violent and drug addicted enrollees in a voca-

tional training camp and the failure and omission of

0.E.0.’s Kilmer Project Manager and Contracting Officer

to provide adequate safety precautions for the safety of

instructors and to provide that which only the U.S.

(through these operational officers) could provide on its

Federal reservation :—

Deputization of the security guards as U.S. Mar-

shals and a detention facility “to isolate corpsmen

whose conduct constituted a threat to themselves,

other persons or property.”

That failure or omission on the part of the then opera-

tional officers of O.E.0O. was a proximate cause of the

plaintiff’s injuries.

Statement of the Case

After the enactment of the Economie Opportunity Act

and the establishment of the Office of Economie Oppor-

tunity, Job Corps Centers were set up in various parts

of the country. Some of these Job Corps Centers were

directly operated by other government departments such

as Department of Sports Fishing in the Far West; and

the Department of Agriculture also operated some small

centers. (Fogelman, CT 5:80)

On December 1, 1964 Office of Economie Opportunity and

Federal Electric Co. as Contractor entered into a contract

by which Federal Electric Co. agreed:

“Part II Scope or Work

The definition of scope of work of this contract shall be

the operation and maintenance of a Job Corps residential

training center, and the educating, training and otherwise

providing for the general welfare of young men hereafter

referred to as Enrollees, in such manner as directed by

the Director of the Job Corps, to assist in the efficient

accomplishment of the Office of Economic Opportunity

duties, responsibilities and mission, principally at the site

identified under the Part of this Contract entitled Site.”

(68a)

“Part XIT AssIGNMENT AND SEPARATION

The Project Manager shall specifically inform the Con-

tractor of the Enrollees assigned by the Job Corps to the

Training Center to be operated under this contract.

The separation or discharge of an Enrollee from the

Training Center shall be the sole responsibility of the

Director of the Jobs Corps.” (68a)

“PREPARATION AND REVISION OF PoLiciges AND PROCEDURES

The Contractor shall prepare and revise as necessary,

in accordance with O.E.O. policies, subject to the approval

of the Contracting Officer, and implement as approved by

the Project Manager, the policies and procedures under

which operation and maintenance functions necessary to

support the said Training Center will be performed.”

(73a)

O.E.0.’s Contracting Officer had the reserved right to

direct F.F.C. to requisition “Logistical Support” consist-

ing, among other items, of Equipment and Facilities (74a) ;

and also the reserved right to direct “Services” under

which is listed “6. Physical Security” (not otherwise de-

fined). (74a)

F.E.C. could not provide a meal or lodging at the Center

to anyone “except on terms or at prices approved by the

Project Manager” and “all revenues generated at the

Training Center shall be collected, disbursed and further

handled as directed by the Project Manager.” “(70a)

0.E.0O., through its Contracting Officer itself arranged

for and provided snow removal services at the Job Center

site. Such service was not provided by F.E.C. (Fogelman

CT 5:37)

The U.S. Army Corps of Engineers had responsibilities

on the base for construction and were constructing new

buildings at that time at Camp Kilmer. (Fogelman CT

5:37)

O.E.O. had its own engineering group also. (Fogelman

CT 5:38)

Camp Kilmer was a Federal Reservation located at

Edison, New Jersey, owned by and under the exclusive

jurisdiction of the Federal government. (Fogelman CT

4:74 and 5.5)

On the site at Camp Kilmer and assigned to the Job

Corps were 50 dormitory buildings (formerly Army bar-

racks) as well as other buildings used for classrooms and

an administration building (in which O.E.0.’s On site

Representative had his office in 1966). (James CT 2:107,

108)

The operational employees of 0.15.0. with respect to th.

Job Corps Center at Camp Kilmer were:

Contracting Officer—Milton Fogelman

Project Manager—Carol Thomas

On Site Representative—Allen Weber

Messrs. Fogelman and Thomas were produced by the

U.S. at the trial and testified.

The On Site Representative was not produced by the

US.

In addition to O.E.0.’s on the site representative at

Kilmer, “there was never a week where there weren’t two

or three people there for various reasons. One might be

checking food services, maybe checking the condition of

dormitories. One may be checking whether or not the

hospital was sanitary.

“Each one had a separate assignment but there was very

close surveillance.” (Fogelman CT 4:45)

O.E.0. also had a Security investigator at Washington

who would “visit the Center and conduct investigations or

inspections, rather.” (James CT 2:122)

Plaintiff produced the following witnesses who had been

employed by Federal Electric:

Willie R. James—<Assistant to Security Adminis-

trator

Joseph F. Zimmer—Manager of Contract Adminis-

tration

Gaddis A. Johnson—Investigator, Security Dept.

Milton Fogelman, as Contracting Officer for O.E.0. was

assigned the responsibility to oversee and maintain obser-

vation of all of the business aspects of O.E.0.; and the

Contracting Officer’s responsibility when entering into a

contract was “to assure that the security or that adequate

security could be provided not only to the grounds and to

the buildings but the corpsmen as well.” (Fogelman CT

4.4, 425)

Carol Thomas, as Project Manager for Kilmer operat-

ing out of Washington, from 1965 to January, 1977—“was

responsible for ensuring the efficiency and the quality and

viability of the educational program, as well as all aspects

of the program which related to the enrollees.” (Thomas

CT 5.123, 124)

Physical security extension measures came within his

approval authority which he defined as “the personal se-

curity of personnel, meaning staff and enrollees living on

the center as well as the physical security of buildings and

equipment at the Center.” (Thomas CT 5.133-13)

Allen Weber, as O.E.0. On Site Representative, was

directly responsible to the Project Manager, acted as the

Project Manager’s “eyes and ears”, submitted a weekly

report to the Project Manager (Thomas) on all significant

events transpiring at the Center. (Thomas CT 5.127, 128)

Weber was a “rapid liaison” with Washington. Weber

would report problems to Washington by telephone or a

weekly report. “If (Weber) indicated there was a continu-

ing problem then probably somebody from the program

office would have immediately gone to straighten it out.”

(Fogelman CT 4:58, 59)

Weber had no authority over the Center Director. “He

was strictly advisory for my (Thomas) purposes.”

(Thomas CT 5.127)

However F.E.C.’s Contract Manager considered 0.E.0.’s

site representative “was essentially an operations officer

for O.E.O. at the Center in a general liaison capacity.”

(Zimmer CT 2:154)

Thomas directed Federal Electric Co. to have Weber

receive a copy of all documents, so that Thomas would not

“have to reproduce it and send it all the way back down

there when he was right there in the same building with

them.” (Thomas CT 5.134)

“Security” in the year 1966 was provided by 3 shifts,

each of 4 unarmed guards, with no arrest authority and

with no detention or isolation facility to patrol the area

for 1,000 enrollees. (James CT 2:107, 109)

Security staff could not physically contro! and isolate

a corpsman since there was no place to isolate the corps-

man. (James CT 84, 85, 94)

Instead of a detention facility, dormitory 2132 was used.

Dormitory 2132’s “physical layout was just like any other

ordinary dormitory. There was no locker (lockup) facili-

ties or anything like that. It was a dormitory . . . that

was used to place corpsmen that had special type prob-

lems.” (James CT 2:109)

If an isolation facility were complicated it would require

the U.S. Corps of Engineers. (Fogelman 4:80)

O.E.0., in the early days of the Center, contacted the

F.B.I. as to possible need for F.B.I. cooperation at the

Job Centers. (Thomas CT 6.6)

The number of guards or security personnel was deter-

mined with O.E.0O.’s Contracting Officer at the time of

renegotiation of the contract. “So (Federal Electric) was

‘severely limited in the number of people we could put on

the job and the salaries that we could pay these people.’ ”

(Zimmer CT 2:220, 221)

Camp Kilmer received the first enrollees in February,

1965. The first enrollees were boys from disadvantaged

homes, who were basically very sincere and interested in

improving themselves. “They came in without any kind

of criminal record or dope record or what have you, and

really got into the program.” (Zimmer CT 2:165)

The enrollees in February or March, 1965, were not as

disruptive as the enrollees subsequently. (James CT 1:66)

In February, 1966, F.E.C. notified the O.E.0. Contract-

ing Officer that there was a general deterioration in the

candidates Camp Kilmer was getting. (Zimmer CT 2:164)

F.E.C. told the O.E.0. Contract Officer that the camp

was “getting candidates with past records of misdemea-

nors, felony, drug records and that kind of thing.” (Zim-

mer CT 2:185)

0.E.0.’s contracting officer stated that in many cases

(enrollees) were in institutions when (0.E.0.) received

them and (0.E.0.) had no one to send them back to. (Fo-

gelman 5.57)

The security assistant to the Camp Kilmer Security Ad-

ministration had formerly been an officer at the New Jer-

sey State Home for Boys, Jamesburg, New Jersey. He

was at the Center from February, 1965 until 1968. (James

CT 1:61)

Prior to November, 1966, at Camp Kilmer, there were

assaults, nareotic violations and related incidents com-

mitted by Job Corpsmen. (James CT 1:63)

Fights or outbreaks involved sometimes 4 or 5, some-

times 12, sometimes 100 or more corpsmen. Security was

able to contain “a lot of serious incidents” with the help

of the guards, investigators and some of the corpsmen.

(James CT 2:123)

Because of the frequency of the incidents, the Security

Assistant made recommendations as to procedure to be

followed in security to the security administrator, and the

other management personnel at the Center and a copy of

his report went to O.E.O.’s on site representative, Mr.

Weber. (James CT 1:63)

Because the type of enrollees changed, the needs and

requirements to carry out the program also changed and

the camp “would have to have .. . a detention, isolation

facility where you could control problems as they arose or

minimize the effect or keep them under better surveillance.”

(Zimmer CT 2:239)

In February, 1966, F.E.C. asked the Contracting Officer

for armed guards and a detention facility, “some kind of

a jail facility where we could place uncontrollable kids

until proper action could be taken to either get them out

of the Center or put them under the proper Federal con-

trol.” (Zimmer CT 2:172)

In February, 1966, discussions were had between 0.E.O.’s

contracting officer (Fogelman) and F.E.C.’s Contract Man-

ager (Zimmer) as to the next year’s contract and Zimmer,

on behalf of F.E.C. requested both armed guards and an

isolation facility (Zimmer CT 172). Fogelman told Zim-

mer point blank that no Federal Marshals would be per-

mitted at Camp Kilmer though there were U.S. Marshals

at Camp Gary, Texas. (Zimmer CT 2:174)

Fogelman suggested to Zimmer that F.E.C. submit a

general plan of how the Center could be improved. (Zim-

mer CT 173)

A document captioned, “Kilmer Improvement Plan” was

prepared by various staff members of Camp Kilmer and

copies distributed. (Ex. P-7, Zimmer CT 173) Included

in the Plan is the following:

“Arrest and Confinement Authority”. “Kilmer pro-

poses that some form of arrest authority be obtained

for its security guards. In turn, a facility will be ~

required to retain personnel for short periods of

time in emergency cases. There have been cases in

which Corpsmen were returned to the Center two

or more times in one night because there is no physi-

cal means for restricting them to the Center.” (Ex.

P-7)

Carol Thomas testified that:

During the course of the negotiations for the initial con-

tracts there were discussions as to the caliber of the en-

rollees to be supplied by O.E.O. as to racial, academic and

economic background “and there were certain things that

the contractor would have to gear his program for as a

result.” (Thomas CT 5.124, 125)

That he fulfilled his overseeing responsibilities by tele-

phone from Washington, by site visits, by talking with the

Center Director and other staff members as well as en-

rollees and made his own observations of what was going

on. (Thomas CT 5.126, CT 5.127)

In addition, Thomas had Weber acting as his “eyes and

ears” from January, 1966. (CT 5.127)

Thomas received reports of a narcotics addiction prob-

lem among the enrollees at Kilmer from the Center Direc-

tor and some other staff members. (Thomas CT 5.130)

F.E.C. asked him if “they were in essence getting their

fair share of ‘difficult’ as opposed to good, if you will kids.”

(Thomas CT 5.138)

Thomas arranged with F.E.C. for the following proce-

dures if F.C. desired to implement a program:

“We would discuss it informally first on any number of

occasions until we were pretty much in agreement that we

were ready for them to put in writing . . . and then they

wonld send it to me.” (Thomas CT 5.134)

In June, 1966, approximately 10 corpsmen threw stones

at cars passing by the Camp’s main gates which resulted in

complaints to O.E.0. from the Mayors of the adjoining

towns. (Thomas 6.2). Thomas drafted a letter to the

Mayors which was signed by the Associate Director of the

Job Corps, Washington and sent to the Mayors. (6.2)

Thomas also contacted the Mayors and met with one of

them. (6.5)

This letter to the Mayors of Edison and Piscataway from

the Associate Director outlines—

“very concrete steps that were to be taken to try

to improve the behavior of the corpsmen, to bring

them a sense of responsibility for their actions, from

physical things, such as better lighting and other

things that would have to do with crowd control.”

(Fogelman 5:49)

In September, 1966, a memorandum was issued by the

Associate Director of the Job Corps which stated :—

“The Center will provide an onsite facility for the

isolation of those corpsmen whose behavior consti-

tutes a threat to themselves or any other person or

property.” (Fogelman 4:78)

This was an “internal” document that guided the per-

sonnel of Job Corps Men’s Centers. It was a guidance

document to the personnel of Job Corps Men’s Centers, not

the contractors, (such as Federal Electric). (Fogelman

CT 5.11)

And this memorandum was for :—

“Project Managers, government employees, site rep-

resentatives, those who are responsible for the sur-

veillanee and monitorship of the operations—this is

internal, this was in Washington, this said project

managers will follow the rules.” (Fogelman CT 5.77)

However, Thomas, 0.E.0.’s Project Manager testified

that he would have to approve an isolation facility from

the program point of view if one were to be installed.

(6.11)

“Q. And you say there was no deputization and

no isolation facility followed (allowed) that was why

(while) you were Project Manager, correct?

(Thomas) “A. Yes.

“Q. You don’t know what happened—that was only

until January, 1967, right?

“A. Yes.

“Q. You don’t know what happened after that?

“A. No, I do not. Only hearsay.” (Thomas CT

6 :15-5)

In 1967, after Messrs. Fogelman and Thomas were no

longer Contracting Officer and Project Manager for Kil-

mer, and after plaintiff sustained his brain injury, the

U.S. provided an isolation facility at Camp Kilmer and

the U.S. deputized the guards. (James CT 1:121, 122)

CONCLUSION

Petitioner respectfully prays that a writ of certiorari

be issued directed to the Court of Appeals for the

Third Circuit.

Respectfully submitted,

S.M. Curis Franzpiau

Attorney for Petitioner

APPENDIX A

Opinion of the United States Court of Appeals

for the Third Circuit

UNITED STATES COURT OF APPEALS

For tHE Turrp Circuit

No. 76-2490 and 76-2673

—»—

RonaLp Grsson,

Plaintiff-Appellee and

Cross-A ppellant,

Unirep States or AMERICA,

Defendant-Appellant and

Cross-Appellee.

—»—

(D. C. Civil No. 1147-68)

APPEAL FROM THE Unrrep States Districr Court

For tae District or New JERSEY

[la]

Appendix A

Argued October 17, 1977

Before: Apams and Gartu, Circuit Judges, and Layton,*

District Judge.

On the Brief:

Franzsiau, Fatkin & Di Manrzio

1180 Raymond Boulevard

Newark, New Jersey

Attorneys for Appellee and

Cross-Appellant

S. M. Curis Franzsiav

Barsara ALLEN Bascock

Assistant Attorney General

JONATHAN L. GoLpsTEern

United States Attorney

Morton HoLiaNpDER

MicHaEL KIMMEL

Attorneys

Civil Division, Appellate Section

Department of Justice

Washington, D.C.

Attorneys for Appellant and

Cross-Appellee

* The Honorable Caleb R. Layton, 3rd, United States District

Court for the District of Delaware, sitting by designation.

Appendia A

OPINION OF THE COURT

(Filed—December 15, 1977)

GartTu, Circuit Judge

This is the second time we have had this case before us

on appeal. Plaintiff Ronald Gibson brought this action

against the United States under the Federal Tort Claims

Act, 28 U.S.C. $§ 1346, 2670-2680 (1970) [FTCA],' hav-

* The relevant sections of the FTCA provide:

Subject to the provisions of Chapter 171 of this title, the dis-

trict courts . . . shall have exclusive jurisdiction of civil actions

on claims against the United States, for money damages .. .

for injury or loss of property, or personal injury or death

caused by the negligent or wrongful act or omission of any

employee of the Government while acting within the scope of

his office or employment, under circumstances where the

United States, if a private person, would be liable to the claim-

ant in accordance with the law of the place where the act or

omission occurred.

28 U.S.C. § 1346(b).

As used in this chapter and sections 1346(b) and 2401(b) of this

title, the term—

“Federal agency” includes the executive departments, the

military departments, independent establishments of the United

States, and corporations primarily acting as instrumentalities

or agencies of the United States, but does not include any con-

tractor with the United States.

“Employee of the government” includes officers or employees

of any federal agency, members of the military or naval forces

of the United States, and persons acting on behalf of a federal

(Footnote continued on following page)

Appendia A

ing suffered an injury from an assault which occurred

on November 5, 1966 at the federal Job Corps Center at

Camp Kilmer, in Edison, New Jersey. The Kilmer

Center was operated by Federal Electric Company [FEC]

under contract with the Office of Economie Opportunity

[OEO], an ageney of the United States. Gibson filed suit

on November 1, 1968 in the District of New Jersey. The

district court dismissed the complaint on the ground

that the FTCA, 28 U.S.C. § 2680(h), which exempts the

United States from tort liability for the assaults and

batteries of its employees, prohibited recovery. On ap-

peal, this court reversed, holding that the facts as pleaded

(which included an allegation that the United States had

operational control of the Center) stated a claim upon

which relief could be granted. Gibson v. United States,

457 F.2d 1391 (3d Cir. 1972).

On March 17, 1975, after a non-jury trial limited to

liability, the district court filed an opinion (dated March

14, 1975) holding that, since the United States did not

have day-to-day control of the Center, it could not be

liable for failing to control Gibson’s assailant. The dis-

trict court, however, went on to hold the Government

(Footnote continued from preceding page)

agency in an official capacity, temporarily or permanently in

the service of the United States, whether with or without com-

pensation.

28 U.S.C. § 2671.

The provisions of this chapter and section 1346 (b) of this

title shall not apply to . . . any claim arising out of assault,

battery. ...

28 U.S.C. § 2680(h).

Appendix A

liable for the negligent acts of FEC’s (the contractor’s)

employees, under the doctrine of respondeat superior. Al-

ternatively, it held the Government liable under the theory

that a contractee is vicariously liable for the negligence of

its independent contractor when the work performed is

“inherently dangerous.”

On May 20, 1976, after a bench trial on damages the

district court in an unpublished opinion assessed damages

at $106,980, but refused to include damages claimed be-

cause of Gibson’s alleged inability to attain a doctoral

degree. The court held that Gibson’s ability to realize

his professional goals had not been substantially hindered

by his injury.

On June 8, 1976 Gibson filed a Rule 52(b) motion seek-

ing reconsideration on the issue of damages. On June

15, 1976 the district court entered judgment against the

United States in accordance with its May 20 opinion, but

at that time did not dispose of the Rule 52(b) motion.*

On September 17, 1976 the district court denied Gib-

son’s Rule 52(b) motion. Both parties timely appealed,

Gibson on the issue of damages (at No. 76-2490), and the

United States on the issue of liability (at No. 76-2673).

When the district court ruled in favor of Gibson on

the issue of liability, it did not have the benefit of the

2 On August 12, 1976, the United States filed a notice of appeal at

No. 76-2310, appealing from the judgment of June 15, 1976. Since

the pending Rule 52(b) motion suspended the finality of the June 15

order, see Fed. R. App. P. 4, the Government’s appeal was taken

from a non-final order. The Government so conceded at oral argu-

ment. Accordingly, the appeal at No. 76-2310 was dismissed by the

Clerk on October 31, 1977, pursuant to Fed. R. App. P. 42(b), per

stipulation of the parties.

Appendia A

Supreme Court’s opinion in United States v. Orleans, 425

U.S. 807 (1976), which was decided more than a year

after the liability trial had concluded. Because we believe

that Orleans controls, we must reverse, although we do

so reluctantly in light of the eleven year history of this

case.®

In 1972 our first opinion, at 457 F.2d 1391, set out the

factual background in somewhat greater detail than we

find necessary to repeat here. Thereafter, the district

eourt’s unpublished opinion on liability only made exten-

sive findings of fact, which, as they relate to the issues

before us now, are summarized briefly as follows:

A. The Accident

The Job Corp was created as part of the Economie Op-

portunity Act of 1964, 42 U.S.C. § 2711 (now 29 U.S.C.

§ 911), to assist disadvantaged youths by establishing

rural and urban centers in which enrollees would partici-

pate in educational programs, vocational training, work

experience, and other activities. The Director of OKO

was authorized to enter into contracts with private con-

tractors for the operation of Job Corps centers. Camp

Kilmer was a residential training center for boys, op-

erated by FEC pursuant to a contract with OKO.

Ronald Gibson was employed by FEC as a group leader

at Kilmer. As such he lived in the dormitories. On the

* Because we reverse on liability, we do not reach the issue of

damages.

Appendia A

night of November 5, 1966, one of the enrollees, Andrew

Jessie, became involved in several arguments and dis-

turbances. After the second incident, Gibson took Jessie

to the duty officer in charge of security, who may have

placed Jessie in the security dormitory.‘ Shortly there-

after Jessie returned to Gibson’s dormitory and became

involved in another disturbance. Gibson instructed the

security personnel to leave, and he tried to calm Jessie.

Gibson then went to the latrine section. Jessie followed

him and stabbed him in the temple with a screwdriver,

inflicting severe injuries.

B. The Respective Duties of OEO and FEC.

Camp Kilmer was a federal reservation. There was a

permanent OKO on-site representative at the Kilmer Job

Corps Center, and a project manager in Washington. The

OEO had broad supervisory authority over Camp Kil-

mer, and many aspects of the Camp’s operation were sub-

ject to OKO approval. The OKO was solely responsible

for choosing enrollees,’ and for approving center staffing.

* The evidence and the findings below are not clear as to whether

or not Jessie was actually placed in the security dormitory. If he was

placed there, however, he did not remain so confined.

5 The district court found that

42 U.S.C. Sec. 2715 provided that no individual was to be

selected as an enrollee unless it was determined that “he is not

likely to engage in actions or behavior that would prevent other

enrollees from receiving the benefit of the program or be in-

compatible with the maintenance of sound discipline. . . .”

Section 2720 provided that “within the Job Corps centers

standards of conduct and department shall be provided and

stringently enforced.”

Finding of Fact No. 2, Dist. Ct. Op. of March 14, 1975, at 8, Ap-

pendix at 13a.

Appendia A

Nevertheless, as found by the district court, (Finding of

Fact No. 6, Dist. Ct. Op. of Mar. 14, 1975, at 8, Appendix

at 14a), control over the Center’s day-to-day operations

resided in FEC.

C. Security at the Kilmer Center.

At the time of Jessie’s assault on Gibson, FEC had

four or five unarmed, civilian security employees assigned

to each shift. These security officers were not empowered

to make arrests. One security dormitory at Kilmer was

used to segregate enrollees who created disciplinary prob-

lems. That dormitory was identical to the other dormi-

tories and had no special security features, bars, or locks.

Under its contract with OKO, FEC was responsible for

taking “all reasonable steps and precautions to prevent

accidents and to protect the life and health of Contractor

[FEC] ... personnel performing or in any way coming

in contact with the performance of ... this contract... .”

(Part XIX of Contract). FEC had authority to remove

physically from the Center any enrollee causing disciplin-

ary problems.

OEO also disseminated guidelines for controlling the

conduct of the enrollee corpsmen. In Bulletin J/M 67-1,

6 The contract appears in the Record as Plaintiff's Exhibit P-9.

The page of the contract (page 9) containing Part XIX is missing

from the Exhibit. It is the only page missing from the 57-page con-

tract and schedule. The language of Part XIX quoted in the text is

taken verbatim from the Government’s Brief at 9-10. No issue has

ever been taken with this language by Gibson. We therefore attach

no significance to the fact that page 9 is missing from the contract

placed into evidence, attributing its absence to an inadvertent error in

collation.

Appendix A

dated September 19, 1966, (Government Exhibit G-1), the

OEO required that “each Center must develop and en-

force those rules that are necessary for its orderly func-

tioning. ... Beyond this, Centers have an obligation to

create an atmosphere that promotes adherence to accept-

able standards of behavior... .” This same bulletin addi-

tionally provided that it was the responsibility of the Job

Corps Headquarters [OEO] to define general policy re-

garding discipline, and the responsibility of each Center

[FEC] to develop and enforce disciplinary rules. The

Bulletin also specified that an on-site isolation facility

should be maintained for corpsmen whose behavior con-

stituted a threat to themselves or to any other person

or property, and that physical restraint and isolation

could be used, but only to the extent necessary to gain

control of the corpsmen who posed a threat.

Prior to the attack on Gibson there had been numerous

incidents of misconduct by enrolled corpsmen, and the

OEO had received reports concerning these disciplinary

problems. In addition, FEC security personnel had dis-

cussed with the OEO on-site representative the need for

a secure isolation facility and for deputization of the

guards as Deputy U.S. Marshals with srrest authority.

(In fact, this was part of an improvement plan (Exhibit

P-7) prepared by the FEC staff at Kilmer, but never

submitted to OKO for approval.) FEC, however, never

requested assistance from OEO in dealing with its disci-

pline problems, and never formally sought permission to

build a security facility or to obtain arrest authority for

its guards.

The facts found by the district court which we have

summarized in part IB of this opinion, when examined

10a

Appendia A

in light of the recent decision in United States v. Orleans,

supra, lead to the conclusion that the district court erred

in imposing liability on the United States for the negli-

gence of FEC, its independent contractor, under both of

the district court’s theories of vicarious liability.

The plaintiff in Orleans brought suit against the Gov-

ernment under the FTCA when he was injured in an

automobile accident. The plaintiff alleged that his injury

was caused by the negligence of an employee of a com-

munity action agency funded under the Economie Oppor-

tunity Act of 1964. That agency operated community cen-

ters under a contract with OKO. Its employees were not

federal employees.’ The Supreme Court concluded that

since OKO did not exercise detailed control over the physi-

eal performance of the community agency’s tasks, the

community agency was an independent contractor, and

as such the United States could not be held liable for the

negligence of the agency’s employees. The Court observed

that the FTCA waived sovereign immunity only for the

“negligent and wrongful act or omission of any employee

of the Government”, 28 U.S.C. § 1346(b), and that “em-

ployee” included employees of any “federal agency”, id.

§ 2671, but that a “federal agency” was defined in § 2671

as not including “any contractor with the United States”,

7 We recognize that in our case Jessie has been found by the dis-

trict court to be a federal employee. Finding of Fact No. 41, Dist.

Ct. Op. of March 14, 1975, at 13, Appendix at 19a. That difference

between this case and Orleans is not significant because here Gibson

complains of FEC’s (and its employees’) actions in failing to super-

vise Jessie properly, rather than the actions of Jessie himself. It is

clear that Jessie’s actions cannot be imputed to the United States

because the FTCA does not apply to any “claim arising out of assault

[or] battery... .” 28 U.S.C. § 2680(h). See note 1, supra.

lla

Appendiz A

id. The Orleans Court then characterized the question

as “not whether the community action agency receives

federal money and must comply with federal standards

and regulations, but whether its day-to-day operations are

supervised by the Federal Government,” 425 U.S. at 815

(emphasis added).

A. Respondeat Superior.

Applying the Orleans standard to the facts of the case

sub judice compels us to conclude that the district court

erred by its imposition of respondeat superior liability

upon the United States. While it may be argued that the

OEO exercised a greater degree of control over the Job

Corps program and the FEC, than it did over community

action agencies of the type involved in Orleans, nonethe-

less the district court specifically found that the Govern-

ment exercised no operational, day-to-day control over

Camp Kilmer or FEC’s employees.®

Under Orleans the United States may not be held vi-

eariously liable for the negligence of FEC as an inde-

pendent contractor (28 U.S.C. 4 2671), or that of FEC’s

8 Gibson makes the argument that Orleans was also based on the

fact that the community action agencies involved in that case were

“local” in character, and that this case is distinguishable in that the

Job Corps program was a national one, and did not have » “local”

character. While we agree that the Court in Orleans may _ve been

influenced in part by the “local” nature of the community action

agency, the key to the Court’s holding was clearly the lack of opera-

tional control by the Government (despite its close supervision of

the community action agency, 425 U.S. at 807), and accordingly the

Court only looked to the community action agency’s “local” character

for additional support for its conclusion. See 425 U.S. at 817-18.

12a

Appendix A

employees, in failing to supervise or control Jessie. This

result is required by the language of the FTCA, as con-

strued in Orleans. The fact of broad, supervisory con-

trol, or even the potential to exercise detailed control,

cannot convert a contractor into an agent, nor can it be

the basis for imposing vicarious liability on the United

States. United States v. Orleans. Thus, the district court

erred in concluding that the Government could be liable

under the doctrine of respondeat superior because it “re-

tained sufficient control of the manner in which FEC’s

work was to be performed.” (Dist. Ct. Op. of Mar. 14,

1975 at 25, Appendix at 3la). See also Logue v. United

States, 421 U.S. 521 (1973). Indeed, this court and other

courts have consistently held that the United States can-

not be vicariously liable for injuries to workmen on Gov-

ernment construction sites, solely because the Government

has retained control over the work and safety practices

of the independent contractor whose negligence caused the

injury. See Fisher v. United States, 441 F.2d 1288 (3d

Cir. 1971). Accord, e.g., U.S. v. DeCamp, 478 F.2d 1188

(9th Cir. 1973); Gowdy v. U.S., 412 F.2d 525 (6th Cir.),

cert. denied, 396 U.S. 960 (1969); Market Insurance Co.

v. U.S., 415 F.2d 459 (5th Cir. 1969); Wright v. U.S., 382

F.2d 714 (9th Cir. 1967); Lipka v. U.S., 369 F.2d 288

(2d Cir. 1966); Grogan v. U.S., 341 F.2d 39 (6th Cir.

1965); United States v. Page, 350 F.2d 28 (10th Cir. 1965),

cert. denied, 382 U.S. 979 (1966).

B. Inherently Dangerous Activity.

The district court formulated an alternative theory of

liability as follows:

There is another theory of liability, also based

on the doctrine of respondeat superior, upon which

SE ee

13a

Appendix A

responsibility may vest in the United States for the

negligence of FEC. Simply stated, the contractee

[the Government] is liable where the work per-

formed is inherently dangerous and the contractor’s

[FEC’s] negligence causes injury within the scope

of that danger.

Dist. Ct. Op. of Mar. 14, 1975, at 26, Appendix at 32a.

Although the district court made no express reference

to $§ 416 and 427 of the Restatement Second of Torts, it

is evidence from the New Jersey cases cited by the district

court that the court’s analysis was predicated on the doc-

= which those sections embody.’ Those section pro-

vide :*°

* Section 427 is “closely related to, and to a considerable extent a

duplication of, [the rule] stated in § 416." Rest. 2d Torts, § 427,

comment a.

*° Whether the facts of this case present a situation to which § 416

or § 427 may properly be applied is not at all clear. We are not con-

vinced that a Job Corps center “poses a peculiar risk of physical

harm” or is inherently dangerous. Nor are we persuaded that an

employee of a contractor, injured by the negligence of that contractor,

uay recover under the doctrine of §§ 416 and 427. It has been argued

that the “inherently dangerous activity” doctrine is limited to third

parties such as innocent bystanders or adjacent landowners. See

Gibilterra v. Roseman, 19 N. J. 166, 179-71, 115 A.2d 553, 555

(1953): Wolczak v. National Elec. Products Corp., 66 N. J. Super.

64, 75, 168 A.2d 412, 414 (App. Div. 1961); see also Broechler v.

Armstrong Cork Co., 128 N. J. L. 3, 24 A.2d 194 (E.&A. 1942).

But see Rodrigues v. Elizabethtown Gas Co., 104 N. J. Super. 436,

444, 250 A.2d 408, 412 (App. Div. 1969) (dictum) ; Woolen v. Aero-

jet General Corp., 57 Cal. 2d 407, 20 Cal. Rptr. 12, 369 P.2d 708, 711

(1962). Given our disposition of this issue, however, we do not find

it necessary to decide these questions.

l4a

Appendia A

§416. Work Dangerous in Absence of Special Precau-

tions

One who employs an independent contractor to

do work which the employer should recognize as

likely to create during its progress a peculiar risk

of physical harm to others unless special precan-

tions are taken, is subject to liability for physical

harm caused to them by the failure of the con-

tractor to exercise reasonable care to take such

precautions, even though the employer has pro-

vided for such precautions in the contract or other-

wise.

§427. Negligence as to Danger Inherent in the Work

One who employs an independent contractor to

do work involving a special danger to others which

the employer knows or has reason to know to be

inherent in or normal to the work, or which he

contemplates or has reason to contemplate when

making the contract, is subject to liability for

physical harm caused to such others by the con-

tractor’s failure to take reasonable precautions

against such danger.

The “inherently dangerous activity” doctrine of §§ 416

and 427 is an exception to the general rule that one who

employs an independent contractor is not liable for the

contractor’s negligence. See Rest. 2d Torts § 409. The

doctrine essentially states a theory of vicarious liability,

“making the employer liable for the negligence of the

independent contractor, irrespective of whether the em-

ployer has himself been at fault.” Rest. 2d Torts, In-

troductory Note to Topic 2 [which contains §§ 416 and

15a

Appendia A

427], at 394. The liability imposed under §§ 416 and 427

is thus a form of respondeat superior" liability, imposed

upon a contractee as a result of the negligence of its in-

dependent contractor. But the FTCA has limited the

liability of the Government to the “negligent or wrongful

acts” of its employees. In this context, Governme >t em-

ployees do not include the employees of independent con-

tractors. 28 U.S.C. §§ 1346(b) and 2671; United States

v. Orleans, supra. The inquiry then must focus on FEC’s

status, and, as we have previously pointed out, FEC,

which had day-to-day operational control of the Kilmer

Center, was perforce an independent contractor. There-

fore, under Orleans, the Government cannot be held liable

for the torts of FEC or its employees. Sections 416 and

427 of the Restatement Second, to the extent they would

impose such vicarious liability on the Government, can-

not provide the basis for recovery under the FTCA.

Moreover, even if the theory of liability stated in §§ 416

and 427 is construed as absolute liability or a “non-dele-

gable duty” (see Rest. 2d Torts, Introductory Note to

Topie 2, at 394), and not as vicarious or respondeat su-

perior liability, such absolute liability cannot be the basis

for recovery in this case. It is clear that the United

States may be held liable only for “negligent or wrong-

ful acts”, and may not be held liable on any absolute

liability theory. Laird v. Nelms, 406 U.S. 797 (1972) (no

strict or absolute liability for ultrahazardous activity) ;

see Dalehite v. United States, 346 U.S. 15 (1953). “Re-

gardless of state law characterization, the Federal Tort

'! Indeed, the Introductory Note cited in the text goes on to state

that “the liability imposed is closely analogous to on of a master for

the negligence of his servant.”

l6a

Appendix A

Claims Act itself precludes the imposition of liability if

there has been no negligence or other form of “mis-

feasance or nonfeasance ... on the part of the Govern-

ment.” Lard v. Nelms, swpra, at 799 (quoting Dalehite

v. United States, supra, at 45).

C. Direct Negligence of the United States.

There remains for consideration the question of the

direct negligence of the United States. In his opinion, the

district court judge, while carefully identifying the two

theories of liability discussed above (see Parts IT (A) and

(B), supra), also adverted to “a duty [of the United

States] to exercise reasonable care to assure the safety

of persons coming into contact with its trainees.” Dist.

Ct. Op. of Mar. 14, 1975, at 27, Appendix at 33a. While

this duty to which the district court opinion refers ap-

pears to pertain to the district court’s analysis of the

“inherently dangerous activity” theory of liability, we do

not wish to overlook” the possibility that the district

'2QOur difficulty in assessing the direction taken in the district

court opinion stems from the district court’s language, which speaks

to the breach of the Government’s duty, in failing to provide for ade-

quate safety precautions, as leading to liability in favor of the plain-

tiff, “regardless of the fact that it delegated certain functions to FEC,

an independent contractor.” Dist. Ct. Op. of March 14, 1975, at 27,

Appendix 33a. However, despite this statement, the district court’s

conclusion makes no reference to direct liability, but instead holds

that liability is to be found because of respondeat superior and the

presence of an “inherently dangerous activity” (both of which, as we

have pointed out, constitute theories of vicarious liability). If the

record does support a theory of liability not addressed by the district

court, we may nevertheless affirm. PAAC v. Rizzo, 502 F.2d 306

(3d Cir. 1974). In this case, however, as we observe in the text, the

record does not provide a basis on which the district court’s conclu-

sion can be sustained on this theory, any more than it can be sustained

on the two theories of vicarious liability.

17a

Appendia A

court was advancing still a third theory on which to predi-

cate the Government’s liability.

Such a theory would be based on a contention that OKO

had notice of a dangerous situation, by virtue of the fact

that it knew that many enrollees were drug users, had

criminal records, or were otherwise potentially violent,

and that it had received reports of disciplinary problems

at Kilmer. Because OEKO had such knowledge, the argu-

ment would continue, it had a duty to the plaintiff, and

to others forseeably injured by corpsmen, to take reason-

able measures to assure adequate discipline and security.

A failure by OEO to provide for adequate security would

breach that duty of care, resulting in Government li-

ability. See McGarry v. United States, 549 F.2d 587 (9th

Cir. 1976), cert. denied (Oct. 31, 1977); Thorne v. United

States, 479 F.2d 804 (9th Cir. 1973). The crux of this

argument would necessarily be OEO’s supposed failure,

in light of the character of enrollees admitted to the pro-

gram, to construct or require construction of adequate

security facilities, or to give FEC’s security officers arrest

authority by deputizing them as Deputy U.S. Marshals.”

Assuming without deciding that such a theory of lia-

bility is a viable one under the FTCA," and that no dis-

'® Certainly OEO cannot be held to have been negligent for select-

ing and enrolling drug users, former criminal offenders, and ghetto

youths, since those are precisely the people the program was designed

to help. See 42 U.S.C. § 2715.

4 See McGarry v. United States, supra; Thorne y. United States,

supra. But see Fisher v. United States, supra, and cases cited at

p. 7 of this opinion, supra.

18a

Appendix A

cretionary function was implicated,” nevertheless the

record in this case will not support a recovery for Gib-

son. The factual findings of the district court, rather

than showing a breach of duty by the Government, dem-

onstrate that OEO had taken reasonable measures to

provide for security at the Kilmer Center.

In brief, the district court found that, while the OEO’s

Project Manager was aware of a proposal that arrest

authority be obtained for FEC’s security guards,’ and

that a special isolation facility had been suggested, such

a plan had never been submitted by FEC to OEO for

approval. Finding of Fact Nos. 14 & 15.'" Moreover,

FEC, which had control of the day-to-day operations at

the Center (Finding of Fact No. 6), was required to sub-

*® See 28 U.S.C. § 2680(a). It may well be that any decision with

respect to the type of security facilities which should be provided at

the Job Corps centers is made at a planning rather than an opera-

tional level. If so, the decision would be pursuant to a discretionary

function and excepted from FTCA liability. See Dalehite v. United

States, supra, at 42; Discoll v. United States, 525 F.2d 136, 138 (9th

Cir. 1975). However, we do not pass upon this question.

'® Moreover, to the extent that the lack of arrest authority was

crucial (although it is difficult to ascertain in what way arrest author-

ity would have averted Jessie’s attack on Gibson), FEC clearly be-

lieved that obtaining such authority was its responsibility. See

Exhibit P-3 (a letter from FEC’s Center Director to the OEO

Project Manager, dated April 19, 1966, describing the Center Direc-

tor’s attempt to get special authority for his security officers from

local police) ; Exhibit P-7 (Kilmer Improvement Plan, dated June 22,

1966, prepared by FEC, proposing that arrest authority for guards

and a security facility be obtained).

'T All “Findings of Fact” refer to those contained in the Dist. Ct.

Op. of March 14, 1975, at 7-13, Appendix at 13a-20a.

19a

Appendia A

mit a request for the construction of a detention facility

or for deputization of its guards if it foresaw the need

for these measures. No formal request was ever made

by FEC to the Government to provide for either. Find-

ings of Fact No. 16.°% In addition, although an enrollee

could not be discharged from the program without OEO’s

permission, FEC had the authority to remove physically

from the Center any corpsman who caused disciplinary

problems.'’® Finding of Fact No. 17. Of added signifi-

cance is the district court’s Finding of Fact No. 18:

18) On September 19, 1966, O.I5.0. in Washington

issued Men’s Center Bulletin J/M 67-1 (Exhibit

G-1). The bulletin delegated to the Center Directors

the power to discharge enrollees for disciplinary rea-

sons and required each Job Corps center to provide

an on-site facility for the isolation of corpsmen

whose conduct constituted a threat to themselves,

other persons, or property. The bulletin, however,

was never implemented.

See also Testimony of Mr. Thomas, OEO’s Project

Manager. Tr. V-148. That same Bulletin also required

that each center provide an “on-site facility for the isola-

tion of those Corpsmen whose behavior constitutes a

threat to themselves, any other person, or property,” Ex-

hibit G-1, at 8, and authorized the use of “physical re-

straint or isolation to prevent a Corpsman from injuring

himself, another person, or property,” id.; see also testi-

'8 Also, see Testimony of Mr. Thomas, OEO’s Project Manager,

Tr. V-135.

18 The FEC Center Director also had authority to place enrollees

on immediate administrative leave if necessary to safeguard life,

property, morale, or safety. Exhibit G-4; Exhibit P-5.

20a

Appendia A

mony of Mr. James, security assistant at Kilmer, Tr.

1-92. We note well that OEO’s contract with FEC

provided that FEC would have the responsibility for tak-

ing reasonable precautions to protect the life and health

of its personnel (Part XIX of Contract).

From these findings it is clearly evident that the duty

to provide adequate security measures devolved not upon

the Government, but rather upon FEC. Accordingly, the

district court’s conclusion that “the Government breached

its duty when it failed to provide for adequate safety pre-

cautions,” Dist. Ct. Op. of Mar. 14, 1975, at 27, Appendix

at 33a, finds no support in the record and is inconsistent

with the district court’s own findings. To the extent,

therefore, that the district court opinion may be con-

strued as seeking to premise its holding on a theory of

direct governmental negligence, that attempt must fail.

The record reveals that OKO, in light of the super-

visory nature of its responsibilities, properly discharged

whatever obligation it had to assure adequate security at

Kilmer.” In sum, it appears that OEO after formulating

its policies, made them known to FEC, informed FEC of

20 The Bulletin also specified that, while Job Corps Headquarters

had the responsibility for defining general policy regarding discipline,

each Center had the responsibility for developing and enforcing disci-

plinary rules.

21 Indeed, FEC had the authority to do all that was needed in this

case, viz, set aside a room with a strong lock on the door and shatter-

proof windows. See Testimony of Mr. Fogelman; OEO’s Contract-

ing Officer, Tr. TV-80.

*2In general, see part I (C) of this opinion, supra (discussing

security at the Kilmer Center).

21a

Appendiz A

its [FEC’s] responsibilities, required FEC to take certain

basic precautions, and provided FEC with sufficient au-

thorization to do what was necessary in order to perform

its functions. Lacking operational control over the ac-

tivities at Kilmer, the United States cannot be held liable

for the lack of proper security facilities at Camp Kilmer.

Ii.

Conclusion

Because FEC was an independent contractor for the

United States, United States v. Orleans, supra, requires

that the district court’s two theories of vicarious liability

be rejected as bases for liability under the FTCA. More-

over, we conclude on the record before us that the OEO

staff members, employees of the United States, were not

negligent in carrying out any duty to assure adequate

security at the Camp Kilmer Job Corps Center. The

United States, therefore, may not be held liable under the

FTCA for Gibson’s injuries, and the district court’s judg-

ment against the United States in favor of Gibson must

be reversed. Accordingly the district court will be di-

rected to vacate its judgment of June 15, 1976 and to

enter a judgment in favor of the United States. As noted

earlier (see note 3 supra) the entry of a judgment in favor

of the United States also disposes of Gibson’s appeal as

to damages at No. 76-2490, and the said appeal will be

dismissed as moot. Each side is to bear their own costs.

To THE CLERK:

Please file the foregoing opinion.

GarTH

Circuit Judge

*8 See p. 3 of this opinion, supra, noting that Orleans was not

available to the district court at the time its opinion on liability was

rendered.

22a

Appendiz A

Apams, Circuit Judge, concurring in part and dissenting

in part.

I concur with Parts A and B of the majority’s opinion,

which hold that the government is not liable to Ronald

Gibson under two different theories of vicarious liability.

However, I cannot join Part C of the majority’s opinion,

where it is concluded, as a matter of law, that there is

no evidence in the record of negligence on the part of the

government’s own employees that would be sufficient to

sustain the judgment on behalf of Ronald Gibson. In my

view, there is evidence of negligence on the part of the

government that does support the judgment of the district

court.

As an aspect of the Economie Opportunity Act of 1964,

Congress created the Job Corps to assist disadvantaged,

low-income youths by establishing urban and rural centers

at which such youths, denominated corpsmen, would par-

ticipate in vocational programs and other activities. On

December 1, 1964, a contract was entered into between

the Office of Economie Opportunity (OEO), which admin-

istered the Job Corp Program, and the Federal Electric

Corporation (FEC). Under the contract, the FEC agreed

to operate a residential Job Corps training center at

Camp Kilmer, a federal reservation in Edison, New Jer-

sey. Pursuant to the agreement, the day-to-day opera-

tions of the Camp Kilmer Center were to be the respon-

sibility of the FEC, although the OEO retained broad

supervisory authority over the Center.

As the district court found, numerous incidents of en-

rollee misconduct and fighting occurrec at the Kilmer

Center subsequent to its opening. Such misbehavior some-

times involved one hundred or more enrollees. In addi-

23a

Appendia A

tion, there were frequent incidents of enrollee intoxica-

tion resulting from drugs and alcohol. A number of re-

ports were made to OEO officials regarding the disci-

plinary problems at the Center. Moreover, OKO authori-

ties were aware that there were enrollees at the Center

who had criminal records.

Because of these disciplinary problems, concern was

expressed by the guards at the Kilmer Center regarding

the lack of a detention facility for unruly corpsmen, and

the lack of power to arrest enrollees when circumstances

demanded it. There was no such detention facility having

special locks or secured rooms at the Center; and the

guards were civilians who had no power to arrest anyone.

It was thus recommended by the Center to OEO officials

that a lock-up be created and that guards be deputized.

The request for such changes was never formally pre-

sented by the FEC to the OEO, but the evidence indi-

cates that the OKO officials were aware of the request.

It was in this setting that the tragic events of Novem-

ber 5, 1966, occurred. On that date plaintiff Ronald Gib-

son, a group leader at the Center who lived in a dormi-

tory with the corpsmen, heard a violent argument in an-

other section of the dormitory. One of the participants

in the argument, Andrew Jessie, was observed to be

“belligerent, agressive (sic) and uncontrollable. His eyes

were glazed and his speech was incoherent.” After sepa-

rating the adversaries, Gibson returned to his room.

About an hour later, there was a further argument in-

volving Jessie. “At this time plaintiff observed that Jes-

' Finding of Fact 24.

ZAa

Appendiz A

sie was talking very loudly and cursing at his antagonist

and that his eyes still appeared glazed.”

Gibson took Jessie to the duty officer in charge of

security, who placed Jessie in a separate dormitory used

for unruly corpsmen. This dormitory was physically iden-

tical to the others, and “it had no special features or

facilities such as bars or special locks appropriate for its

function.”

After approximately another hour had elapsed, Gibson

was informed that Jessie had left the dormitory for un-

ruly corpsmen, and had returned to the regular dormi-

tory. Gibson proceded to the section of the dormitory

where Jessie was creating a new disturbance. After try-

ing to calm down Jessie, Gibson went to the latrine sec-

tion of the dormitory. There Gibson was stabbed in the

temple with a screwdriver held by Jessie, and as a result

Gibson suffered the serious injury that is the basis of

this tort action.

As the majority properly points out, it is possible to

read the district court’s opinion in this case as holding

that the United States was liable to Gibson on a theory

of direct, as distinguished from vicarious, liability. Fur-

thermore, as the majority notes, this Court may affirm

the judgment on such a theory even though the district

2 Finding of Fact 28.

* Finding of Fact 30.

25a

Appendiz A

court did not embrace it, so long as there is evidence in

the record to support it.‘

My difference with the majority rests primarily upon

our divergent interpretation of the factual record in this

ease. The record, as I view it, does support the theory

that the United States itself breached a duty of care to

Gibson.°

The duty of care as to which the direct negligence of

the United States may be found to have occurred requires

that the government “. . . exercise reasonable care to see

that the contractor takes proper precautions to protect

those who might sustain injury from the work.” McGarry

v. United States, 549 F.2d 587, 590 (9th Cir. 1976). See

Thorne v. United States, 479 F.2d 804 (9th Cir. 1973).

This duty arises when the activity engaged in by the con-

tractor over whom the employer has supervisory control,

is dangerous. The liability arising from the breach of

* This Court has written that “(i)t is proper for an appellate court

to affirm a correct decision of a lower court even when that decision

is based on an inappropriate ground.” PAAC v. Rizzo, 502 F.2d

306, 308 n.1 (3d Cir. 1974) (emphasis in original).

5 United States v. Orleans, 425 U.S. 807 (1976), which the major-

iy relies upon in rejecting the theory of the government’s vicarious

liability, has nothing to do with the theory of the government’s direct

negligence in this case.

® Restatement, Second, Torts §414 provides that:

One who entrusts work to an independent contractor, but who

retains the control of any part of the work, is subject to lia-

bility for physical harm to others for whose safety the em-

(Footnote continued on following page)

26a

Appendia A

such a duty, as McGarry pointed out, is neither strict nor

vicarious.

In McGarry, the court held that the Atomic Energy

Commission owed a duty of care to the employees of an

(Footnote continued from preceding page)

ployer owes a duty to exercise reasonable care, which is caused

by his failure to exercise his control with reasonable care.

Comment (a) pertaining to that section stresses that one who re-

tains “supervisory control” over the activities of the contractor may

be liable under the section “unless he exercises his supervisory con-

trol with reasonable care so as to prevent the work which he has

ordered to be done from causing injury to others.” Comment (b)

underscores the point that liability may arise when the work engaged

in by the contractor is “unreasonably dangerous” to others.

New Jersey courts have adopted §414 of the Restatement. See,

e.g., Berquist v. Penterman, 46 N. J. Super. 74, 134 A.2d 20, 26,

certification denied, 134 A.2d 832 (1957). Cf. Marion v. Public

Service Elec. & Gas Co., 72 N. J. Super. 146, 178 A.2d 57, 62 (1962).

It might be argued that, in this case, the extent of the OEO’s con-

trol over the operations at Camp Kilmer was insufficient to bring into

play §414 of the Restatement. However, Comment (c) of §414

makes clear that day-to-day operational control by the party sought

to be charged is not required. It provides that there must be more

than “a general right to order the work stopped or resumed, to inspect

its progress or to receive reports, to make suggestions or recommenda-

tions which need not necessarily be followed, or to prescribe altera-

tions and deviations.” Nevertheless, the requisite supervisory con-

trol “does not mean that the contractor is controlled as to his methods

of work, or as to operative detail.” In this case, there are findings

that the OEO was responsible for approving the extension of physi-

cal security at the Center, and that the OEO maintained a permanent

representative at the Center to report to Washington, D. C. Thus,

although the “operative detail” of the Center’s activities was not

determined by the OEO, the OEO retained a broad supervisory and

operational authority for activities carried on at the Center.

27a

Appendia A

independent contractor—hired to m:>*ge, operate and

maintain the Nevada Test Site—in . ier to make sure

that the employer was taking proper recautions regard-

ing the hazards of work near a power line at the site.

The McGarry Court stressed that its holding did not re-

quire that the AEC place an onsite inspector in the vi-

cinity of all work on the power line in question. Rather,

it wrote:

If, here, the AEC had made regular examinations

to ascertain the practices being followed by REECO

(the contractor), and was reasonably satisfied from

its examinations that appropriate guidelines were

being followed, this might well have been found

by the trier of fact to suffice. No such examination

was conducted here and the district court found

that the AEC had failed to exercise reasonable or

any care to see that proper safety precautions were

taken by REECO with reference to work performed

in the neighborhood of the power line.’ (emphasis

added)

Liability of the government for a breach of the duty

of care articulated in McGarry is not foreclosed by a claim

of sovereign immunity. For the Federal Torts Claims

Act (FTCA) waives sovereign immunity for the “negli-

7549 F.2d at 590-591. Although McGarry noted that the district

court had found that the AEC did “nothing” to determine whether

the contractor was fulfilling its contractual obligations to provide

safely for the employees, 549 F.2d at 590-91, its holding did not turn

on this fact. There is no indication in McGarry that for the govern-

ment to be liable for direct negligence, it is necessary to show that

nothing at all has been done by the government regarding the risk in

question.

28a

Appendiz A

gent and wrongful act or omission of any employee of

the Government,” 28 U.S.C. § 1346(b). Thus, the critical

question here is whether there is evidence regarding a

breach by government employees of the relevant duty of

care.

An analysis of this issue must rest, of course, pri-

marily on the findings of the district court. The district

court found that the OEO’s project manager for the Job

Corps, based in Washington, D.C., was responsible for ap-

proving numerous aspects of the Center’s operations, in-

cluding the extension of physical security at Camp Kilmer.®

OEO was also found to have maintained a permanent “on

site” representative at the Center to report to Washington,

each week, all problems such as those relating to security.’

Moreover, the district court ascertained that incidents

of enrollee misconduct were “routinely” reported to the

federal officials responsible for the Job Corps program.'°

It further found that the selection of enrollees was solely

the responsibility of the OEO, and that sometime after

July of 1965, an apprehension was expressed to the OKO

that the Center was getting “too large a proportion of

enrollees who were disciplinary problems.”"

Prior to November 5, 1966, when the assault on Ronald

Gibson occurred, the trial court noted that there had been

many incidents of misbehavior by corpsmen, “including

8 See Finding of Fact 7.

® See Finding of Fact 11.

'! Finding of Fact 10.

29a

Appendia A

fights sometimes involving 100 or more enrollees, and in-

toxication due to alcohol and drugs.”"* Security personnel

had conveyed their concern over the possibility of a riot

at the Center. In addition, prior to November of 1966,

OEO officials received “frequent reports of disciplinary

problems at Camp Kilmer,” and at least one OEO official

“was aware that a narcotics addiction problem existed at

the center.”

The district court made a number of findings regarding

the lack at the Center of a detention facility for unruly

corpsmen. It found that a document containing proposals

that a special detention center be created for emergencies,

and for the provision of some form of arrest authority

by the Center’s security guards, was prepared by the

Kilmer Center staff prior to November of 1966, and that,

even though it was never officially submitted to the OEO

project manager for the Jobs Corps, the project manager

was aware of the plan.* Also, the court noted that on

numerous occasions the security assistant at the Center

“had discussions with OEO’s on site representative about

the need for a detention facility and for the deputization

of security guards.”* As the district court determined,

the Center’s security personnel were “civilian employees

of FEC who were not empowered to make arrests, or to

carry weapons.”* Nevertheless, the OEO never required

'? Finding of Fact 12.

18 Finding of Fact 13.

14 See Finding of Fact 14.

'® Finding of Fact 15.

‘6 Finding of Fact 9.

30a

Appendia A

the FEC to construct such a facility or to seek arrest

authority for its guards.*’

These findings, taken together, support the propositions

that (1) the OEO had notice of a dangerous situation

at the Center, (2) the OEO had notice of concern on the

part of the Center staff regarding the lack of a secure

detention facility and of a form of arrest power on the

part of the guards, (3) the OEO had notice of a plan

for such changes, and (4) the OEO did not take any

steps to see that these deficiences were corrected so as to

provide protection of the FEC employees, including Ronald

Gibson. On these facts, it is reasonable to conclude that

employees of the government breached a duty to take rea-

sonable measures to guarantee that adequate security was

maintained at the Center, and that one of the Center’s

employees was injured as a result of a foreseeable risk

stemming from such a breach.

Yet, the majority rejects the theory of the govern-

ment’s negligence substantially on the ground that a

formal plan for the construction of a detention facility

and for the deputization of the Center’s guards was never

submitted by the FEC to the OKO.” This position would

appear to overlook the fact that the project manager of

the Jobs Corps was found by the district court to have

been aware of the existence of a plan formulated by the

Center staff that proposed these changes. To take a

trial court verdict from a plaintiff critically and tragically

injured on the basis of a lack of a formal request by the

FEC to the OEO for increased security at the Center

7 Finding of Fact 16.

8 See majority’s opinion at pp. 13-14.

3la

Appendia A

would seem to ignore the basic duty of the government

at issue in this case, and also, as a practical matter, to

put an undue emphasis on the form of the notice received

by the OEO regarding the need for such precautions.”

Moreover, the proposition, cited by the majority that

the contract between the FEC and the OEO provided

that the FEC would have the responsibility to take pre-

cautions to protect its personnel™ is not dispositive of this

case. Unless the majority is suggesting that the govern-

ment can contract out of its duty of care to the employees

of its contractors in circumstances such as those here—a

doubtful result for which no authority is supplied—then

I see no sense in which the terms of the contract may be

viewed as central to this tort action. What is crucial

here, in my view, is the evidence bearing upon the duty

of the government to take reasonable precautions to assure

the safety of employees like Gibson, and the breach of

that duty.

In addition, the fact that the district court found that,

in September of 1966, the OEO issued a bulletin requiring

all Job Corps centers in the country to “provide an on-

site facility for the isolation of corpsmen whose conduct

constituted a threat to themselves, other persons, or prop-

erty”*"—which, says the majority, assumes “added sig-

'® This is not to suggest that the FEC did not have a duty to take

safety precautions. However, the point stressed by the majority that

the FEC had a duty does not mean that government employees did

not also have a duty of care in the circumstances of this case.

2 See majority’s opinion at p. 15.

21 See Finding of Fact 18.

32a

Appendia A

nificance” in this case—is not at all dispositive. First,

the bulletin was evidently a general one addressed to all

Job Corps centers, and was not in response to the par-

ticular problems associated with the Kilmer Center. More-

over, requiring that there be an “isolation” facility for

unruly corpsmen is not the same as requiring the con-

struction of a detention facility that would function as a

lock-up in which to restrain violent enrollees. Indeed,

Gibson’s assailant, Jessie, was himself placed in an isola-

tion facility, a dormitory room separate from the living

and working quarters of the Center, after Gibson removed

him from his own dormitory. However, because the iso-

lation facility was not secure, and thus did not detain

him, Jessie soon returned to his own dormitory. Thus,

even with an isolation facility at the Center, ‘he injury

that it is the subject of this action was not averted.

Given that the facts support the conclusion that a duty

to provide adequate security measures, which devolved

upon the government, was breached in this case, it is

necessary to consider whether the duty in question en-

tails a “discretionary function.” 28 U.S.C. §2680(a) pro-

vides that the FTCA does not permit a claim “based

upon the exercise or performance or the failure to exer-

cise or perform a discretionary function or duty on the

part of a federal agency or an employee of the Govern-

ment, whether or not the discretion involved be abused.”

As the court in Driscoll v. United States, 525 F.2d 136,

138 (9th Cir. 1975) wrote, “. . . the discretionary function

exception is limited to decisions made at the planning

rather than the operational level.” (emphasis in original)

33a

Appendia A

The argument that the provision of a secure detention

facility and of arrest power for the guards at the Center

was a discretionary function rests on the premise that the

OEO delegated the complete operational control of such

matters to the FEC, and retained only a broad planning

authority with respect to safety aspects at the Center.

Yet, the findings by the trial court do not support such

an assumption.

As the district court found, the OEO maintained close

supervision over the Center, having an on-site represen-

tative there who was responsible for reporting weekly

to officials in Washington, D.C., about matters such as

security. Moreover, “(n)umerous aspects of the Center’s

operation, including the extension of physical security,

were subject to . . . approval” of the OEO project man-

ager in Washington, D.C.** The fact that the OEO had

to approve security measures implemented by the Center

clearly does not establish that all operational questions

were delegated to the Center. Indeed, the requirement

of OEO approval of Security measures supports the view

that the government was involved at more than a broad

planning level in overseeing the safety of conditions at

the Center.

As in McGarry, supra, the government here “chose to

retain some responsibility over matters of employee

safety.” ** In light of the facts of this case, it would be

reasonable to conclude that the fulfillment of those re-

sponsibilities was an “operational function.” A holding

that the government is liable for negligence is thus not

22 Finding of Fact 7.

23 549 F.2d at 591.

34a

Appendia A

barred by the “discretionary function” exception of the

FTCA.

On the basis of the findings of fact by the trial court,

which have not been attacked as clearly erroneous, I would

hold that the conclusion that there has been a breach of

the duty of care owed by the government’s employees is

not an unreasonable one. Consequently, I would affirm

the judgment of the district court regarding the liability

of the government.**

24 Since the majority’s disposition of the question of liability in this

case renders it unnecessary to discuss Gibson’s cross appeal on the

issue of damages, I decline to do so, except to say that I would re-

mand that portion of the case dealing with damages to take into ac-

count any injuries resulting from Gibson’s alleged inability to attain

a doctoral degree after the attack in question.

35a

APPENDIX B

Judgments of the United States Court of

for th Third Circuit +. <om

UNITED STATES COURT OF APPEALS

For THe Txirp Circuit

No. 76-2673

Ronaip Grsson

Unrrep States or AMERICA,

Appellant.

(D. C. Civil No. 1147-68)

Own AppraL From THE Unrrep Srares District Court

FOR THE District or New JERSEY

Present:

Apams and Gartu, Circuit Judges and Layton,

District Judge*

*The Honorable Caleb R. Layton, 3rd, United States Distri

. . ? 4 t

Court for the District of Delaware, sitting by designation. sabia

36a

Appendix B

JUDGMENT

_ This cause came on to be heard on the record from the

United States District Court for the District of New Jer-

sey and was argued by counsel on October 17, 1977.

On consideration whereof, it is now here ordered and

adjudged by this Court that the judgment of the said

District Court, dated June 15, 1976, be, and the same is

hereby reversed, and the district court is directed to va-

cate its judgment of June 15, 1976 and to enter a judg-

ment in favor of the United States. Each side is to bear

their own costs.

ATTEST:

Tomas P. Quinn

Clerk

December 15, 1977

37a

Appendiz B

UNITED STATES COURT OF APPEALS

For tHe Turp Circuit

No. 76-2490

—+

Ronatp Gipson,

Appellant

vs.

Unirep States or America,

—_~>—

(D. C. Civil No. 1147-68)

Present:

Apams and Gartu, Circuit Judges and Layton,

District Judge*

It is Orperep that the appeal at No. 76-2490 be and

hereby is dismissed as moot, in accordance with the opin-

ion of this Court filed this date. Each side is to bear

their own costs.

Attest:

Tomas P. Quinn

Clerk

Dated: December 15, 1977

* The Honorable Caleb R. Layton, 3rd, United States District

Court for the District of Delaware, sitting by designation. s

38a

APPENDIX C

Order Denying Petition for Rehearing of the United

States Court of Appeals for the Third Circuit

UNITED STATES COURT OF APPEALS

For tHE Txirp Crirecuir

No. 76-2490

76-2673

—~>—

RonaLp Grsson,

Plaintiff-Appellee and

Cross-Appellant,

Vv.

Untrep Srares oF AMERICA,

Defendant-Appellant and

Cross-Appellee

Sur Petition ror REHEARING

Present:

Serrz, Chief Judge, Aupisert, ApAms, GIBBONS,

Hunter, Weis, Gartu, HiecrnsorHam, Circuit

Judges Layton, District Judge

The petition for rehearing filed by RonaLp Gisson in

the above entitled case having been submitted to the

39a

Appendia C

judges who participated in the decision of this court and

to all the other available circuit judges of the circuit in

regular active service, and no judge who concurred in the

decision having asked for rehearing, and a majority of

the circuit judges of the circuit in regular active service

not having voted for rehearing by the court in bane, the

petition for rehearing is denied. J udge Rosenn would

grant the petition for rehearing.

By the Court,

GarTH

Judge

Dated: February 1, 1978

40a

APPENDIX D

Opinion of the United States District Court for the

District of New Jersey

UNITED STATES DISTRICT COURT

District oF New JERSEY

Crviz Action No. 1147-68

RonaLp GIsson,

Plaintiff,

Unitep States oF AMERICA,

Defendant.

Appearances:

Beckerman, Franzblau & Cohen

By: S. M. Chris Franzblau, Esq.

Attorneys for Plaintiff

1180 Raymond Boulevard

Newark, New Jersey 07102

Jonathan L. Goldstein,

United States Attorney

By: Carolyn Arch, Esq.

970 Broad Street

Newark, New Jersey 07101

4la

Appendix D

Wurtz, Chief Judge

Plaintiff brings this action against the United States

under the Federal Tort Claims Act, for personal injuries

inflicted as a result of the negligence and omissions of

Government employees. This Court originally dismissed

the complaint for lack of subject matter jurisdiction, rely-

ing on 28 U.S.C. Sec. 2680(h). On appeal, however, the

Third Cireuit held that subject matter jurisdiction did

exist, and the case was remanded for further proceedings.

Gibson v. United States, 457 F.2d 1391 (3d Cir. 1972).

‘Trial in this cause, on the issue of liability alone, was

commenced on October 30, 1974, and concluded on Novem-

ber 12, 1974. At that time this Court reserved decision

pending the resolution of certain evidentiary objections

and the submission of proposed findings of fact by the

parties.

During the course of the trial, plaintiff attempted to

place in evidence certain documents (P-2 through P-8) on

the ground that they were admissible as business records

pursuant to 28 U.S.C. See. 1732. The defendant objected

and the Court allowed the documents to be admitted, sub-

ject to their being stricken if plaintiff failed to establish

a proper foundation during the course of the proceed-

ings. (T. Oct. 30, 1974, p. 18 Thorne). Before rendering

findings of fact and law it is of course necessary that

this Court determine the admissibility of the disputed

evidence.

Plaintiff has sought the admission of the documents

under 28 U.S.C. Sec. 1732, the so-called Business Records

Act, which provides that:

42a

Appendix D

(a) In any court of the United States * * *, any

writing or record, whether in the form of an entry

in a book or otherwise, made as a memorandum or

record of any act, transaction, occurrence, or event

shall be admissible as evidence of such * * *, if

made in regular course of any business, and if it

was the regular course of such business to make

such memorandum or record at the time of such

act, transaction, occurrence, or event or within a

reasonable time thereafter.

All other circumstances of the making of such

writing or record, including lack of personal

knowledge by the entrant or maker, may be shown

to affect its weight, but such circumstances shall

not affect its admissibility.

The purposes of this section are 1) to create an exception

to the hearsay rule, 2) to provide an acceptable substitute

for specific authorization of each business record, and 3)

to facilitate admission of the records themselves as evi-

dence. Hagans v. Ellerman & Bucknall S.S. Co., 318 F.2d

563 (3d Cir. 1963); United States v. Olio, 278 F.2d 415

(3d Cir. 1960). Since experience has shown that busi-

ness records are generally reliable and trustworthy, this

section is designed to reflect the realities of business and

professional practice. Gray v. L. J. Navy Trucking Co.,

475 F.2d 545 (6th Cir. 1973); Central R.R. of N. J. v.

Jules S. Sottnek Co., 258 F.2d 85 (2d Cir. 1958).

The Business Records Act, however, was not intended

to eliminate the requirement that a record, to be admis-

sible, must carry with it some guarantee of trustworthi-

ness. United States v. Grow, 394 F.2d 182 (4th Cir.

1968) ; Bowman v. Kaufman, 387 F.2d 582 (2d Cir. 1967) ;

43a

Appendix D

Hartzog v. United States, 217 F.2d 706 (4th Cir. 1954).

To this end, Section 1732 establishes as a requirement for

admissibility that documents must have been prepared in

the regular course of business. As courts have defined

this term, such records must have been kept pursuant to

some routine procedure designed to assure their accuracy,

they must have been created for motives that would tend

to assure accuracy, and they must not themselves be mere

cumulations of hearsay or uninformed opinion. Sabatino

v. Curtiss Nat'l Bank, 415 F.2d 632 (5th Cir. 1969), cert.

denied, 396 U.S. 1057. As the Third Circuit stated in

Hagans v. Ellerman & Bucknall 8.8. Co., 318 F.2d 563,

576 (3d Cir. 1963):

= Ss * [T]he admissibility of evidence under the

Official Records Act [28 U.S.C. Sec. 1732] is not

established merely because the material sought to

be introduced has been taken from a business file.

A foundation must be laid to establish that the

memoranda sought to be introduced were made in

the regular course of business. * * * Bisno v.

United States, 299 F.2d 711, 718 (9th Cir. 1961),

cert. denied, 370 US. 952, 82 S.Ct. 1602, 8 L. Ed.

2d 818 (1962).

And in the leading case of Palmer v. Hoffman,

318 US. 109, 63 S.Ct. 477, 87 L. Ed. 645 (1943)

the Court in interpreting the historic aims of that

Act, said:

“e * * But ‘regular course’ of business must find

its meaning in the inherent nature of the business

m question and in the methods systematically em-

ployed for the conduct of the business as a busi-

ness.’ 318 U.S. at 115, 63 S.Ct. at 481.

4ta

Appendix D

The Court also stated:

“* * * Nor is it any answer to say that Congress

has provided in the Act that the various circum-

stances of the making of the record showd affect

its weight, not its admissibility. That provision

comes into play only in case the other requirements

of the Act are met.” 318 US. at 114, 63 S.Ct. at

481.

See also Standard Oil Co. of Calif v. Moore,

251 F.2d 188, 215, n, 34 (9th Cir. 1958); Master-

son v. Pennsylvania R. Co., 182 F.2d 793 (3 Cir.

1950) and Gordon v. Robinson, 210 F.2d 192, 197-

198 (3 Cir. 1954).

(emphasis added). In Hagans, the Court held that the evi-

dence there in question was not a business record since

no testimony “as adduced to show that the document was

of a type systematically made and kept in the course of

defendant’s business. 318 F.2d at 575-77. Merely because

records are business records, therefore, does not render

them admissible under the statute.

It is incumbent upon the party who seeks to introduce

documents or writings as business records to prove that

there is a systematic or routine procedure being fol-

lowed—by the business in the course of its business—in

the preparation, filing and storage or retention of such

writings, Standard Oil Co. v. Moore, 251 F.2d 188 (9th

Cir. 1957), cert. denied, 356 US. 975 (1958). The person

testifying as to the accuracy of the records must be in

a position to attest to their authenticity. United States

v. Dawson, 400 F.2d 194 (2d Cir. 1968), cer. dented, 393

U.S. 1023 (1969).

45a

Appendiz D

One of the witnesses upon whom plaintiff relied to estab-

lish the admissibility of the documents was Mr. Alfred W.

Thorn, Federal Electric Company’s (F.E.C.) manager of

plant services. Although Mr. Thorn testified that he is

in effect F.E.C.’s record custodian, his testimony re-

vealed that he was not in a position to attest to the

authenticity of the exhibits in question. Thorn gave no

testimony which established the recordmaking procedures

of F.E.C., or the circumstances surrounding the particular

records at issue. He could not even confirm that these

records were made at or near the time of the condition

or event recorded.

The shortcomings of Mr. Thorn’s testimony notwith-

standing, I have examined each of the disputed exhibits

in an attempt to determine its admissibility. P-3 is a

carbon of a letter sent to Mr. Carol Thomas, the project

manager of the Men’s Center Division of the Job Corps.

No proof was adduced, however, as to the mailing of the

original letters and the retention of file copies. The mere

presence of a copy of a letter in the file is insufficient to

prove the trustworthiness of the document. Marcus v.

United States, 422 F.2d 752 (5th Cir. 1970). P-3 is there-

fore inadmissible.

P- is a letter from the Office of Economic Opportunity

(O.E.0.) to the Mayors of both Piscataway and Edison,

New Jersey. P-8 appears to be a Telex from O.E.O. to

F.E.C. It is clear that documents must be shown to have

been made in the regular course of business of the com-

pany in whose files they are found before the Business

Records Act applies. Phillips v. United States, 356 F.2d

297 (9th Cir. 1965). Since these documents were not even

prepared by F.E.C., such exhibits are inadmissible.

46a

Appendix D

Joseph F. Zimmer was F.E.C.’s manager of contract

administration. His testimony is sufficient to allow the

admission of certain of the disputed exhibits.

P-2 is a summary of the contract between O.E.O. and

F.E.C. Mr. Zimmer testified that he prepared this docu-

ment himself. In view of the witness’ duties at F.E.C, it

is clear to the Court that there exists a sufficient showing

of the document’s reliability to allow its admission into

evidence.

Zimmer also testified that he supervised the prepara-

tion of P-7 at the request of O.E.O.’s contracting officer.

The testimony concerning the preparation of this docu-

ment is sufficient to qualify it as a business record and it

will remain in evidence.

P-5 and P-6 are purportedly F.E.C. inter-office memo-

randa. Although Zimmer testified that he recognized the

signatures or initials of the F.E.C. officials who allegedly

prepared those documents, this testimony is insufficient to

establish their reliability and thus qualify them as busi-

ness records. Lacking a proper foundation, these exhibits

will be stricken from the record.

Il. Frxpres or Fact

1) As part of the Economie Opportunity Act of 1964

Congress established the Job Corps for the purpose of

assisting low-income, disadvantaged young people by es-

tablising rural and urban centers in which enrollees would

participate in programs of education, vocational training,

work experience and other activities. 42 U.S.C. See. 2711

(now 29 U.S.C. See. 911).

47a

Appendix D

2) By virtue of 42 U.S.C. See. 2714, the Director of

the Office of Economic Opportunity was authorized to

prescribe rules for the screening and selection of appli-

cants for enrollment in the Job Corps; 42 U.S.C. Sec

2715 provided that no individual was to be selected as an

enrollee unless it was determined that “he is not likely to

engage in actions or behavior that would prevent other

enrollees from receiving the benefit of the program or be

incompatible with the maintenance of sound discipline.

.. .” Section 2720 provided that “within the Job Corps

centers, standards of conduct and deportment shall be

provided and stringently enforced.”

3) On December 1, 1964, a contract was entered j

. into

between the 0.E.0. and the Federal Electric Corporation

(F.E.C.) by which F.E.C. agreed to operate a Job Corps

residential training center for boys at Camp Kilmer, Edi-

son, New Jersey.

4) Relevant portions of the contract a r i

dix A of this Opinion. egal ites

5) Camp Kilmer was a Federal Reservation under the

Jurisdiction of the United States Government. Liaison

was maintained between the Kilmer Center staff, the

ye = er tegen of the United States Attorney. Inci-

ents of enrollee misconduct were routinel

federal authorities. daca ate

6) Although O.E.O. had broad su i i

pervisory authori

over the Camp Kilmer Job Corps Center, control over o

Center’s day-to-day operations resided in F.E.C.

7) Carol Thomas, 0.E.0.’s project manager for the Job

Corps, was based in Washington, D.C. Numerous aspects

48a

Appendix D

of the Center’s operation, including the extension of

physical security, were subject to his approval.

8) Guidelines for the control of corpsmen’s conduct

were disseminated by O.E.0. Pursuant to these guide-

lines, F.E.C.’s center personnel implemented specific rules

and regulations.

9) O.E.O. also had the responsibility to approve center

staffing. On November 5-6, 1966, there were approximately

1,000 corpsmen at the Kilmer Center. There were four or

five guards per shift in addition to two investigators. The

security personnel were civilian employees of F.E.C. who

were not empowered to make arrests, or to carry weapons.

10) O.E.0., alone, was responsible for selecting the en-

rollees to be sent to the Kilmer Center. Sometime after

July of 1965, F.E.C. expressed concern to O.K.O. over

whether they were getting too large a proportion of en-

rollees who were disciplinary problems.

11) In pursuance of its supervisory role, O.E.O. main-

tained a permanent “site representative” at the Kilmer

Center whose function it was to report problems encoun-

tered there to Washington on a weekly basis. In addi-

tion, numerous on-site inspections were conducted by other

federal employees.

12) Subsequent to the opening of the Kilmer Center

and prior to November 1966, there were numerous inci-

dents of corpsmen’s misbehavior, including fights some-

times involving 100 or more enrollees, and intoxication

due to aleohol and drugs. Security personnel were con-

cerned over the possibility of a riot but managed to con-

tain all incidents before general riots developed.

49a,

Appendiz D

13) Prior to November 1966, O.E.O. officials, including

Carol Thomas and Milton Fogelman, 0.E.0.’s Contract-

ing Officer, received frequent reports of disciplinary prob-

lems at Camp Kilmer. In addition O.E.O. officials were

aware that there were enrollees at the Kilmer Center

with criminal records. At least one O.E.O. official, Carol

Thomas, was aware that a narcotics addiction problem

existed at the Center. F.E.C. did not request assistance

in coping with the narcotics problem, and O.E.O. did not

consider combatting the problem to be the Government’s

responsibility.

14) Exhibit P-7, a document entitled Kilmer Improve-

ment Plan, was prepared prior to November 1966, by the

Kilmer Center Staff. It contains proposals that some

form of arrest authority be obtained for its security

guards, and that a special isolation facility be provided

for the detention of corpsmen in emergency cases. Al-

though Carol Thomas was aware of the plan, it was never

officially submitted to him for approval.

15) On numerous occasions, Willie James, the security

assistant at Camp Kilmer Center, had discussions with

Q.E.0’s on site representative about the need for a de-

tention facility and for the deputization of security guards.

16) F.E.C. would have been required to submit a re-

quest to 0.E.0. for the construction of a detention facility

or for deputization of its guards. No formal request was

ever made by F.E.C. to Carol Thomas, 0.E.0.’s Camp

Kilmer Project Manager, nor did O.E.O. ever require

F.E.C. to construct such a facility or to seek arrest au-

thority for its guards.

50a

Appendix D

17) F.E.C. had the authority to physically remove from

the Center any corpsmen causing disciplinary problems

but an enrollee could not be discharged from the Job

Corps program without the permission of 0.K.O.

18) On September 19, 1966, O.E.0. in Washington is-

sued Men’s Center Bulletin J/M 67-1 (Exhibit G-1). The

bulletin delegated to the Center Directors the power to

discharge enrollees for disciplinary reasons and required

each Job Corps center to provide an on-site facility for

the isolation of corpsmen whose conduct constituted a

threat to themselves, other persons, or property. The

bulletin, however, was never implemented.

19) In November, 1964, plaintiff Ronald C. Gibson was

hired by F.E.C. as a group leader.

20) As a group leader, Gibson lived in the dormitories

with the corpsmen and had daily group meetings with the

corpsmen assigned to him.

21) In October, 1966, plaintiff was assigned to dormi-

tory No. 2127 and as of November 5, 1966 he had not

become fully familiar with the enrollees in that dormitory.

In Gibson’s words, “There was a lot of havoc in that

dormitory.”

22) On November 5, 1966, at 8:00 p.m., plaintiff was in

his room in dormitory No. 2127, which was divided into

sections A and B.

23) Plaintiff heard an argument taking place in the

living quarters of the dormitory and proceeded there in

his capacity as a group leader. He observed three corps-

5la

Appendix D

men arguing violently, one of whom was Andrew Jessie.

Other corpsmen were also present.

24) Plaintiff observed that Jessie appeared belligerent,

aggressive and uncontrollable. His eyes were glazed and

his speech was incoherent.

25) Jessie lived in the A section and his corpsmen an-

toganists were from the B section. Plaintiff separated the

adversaries and told Jessie to return to the A section of

the dormitory.

26) J essie left pursuant to plaintiff’s instruction and

plaintiff returned to his room.

27) About an hour later, plaintiff heard a loud con-

troversy taking place in orc of the rooms of B section.

Plaintiff went to the scene of the ruckus and found An-

drew J essie again arguing with a corpsman. At this time

plaintiff observed that Jessie was talking very loudly and

cursing at his antagonist and that his eyes still appeared

glazed. Plaintiff separated Jessie from the other corps-

man and took Jessie to plaintiff’s room.

29) Plaintiff then took Jessie to the duty officer in

dormitory No. 2113 who was in charge of security for the

corpsmen at that time.

30) Plaintiff and the duty officer agreed that Jessie

presented a problem in his own dormitory (No. 2127) and

should be placed in dormitory No. 2132. Dormitory No.

2132 was the so-called security dormitory used for corps-

men who were creating problems. Its physical layout was

identical to the other dormitories and it had no special

52a

Appendix D

features or facilities such as bars or special locks appro-

priate for its function.

31) Plaintiff did not know whether or not dormitory No.

2132 was sufficient to restrain Jessie or whether the duty

officer actually took Jessie to No. 2132. He did not give

any special instructions to the duty officer believing that

Jessie was no longer his responsibility.

32) Approximately an hour later (between 10:00 p.m.

and 11:00 p.m.) a corpsman from the A section of plain-

tiff’s dorm informed plaintiff that Jessie had returned to

that section.

33) Plaintiff went to the A section and observed a num-

ber of corpsmen, including Jessie, arguing and creating

a disturbance. The duty officer as well as other security

people were also present.

34) Plaintiff requested that the security personnel leave

the room and remain outside while he tried to calm the

situation with the help of other corpsmen.

35) Plaintiff noticed that Jessie was very excited and

requested that two corpsmen attempt to calm him down

and help return him to dormitory No. 2132.

36) Plaintiff then went to the latrine section, located

between sections A and B. Hearing somebody behind

him, he turned and was stabbed in the temple with a

screwdriver by Jessie.

37) Plaintiff wrestled with Jessie until two corpsmen

entered the latrine and separated the combatants. Plain-

53a

Appendix D

tiff again requested the two corpsmen to calm Jessie down,

and he then proceeded to the dispensary. He did not in-

struct the corpsmen to return Jessie to the isolation

facility.

38) At the dispensary, plaintiff had his wound treated

and was instructed by the medical aide to go to the hos-

pital. Plaintiff explained to the aide that he would first

return to the dormitory and check on the situation there.

He did not inform security of the stabbing incident nor

request the medical attendant to do so.

39) After leaving the dispensary, plaintiff returned to

his dormitory where he was met outside by Jessie who

slashed him in the back with a razor. Security officers

arrived at this point and restrained Jessie.

40) At 3:00 a.m. on the morning of November 6, 1966,

Gaddis Johnson, an investigator for Camp Kilmer Se-

curity Departm: it, saw Andrew Jessie for the first time.

Jessie was in tne custody of two law enforcement officers

and was shouting obscenities. His speech was slurred

and incoherent.

41) Pursuant to 42 U.S.C. Sec. 2727(a) (3), for purposes

of the Federal Tort Claims provisions of Title 28, en-

rollees are considered employees of the United States

Government.

Conc.usions or Law

The plaintiff contends that since the United States Gov-

ernment affirmatively undertook a training program for

young people with behavioral problems, it had a duty to

54a

Appendix D

exercise reasonable care by providing safety measures

for the protection of instructors required to live and work

with such trainees. Before determining the validity of

plaintiff’s assertion, this Court must first decide whether

the immunity provisions of the Tort Claims Act are ap-

plicable.

The Federal Tort Claims Act, 28 U.S.C. See. 1346(b),

is designed to afford a judicial remedy for those who suf-

fer injury or damage as a result of the negligence or

misconduct of a United States employee. It provides in

pertinent part:

[T]he district courts . . . shall have exclusive jur-

isdiction of civil actions on claims against the

United States, for ... personal injury . . . caused

by the negligent or wrongful act or omission of

any employee of the Government while acting with-

in the scope of his office or employment, ....

However, this provision is limited by 28 U.S.C. Sec. 2680

(h) which states that the provisions of the Tort Claims

Act shall not apply to “[a]ny claim arising out of assault

[or] battery. ...” (emphasis added).

Section 2680(h) has been held to exempt the United

States from liability for assaults or batteries committed

by Government employees, but not from liability resulting

from the commission of those intentional torts by a third

party which the Government negligently failed to prevent.

See Rogers v. United States, 397 F.2d 12 (4th Cir. 1968) ;

Underwood v. United States, 356 F.2d 92 (5th Cir. 1966) ;

Muniz v. United States, 305 F.2d 285, 287 (2d Cir. 1962),

aff’d, United States v. Muniz, 374 U.S. 150 (1963); Moos

v. United States, 225 F.2d 705 (8th Cir. 1955), aff’g, 118

55a

Appendiz D

F. Supp. 275 (D. Minn. 1954); Panella v. United States,

216 F.2d 622 (2d Cir. 1954), rev’g. in part, United States

v. Wilcox, 117 F. Supp. 119 (S.D. N.Y. 1953); Collins v.

United States, 259 F. Supp. 363 (E.D. Pa. 1966). This

Court is unaware of any case in which recovery has been

allowed against the United States for an assault or bat-

tery committed by one of its employees.

The Third Circuit, however, in Gibson v. United States,

457 F.2d 1391 (3d Cir. 1972), has indicated that the facts

as pleaded in this case may require an exception to that

rule. This Court, when it originally confronted this case,

dismissed the complaint for lack of jurisdiction pursuant

to section 2680(h). The Third Circuit disagreed for two

reasons.

First, the attack upon Gibson was a foreseeable

consequence of the Government’s failure to exercise

due care under the circumstances and, therefore, it

ts not such an intervening act as will sever the nec-

essary causal relation between the negligence and

the appellant’s injuries.

Here the very risk which constitutes the de-

fendant’s negligence is the probability of such

action. It is clear that when such action occurs,

it should not insulate the defendant’s negligence

under the causation formula. In other words, it

is clearly unsound to afford immunity to a negli-

gent defendant because the intervening force, the

very anticipation of which made his conduct neg-

ligent, has brought about the expected harm.

Under the appellant’s allegations, the injury

arose out of the basic negligence of the United

States and the attack was the foreseeable conse-

56a

Appendiz D

quence of the original misconduct. “That the fore-

seeable danger was from intentional or criminal

misconduct is irrelevant; respondent nonetheless

had a duty to make reasonable provision against it.

Breach of that duty would be negligence. . . .” (em-

phasis supplied) Lillie v. Thompson, 332 U.S. 459,

462 (1947); Harrison v. Missouri Pacific R. Co.,

372 U.S. 248 (1962). Under such circumstances,

the attack was not an intervening act and the tort

did not arise out of the assault and battery. It had

its roots in the Government’s negligence.

457 F.2d at 1395 (footnote omitted) (quoting from Harper

and Kime, The Duty to Control the Conduct of Another,

43 Yale L.J. 886, 898 (1934)). This rationale has previ-

ously been used and accepted only in cases involving

claims arising out of assaults by non-government em-

ployees. See Panella v. United States, supra; Mumiz v.

United States, supra. It has constantly been rejected

when the assaulting party was an employee of the United

States since the cause of action was deemed to have arisen

out of the assault or battery. See Moos v. United States,

995 F.2d 705 (8th Cir. 1955), aff’g, 118 F. Supp. 275 (D.

Minn. 1954); Collins v. United States, 259 F. Supp. 363

(E.D. Pa. 1966).

In Collins v. United States, swpra, the plaintiff after

being “pushed, hit and struck” by a postal employee al-

leged that the Government was negligent in hiring and

retaining an employee who it knew or should have known

possessed “violent, vicious and malicious propensities.”

The Government moved to dismiss pursuant to Fed. R.

Civ. P. 12(b)(6) and relied on section 2680(h).

57a

Appendia D

The plaintiff argued that his claim was not founded

upon assault and battery, but rather upon the negligence

of the Government. Judge Lord, noting the lack of appli-

cable case law or helpful legislative history, stated:

We are left, then, with the words of the Act as

our only guide. It is true that the claim here is

predicated on negligence. However, that negligence

would have been without legal significance absent

the alleged act of Brosz. Without that, there would

have been no actionable negligenge. It was the at-

tack which served to attach legal consequences to

defendant’s alleged negligence. Congress could

easily have excepted claims for assault. It did not;

it used the broader language excepting claims aris-

ing out of assault. It is plain that the claim arose

only because of the assault and battery, and equally

plain that it is a claim arising out of the assault

and battery. This being so, the United States has

not waived its immunity as respects this claim.

259 F. Supp. at 364. The Court then referred to Panella

v. United States, supra, as lending “inferential support”

to its decision. Panella involved a claim by a convicted

drug addict who, in lieu of a custodial sentence, elected

to undergo treatment for his addiction at a United States

maintained and controlled hospital. While an inmate at

that institution, he was allegedly assaulted by another

inmate. He sued the United States claiming that the em-

ployees of the Government were negligent in failing to

provide adequate guards and supervision. -The district

court granted defendant’s motion for summary judgment.

The United States Court of Appeals for the Second Cir-

cuit reversed on the sole ground that the exception in sec-

58a

Appendia D

tion 2680 (h) did not apply to assaults by non-government

employees. Given that background, the Court in Collins

stated:

The plain implication of Panella is that had the

assault been by a government employee, the action

would have been barred even though it was predi-

cated on an allegation of negligence other than the

assault itself.

259 F. Supp. at 364.

When this Court originally dismissed the plaintiff’s com-

plaint, reliance was placed both upon Collins and the fact

that the injury arose out of an assault committed by a

Government employee. This Court determined that as

long as the assault and battery was committed by an em-

ployee of the United States Government, any attempt to

segregate and separately state a cause of action for neg-

ligence would be to no avail. The alleged negligence on

the part of the Government was deemed to have arisen

out of the assault and battery and to have formed an in-

tegral part of the entire incident which encompassed the

battery. See Moos v. United States, 118 F.2d at 277. The

Court considered it immaterial that the negligence oc-

curred first in point of time. See «dd.

The Third Cireuit, however, found Collins to be inappo-

site on its facts. It stated that

[t]here are a number of distinguishing factors sep-

arating it from the case swb judice. It is the classic

ease of an intentional assault and battery except

for the conelnsory allegation that the Government

knew or should have known the postal clerk had

“malicious propensities.” This conclusory state-

59a

Appendiz D

ment, however, is based upon the very assault for

which the action is brought. In this case, we are

concerned with trainees who are drug addicts and

have behavorial problems, under the care of the

Government in a controlled environment and pro-

gram designed to rehabilitate them. The Govern-

ment accepted the duty of caring for and control-

ling them knowing of their drug addiction and in-

stability. It was obliged to exercise reasonable

care to prevent them from harming others.

457 F.2d at 1396. Since it chose not to overrule Collins,

the Court of Appeals has apparently carved an exception

to the rule exempting the Government from liability for

assaults and batteries committed by its employees. It re-

lied in part on Rogers v. United States, 397 F.2d 12, 15

(4th Cir. 1968), in which a prisoner claimed damages re-

sulting from an assault by a third party. The Fourth Cir-

cuit in Rogers ignored the third party rationale and in-

stead held section 2680(h) to be inapplicable because the

claim “was founded on negligence even though assault or

false imprisonment may [have been] collaterally involved.”

The Third Cireuit’s seeming reliance upon Rogers is quite

confusing since the theory upon which the Fourth Circuit

based its decision was specifically rejected by Judge Lord

in the Collins case. Regardless of the Third Circuit’s rea-

soning, however, its intervention is clear. It is therefore

the opinion of this Court that if the United States under-

took the task of establishing a Job Corps Training Center

where it had the day-to-day authority over the process of

selecting, controlling and disciplining trainees known to

possess behavioral and drug addiction problems, a valid

cause of action for negligence would exist against the

United States based upon an assault or battery by one of

its trainees.

60a

Appendia D

The Third Circuit also based its decision on its belief

that Congress had not intended section 2680(h) to apply

to facts such as those in this case. Since there was the

possibility that the effects of the narcotics were powerful

enough to deprive Jessie of control of his mental power,

the Court of Appeals believed he may have lacked the

requisite mental element necessary for the commission of

a battery. “In any event,” the Circuit reasoned, “this

would be a question of fact for the jury and not a matter

of law determinable on the pleadings.” 457 F.2d at 1396.

While voluntary intoxication may be a defense to a

criminal charge requiring specific intent, in a civil context

“it will not prevent the formation of general intent neces-

sary for the commission of an assault and battery.” Es-

mond v. Liscio, 209 Pa. Super. 200, 224 A.2d 793 (1966)

(civil action for damages resulting from assault and bat-

tery). Even in the context of a criminal aggravated as-

sault, since only a general intent is required for the com-

mission of the act, the fact that intoxication eliminated

specific intent is not a defense. State v. Johnson, 207 La.

161, 20 So. 2d 741 (1944); F. Wharton, Criminal Law and

Procedural, Assault, Battery, and Mayhem §358, at 716

(12th ed. 1957): see generally United States ex rel. Rucker

v. Myers, 311 F.2d 311 (3d Cir. 1962), cert. dented, 374

U.S. 844 (1963); Annot., 8 A.L.R.3d 1236 (1966). This

Court does not perceive a distinction between voluntary

intoxication from alcohol and voluntary intoxication from

drugs.

Total loss of control over one’s mental faculties by vir-

tue of drug addiction can also be analogized to insanity.

It is clear that insanity is no defense to a civ’! suit for

ussault and battery. See Aetna Casualty & Swrety Co. v.

Porter, 181 F. Supp. 81 (D.D.C. 1960) (action based on

6la

Appendix D

homicide); Mullen v. Bruce, 168 Cal. App. 2d 494, 335

P.2d 945 (Ct. App. 1959) (insane person held liable under

statutory codification); Bolen v. Howard, 452 S.W.2d 401

(Ky. 1970); Albicocco vy. Nicoletto, 11 App. Div. 2d 690,

204 N.Y.S.2d 566 (1960) (even if defendant was tempo-

rarily insane, he was nevertheless responsible for assault

to same extent as if sane); Van Vooren v. Cook, 273 App.

Div. 88, 75 N.Y.S. 2d 362 (1947) (defendant, patient in

mental institution, held liable for assault and battery

upon attendant); W. Prosser, Law of Torts 4135, at 1000

(4th ed. 1971); Annot., 77 A.L.R.2d 625 (1961); 41 Am.

Jur. 2d, Incompetent Persons §§ 104-05 (1968), The ra-

tionale behind this seemingly harsh rule is that the law,

rather than seeking to punish the insane wrongdoer, en-

deavors only to compensate the injured party for the

damages sustained. Mcintyre v. Sholty, 121 Ill. 660, 13

N.E. 239 (1887); see McGuire v. Almy, 297 Miss. 323, 8

N.E. 2d 760 (1937). See generally Friedman, Mental In-

competency, 79 L.Q. Rev. 502, 80 L.Q. Rev. 84 (1964);

Curran, Tort Inability of the Mentally Ill and Mentaily

Deficient, 21 Ohio 8.L.J. 52 (1960).

In overruling this Court’s previous decision, the Third

Circuit quoted from a Senate report with respect to Sec-

tion 2680(h) as support for its position that Congress was

willing to assume liability in situations such as that sub

judice. The report stated that “[t]his section specified

types of claims which would not be covered by this title.

They include . . . deliberate torts such as assault and bat-

tery; and others... .” S. Rep. No. 1400, 79th Cong., 2d

Sess., at 33 (1946) (emphasis by the Circuit Court). The

Court seemed to place special significance on the fact that

the assault and battery in this case would not have been

“deliberate” if Jessie did not have sufficient possession of

62a

Appendix D

his faculties. However, in order for an assault or battery

to be “deliberate” the defendant must act merely with the

intent of causing the contract or apprehension, or with

knowledge on his part that such contract or apprehension

is substantially certain to be produced. The motives of the

actor are immaterial. Even if Jessie did not comprehend

the difference between right and wrong at the time of the

attack, it would seem that he would nonetheless be held

civilly accountable for his act since the requisite mental

element for the commission of a battery is a mere gen-

eral intent to do the act complained of.

As further authority for its position that the Govern-

ment may be liable for certain “deliberate” torts, the Cir-

cuit cited the following colloquy which occurred during

hearings before the House Judiciary Committee with re-

spect to section 2680(h).

“Mr. Robsion. On that point of deliberate as-

sault that is where some agent of the Government

gets in a fight with some fellow?

Mr. Shea. Yes.

Mr. Robsion. And socks him?

Mr. Shea. That is right.

Mr. Cravens. Assume a C.C.C. automobile runs

into a man and damages him then under the com,

mon law, where that still prevails, is not that con-

sidered an assault and is not the action based on

assault and battery?

Mr. Shea. I should think not. I should think

under old common law rather that would be tres-

pass on the case.

Mr. Cravens. Trespass on the case?

Mr. Shea. Yes.

63a

Appendia D

Mr. Cravens. I do not remember those things

very well, but it seems to me there are some cases

predicated on assault and battery even though they

were personal injury cases.

Mr. Shea. No; I think under common law plead-

ing you have the same writ, but it makes a dis-

tinction between an assault and negligence.

Mr. Cravens. This refers to a deliberate as-

sault?

Mr. Shea. That is right.

Mr. Cravens. If he hit someone deliberately?

Mr. Shea. That is right.

Mr. Cravens: It is not intended to exclude negli-

gent assaults?

Mr. Shea. No. An injury caused by negligence

could be considered under the bill.” (emphasis sup-

plied) Hearings on H.R. 5373 and H.R. 6463 Before

the House Committee of the Judiciary, 77th Cong.,

2nd Sess., ser. 13, at 33, 34 (1942).

This Court, unlike the Third Circuit reads that dis-

cussion as allowing recovery only in cases of negligence.

The “negligent assault” that Mr. Cravens refers to can

only mean general negligence since by definition assault

is an intentional tort. Surely it cannot be said that in

this case Jessie’s conduct with respect to the plaintiff

was in any way negligent. It was intentional even if done

with the purest motives. In any event, further discussion

of this question is unnecessary since it is this Court’s

finding that the plaintiff has failed to establish that Jessie

was under the influence of narcotics, or that he lacked

the requisite mental element necessary for the commission

of a battery.

64a

Appendix D

Turning now to the question of the Government’s li-

ability, it was the opinion of the Third Circuit that if the

evidence sustained plaintiff’s allegations that the United

States had the day-to-day authority over the process of

selecting, controlling and disciplining the trainees, it would

follow that the Government undertook certain duties with

respect to these trainees and that it had the responsibility

of performing those duties with due care. 457 F.2d at

1394. The Court of Appeals cited the Restatement (Sec-

ond) of Torts §319 which states:

One who takes charge of a third person whom he

knows or who should know to be likely to cause

bodily harm to others if not controlled is under

a duty to exercise reasonable care to control the

third person to prevent him from doing such harm.

See also W. Prosser, Law of Torts, at 188 (2d ed. 1955).

The Court further reasoned that

[iJn the case sub judice, the duty to control the

conduct of the trainees is even stronger since they

were allegedly employees of the United States at

the time and definitely under its control.

457 F.2d at 1394.

It is the finding of this Court, however, that although

the United States did possess the authority and control

over the trainee selection process, the day-to-day control

of the Center’s operations, including the disciplining of

trainees, resided in F.E.C. Therefore, the criteria for

liability as set forth by the Third Circuit in Gibson have

not been satisfied. This Court will go beyond those cri-

teria, however, and explore whether any other theory will

support liability.

65a

Appendix D

Under general principles of agency, one who engages

a contractor, who conducts independent business by means

of his own employees, is not liable for the negligent acts

of the contractor in performance of the contract. Majes-

tic Realty Associates, Inc. v. Toti Contracting Co., 54

N.J. Super. 419, 149 A.2d 288, aff’d, 30 N.J. 425, 153 A.2d

321 (1959); Bacak v. Hogya, 4 N.J. 417, 73 A. 2d 167

(1950) ; Marion v. Public Service Elec. & Gas Co., 72 N.J.

Super. 146, 178 A.2d 57 (App. Div. 1962). However, where

the employer reserves to himself either control or the right

to control the manner in which the work is to be per-

formed, the law fastens vicarious liability upon the em-

ployer for tortious injuries caused by his contractor.

Majestic Realty Associates, Inc. v. Toti Contracting Co.,

supra; Errickson v. F.W. Schwiers, Jr., Co., 108 N. J. L.

481, 158 A. 482 (Ct. Err. & App. 1932); see Peter v. Public

Constructors, Inc., 368 F.2d 111 (3d Cir. 1966) (Pennsyl-

vania law applied); Galler v. Slurzberg, 22 N. J. Super.

477, 92 A.2d 89 (App. Div. 1952).

In the present case, under the terms of the contract, the

United States retained a right of control over the manner

in which F.F.C. performed its functions. The scope of

work to be performed by F.E.C. was to be performed “in

such manner as directed by the Director of the Job Corps.

..” Appendix A, Contract, Part II, Scope of Work. The

preparation and revision of policies and procedures by

F.E.C. were “subject to approval of the Contracting Offi-

cer” and implemented “as approved by the Project Man-

ager....” Appendix A, Exhibit B, Part II(A). Numer-

ous other aspects of the Center’s operation, including the

extention of physical security, were subject to the ap-

proval of the Project Director. Guidelines for the control

of the trainees’ conduct were disseminated by O.E.O. and

66a

Appendix D

pursuant to these guidelines F.E.C.’s personnel imple-

mented specific rules and regulations. O.E.O. further had

the responsibility to approve center staffing.

“Additionally, O.E.O. maintained a permanent site repre-

sentative at Camp Kilmer whose function it was to report

problem areas to Washington. O.E.O. was aware of disci-

pline and narcotics problems at Camp Kilmer and was

further aware of the need for a detention facility and

tighter security. The fact that O.E.0. did not exercise its

right of control in no way negates liability.” Trent v.

Atlantic City Elec. Co., 334 F.2d 847 (3d Cir. 1964); Ma-

jestic Realty Associates, Inc. v. Toti Contracting Co., supra.

It is this Court’s holding then that the United States Gov-

enrment retained sufficient control of the manner in which

F.E.C.’s work was to be performed to render it liable to

the plaintiff for the negligence of F.E.C. under the doc-

trine of respondeat superior.

There is another theory of liability, also based on the

doctrine of respondeat superior, upon which responsibility

may vest in the United States for the negligence of F.E.C.

Simply stated, the contractee is liable where the work per-

formed is inherently dangerous and the contractor’s negli-

gence causes injury within the scope of that danger. Breece

v. J.F. Chapman & Son, Inc., 302 F.2d 581 (3d Cir. 1962) ;

Majestic Realty Associates v. Toti Contracting Co., supra;

Bergquist v. Penterman, 46 N. J. Super. 74, 134 A.2d 20

(App. Div. 1957). In Majestic Realty, the New Jersey

Appellate Division held that the distinguishing factor Te-

tween inherently dangerous activities and others “is the

probability that injurious consequences will attend their

performance even if reasonable care is exercised.” 54 N. J.

Super. at 431, 149 A.2d at 294. In affirming that decision,

the New Jersey Supreme Court stated that inherently

67a

Appendix D

dangerous “signifies that danger inheres in the activity

itself at all times, so as to require special precautions to

be taken with regard to it to avoid injury.” 30 N. J. at

435, 153 A.2d at 326. The Supreme Court further cited

23 A.L.R. 984 and 1084 (1923) as authority for the inter-

pretation that “the term imports a danger which is inci-

dental to and characteristic of the work itself, and not one

which arises solely from the means and methods of its

performance.” 30 N. J. at 435, 153 A.2d at 326. See gen-

erally Morris, Agency and Partnership, 14 Rutgers L. Rev.

375, 376 (1960).

“It is the opinion of this Court, therefore, that when the

United States created the Job Corps and affirmatively un-

dertook a program of instruction, rehabilitation and care

for Job Corps trainees, some of whom were known tv be

prone to violence and to possess behavioral and drug ad-

diction problems, it was engaging in an inherently danger-

ous activity. The United States, therefore, had a duty to

exercise reasonable care to insure the safety of persons

coming in contact with its trainees. The Government

breached its duty when it failed to provide for adequate

safety precautions and is thus liable to the plaintiff regard-

less of the fact that it delegated certain functions to F.E.C.,

an independent contractor.”

In light of the foregoing, it is the holding of this Court

that 1) since the United States retained control of the

manner in which F.E.C. performed its duties; and 2) since

the operation of the Job Corps Center at Camp Kilmer

constituted an inherently dangerous activity which was

incapable of delegation to an independent contractor, the

United States is liable to the plaintiff for the personal

injuries which he sustained based on the doctrine of

respondeat superior.

68a

Appendix D

The plaintiff shall submit an order in conformity with

this opinion.

Lawrence A. WHIPPLE

Chief Judge, U.S.D.C.

Dated: March 14, 1975

APPENDIX A

Part II Score or Work

The definition of scope of work of this contract shall be

the operation and maintenance of a Job Corps residential

training center, and the educating, training and otherwise

providing for the general welfare of young men hereafter

referred to as Enrollees, in such manner as directed by

the Director of the Job Corps, to assist in the efficient

accomplishment of the Office of Economie Opportunity

duties, responsibilities and mission, principally at the site

identified under the Part of this Contract entitled Site.

Part XII AssIGNMENT AND SEPARATION

The Project Manager shall specifically inform the Con-

tractor of the Enrollees assigned by the Job Corps to the

Training Center to be operated under this contract.

Yhe separation or discharge of an Enrollee from the

Training Center shall be the sole responsibility of the

Director of the Job Corps.

69a

Appendix D

Part XVIII Support sy Orrice or Economic OpporTUNITY

It is the intent of the parties that the Contractor will,

so far as practicable, avoid incurring costs by purchasing

material and supplies or in duplicating work capacity

available to any Government installation involved in the

performance of this contract. Therefore, the Contractor

will utilize all available Government working space, equip-

ment, supplies, materials and services at any installation,

activity or office where work under this contract is in-

volved. Such items will be made available to the Con-

tractor in reasonable amounts on a no-charge-for-use basis.

The Contractor shall report any inadequacies or non-

availability of the items referred to herein with a recom-

mended plan for obtaining the requested items to the Con-

tracting Officer who shall promptly determine the validity

and extent of the requirement and the manner in which

any approved requirement will be filled (as by purchase,

rental or lease). The Contractor shall not purchase or

otherwise incur costs for any requirement under this clause

without written approval of the Contracting Officer of the

terms of the proposed purchase or other arrangement.

Items of a capital nature (facilities) shall not be purchased

under the authority of this clause.

Part XXI Spectra, ALLowABLE Costs

Without limiting the general criteria and specific limita-

tions imposed by the clause of the General Provisions en-

titled “Allowable Cost, Fixed Fee and Payment” of this

contract, the Contractor may at the specific request of the

Contracting Officer perform the following services which

shall be considered allowable items of cost.

70a

Appendia D

“A. Service Involving Building and Other Facilities.

Rearrange, maintain, repair and perform other neces-

sary services to any buildings, facilities or utilities, affect-

ing the operation of the Training Center.”

Part XXV Site

The Government is to provide the site including the

buildings described in the letter from General Services

Administration to 0.E.0. dated November 24, 1964: “Such

additional areas and buildings may be made available to

the Contractor as are mutually agreed upon.”

Part XXX Meats anp Loperne, Non-E. NROLLEES

Contractor agrees to provide meals and lodging at no

charge to Enrollees in accordance with terms of this con-

tract.

“No other person or groups of persons shall receive any

meal or lodging at the Training Center except on terms

or at prices approved by the Project Manager.”

Part XXXII Revenve rrom Saves or Services AT TRAINING

CENTER

All revenues generated at the Training Center shall be

collected, disbursed and further handled as directed by the

Project Manager.

Part XXXII Jos Corps REPRESENTATIVE

Contractor to provide such services as Project Manager

deems necessary “for the support of a Job Corps repre-

Tla

Appendix D

sentative in residence at the Site, together with such Job

Corps staff as may be assigned by the Project Manager to

assist him.

Exuzsit B, II

A. Preparation and Revision of Policies and Procedures

The Contractor shall prepare and revise as necessary, in

accordance with O.E.O. policies, subject to the approval of

the Contracting Officer, and implement as approved by the

Project Manager, the policies and procedures under which

operation and maintenance functions necessary to support

the said Training Center will be performed.

EXHIBIT A

(TecunicaL Work StaTEMENT)

I. Genera.

This contract is for the establishment and operation of

a Job Corps Training Center for a comprehensive residen-

tial program to prepare Job Corps Enrollees for useful

employment and the responsibilities of citizenship.

II. Work To BE PerRFoRMED

In carrying out this responsibility, the Contractor will

provide such services as are necessary to support the En-

rollee at the Center and to assist the Job Corps in the

accomplishment of its mission. The Contractor shall pro-

72a

Appendiz D

vide his best efforts to accomplish in a continuing manner

the operation of a residential Training Center, including

such elements as the following:

A. Vocational Skill Training

Basic and General Education

Useful Work Experience

Physical Fitness, Recreation, and Health Education

Medical and Dental Care

Counseling and Guidance

Job Placement Assistance

moto ow

Training Center Administration

A. Vocational Skill Training

The Contractor shall provide vocational skill training

which will serve to furnish each Enrollee with sufficient

technical knowledge, familiarization with specific work

methods, relevant supervised practice, understanding of

acceptable standards of workmanship, awareness of safety

responsibilities, and proper work habits to permit him,

upon completion of training, to obtain employment at the

entry level or above in a defined occupation.

73a

Appendia D

EXHIBIT B

(OPERATION AND MAINTENANCE Work STATEMENT)

I. GENERAL

The Contractor shall perform the operation and mainte-

nance functions necessary to support the Job Corps Train-

ing Center to be located on the site formerly known as

Camp Kilmer, New Jersey.

II. Work To BE PerrorMep

The Contractor shali make available his personnel and

facilities and exert his best efforts to provide supplies and

services which shall include but not be limited to the fol-

lowing:

A. Preparation and Revision of Policies and Procedures

The Contractor shall prepare and revise as necessary,

in accordance with OEO policies, subject to the approval

of the Contracting Officer, and implement as approved by

the Project Manager, the policies and procedures under

which operation and maintenance functions necessary to

support the said Training Center will be performed.

B. Logistical Support

In accordance with OEO policies, and Contractor opera-

tional policies approved by the Contracting Officer, the

Contractor shall requisition, receive, warehouse and store,

issue and account for and in general manage the following

areas:

directed by the Contracting Officer.

C. Services

The Contractor shall provide services and in general

manage the following areas:

74a 75a

Appendia D

APPENDIX E

1. Materials '

, Prior Opinion of the United States Court of Appeals

2. Clothing for the Third Circuit

3. Supplies (457 F.2d 1391)

4. Equipment UNITED STATES COURT OF APPEALS

5 Waeilitics For tHe Turrp Circuit

6. Vehicles No. 19,253

7. Tools

8. Machinery —

9. Other things as identified by OEO policies or RONALD GIBSON, Appellant

Vv.

UNITED STATES OF AMERICA

—>

> See (D. C. Civil Action No. 1147-68)

AppeaL From tHe Unitrep States District Court

Telephone and other utitities For tHe District or New JERSEY

Repair Argued September 16, 1971

Equipment lease and rental

Physical security

Building maintenance and rearrangement

Fire protection

Before Biaes, Apams and Rosenn, Circuit Judges

OPINION OF THE CouRT

(Filed March 30, 1972)

eo Pen AS YF HS pP

Other things as identified by OEO policies or

directed by the Contracting Officer.

Rosenn, Circuit Judge.

This appeal is from an order dismissing with prejudice

an action brought against the United States under the

76a,

Appendia E

Federal Tort Claims Act, for personal injuries inflicted by

the alleged negligence and omissions of Government em-

ployees. The district court apparently dismissed the com-

plaint for lack of jurisdiction over the subject matter,

believing the cause of action came within the exception

provided by 28 U.S.C. §2680(h).'

The complaint makes the following allegations rele-

vant to our decision: The appellant, Gibson, a college

graduate, 26 years of age, was employed by the Federal

Electric Co. to train Job Corps enrollees at the Raritan

Arsenal in Edison, New Jersey. One Jessie, a juvenile

delinquent with a known addiction to narcotics, was a Job

Corps enrollee employed and housed by the United States

at the arsenal. On November 5, 1966, Jessie, while under

'The district court’s treatment of appellee’s motion to dismiss

under Fed. R. Civ. P. 12(b)(1) requires elaboration. Both the

district court’s opinion, and the order filed pursuant to that opin-

ion, speak of dismissal “on the ground that the Court lacks juris-

diction over the subject matter thereof.” However, simultaneously,

the district court noted that it was granting the motion under Rule

12(b) (6) failure to state a claim upon which relief can be granted.

Moreover, there is some indication that the court may have treated

the motion to dismiss as one for summary judgment under Rule 56,

as allowed under Rule 12(b) (6).

It seems settled that any objection raised by the defendant which

is based upon the exceptions listed in §2680 goes to the issue of juris-

diction over the subject matter and hence to Rule 12(b)(1). Daie-

hite v. United States, 346 U.S. 15 (1953) ; Konecny v. United States,

388 F.2d 59 (8th Cir. 1967) ; Sanchez Tapia v. United States, 338

I’.2d 416 (2d Cir. 1964); Contra Collins v. United States, 259 F.2d

363 (E.D. Pa. 1966).

We treat the motion to dismiss in the terms in which it was pres-

ented to the district court, as a motion under Rule 12(b) (1).

77a

Appendiz E

the influence of narcotics and engaged in his employment

with the United States, plunged a screwdriver through the

appellant’s temple while the latter was engaged in the per-

formance of his duties as a Job Corps leader and instruc-

tor. The United States knew its enrollees were danger-

ously sick, mentally and morally, and was under a duty to

take reasonable precautions and provide reasonable safety

measures for the protection of such people as the appel-

lant, who were required, as Job Corps leaders and instruc-

tors, to live and work with these enrollees. The United

States was negligent in failing to take reasonable measures

for appellant’s safety, thereby causing him to suffer in-

juries for which he seeks damages in the sum of $500,000.

Appellant claims to have presented for filing in the dis-

trict court a “supplemental factual statement” in opposi-

tion to the Government’s motion to dismiss his complaint.

At that time, he was represented by an attorney who sub-

sequently withdrew from the practice of law. His present

counsel, substitut-.’ by order of the district court on July

27, 1970, has advised this court that the supplemental fac-

tual statement attached to the plaintiff’s brief in the dis-

trict court contained a request that it be filed. The docket

entries do not reveal that it was filed and there is no indi-

cation of district court action concerning this statement.

The supplemental factual statement makes the follow-

ing allegations: Prior to the attack upon the appellant,

there had been incidents at the arensal of boys hitting

other trainees with steel pipes and of “full-blown riots.”

Employees of the Office of Economie Opportunity had day-

to-day authority over the process of selecting, controlling,

disciplining aud eliminating trainees. They were aware

that the Federal Electric Co., the contractor conducting the

program, *%id not have authority or equipmeni to prevent

78a

Appendiz E

physical harm to the teachers. Personnel of the Office of

Economic Opportunity at the operational level were given

reports of serious incidents which preceded appellant’s

injuries, including the riots, drug addiction of trainees, and

the acceptance into the Job Corps program at the arsenal,

of trainees who were vicious, brutal juvenile offenders and

drug addicts. (emphasis supplied)

In addition to a substantial denial of the allegations of

the complaint, the appellee pleaded certain affirmative

defenses, the most important of which were:

(1) The plaintiff’s claim arises out of an assault and

battery and is therefore barred by 28 U.S.C. §2680(h) ;?

and

(2) The plaintiff’s claim is based on a discretionary

duty or function and is barred by 28 U.S.C. §2680(a).*

The district court sustained the motion to dismiss un-

der the provisions of §2680(h), as a claim arising out of

assault and battery. We believe that this was error.

Since this matter comes to us on an appeal from a

motion to dismiss we take as true all of the allegations of

228 U.S.C. §2680(h) reads: “(h) Any claim arising out of

assault, battery, false imprisonment, false arrest, malicious prosecu-

tion, abuse of process, libel, slander, misrepresentation, deceit, or

interference with contract rights.”

328 U.S.C. §2680(a) provides: “(a) Any claim based upon an

act or omission of an employee of the Government, exercising due

care, in the execution of a statute or regulation, whether or not such

statute or regulation be valid, or based upon the exercise or per-

formance or the failure to exercise or perform a discretionary function

or duty on the part of a fedeal agency or an employee of the Govern-

ment, whether or not the discretion involved be abused.”

79a

Appendia E

the complaint. Cooper v. Pate, 378 U.S. 546 (1964).

Although the supplemental statement of facts has not been

incorporated into the pleadings, we will, in view of the de-

cision we reach, treat the averments therein as properly

pleaded and true. The supplemental factual statement

merely elaborates, but does not change the theory on which

the complaint was brought. It does not introduce a new

cause of action. Under these circumstances, we think the

interests of justice would best be served by treating the

supplemental factual statement for the purpose of this

appeal as if it were part of the record, and specifically

granting leave to amend on remand. cf. Jones v. Freeman,

400 F.2d 383, 387 (8th Cir. 1968); Kaufman v. Western

Union Telegraph Co., 224 F.2d 723, 725 (5th Cir. 1955);

Brooks v. Yawkey, 200 F.2d 663 (1st Cir. 1953).

Except for certain areas of tort law specifically ex-

cluded, the Federal Tort Claims Act was enacted to pro-

vide a judicial remedy for those who suffer injury or dam-

age as a result of the negligence or misconduct of an

employee of the United States. In the case sub judice,

liability is asserted against the United States because it

affirmatively undertook a training program for dangerous,

mentally ill young men who were known to be violent ju-

venile offenders and drug addicts, placed them under its

control and custody on a day-to-day basis, but failed to

exercise reasonable care by providing safety measures for

the protection of instructors required to live and work

with such trainees.

Ordinarily, there is no general duty to act for the pro-

tection of others. However, having undertaken a program

of instruction, rehabilitation and care for these trainees,

was the United States, or its agency in charge of the pro-

gram under the affirmative duty to prevent those persons,

80a

Appendia E

recruited to train and instruct, from sustaining harm at

the hands of these dangerous and violence prone trainees?

We think it was. “When an agency of the United States

voluntarily undertakes a task, it can be held to have ac-

cepted the duty of performing that task with due care.

Rogers v. United States, 397 F.2d 12, 14 (4th Cir. 1968).

ile it is acknowledged that the Office of Economic

Petit entered into a contract with the Federal Elec-

tric Co. to conduct the program, appellant alleges that

Federal Electric had no authority or equipment to prevent

physical harm to the teachers. He asserts that it was the

Office of Economie Opportunity who had the day-to-day

authority over the process of selecting, controlling and

disciplining the trainees. If the evidence sustains these

allegations, it would appear then that the United States

undertook certain duties with respect to these trainees and

that it had the responsibility of performing them with due

care. The exercise of due care under such circumstances

might well require reasonable safety measures on the part

of operational personnel in the program for the safety of

those instructing the trainees.

One who takes charge of a third person whom he

knows or who should know to be likely to cause

bodily harm to others if not controlled is under a

duty to exercise reasonable care to control the third

person to prevent him from doing such harm.

Restatement of Torts, 2d, $319.

According to Prosser, Torts (2d Ed. 1955), the general

duty which arises in many relationships to take reasonable

precautions for the safety of others “may include the obli-

gation to exercise control over the conduct of third per-

sons.” Prosser, supra, at 188. In the case sub judice, the

8la

Appendia E

duty to control the conduct of the trainees is even stronger

since they were allegedly employees of the United States

at the time and definitely under its control.

While there are ample allegations in the complaint of

a breach of duty by the United States because of a failure

to exercise due care for the safety of instructors in the

training program, the Government contends that the dis-

trict court properly dismissed the complaint for lack of

jurisdiction under Section 2680(h), the assault and battery

exception of the Federal Tort Claims Act.

We disagree for two reasons: First, the attack upon

Gibson was a foreseeable consequence of the Government’s

failure to exercise due care under the circumstances and,

therefore, it is not such an intervening act as will sever the

necessary causal relation between the negligence and the

appellant’s injuries.

Here the very risk which constitutes the defendant’s

negligence is the probability of such action. It is

clear that when such action occurs, it should not

insulate the defendant’s negligence under the causa-

tion formula. In other words, it is clearly unsound

to afford immunity to a negligent defendant because

the intervening force, the very anticipation of which

made his conduct negligent, has brought about the

expected harm.‘

Under the appellant’s allegations, the injury arose out of

the basic negligence of the United States and the attack

was the foreseeable consequence of the original miscon-

duct. “That the foreseeable danger was from intentional

* Harper and Kime, The Duty to Control the Conduct of Another,

43 YaLe L.J. 886, 898 (1934).

82a

Appendix E

or criminal misconduct is irrelevant; respondent nonethe-

less had a duty to make reasonable provision against it.

Breach of that duty would be negligence. . . .” (emphasis

supplied) Lillie v. Thompson, 332 U.S. 459, 462 (1947) ;

Harrison v. Missouri Pacific R. Co., 372 U.S. 248 (1962).

Under such cireumstances, the attack was not an interven-

ing act and the tort did not arise out of the assault and

battery. It had its roots in the Government’s negligence.

Second, we do not believe that Congress intended that

the exception would apply to the facts at hand. Section

2680(h) addresses itself primarily to intentional torts for

which Congress was unwilling to assume liability. “This

section [28 U.S.C. §2680] specifies types of claims which

would not be covered by this title. They include...

deliberate torts such as assault and battery; and others.

...” (emphasis supplied) 8S. Rep. No. 1400, 79th Cong.,

2d Sess., at 33 (1946)° Jayson, Handling Federal Tort

Claims, Vol. 2, See. 260.01 n. 1.

5 In the hearings before the Committee on the Judiciary, House

of Representatives, the following cciloquy occurred with respect to

this exception.

“Mr. Robsion. On that point of deliberate assault that is

where some agent of the Government gets in a fight with

some fellow?

Mr. Shea. Yes.

Mr. Robsion. And socks him?

Mr. Shea. That is right.

Mr. Cravens. Assume a C.C.C. automobile runs into a

man and damages him then under the common law, where

that still prevails, is not that considered an assault and is not

the action based on assault and battery?

(Footnote continued on following page)

83a

Appendia E ‘

Does the injury sustained by Gibson arise out of an

assault and battery? Assault and battery by definition are

intentional acts. Intention is the very essence of the tor-

tious act. Congress intended to exclude liability for in-

juries caused by intentional misconduct’ and not for negli-

( Footnote continued from preceding page)

Mr. Shea. I should think not. I should think under old

common law rather than would be trespass on the case.

Mr. Cravens. Trespass on the case?

Mr. Shea. Yes.

Mr. Cravens. I do not remember those things very well,

but it seems to me there are some cases predicated on assault

and battery even though they were personal injury cases.

Mr. Shea. No; I think under common-law pleading you

have the same writ, but it makes a distinction between an

assault and negligence.

Mr. Cravens. This refers to a deliberate assault ?

Mr. Shea. That is right.

Mr. Cravens. If he hit someone deliberately ?

Mr. Shea. That is right.

Mr. Cravens. It is not intended to exclude negligent as-

saults ?

Mr. Shea. No. An injury caused by negligence could be

considered under the bill.” (emphasis supplied) Hearings on

H.R. 5373 and H.R. 6463 Before the House Committee of the

Judiciary, 77th Cong., 2nd Sess., ser. 13, at 33, 34 (1942).

®“An essential difference between assault and battery, on the

one hand, and negligence, on the other, is this element of intent.

The essence of negligence is unintentional injury to another.” Jay-

son, Handling Federal Tort Claims, Vol. 2, 260.02.

7™At common law, the remedy for the intentional infliction of

bodily harm resulting directly from the actor’s conduct was redressed

by an action of trespass for battery. Therefore, bodily harm so

caused and, indeed, the act which caused it were both customarily

called a battery.” (emphasis supplied) Restatement of Torts, 2d,

Vol. 1, Ch. 2, p. 23.

84a

Appendiz E

gence. This is consistent with the strong publie policy ex-

pressed in the statute to waive immunity for injuries

caused by negligence of employees and to except claims

arising out of assault or battery. In the case sub judice,

the allegations are that when Jessie plunged the serew-

driver through Gibson’s temple, Jessie was “then and

there under the influence of narcotics.” If the effects of

the narcotics were powerful enough to deprive him of

control of his mental powers, the requisite mental element

necessary for the battery may well be absent. In any

event, this would be a question of fact for the jury and

not a matter of law determinable on the pleadings.

The district court believed that Collins v. United States,

259 F. Supp. 363 (E.D. Pa. 1966), settled the issue.

Collins was an action predicated on the alleged negligence

of the Government in hiring and retaining in its employ an

employee who “pushed, hit and struck” the plaintiff. The

complaint alleged that the Government was negligent in

hiring and retaining an employee whom it knew or should

have known had “malicious propensities.”

We believe that Collins is inapposite on its facts.

There are a number of distinguishing factors separating it

from the case sub judice. It is the classic case of an inten-

tional assault and battery except for the conclusory allega-

tion that the Government knew or should have known the

postal clerk had “malicious propensities.” This conclusory

statement, however, is based upon the very assault for

which the action is brought. In this case, we are con-

cerned with trainees who are drug addicts and have be-

havioral problems, under the care of the Government in a

controlled environment and program designed to rehabili-

tate them. The Government accepted the duty of caring

for and controlling them knowing of their drug addiction

85a

Appendix E

and instability. It was obliged to exercise reasonable care

to prevent them from harming others.

One comment should be made upon other cases, in

other courts, which have been presented to us as bearing

upon our decision. Although recovery was allowed not-

withstanding the commission of an assault and battery, in

several of these cases the assault exception was held inap-

plicable because the assaults were committed by third par-

ties who were not Government employees.* None of these

cases found it necessary to consider facts analogous to

those presented in this proceeding. In one case, however,

the Fourth Circuit did not rely on the third party situation

but held the assault exception did not apply since the claim

was “founded on negligence even though assault or false

imprisonment may be collaterally involved.” Rogers v.

United States, supra, at 15.

There remains the problem of whether the action should

still be dismissed because of the bar of §2680(a), the

® Muniz v. United States, 305 F.2d 285, 287 (2d

aff'd. United States v. Muniz, 374 U.S. 150 + iomd) ‘caoned ao

damages by a federal prisoner against the United States based on

negligence in handling of prisoners. Although the injuries arose out

of an assault and

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