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RYAN v. U.S.

July 30, 2001

TIMOTHY RYAN, ET AL., PLAINTIFFS,
V.
UNITED STATES OF AMERICA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gottschall, District Judge.

MEMORANDUM OPINION AND ORDER

Background

Timothy and Debra Ryan, individually and as Guardians for Ann Marie Ryan, and Lucas and Laura Anderson, individually and as Guardians for Jeney Anderson (collectively, "the plaintiffs"), commenced this action against the United States of America, the United States Postal Service (USPS), and Leslie Tucker (collectively, "the defendants"). Plaintiffs seek relief against the United States and the USPS under the Federal Tort Claims Act.*fn1 Plaintiffs' claims are based on incidents allegedly occurring on June 15, 1998 and August 11, 1998. On those dates, Leslie Tucker, a letter carrier for the USPS, committed certain acts of sexual misconduct involving victims Ann Marie Ryan and Jeney Anderson while on his delivery route in the Village of Park Forest in Will County, Illinois. Mr. Tucker was subsequently charged and convicted of criminal violations in connection with these incidents.

Plaintiffs seek damages against the defendants, alleging that the United States was "negligent in one or more of the following ways: 1.) that the Defendant failed to properly investigate the background of the Defendant, Leslie Tucker so as to insure safety for all parties on the letter carrier's route, 2.) that the Defendant upon information and belief of the Plaintiffs failed to properly investigate the background and prior service history of the Defendant, Leslie Tucker. 3.) that the Defendant failed to properly protect all residents on the postal route." (Compl. ¶ 3). The United States has moved to dismiss the complaint on the grounds that 28 U.S.C. § 2680(h) of the FTCA bars the plaintiffs' claims. For the reasons set forth below, the motion to dismiss is granted.

Analysis

The purpose of a motion to dismiss is to test the sufficiency of the complaint, not to decide its merits. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). A court should dismiss a claim only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint." Cook v. Winfrey, 141 F.3d 322, 327 (7th Cir. 1998) (citations omitted). The court must accept all well-pleaded factual allegations in the light most favorable to the plaintiff. Colfax Corp. v. Illinois State Toll Highway Auth., 79 F.3d 631, 632 (7th Cir. 1996).

The Federal Tort Claims Act acts as a limited waiver on the government's sovereign immunity. The FTCA gives district courts exclusive jurisdiction over:

28 U.S.C. § 1346(b)(1). There are certain exceptions to the FTCA, one of which is the "assault and battery" exception. This exception prevents the United States from being held liable for "any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights . . ." 28 U.S.C. § 2680(h). In support of its motion to dismiss, the United States contends that plaintiffs' claims are barred by the "assault and battery" exception of the FTCA because the cause of action arose out of the assault and battery inflicted upon Ann Marie Ryan and Jeney Anderson by Leslie Tucker. Specifically, the United States makes two main contentions. First, the United States argues that plaintiffs' negligence claim is really a respondeat superior claim in disguise, and is therefore barred by § 2680(h). Second, the United States argues that it owed no other affirmative duty, independent of the employment relationship, to protect the plaintiffs.

In response, plaintiffs maintain that the negligence cause of action did not arise out of the assault and battery and is not barred by § 2680(h). Plaintiffs argue that their negligent hiring, supervision, and retention claims are not based on respondeat superior, and that the United States' negligence in hiring Mr. Tucker is an entirely separate tort from the assault and battery committed by Mr. Tucker. In addition, plaintiffs contend that the United States did, in fact, owe an independent affirmative duty to them.

Negligent Hiring, Supervision, and Retention

The United States' first argument is that plaintiffs' claims are really just respondeat superior claims in which the underlying tort was Tucker's assault and battery. The United States argues that plaintiffs are simply attempting to disguise the claims as negligent hiring, supervision, and retention so as to avoid the assault and battery exception of the FTCA. The first issue the court must address is whether a claim against the United States for the negligent hiring, supervision, or retention of a federal employee "aris[es] out of" an assault and battery (and is therefore barred by § 2680(h)) where the plaintiffs injury is caused by an assault and battery committed by the federal employee.

To answer this question, the court first examines two Supreme Court cases dealing with the issue, beginning with United States v. Shearer, 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985). In Shearer, an army private was slain by another private and the mother of the deceased brought suit against the government for negligent supervision, claiming that although the Army knew that the private who killed her son was dangerous, it failed to restrain him and warn others. Shearer, 473 U.S. at 53-54, 105 S.Ct. 3039. A plurality of four Justices opined that the "express words of [§ 2680(h)]" facially barred plaintiffs claim because "in sweeping language [§ 2680(h)] excludes any claim arising out of assault or battery." Shearer, 473 U.S. at 55, 105 S.Ct. 3039 (citing United States v. Spelar, 338 U.S. 217, 219, 70 S.Ct. 10, 94 L.Ed. 3 (1949)). The court read § 2680(h) to "cover claims that sound in negligence but stem from a battery committed by a Government employee." Id.

Interpreting the views expressed by the plurality in Shearer, some lower courts construed the phrase "arising out of" in § 2680(h) broadly, barring all claims having any remote relationship to assault and battery. See Johnson by Johnson v. United States, 788 F.2d 845, 850-54 (2d Cir. 1986); Thigpen v. United States, 800 F.2d 393, 395 (4th Cir. 1986); Hoot v. United States, 790 F.2d 836, 838, (10th Cir. 1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985). Other courts interpreted the "arising out of" language in ยง 2680(h) more narrowly, allowing for some exceptions. These courts permitted claims alleging governmental negligence, such as negligent hiring and supervision, and claims in which the United States owed the ...


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