Petition — Naisbitt v. United States

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In the Supreme Court of the a

United States

OcroBER TERM, 1979

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I iia Bebe Ji, CP thes Ses

BYRON H. NAISBITT, Executor

of the Estate of CAROL NAISBITT,

Deceased; BYRON H. NAISBITT, As

Guardian Ad Litem of CORTNEY NAISBITT,

LAURA W. SWORD, Adnministratrix

of the Estate of SHERRY MICHELLE

ANSLEY, Deceased; ORREN W. WALKER

JR.: and ORREN W. WALKER, JR.,

Administrator of the Estate of

STANLEY O. WALKER, Deceased

Petitioners,

v.

THE UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

Cc. C. PATTERSON

JOSEPH H. BOTTUM, III

BRUCE R. BAIRD

Attorneys For The Petitioners

427 27th Street

Ogden, Utah 84401

,

INDEX

| Page

I I hss at casera desblanpotaahesabipuibsittiesn 2

SES ano TU RIE LPT ET eR 2

ESE NEE nS Sn ER SPE Pe 2

Statutory provisions involved ..................::::::ceeceeeee 3

nutes 3

Reasons for granting the writ

I. The Decision Below Directly Conflicts

With Decisions From Other Circuits ........ 7

II. The Decision Of The Tenth Circuit

Conflicts With The Policy Of The

Federal Tort Claims Acct .....................000+ 14

III. The Issue Is One Of Importance

Requiring This Court’s Decision ................ 17

IV. The Case Was Not Decided Below On

Adequate Independent State Grounds .... 19

SESS RT ORS eo OE 05 a ETE 20

IE AE MN oc ciscsratrsesienpiaconcclecansaniooriintnaee 20

Sra Males titnont chal Geer CoC ee a a mane A-1

PR) ean st ASR oy Oe ARNE A-15

Appendix C a Pans thee he Ny AUP ol ROT re A-20

CITATIONS

Page

Cases:

Bryson v. United States,

463 F. Supp. 908 (E.D. Pa. 1978) 2... 9

Collins v. United States,

259 F. Supp. 363 (E.D. Pa. 1966) ................. 6, 9

Fair v. United States,

234 I’. 2d 288 (5th Cir. 1956) ................ 11, 12, 16

Gibson v. United States, 567 F. 2d 1237 (3rd Cir.

1977) cert. denied 436 U.S. 925 (1978) ............ 9

Gibson v. United States,

457 F. 2d 1391 (8rd Cir. 1972) .................. 7, 9, 20

Indian Towing Company v. United States,

a50 US. 1 (2 ......................... 11, 17

Martinez et al. v. California et al.,

‘ale U.S. ... (Jee a ee) ........................... 20

Muniz v. United States, 305 F. 2d 285 (2d Cir.

1962) aff'd sub nom United States v. Muniz,

S74 U.S. WD Peete sess... 10, 13, 15

Naisbitt et al. v. United States, 611 ¥.. 2d

1350 (10th Cir. 1980) ........ 2, 6, '7, 8, 12, 17, 19, 20

Naisbitt v. United States,

469 F. Supp. 421 (N.D. Utah 1979) .......... 2, 6,9

Panella v. United States,

216 F. 90 GG (a Gee eee) .......................... 6, 13

it

Page

Pennington v. United States,

406 F'. Supp. 850 (E.DN.Y. 1976) «0.0.0.2... 6, 11

Sanchez v. United States,

506 I. 2d 702 (10th Cir. 1974) oo. 12, 16

States v. Pierre, 572 P.2d 1838 (Utah 1977)

cert. denied 439 U.S. 882 (1978) 0.00.0... 5

Tarasoff v. Regents of the University of California,

529 P.2d 552 (Cal. 1974) coccccccccccsceecssscseesecssesseee 16

Underwood v. United States,

B56 F’. 2d 08 (Si Cir. 1006) ...........cecesescesecsss 10, 11

United States v. Aetna Casualty & Surety Co.,

Re A ee CE hint sss ss cateoidescans 15

United States v. Muniz,

SFG UG: B00 CWOGB) oo cascn i Sensccedkcrccssrreetcceens 10

United States v. Orleans,

mts. Wim 6 9

United States v. Shively, 345 F. 2d 294 (5th Cir.

1965) cert. denied 382 U.S. 883 (1965) ........ 10, 11

United States v. ¥ ellow Cab Co.,

a0. eae... 15

Statutes:

‘Title 10, United States Code,

OF OE A at PIR eth OEE: BS nen. 4

iv

Page

Title 28, United States Code,

OS, PO era A SOE EPA ee 2

OREN yO RAED CERAM 15

RT i) re a, chats 15

LENS ES LE RO 2, 3

MN intl Ie or See 11

FREI Aaa See Gc EE passim

Miscellaneous:

Restatement, Second, Torts

| SAR Ee 16

Re ke re et 20

SS I AAO UIT ME 20

1979 Statistical Abstract of the United States .. 18

1

in the Supreme Court of the

United States

OcroBER TERM, 1979

BYRON H. NAISBITT, Executor

of the Estate of CAROL NAISBITT,

Deceased; BYRON H. NAISBITT, As

Guardian Ad Litem of CORTNEY NAISBITT,

LAURA W. SWORD, Administratrix

of the Estate of SHERRY MICHELLE

ANSLEY, Deceased; ORREN W. WALKER

JR.: and ORREN W. WALKER, JR.,

Administrator of the Estate of

STANLEY O. WALKER, Deceased

Petitioners,

v.

THE UNITED STATES OF AMERICA

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

The petitioners pray that a writ of certiorari issue

to review the opinion and judgment of the United

2

States Court of Appeals for the Tenth Circuit rendered

in these proceedings on January 2, 1980.

OPINIONS BELOW

The opinion of the United States Court of Ap-

peals for the Tenth Circuit, is reported at 611 F. 2d

1350 (10th Cir. 1980), a copy appears in Appendix A

pp. Al-A14. The opinion of the United States Disirict

Court for the District of Utah, Northern Division, is

reported a 469 F.Supp. 421 (N.D. Utah 1979), a copy

of which is attached as Appendix B. pp. A15-A19.

JURISDICTION

The opinion of the United States Court of Appeals

for the Tenth Circuit was entered on January 2, 1980.

This petition for certiorari was filed less than 90 days

from the date of the judgment. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1) and Su-

preme Court Rule 11.

QUESTION PRESENTED

Petitioners, Byron H. Naisbitt, Laura W. Sword

and Orren W. Walker, Jr. brought suit in the United

States District Court for Utah under 28 U.S.C. § 2674

alleging negligence on behalf of the United States in

failing to properly supervise enlisted personnel in the

United States Air Force, William S. Pierre and Dale

Andrews, persons under its contrel with known danger-

ous propensities and to prevent them from inflicting

foreseeable harms.

1. Whether 28 U.S.C. § 2680(h) distinguishes

between assaults and batteries committed by employees

3

of the United States and those committed by non-em-

ployees where both are proximately caused by the ante-

cedent failure of the United States to supervise a person

under its control with known dangerous propensities.

STATUTORY PROVISIONS INVOLVED

Title 28, United States Code, § 2674:

“The United States shall be liable, respecting the

provisions of this title relating to tort claims, in the same

manner and to the same extent as a private individual

under like circumstances . . .”

Title 28, United States Code, § 2680(h):

“The provisions of this chapter . . . shall not apply

>»?

(h) Any claim arising out of assault, battery . . .

STATEMENT OF FACTS

The dismissal in the District Court was on a mo-

tion for summary judgment. The facts relevant to the

issues presented by this petition were therefore uncon-

troverted. The facts presented to this Court, the Dis-

trict Court and the Tenth Circuit were drawn from the

Amended Complaints.

Dale S. Pierre and Williams Andrews were both

enlisted Airmen attached to the 1550th Unit of the Air

Force at Hill Air Force Base in Ogden, Utah. Mili-

tary and civilian command level authorities at Hill knew

the following:

4

That Pierre and Andrews were held in great fear

by their co-workers and considered capable of

committing murder;

Their co-workers were advised never to remain

or be caught alone in the building with Pierre

or Andrews;

That Pierre was the prime suspect of the Ogden

oa Police Department an the Air Force

Office of Special Investigations in a murder com-

mitted in Ogden, Utah during the Fall of 1973;

That Pierre had three pending criminal com-

plaints charging him with automobile theft;

Andrews had been convicted of a felony prior to

his enlistment in the Air Force;'

That Pierre and Andrews were both known to

have violent and dangerous propensities ;

That on three occasions Pierre's Sergeant had

released him from duty and ordered him to re-

port for psychological or psychiatric evaluation;

That each time Pierre failed to report for the

evaluations and no effort was made to determine

why he did not report;

That psychiatric evaluations would have shown

both Pierre and Andrews to be psychopathic and

capable of committing the heinous crimes which

resulted in this action.

Though the information above was known to auth-

ities at Hill Air Force Base, no effort was made to

determine the true nature and extent of Pierre and

1 The Armed Services of the United States are prevented by law

from enlisting convicted felons. 10 U.S.C. § § 504, 8253.

5

Andrews’ psychological problem and dangerous pro-

pensities. Further, no effort was made to restrict Pierre

or Andrews to Hill Air Force Base to protect the public

until such psychological evaluations could be made.

On April 22, 1974 Pierre and Andrews entered

an Ogden, Utah business known as the Hi-Fi Shop

carrying revolvers and liquid Drano. At the time, four

of their victims were on the premises and the fifth

entered shortly thereafter. All five persons were assault-

ed, threatened, physically and mentally abused in an in-

human fashion. Michelle Ansley and Carol Naisbiti

were both raped and tortured. Cortney Naisbitt was

froced to drink liquid Drano. Oren Walker, Jr. had a

pen inserted and then kicked into his ear. Oren Walker,

Jr. and Cortney Naisbitt survived. For these crimes,

Pierre and Andrews have both been sentenced to death.

(I*or a more gruesome description of what occurred see

State v. Pierre, 572 P. 2d 1338 (Utah 1977), cert.

denied 439 U.S. 883 (1978) a portion of which is at-

tached as Appendix C pp. A20-A24.

On July 12, 1978 Amended Complaints in these

five suits were filed in the United States District Court

for the District of Utah, Central Division, asserting

jurisdiction under 28 U.S.C. § 2674, alleging that the

United States was negligent in failing to properly sup-

ervise persons under its control whom it knew or should

have known possessed dangerous propensities. The peti-

tioners sought approximately two million dollars in dam-

ages. The United States moved, pursuant to Rule 12(b)

(6), Federal Rules of Civil Procedure, to dismiss the

consolidated actions for lack of jurisdiction.

6

The United States argued in support of its motion

that these claims arose out of assaults and batteries and

the court thus lacked jurisdiction under 28 U.S.C. §

2680(h) which exempts intentional torts from the Fed-

eral Tort Claims Act’s general waiver of sovereign im-

munity. The district court granted the United States’

motion holding that the allegations of negligence were

“merely an alternative theory of liability’. Naisbitt v.

United States, 469 F. Supp. 421, 423 (N.D. Utah

1979) ; Appendix p. A18. The district court relied on

what it considered to be the weight of modern author-

ity citing Collins v. United States, 259 I’. Supp. 363

(E.D. Pa. 1966), Panella v. United States, 216 F. 2d

622 (2d Cir. 1954), and Pennington v. United States,

406 F. Supp. 850 (E.D.N.Y. 1976).

A timely appeal was taken by the petitioners to

the United States Court of Appeals for the Tenth Cir-

cuit and on January 2, 1980 that court affirmed the

decision below. The Tenth Circuit based its decision

on a presumed jurisdictional distinction between assaults

committed subsequent to the negligence of the United

States by employees and those committed by non-em-

ployees. The court reasoned that the government could

be held liable when the eventual assault was committed

by a non-employee but not when it was committed by

an employee. The court stated “whether it is explicitely

mentioned or not [in 28 U.S.C. § 2680(h) ], effect is

given to the employee distinction.” 611 F. 2d at 1356,

Appendix p. All. For supporting authority the Tenth

Circuit relied on the same cases cited by the district

court; viz. Collins, Panella and Pennington.

7

The court stated its hoding in extremely broad

terms:

“In any case in which the [government] employee

has intentionally injured another, the tort asserted

against the government, regardless of whether it is called

negligence, is indeed an intentional tort attributable to

the government.” 611 F. 2d at 1856, Appendix p. A14.

REASON FOR GRANTING THE WRIT

I

THE DECISION BELOW DIRECTLY

CONFLICTS WITH DECISIONS FROM

OTHER CIRCUITS

The Tenth Circuit's holding, that the petitioners in

this case who were raped, murdered and tortured by

off-duty servicemen whom the government knew to

have dangerous propensities cannot recover for the gov-

ernment’s negligence, directly conflicts with decisions

from two other Circuits and its own prior opinion con-

sidering the same issue.

Considering almost identical facts the Third and

Fifth Circuits have held that injured parties may sue

the government for negligent failure to control an em-

ployee with known dangerous propensities to prevent

that employee from inflicting foreseeable harms. The

only Court of Appeals position in support of the Tenth

Circuit is certain dicta from the Second Circuit.

In Gibson v. United States, 457 F. 2d 1391 (3rd

Cir. 1972) a Job Corps enrollee who was a juvenile de-

linquent with a known addiction to narcotics assaulted

8

the plaintiff who was an instructor at the Job Corps

Center. The district court granted the government's

motion to dismiss under the provisions of 28 U.S.C. §

2680(h) holding that the claim arose out of an assault

and battery.

The Third Circuit reversed holding that whether

the claim was based upon assault and battery, and thus,

barred by § 2680(h), or on the antecedent negligence

of the government was a simple question of tort law.

That is, the court held that if the subsequent assaults

were foreseeable they were “not such an intervening act

as will sever the necessary causal relation between the

negligence and the appellant's injury.” 457 F. 2d. at

1395. (Emphasis in original.) The tort asserted thus

was one of negligence and not barred by § 2680(h).

Foreseeability was properly alleged in the instant case.

The Third Circuit also considered the employee/

non-employee distinction advocated by the United

States (and found persuasive by the Tenth Circuit be-

low). The Third Circut found the employee/non-em-

ployee distinction persuasive in exactly the opposite

fashion from the Tenth Circuit. The court held “[i]n

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 defin-

itely under its control.” 457 F. 2d at 1394.’

2 The Tenth Circuit attempts to distinguish Gibson saying “{l}ia-

bility was disallowed and there was specific mention of the

fact that the assailant was not an employee, that he was a

third person.” 611 F. 2d at 1355 fn. 4, Appendix p. Al2. Given

the language of Gibson quoted above, and the Third Circuit’s

direct finding that “{the assailant} was a Job Corps enrollee

9

In Gibson the Third Circuit discussed the earlier

case of Collins v. United States, 259 F. Supp. 363

(E.D.Pa. 1966) relied on by the courts below. The

court gave Collins short shrift confining it to its facts

and noting that the only basis for the alleged govern-

ment knowledge of the assailants dangerous propen-

sities in Collins was the very assault for which the action

was brought. In the instant case, as in Gibson I, the

allegations of governmental knowledge and duty to con-

trol are substantial and predate the assaults. Thus, the

decision in Gibson I is diametrically opposed to the de-

cision reached by the Tenth Circuit below. Further, the

Tenth Circuit’s reliance on Collins is ill-founded when

one notes that the Eastern District of Pennsylvania is

within the Third Circuit.’

2? Continued

employed and housed by the United States... .”, 457 F.2d at

1393, it is difficult to understand this distinction. The district

court even admitted that Gibson squarely contradicted its hold-

ing. 469 F. Supp. at 423; Appendix p. A-17.

The petitioners submit that the Tenth Circuit has confused

the opinion in Gibson v. United States, 457 F. 2d 1391 (3rd

Cir. 1972), with the Third Circuit’s subsequent opinion on ap-

peal following remand. Gibson v. United States, 567 F. 2d

1237 (3rd Cir. 1977) cert. denied 436 U.S. 925 (1978). (Re-

ferred to as Gibson II.) After the district court decided Gibson

on remand this Court issued its decision in United States vy.

Orleans, 425 U.S. 807 (1976). In light of Orleans, the Third

Circuit held in Gibson II that the managing authority of the

Job Corps Center with the responsibility for supervising the

trainees, was an independent contractor and thus the United

States could not be held liable. The holding in Gibson II does

nothing to undermine the clear holding in Gibson I that the

United States may be held liable for its negligent failure to

control persons with known dangerous propensities.

} The District Court for the Eastern District of Pennsylvania re-

cently decided Bryson v. United States, 463 F. Supp. 908

(E.D.Pa. 1978) following Gibson and directly contrary to Col-

lins and the Tenth Circuit below.

10

In Underwood v. United States, 356 ¥'. 2d 92 (5th

Cir. 1966) the plaintiff alleged that the Government

had negligenty released a mentally ill airman from a

hospital allowing him to return to duty where he gained

access to a pistol and killed his wife. After trial the

district court found that the actions of the medical offic-

ers in releasing the assailant were not negligent and not

a causal connection of the subsequent death. The Fifth

Circuit reversed and remanded holding that negligence

and proximate cause had been proven at trial.

The court held inter alia that the government

could not raise 28 U.S.C. § 2680(h) on remand. The

court relied on Muniz v. United States, 305 F. 2d 285

(2d Cir. 1962) aff'd sub nom United States v. Muniz,

374 U.S. 150 (1963). Muniz in turn relied entirely on

Panella v. United States, 216 F. 2d 622 (2d Cir. 1954).

The Fifth Circuit interpreted Muniz and Panella as

holding that governmental employment status of the

assailant was irrelevant when the complaint alleged an

antecedent negligent failure to control. ‘The holding in

Underwood is thus directly contrary to the holding in

the instant case.

One year earlier the Fifth Circuit had considered

an analogous fact situation in United States v. Shively,

345 F. 2d 294 (5th Cir. 1965) cert. denied 382 U.S.

883 (1965). In Shively, the court held that the negli-

gent issuance of a firearm to an Army Sergeant in vio-

ation of regulations was not the proximate cause of the

plaintiff's injury. The court held inter alia that the claim

would also have been barred by 28 U.S.C. § 2680(h)

ll

as one arising out of assault and battery. 345 F. 2d at

297. In Underwood, one year later and with Chief

Judge Tuttle sitting in both cases, the Fifth Circuit re-

pudiated its statement in Shvely concerning § 2680(h).

Careful reading of Shively and Underwood shows that

the correct distinction between the cases was the allega-

tion of foreseeability of harm. In Shively, the allegation

was missing and the court held that the tort law of

Georgia would not recognize a duty in the government

absent such an allegation. In Underwood and the in-

stant case such allegations of foreseeability are present.’

The Fifth Circuit’s position has remained constant

since its decision in air v. United States, 234 IF’. 2d

288 (5th Cir. 1956). In Fair, an Air Force Captain

had threatened to kill a woman and these threats were

known to military authorities. The captain was ordered

to report to a hospital for a psychiatric examination and

the woman was promised that she would be notified

before the captain was released. Following a cursory

psychiatric examination the captain was released with-

out warning the woman. Upon release he killed her and

two hospital security guards. The district court dis-

missed the claim based on 28 U.S.C. § 2680(a) finding

that the actions of the Government had been “discre-

tionary”. The Fifth Circuit reversed and remanded

based on this Court’s decision in Indian Towing Com-

pany v. United States, 350 U.S. 61 (1955). No atten-

tion whatsoever was paid to the governmental employ-

4 It is indicative of the split in the Circuits that the courts below

relied upon Pennington v. United States, 406 F. Supp. 850

(E.D.N.Y. 1976), a District Court case in the Second Circuit

proporting to interpret two cases from the Fifth Circuit.

12

ment status though § 2680(h) was an issue effecting

subject matter jurisdiction. Thus, the court found lia-

bility even though the assailant was employed by the

government as a member of the Armed Forces. This

holding directly conflicts with the Tenth Circuit.’

The Tenth Circuit's own position on liability for

negligent failure to control is not consistent. In Sanchez

v. United States, 506 F. 2d 702 (10th Cir. 1974), citing

Fair with approval, the court held “if one has charge of

a persor who has dangerous propensities he must exer-

cise reasonable care to control the third person in order

to protect the public.” 506 F. 2d at 705. The Tenth

Circuit thus joined the Third and Fifth Circuits recog-

nizing liability for negligent failure to control irrespec-

tive of the employee/non-employee distinction it at-

tempts to introduce in the instant case. As show above,

the purported distinction conflicts with the other Cir-

cuits which have directly considered the issue.

Though petitioners cited and relied on Sanchez in

both their principal and reply briefs to the Tenth Cir-

cuit and the United States attempted to rebut Sanchez

in its brief, the court below found no need to even men-

’ The Tenth Circuit attempts to distinguish Fair as being decided

on hospital-patient grounds. 611 F. 2d at 1355 fn. 3, Appendix

p. Al2. This attempted distinction is illusory when one recog-

nizes the procedural posture in which the instant case reaches

this Court. The Fifth Circuit used the hospital-patient relation-

ship to establish a knowledge of the assailant’s dangerous pro-

pensities and a duty and opportunity to control his actions.

In the instant case, the petitioners alleged a similar knowl-

edge, duty and opportunity of control. Since this case was de-

cided on summary judgment these allegations must be taken as

true and the Tenth Circuit’s perceived distinction vanishes.

13

tion its prior conflicting decision. It is especially inter-

esting to note that Judge Doyle wrote the opinion in

both Sanchez and the instant case.°

The principal case supporting the Tenth Circuit is

Panella v. United States, 216 I’. 2d 622 (2d Cir. 1954).

Panella was an inmate at a Federal drug rehabilitation

institution and was assaulted by another inmate. Pan-

ella alleged that the government was negligent in fail-

ing to control the other inmates. The government was

granted summary judgment on § 2680(h) as a “claim

arising out of assault”. The Second Circuit reversed,

holding that § 2680(h) did not bar the negligence

action against the government.

The court apparently reasoned that if the inten-

tional assault was committed by a government employee

the victim claim against the government would be on a

respondeat superior theory and barred by § 2680(h).

In which case, the negligence allegations were merely

an attenipi to find an alternative form of remedy not

barred. Since there was no possible respondeat superior

liability from a non-employee the court reasoned that

the negigence action was the sole remedy and thus not

barred by § 2680(h). (See Point IT, infra, for discus-

sion of the policy questions involved. )

This Court considered an issue related to Panella

in United States v. Muniz, 374 U.S. 150 (1960). One

of the petitioners in Muniz (the case was a consolida-

6 No petition for rehearing was filed in this case because the

Practitioners Guide published by the Tenth Circuit indicates

that such an action is a futile waste of time.

14

tion of two actions) was a prisoner in a Federal cor-

rectional institution who, when a fight broke out, was

beaten by other inmates. Muniz alleged that the gov-

ernment was negligent in failing to prevent the assaults.

The government argued that there was either an ex-

pressed or implied exemption under the Federal Tort

Claims Act for prisoner lawsuits. The body of this

Court's opinion in Muniz is concerned with this point

but at the end, the Court cites § 2680(h) for the basic

proposition that the government is not liable for the in-

tentional torts of its employees, 374 U.S. at 163. No-

where in Muniz did this Court consider the liability of

the government for the negligence of its employees

which results in subsequent attacks by other government

employees.

One of the grounds for granting certiorari, Supreme

Court Rule 19, is that there be a direct split in the Cir-

cuits. On the issue in the present case, the position

taken by the Tenth Circuit below directly contradicts

that taken in almost identical cases by the Third and

Fifth Circuits. The holding below also contradicts an

eulier Tenth Circuit opinion and is supported only by

a 1956 case in the Second Circuit. The petitioners sub-

mit that this Court should grant certiorari in the instant

case to resolve the conflict between the Circuits.

II

THE DECISION OF THE TENTH CIRCUIT

CONFLICTS WITH THE POLICY OF THE

FEDERAL TORT CLAIMS ACT

The purpose of the Federal Tort Claims Act, 28

15

U.S.C. § § 1346, 2671 et seq., is to provide a process of

recovery for tortious actions of the government. § 2674

provides “that the United States shall be liable, respect-

ing the provisions of this title relating to tort claims, in

the same manner and to the same extent as a private

individual under like circumstances.” In contrast to the

general rule of strict construction concerning waivers of

governmental immunity, this Court has repeatedly held

that the Federal Tort Claims Act is to be liberally and

equitably construed to further the Congressional intent.

United States v. Yellow Cab Co., 340 U.S. 543 (1951)

and United States v. Aetna Casualty & Surety Co., 388

U.S. 366 (1949). In United States v. Muniz, 374 U.S.

150, 159 (1955), this Court went even further and held

that “the government's liability is no longer restricted

to circumstances in which government bodies have tra-

ditionally been responsible for misconduct of their em-

poyees. The lederal Tort Claims Act extends to novel

and unprecedented forms of liability as well.” (Citations

omitted. )

With these considerations in mind, the petitioners

submit that the decision of the Tenth Circuit below

conflicts with the policies inherent in the Federal Tort

Claims Act as interpreted by this Court. The mandate

of the Federal Tort Claims Act is that the government

will be liable for its negligence under the same circum-

stances as would a private individual. The law in the

various jurisdictions of the United States is that a pri-

vate individual, who knows of a third persons dangerous

propensities and has the duty and opportunity to con-

trol that person, is liable for his negligent failure to

16

control when the third person inflicts foreseeable in-

juries. Tarasoff v. Regents of the University of Cali-

fornia, 529 P.2d 553 (Cal. 1974); Sanchez v. United

States, 506 F. 2d 702 (10th Cir. 1974) ; Fair v. United

States, 234 F.2d 288 (5th Cir. 1956). See also, Re-

statement, Second, Torts § 319.

In actions alleging a negligent breech of the duty

to control, no discussion of the employment relationship

between the assailant and the party with the duty to

control is proper. The ‘Tenth Circuit’s employee/non-

employee distinction attempts to introduce into the Fed-

eral Tort Claims Act an issue unknown to the private

tort law duty of control. The Act clearly requires only

that the private duty standard be applied. Thus, the

only questions which should be involved are the tort

law issues of knowledge of dangerous propensities, duty

and opportunity of control, proximate causation and

injury.

The problem in the § 2680(h) cases discussed in

Point I has been an inability to separate cases where

liability was arrested on a “duty of control” theory and

the liability of respondeat superior. The Tenth Circuit

made this confusion evident in its attempt to justify its

holding below:

“In any case in which the employee has inten-

tionally injured another, the tort asserted against

the government, regardless of whether it is called

negligence, is indeed an intentional tort attribut-

abe to the government. This may well be be-

cause of the doctrine of respondeat superior or

because the employee is closely related to the

government. It would appear to be the proximity

17

of the employee which gives the government's

role its intentional quaity.” 611 IF’. 2d at 1356;

Appendix p. Al4.

In a respondeat superior case, for example in the

instant case if the petitioners were suing the govern-

ment for the assaults of Pierre and Andrews, employ-

ment relationships would be important. However, when,

as in the instant case, the action is for a negligent

breech of a duty to control a third person with known

dangerous propensities the employment status of the

eventual assailant should be irrelevant. What is relevant

is a knowledge of dangerous propensities and a duty of

control.

This Court has held that courts should not act as

“self-constituted guardian[s] of the treasury [and] im-

port immunity back into a statute designed to limit it.”

Indian Towing Company v. United States, 350 U.S.

61, 69 (1955). Petitioners submit that the casuistries

of the employee/non-employee distinction is an attempt

to import immunity back into the statute contrary to the

policies of Congress. This Court should grant certiorari

pursuant to Supreme Court Rule 19 to resolve the con-

flict between the opinion of the Tenth Circuit and the

policies of the Federal Tort Claims Acct.

III

THE ISSUE IS ONE OF IMPORTANCE

REQUIRING THIS COURT'S DECISION

The policy question posed by this petition is what

the responsibility of the United States should be under

18

the Federal Tort Claims Act when it knows that em-

ployees under its control have dangerous propensities

and will foreseeably inflict injury on the public. The

Tenth Circuit has held that the government is never

liable for its negligent failure to supervise its employees

to prevent their foreseeable intentional torts. Every

other Circuit which has directly considered this issue

has held to the contrary (See Point I, supra) and the

holding of the Tenth Circuit is contrary to the policy

of Congress in enacting the Federal 'Tort Claims Act.

(See Point II, supra).

There are approximately two million one hundred

thousand men and women serving in the Armed Forces

of the United States. In addition, the Department of

Defense hires approximately nine hundred and eighty

thousand civilian workers. The other agencies of the

various branches of the government account for another

one million nine hundred thousand employees. 1979

Statistical Abstract of the United States. This repre-

sents approximately five percent of all people employed

in the United States.

The Tenth Circuit's interpretation of § 2680(h)

gives the government carte blanche to ignore the dan-

gerous propensities for harmful and intentional acts by

persons under its control. As in the instant case, service-

men with known psychopathic homicidal tendencies

will be allowed to roam free across the country unre-

strained because the government is insulated from all

resulting liability. Should the other result apply, as in

the Third and Fifth Circuits, the magnitude of the po-

tential governmental liability is obvious.

19 o

With such divergent positions being taken by the

Circuits, and the dimensions of the consequences of

different rulings, the petitioners submit that the issue

in the present case is of such importance that it requires

resolution by this Court and, under Supreme Court Rule

19, a writ of certiorari should be issued.

IV

THE CASE WAS NOT DECIDED BELOW

ON ADEQUATE INDEPENDENT

STATE GROUNDS

In the next to last paragraph of the Tenth Circuit’s

opinion, 611 I*. 2d at 1356, Appendix p. A14, the court

purports to find that the egregious and heinous nature

of the crimes committed by Pierre and Andrews re-

moves any negligence on the part of the government

whatsoever. Apparently this holding is introduced as

an independent adequate state law grounds for decision.

In that respect, it is both procedurally and substan-

tively wrong.

The question of proximate causation is an issue of

tort law and was plead by the petitioners. Since the

case was (lismissed on a motion for sum.nary judgment

it must be taken as true. In addition, the issue has never

been contested by the government and was not briefed

in this context before the Tenth Circuit.

Moreover, the opinion of the Tenth Circuit on this

matter is clearly wrong. The magnitude of horror of the

intervening intentional tort is irrelevant to the issue of

20

proximate cause so long as the harm was foreseeable.

See Gibson v. United States, 457 F. 2d 1891 (8rd Cir.

1972). See generally Restatement, Torts, Second § §

448, 449.

Finally, the instant case is not like Martinez et al.

v. California et al., ...... USS. ...... (Jan. 15, 1980). In

Martinez, a California statute granted specific immunity

for decisions of parole boards in releasing individuals

who subsequently injure others. While upholding the

statute against various constitutional challenges this

Court did nothing to alter the general tort law regard-

ing duty of control.

CONCLUSION

This Court should grant certiorari to resolve the

conflict among the Circuits, to enforce the policy of

Congress, to decide an important issue of policy and law

and to prevent manifest injustice. The supposed em-

ployee/non-employee distinction has been floating

around without resolution long enough. This Court

should finally resolve the governments responsibility for

controlling its employees with known dangerous pro-

pensities. The Tenth Circuit states “we are not unmind-

ful or unsympathetic of the innocent plight of the plain-

tiffs.” 611 F.2d at 1856 Appendix p. A14. The petition-

ers submit that the Congress of the United States, this

Court and other courts have also not been blind to the

plight of the petitioners and that the Federal Tort Claims

Act was passed to provide the petitioners, and others in

the same situation, with exactly the remedy sought here.

21

Respectfully submitted this 31st day of March,

1980.

C. C. PATTERSON

JOSEPH H. BOTTUM, III

BRUCE R. BAIRD

Attorneys for the Petitioners

AFFIDAVIT OF SERVICE

I, C. C. Patterson, a member of the bar of this

Court, hereby enter my appearance as counsel of

Record for the Petitioners and certify that I affected

service on all counsel required under the Rules to be

served with copies of this brief by mailing three copies,

postage prepaid to Barbara Allen Babcock, Assistant

Attorney General, Department of Justice, Washington,

D.C. 20530; Robert E. Kopp and Phyllis Jackson Lee,

Attorneys, Civil Division, Department of Justice, Wash-

ington ,D.C. 20530; Ronald L. Rencher, United States

Attorney, U.S. Courthouse, 351 South Main, Salt Lake

City, Utah 84103 and, Wade H. McCree, Solicitor

General, Department of Justice, Washington, D.C.

20530.

APPENDIX A

United States Court of Appeals

Tenth Circuit

Nos. 79-1237, 79-1238, 79-1239,

79-1240, 79-1241

BYRON H. NAISBITT, Executor of the

Estate of CAROL NAISBITT, Deceased;

BYRON H. NAISBITT, As Guardian Ad

Litem of CORTNEY NAISBITT, LAURA W.

SWORD, Administratrix of the Estate of

SHERRY MICHELLE ANSLEY, Deceased;

ORREN W. WALKER, JR.; and ORREN W.

WALKER, JR., Administrator of the Estate of

STANLEY O. WALKER, Deceased.

Plaintiffs- Appellants,

v.

THE UNITED STATES OF AMERICA

Defendant-A ppellee.

Appeal from the United States District Court for the

District of Utah, Central Division

(D.C. Nos. NC-78-0032, NC-78-0033, NC-78-0034,

NC-78-0035, NC-78-0036)

Submitted on the briefs.

Before McWILLIAMS, DOYLE and LOGAN,

Circuit Judges

DOYLE, Circuit Judge.

A-2

This action was brought by personal representa-

tives of a number of persons who were victims of crimes

which were committed by two airmen, Dale S. Pierre

and William Andrews, who were assigned to duty at

Hill Air Force Base near Ogden, Utah. The case

allegedly arose under 28 U.S.C. §§ 1346 and 2671 et

seq. There are five different lawsuits which have been

consolidated for trial and for appeal.

The incidents here occurred on April 22, 1974,

when two off-duty airmen entered a privately-owned

retail store in Ogden, Utah, and committed a variety

of atrocious acts including assaults, rapes, batteries and

murders against the plaintiffs and the plaintiffs’ de-

cedents. Five persons were shot and three were killed.

The theory of plaintiffs cases is that the United

States was guilty of actionable negligence in failing to

supervise and curtail the two airmen in question in that

it was reasonably foreseeable that they would, unless

restrained, perpetrate serious injuries. The United

States moved to dismiss the actions claiming lack of

subject matter jurisdiction under the Federal Tort

Claims Act (§ 2680(h)), which excepts the govern-

ment’s waiver of immunity where the liability claim

arises from assault and battery.

A further legal argument of the government is that

under 28 U.S.C. § 2674, there must have been a legal

duty running from the government to the person in-

jured in order to render the government liable in the

same manner and to the same extent as a private indi-

vidual under like circumstances.

A-3

Plaintiffs amended their complaint so as to include

§ 1346(b) as a part of its jurisdictional basis. This

section merely says that subject to Chapter 171 of the

title, the district court has exclusive jurisdiction of civil

actions in claims against the United States for money

damages or injury to property or personal injury or

death caused by the negligence of any employee of the

government while acting within the scope of his officé

or employment under circumstances where the United

States or a private person would be liable to the claim-

ant in accordance with the laws of the place where the

act or omission occurred.

The district court granted the defendant’s motion

to dismiss. This was on the ground that the claim actu-

ally arose from assault and battery and was therefore

barred by 28 U.S.C. § 2680(h), which is the immunity

exception. This provides that the waiver of immunity

shall not apply to “Any claim arising out of assault,

battery, false imprisonment, false arrest, malicious pros-

ecution, abuse of process, libel, slander, misrepresenta-

tion, deceit, or interference with contract rights.”

THE ISSUES

The first question to be considered is whether the

above-described deaths and injuries which resulted from

batteries and which are presented on the theory of negli-

gence of the government in failing to protect the public

from the viciousness of servicemen can be maintained

under the Federal Tort Claims Act notwithstanding

that intentional torts are within the immunity retained

in § 2680(h).

A-4

A second question arises only if we hold that there

existed a duty on the part of the United States to pro-

tect the persons who were killed from the injuries which

were suffered. This remaining question would be

whether Utah recognizes a cause of action in negligence

where criminal acts of third persons intervened.

THE TRIAL COURTS DECISION

The trial court rested its judgment of dismissal on

the principle that a distinction is to be drawn between

assaults committed by government employees and

assaults which were committed by non-government em-

ployees. Section 2680(h), the court said, has been

construed to apply and to bar suits against the United

States which were based on intentional wrongs commit-

ted by employees notwithstanding that the alleged li-

ability is said by the plaintiff to rest on the negligence

of government officials charged with the duty of super-

vision or control of the employees who committed the

assault. The court cited Pennington v. United States,

406 F. Supp. 850 (E.D.N.Y. 1976), and Panella v.

United States, 216 F.2d 622 (2d Cir. 1954). The courts

take a different view as to the applicability of § 2680 (h)

when the intentional wrongs are committed by non-gov-

ernment employees where there has existed a govern-

mental duty to supervise and control. The court cited

Muniz v. United States, 305 I°.2d 285 (2d Cir. 1962),

affd 374 U.S. 150 (1963).

The court noted that although the plaintiffs’ claims

sounded in negligence, they were barred because their

1 In which immunity is waived in the Tort Claims Act.

A-5

true nature and character was that of intentional torts.

Negligence, the court continued, was invoked merely to

avoid § 2680(h), supra. The court was reluctant to

recognize this negligence theory as a matter of policy

because to do so would destroy the effectiveness of

§ 2680(h) where intentional torts were committed by

employees of the government. Under this analysis,

sovereign immunity is waived notwithstanding § 2680

(h), supra, in situations such as where federal prison

employees negligently fail to supervise or control pris-

oners or hospital employees fail to supervise patients as

a result of which an assault and battery or other inten-

tional tort is perpetrated by the uncontrolled patient

or prisoner.

The trial court embraced the employee as opposed

to the non-employee distinction. It stated:

The sole basis for imposing liability on the gov-

ernment is the fact that two government em-

ployees committed intentional wrongs against

plaintiffs and their decedents. Thus, this is un-

like the case in which the government is sued for

failure to adequately supervise non-employees.

There the sole basis for liability is the negligence

of the government officials charged with the duty

of supervision. In such a case, negligence is not

merely an alternative theory of liability; it is the

only basis upon which the government can be

held responsible. The intentional wrong cannot

itself be the basis of liability because that act

was not committed by a government official.

Here, in contrast, government liability is poss-

ible only because government employees com-

mitted the intentional act. Thus, although plain-

tiffs’ complaint is drawn in terms of negligence,

A-6

the essence of the cause of action is an assault

and battery committed by two individuals who

were government employees at the time of the

wrongful acts. The claim arises only because of

the intentional wrong committed by employees

of the sovereign and is, therefore, a claim “aris-

ing out of” an assault and battery and is within

the scope of §2680(h). Plaintiff's negligence

theory is, in this case, merely an alternate theory

of liability. Panella v .United States, 216 F.2d

622 (2d Cir. 1954) ; Pennington v. United States,

406 F. Supp. 850 (E.D.N.Y. 1976) ; Collins v.

United States, 259 T°. Supp. 363 (E.D.Pa.

1966). (Emphasis in original)

DOES 28 U.S.C. § 2680(h) BAR THE PRES-

ENT ACTION?

We are constrained to hold that it does. The lead-

ing case on the applicability of 28 U.S.C. §2680(h) is

Panella v. United States, 216 I°.2d 622 (2d Cir. 1954).

The author of the opinion in Panella was Judge John

Marshall Harlan. The district court for the Eastern

District of New York had granted the government's

motion for summary judgment. It had done so on the

ground that the action involved a claim arising out of

assault which was held to have been barred under §

2680(h) of the Tort Claims Act. The trial court had

determined that § 2680(h) embraced assaults by per-

sons not employed by the government as well as those

committed by government employees. The part of the

district court’s decision holding that the non-waiver of

immunity contained in § 2680(h) applied to non-gov-

ernment employees was reversed and the court in effect

held that in the non-employee case § 2680(h) did not

A-7

preclude recovery. ‘the plaintiff in this case had been

sentenced for a drug offense, but upon his election to

undertake treatment he was sent to the Public Health

Service Hospital in Lexington, Kentucky, a govern-

ment institution. While there he was assaulted by an-

other inmate. He sued the United States under the

Federal Tort Claims Act contending that the assault

was caused by the negligence of employees of the

United States in failing to provide adequate guards and

by neglecting to properly supervise those confined in

the institution. The Second Circuit holding was that

a claim sounding in negligence could be prosecuted

against the United States where, as in Panella, the

assailant was not an employee of the government. The

court said that if § 2680(h) was to be read literally,

it would apply to assaults committed by persons other

than government employees, but that such a reading

was out of harmony with the rest of the act. “For in

the present case the only basis of liability against the

Government is the negligence of its employees, not their

deliberate torts, * * * It is therefore important to dis-

tinguish cases in which it was sought to hold the Gov-

ernment liable on a negligence theory for assaults com-

mitted by government employees.” 216 F.2d at 624.

The distinction made by the Second Circuit in

Panella as to the § 2680(h) exclusion in employee

cases and the non-applicability of § 2680 to non-em-

ployee cases has been adopted in most of the subse-

quent decisions. See, for example, Pennington v. United

States, supra, and Collins v. United States, 259 F. Supp.

363 (E.D.Pa. 1966).

A-8

In Pennington v. United States, supra, a widow

brought an action for injuries inflicted on her husband

by a deputy United States marshal, who shot him. The

marshal at the time of the shooting had been intoxicated.

The negligence allegation was the government's allow-

ing the assailant to carry a gun. The court relied on

Panella, supra, and said that “It is by now well settled

that where negligent performance of duties owed by

the government to certain individuals makes possible

assaults on those individuals by non-employees of the

government, § 2680(h) will not bar a negligence claim

against the government * * * On the other hand, it

seems that where the claim against the government is

based on alleged inadequate training or negligent super-

vision of an on-duty government employee, which allows

or causes the employee to commit an assault, the lan-

guage of § 2680(h) is applicable and the claim is bar-

red. Panella v. United States, supra; Davidson v. Kane,

337 F. Supp. 922 (E.D. Va. 1972) ; Collins v. United

States, 259 F. Supp. 363 (E.D.Pa. 1966).” 406 F.

Supp. at 851. The court then pronounced its ruling

that § 2680(h) disallowed suits against the governm: nt

for inadequate training or negligent supervision of an

off-duty government employee.

Some of the decisions denying liability tend to give

emphasis to the legal causation issue rather than the

question of employment relationship. See, for example,

United States v. Shively, 345 F.2d 294 (5th Cir. 1695),

cert. denied, 382 U.S. 883 (1965).

A contemporaneous case from the Fifth Circuit,

Underwood v. United States, 356 F.2d 92 (5th Cir.

A-9

1956), added another element, that of the off-duty fac-

tor in a case in which the assailant was a serviceman

who killed his wife soon after he had been released

from a psychiatric clinic. The suit sought to hold the

government responsible because of premature release.

The court determined that the government was liable.

It emphasized the patient-hospital relationship and

used the off-duty element in order to avoid the employee

impediment. ‘The district court for the Eastern District

of New York in Pennington, supra, criticized this rea-

soning.”

In Muniz v. United States, 305 I'.2d 285 (2d Cir.

1962), affd, 374 U.S. 150 (1963), the plaintiff alleged

that while he was confined in a federal prison, he was

2 This criticism analyzes the lack of logic in distinguishing be-

tween an on-duty and an off-duty government employee in the

context of the §2680(h) immunity provision:

We believe that the opinion of the Court in Shively

states the correct rule. We assume, as we must, the

validity of the holdings that an action against the gov-

ernment for negligence in permitting an assault by a

non-employee is not one “arising out of assault”, but that

an action for permitting an assault by an on-duty em-

ployee is one “arising out of assault.”” And we note that

the distinction which we might draw between a non-em-

ployee and an off-duty employee is not entirely a satis-

factory one. But less satisfactory is the distinction plain-

tiff asks us to draw between on-duty and off-duty em-

ployees. We cannot believe Congress meant to bar suits

arising out of assaults only by on-duty employees when

it exempted claims “arising out of assault” from those

covered by the Tort Claims Act. The government’s al-

leged duty not to hire defendant Miller was in no way

dependent upon his on-duty or off-duty status. The duties

of the government to train Mr. Miller likewise did not

vary with his arrival and departure from his place of

employment. The alleged obligation to prevent Mr. Mill-

er’s access to firearms applied whether or not he was at

any given moment actually working for the United States.

In short, the government is charged with negligence in

—_—

A-10

set upon and beaten by 12 fellow inmates. The com-

plaint alleged that the government's negligence con-

sisted of failure to maintain proper guards or segrega-

tion of dangerous persons. The Second Circuit re-

versed the district court’s order of dismissal and held

that there was a claim stated. In regard to immunity

the court said:

Nor does this case fall within the exemption of

28 U.S.C. §2680(h), barring claims “arising out

of assault.” That exception applies only to assaults

by government agents, net to atone by third

parties which the government negligently fails to

prevent. Panella v. United States, 216 F.2d 622

(2d Cir. 1954).

305 F.2d at 287.

The United States relies, in addition, on the case

of United States v. Shively, 345 F.2d 294 (5th Cir.

1965), cert. denied, 382 U.S. 883 (1965). There the

vlaintiff sued under the Tort Claims Act alleging neg-

ligence of the United States in allowing her husband,

a sergeant in the military, to have access to government

weapons in violation of regulations and despite knowl-

edge of his unstable condition and dangerous propen-

sities. The Shively court said that the government's

2? Continued

hiring Mr. Miller, and in allowing him to be armed.

Any duty of the government to screen prospective em-

ployees involves actions with no connection to the em-

ployee’s work schedule or duty status. Thus while it may

be significant in a respondent superior case to determine

the duty status of the tortfeasor, it is not significant to

do so when negligence in hiring or training is the gist

of the complaint.

406 F. Supp. at 852.

A-ll

negligence in issuing the gun was not the cause of the

plaintiff's injuries since it was not reasonably foresee-

able that he would use the weapon to assault his former

wife. On the immunity question the court said:

Krom what has already been noted of the facts

of this case we also conclude that appellee’s claim

here is a claim “arising out of assault”, which is,

in those words, specifically excepted from recov-

ery under the Federal Tort Claims Act, 28

1.8.C. §2680(h). It is not necessary to the rul-

ing here, and we do not determine whether every

assault intervening between a show of negligence

of the United States and injury to third parties

is barred under the Federal Tort Claims Act by

this exclusionary language.

345 F.2d at 297.

Shively thus went off on the basis that the statute,

28 U.S.C. § 2680(h), precluded the recovery because

the injury arose out of an assault and that there was

not sufficient showing of negligence based upon fore-

seeability of harm.

Some of the cases such as Shively do not squarely

address the issue of applicability of § 2680(h) where

the assailant was an employee. Most of the cases, how-

ever, including the leading opinion of Judge Harlan in

Panella, hold that the non-waiver of immunity con-

tained in § 2680(h) is applicable where the intentional

tort is committed by an employee. Thus, whether it is

explicitly mentioned or not, effect is given to the em-

ployee distinction. It is believed that it stems from the

proposition that where the employee has committed a

tortious intentional act, even though it is not with the

A-12

approval of his employer, the government, nevertheless,

he is so closely connected with the government that the

intentional act is imputed to the government. Since the

government has waived liability only in negligence cases

and has retained its immunity in intentional tort cases

in accordance with § 2680(h), an attempt to establish

liability on a negligence basis is indeed an effort

to circumvent the retention of immunity provided in

§ 2680 (h).

Plaintiff here maintains that where the suit is in

negligence the court should not go behind it and make

a distinction as to whether the tortfeasor is an employee.

He cites Fair v. United States, 234 F.2d 288 (5th Cir.

1956),> Gibson v. United States, 457 F.2d 1391 (8rd

Cir. 1972), and Hicks v. United States, 511 F.2d 407

3 In Fair, the tortfeasor was in the service. He was an Air Force

captain with known homicidal tendencies. Also, he was a pa-

tient in a government psychiatric hospital. He shot and killed

a student nurse whom he had previously threatened. The action

against the government claimed that he had been released from

the hospital with knowledge of his propensities. The determin-

ation was that the government could not escape liability under

the exercise of discretion exemption contained in §2680(a). This

is a case which departs from the employee standard. The only

factual difference is that the assailant was, in addition to being

an employee, a patient of a mental hospital. The hospital had

full knowledge of his propensities. It was this latter status

which was stressed in holding that the hospital was liable. Be-

cause of this factual difference, the case is not directly sup-

portive of the plaintiff’s position here. Because of the hospital-

patient relationship and the duty to protect members of the

assailant’s family and the public generally from his dangerous

propensities, it presents a strong case for liability.

4In Gibson, the assailant was not an employee, he was a Job

Corps trainee who committed an assault on an employee of the

Job Corps, an instructor. The theory of the plaintiff-employee

was that the government had notice that the assailant was an

addict and dangerous. Liability was disallowed and there was

specific mention of the fact that the assailant was not an em-

ployee, that he was a third person.

A-13

(D.C. Cir. 1975).

Although /air upheld a claim, it did not address

the employee-non-employee issues. In Gibson, the

assailant was not an employee. Hicks was a hospital

patient case in which it was alleged that he was negli-

gently released, whereby St. Elizabeths Hospital, a

government agent, rendered the United States legally

responsible. It does not appear in the facts that the

patient was also an employee of the government. None

of these decisions lend support to the plaintiffs in the

present case.

In summary: The strong thread which runs through

most of these cases is that which recognizes the im-

munity of the government where the assailant is an em-

ployee of the government. This is applied regardless of

whether the employee is on duty. The district court here

considered the fact that Pierre and Andrews were em-

ployees to be a compelling reason for holding that

§ 2680(h), supra, applied. The rationale for this ap-

pears to be that where the intervening assailant is an

employee, the tort with which the government is charged

is in fact as well as law an intentional one subject to

5 In Hicks, the plaintiffs were coadministratrices of the estate of

one Corinne Morgan. It is alleged that St. Elizabeths Hospital,

an agent of the United States, was negligent, as a result of

which the decedent was killed by her husband, who had been

a patient at St. Elizabeths Hospital. He shot her after he had

allegedly been given liberty as a result of the negligence of

St. Elizabeths. The assailant husband was mentally incom-

petent with the knowledge, of course, of St. Elizabeths. The

court there said that the hospital owed a duty to the public in

carrying out its responsibilities. The assault was directly at-

tributable to his insane condition, ane it was held that the hos-

pital was directly responsible for his release and for the act

which was caused by his drinking together with his mental

condition.

—

A-14

the § 2680(h) provision. There is a dearth of authority

which allow an action to be prosecuted against the gov-

ernment under the Tort Claims Act where the interven-

ing assailant was an employee. In any case in which the

employee has intentionally injured another, the tort as-

serted against the government, regardless of whether it

is called negligence, is indeed an intentional tort at-

tributable to the government. This may well be be-

cause of the doctrine of respondcat superior or because

the employee is closely related to the government. It

would appear to be the proximity of the employee

which gives the government's role its intentional quality.

Finally, the particular facts of this case lead to the

conclusion that the tort which is the basis of the law-

suit was intentional and subject to § 2680(h) because

it was, as a matter of law, an intervening force of such

great magnitude that it rendered the negligence of the

government in failing to control the assailants insig-

nificant in comparison. The character of the act is so

predominantly intentional that the negligence as a causal

force is virtually nonexistent.

We are not unmindful or unsympathetic to the in-

nocent plight of plaintiffs. However, to hold the United

States government legally responsible for the act in

view of the immunity from liability based on intentional

conduct and considering its lack of moral, legal or

factual contribution would not only be invalid, it would

constitute gross injustice.

Having weighed the relevant factors, we hold that

the trial court’s decision was correct. The judgment of

the district court is therefore affirmed.

A-15

APPENDIX B

BYRON NAISBITT, Executor of the Estate

of Carol Naisbitt, Deceased, Plaintiff,

Vv.

The UNITED STATES of America,

Defendant.

No. NC 78-0032

United States District Court,

D. Utah, N. D.

Jan. 2, 1979

ORDER GRANTING DEFENDANTS

MOTION TO DISMISS

ALDON J. ANDERSON, Chief Judge.

This action arises out of a series of rapes and murd-

ers committed by off-duty United States servicemen

while stationed at Hill Air Force Base. Plaintiffs are

suing the United States in tort for alleged negligence

in failing to adequately evaluate and supervise the serv-

icemen involved. The government has filed a motion

to dismiss based on lack of subject matter jurisdiction

contending that:

1) plaintiffs’ complaint fails to allege a basis for

federal court jurisdiction ;

2) plaintiffs’ complaint is barred by 28 U.S.C. §

2680(h) which excepts from the Federal Tort Claims

Act claims arising out of an assault or battery;

A-16

3) plaintiffs’ claim does not meet the requirements

of 28 U.S.C. § 2674 because it does not set forth a

duty owed by the government that would be owed “in

the same manner and to the same extent [by] a private

individual under like circumstances.”

Because the court finds that the action is barred by

28 U.S.C. § 2680(h) it is not necessary to rule on the

government's other contentions.

Section 2680(h) sets forth exceptions to the gen-

eral waiver of sovereign immunity contained in the Fed-

eral ‘Tort Claims Act. Among other things, the statute

prohibits suits against the United States on any claim

arising out of the commission of an intentional tort, in-

cluding assault and battery. The application of this sec-

tion has not always been consistent (compare Gibson v.

United States 457 F.2d 1391 (3d Cir. 1972) with Col-

lins v. United States, 259 F.Supp. 363 (E.D. Pa.

1966) ), but it seems fairly well settled that § 2680(h)

does not apply to intentional torts committed by those

who are not government employees but who are under

government supervision, but does apply to intentional

wrongs committed by those who are employed by the

government. Pennington v. United States, 406 F.Supp.

850 (EDNY 1976) ; Panella v. United States, 216 F.2d

622 (2d Cir. 1954). The question presented for de-

cision here is whether or not, even though the plaintiffs’

complaint is drawn in terms of negligence, the action

still arises out of an assault and battery so as to fall with-

in the scope of § 2680(h). As stated in Nichols v.

United States, 236 F.Supp. 260 (N.D. Miss. 1964) :

A-17

[T]he applicability of . . . 28 U.S.C. § 2680(h)

cannot turn on the artistry of the pleader. The

test is not the theory upon which the plaintiff

elects to proceed or how artfully the pleadings

may have been drawn. Rather, the decisive fact-

or is whether, in substance and essence, the claim

arises out of an assault and battery.

Id. at 263.

It is true that not all the courts faced with this

question have agreed on the scope of the § 2680(h)

exception. See Gibson v. United States, 457 F.2d 1391

(8rd Cir. 1972) ; Underwood v. United States, 356 F.2d

92 (5th Cir. 1966). However, the weight of authority

and the better view supports the government's conten-

tion that the plaintiffs’ claim is barred by sovereign im-

munity. The sole basis for imposing liability on the gov-

ernment is the fact that two government employees com-

mitted intentional wrongs against plaintiffs and their

decedents. Thus, this is unlike the case in which the

government is sued for failure to adequately supervise

non-employees. There the sole basis for liability is the

negligence of the government officials charged with the

duty of supervision. In such a case, negligence is not

merely an alternative theory of liability; it is the only

basis upon which the government can be held respons-

ible. ‘The intentional wrong cannot itself be the basis

of liability because that act was not committed by a

government official. Here, in contrast, government li-

ability is possible only because government employees

committed the intentional act. Thus, although plaintiffs’

complaint is drawn in terms of negligence, the essence

of the cause of action is an assault and battery commit-

A-18

ted by two individuals who were government employees

at the time of the wrongful acts. The claim arises only

because of the intentional wrong committed by em-

ployees of the sovereign and is, therefore, a claim “aris-

ing out of” an assault and battery and is within the

scope of § 2680(h). Plaintiffs’ negligence theory is,

in this case, merely an alternative theory of liability.

Panella v. United States, supra; Pennington v. United

States, supra; Collins v. United States, supra.

Waivers of sovereign immunity are to be strictly

construed. United States v. Sherwood, 312 U.S. 584,

590, 61 S.Ct. 767, 85 L.Ed. 1058 (1941). To allow

plaintiffs’ claim would be to greatly expand the waiver

of immunity provided for in the Federal Tort Claims

Act. The legislative history of § 2680(h), meager though

it is, indicates that Congress sought to protect the United

States from suits resulting from the intentional torts of

its employees. See Panella v. United States, supra at

625-26. However, if plaintiffs’ theory were upheld the

government would be subject to suit for its employees’

intentional wrongs on the theory that the government

had negligently failed to control the offending em-

ployee. Such a theory would greatly dilute, if not de-

stroy, the protection afforded by § 2680.

The case of Muniz v. United States, 374 U.S. 150,

83 S.Ct. 1850, 10 L.Ed.2d 805 (1963) is not to the

contrary. There the Supreme Court addressed only the

question of the right of a federal prisoner to sue under

the Tort Claims Act. It did not rule on the scope of

§ 2680(h). However, in dicta, the Court indicated that

A-19

§ 2680(h) would provide a valid defense in a case such

as this. Id. at 163, 83 S.Ct. 1850.

The plaintiffs contend that the issue of the court's

jurisdiction cannot be resolved without a trial on the

merits and cite the case of Land v. Dollar, 330 U.S.

731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947). While the

court agrees that, in the appropriate case, it has juris-

diction to examine the merits of an action to determine

the existence of subject matter jurisdiction, the court

does not find this to be an appropriate case. The com-

mission of the assault and battery and the fact that the

commission of that wrong gives rise to plaintiffs’ com-

plaint is undisputed. The applicability of § 2680(h) is

a threshold question in a suit such as this and can be

determined by the court as a matter of law. Accordingly,

IT IS HEREBY ORDERED that plaintiffs’

complaint be dismissed with prejudice.

A-20

APPENDIX C

STATE of Utah, Plaintiff and

Respondent,

V.

Dale S. PIERRE, Defendant

and Appellant.

No. 13903

Supreme Court of Utah

Nov. 25, 1977

(Certain footnotes omitted. )

Affirmed and remanded.

Ellett, C. J., and Crockett, J., concurred and filed

opinions.

Maughan, J., concurred in part and dissented in

part and filed opinion.

WILKINS, Justice:

The Defendant Dale S. Pierre was charged with

three counts of murder in the first degree (a capital

offense) in violation of Utah Code Annotated, 1953,

Section 76-5-202, as enacted 1973, for the murders of

Carol Naisbitt ,Michelle Ansley, and Stanley Walker:

additionally he was charged with two counts of ag-

gravated robbery in violation of Utah Code Annotated,

1953, Section 76-6-302, as enacted 1973, for the robbery

of Orren W. Walker, Jr. and Stanley Walker. The acts

forming the bases of these crimes occurred at the Hi-Fi

A-21

Shop, a business selling stereo and allied equipment,

located in Ogden, Weber County, Utah, on April 22,

1974 during the robbery thereof. All statutory refer-

ences herein refer to Utah Code Annotated, 1953, as

enacted in 1973, Title 76, Utah Criminal Code unless

otherwise indicated.

The defendant was tried jointly with William An-

drews and Keith Roberts (who were charged with the

same five counts as defendant and who are the subjects

of companion cases decided this date) before a jury in

the District Court of Davis County, State of Utah, and

the defendant was found guilty on all five counts on

November 15, 1974 (the trial having commenced on

October 15, 1974). On November 20, 1974, after a

hearing to determine sentences on the murder convic-

tions, this same jury returned a unanimous verdict of

the death penalty against the defendant on each of the

murder counts. The District Judge then on November

27, 1974, sentenced the defendant to death by shooting

at the Utah State Prison on all counts of first degree

murder, and he also sentenced the defendant to an in-

determinate term of five years to life at said prison on

the two counts of aggravated robbery.

The evidence at the guilt or innocence stage of the

trial (herein “guilt phase”) established that the defend-

ant, Andrews, and Roberts were airmen stationed Hill

Air Force Base, Utah. Stanley Walker, Michelle Ans-

ley, Carol Naisbitt, Cortney Naisbitt (son of Carol

Naisbitt), and Orren W. Walker, Jr. (father of Stanley

Walker) were tied up, made to lie on the floor, and

A-22

forced to drink liquid Drano on the evening of April

22, 1974, in the basement of the Hi-I'i Shop in Ogden,

Utah, by the defendant in company with Andrews, who

aided the defendant by pouring the caustic substance

into a plastic cup for accomplishment of these violent

acts. The defendant and Andrews both had hand guns

and defendant finally shot all of the victims in the head

with either a .25 caliber or .38 caliber handgun, which

caused the deaths, within a brief period of time during

that April evening, of Stanley Walker, Michelle Ans-

ley (who had also been raped by the defendant just

before he shot her) and Carol Naisbitt. Cortney Nais-

bitt and Orren W. Walker, Jr., survived but obviously

sustained injuries, with Cortney suffering particularly

serious ones.

Evidence further established that Orren and Stan-

ley Walker were robbed in an aggravated manner of

personal property in their possession (equipment from

the Hi-Fi Shop being taken from Stanley and a watch

and wallet being taken from Orren) on April 22nd at

the Hi-Fi Shop by the defendant, Andrews, and Rob-

erts. The defendant and Andrews were identified inside

of said shop during the robbery and Roberts was identi-

fied walking in front of it.

The evidence at this stage of the proceedings was

extensive, there being thereat sixty-six witnesses and

more than 300 exhibits of physical evidence. In addi-

tion to matters mentioned above, the evidence, in sum-

mary, established that Andrews had purchased a blue

1970 Chevrolet van in November, 1973, which was used

A-23

in the robbery of the Hi-Fi Shop in the evening in

question; that Andrews had stated in February, 1974,

that he would like to rob a hi-fi shop and would kill

anyone who got in his way; the defendant saw in April,

1974 the movie “Magnum Force” in which someone

was murdered by being forced to drink Drano; defend-

ant and Andrews priced stereo items at the Hi-Fi Shop

two days before the fatal day of April 22nd; defendant

rented a storage unit on April 22, 1974, signing a lease

agreement thereon which agreement was discovered in

defendant's room after the crimes; the storage unit con-

tained a bottle labeled “Drano” and a plastic cup as

well as a large quantity of stereo equipment taken from

the Hi-Fi Shop, and fingerprints of defendant and An-

drews were on some of this equipment; in the afternoon

of April 22nd, defendant and Andrews were identified

in the blue Chevrolet van as it was at or near the Hi-

Fi Shop and Roberts was driving said vehicle near the

shop; wallets, purses, and other personal items of identi-

fication belonging to the victims were found next to

defendant's barracks as well as Hi-Fi Shop labels in

Andrews’ room and in a garbage can in the latrine of

defendant's barracks; and the .25 caliber pistol used to

shoot some of the victims was owed by a roommate of

Roberts, who had borrowed it from this roommate short-

ly before April 22nd.

Orren W. Walker, Jr., an eye witness victim to

events inside the Hi-Fi Shop on that April 22nd also

testified that Michelle, Cortney, and Stanley pled for

their lives before the defendant and Andrews; and after

shooting him (Orren), the defendant vehemently kicked

A-24

a ball point pen into one of his ears and attempted to

strangle him with a cord.’

At the penalty or sentencing phase of the trial

(herein “penalty phase”) which took place before the

same jury as heard and participated in the guilt phase,

the defendant and Andrews were parties thereto but

Roberts was not as he had not been convicted of a

capital offense. Defendant did not give testimony at this

latter phase though Andrews did.

The State presented as witnesses a psychiatrist, a

clinical psychologist and a United States Air Force

Lieutenant; and defendant called a Protestant Chap-

lain and a criminologist as witnesses.

Evidence about defendant adduced at this phase

demonstrated that while in the Air Force, he failed to

report to places of duty wrote two bad checks (for

nominal amounts), and unlawfully took another's auto.

Also, defendant’s Commander initiated a separation

action from the Air Force against him which was not

consummated, on the basis that Pierre was “minimal

productive, and a limited potential airman,” though that

same Commander recommended honorable discharge

for him.

* * +

5 The record movingly establishes a heroic discipline by Orren

Walker who, feigning death after the shooting, endured enorm-

ous physical and mental torment in silence and immobility.

By doing so he was able to survive and relate the events that

unfolded in horror before him.