The opinion of the court was delivered by: Gottschall, District Judge.
MEMORANDUM OPINION AND ORDER
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.
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
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
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 § 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 ...