employment when he assaulted Joyce Pottle. The core of the assault and battery exception involved cases in which a government employee, while doing his job, commits an assault on another. This case fits squarely into those parameters. Therefore, the government has not consented to Pottle's suit and is immune from liability on a theory of negligent hiring, training, or supervision.
2. Employer's Duty of Care Independent of Employment Relationship
a. Independent Duty of Care as Expressed in Government Directive
Just weeks prior to Officer Lupo's assault on plaintiff, the government issued a directive informing recruiters that they should not perform body fat measurements on recruits of the opposite sex. Plaintiff argues that this directive is an expression of an independent duty of care undertaken by the government to protect recruits from foreseeable harm. The Court finds that the directive is not a reflection of an independent duty of care, but only a command as to how government employees should properly carry out their assigned duties. Nearly every government employee is guided by officially-issued directives, and to construe each as an expression of an independent duty of care would be to expose the government to liability beyond the scope assumed in the Federal Tort Claims Act.
b. Premises Liability
Plaintiff alleges that the government "failed to provide proper safeguards for activities involving the recruitment of women into the armed services and/or was otherwise negligent." Complaint, P 4. In her brief in opposition to the motion, plaintiff argues that she was invited to the recruiting station for the purpose of recruiting her into the armed services, and as an invitee, she was entitled to that degree of care consistent with her status. While the complaint does not clearly plead a cause of action based on premises liability, the Court will construe plaintiff's claim as such for the purpose of argument.
Many courts have read Sheridan as permitting negligence claims against the government that could be seen as arising out of an assault or battery, but which in fact are based on an independent duty of the government. See, e.g., Mulloy v. United States, 884 F. Supp. 622, 631 (D.Mass. 1995). For example, in Doe v. United States, 838 F.2d 220 (7th Cir. 1988), the court permitted a claim against the government based on the sexual abuse of children in a government-operated day care facility. The court found that the government was liable for failure to fulfill its voluntarily undertaken duty to protect the children from such assaults, irrespective of whether the assailant was a government employee or a third party. See also, Hallett v. United States Department of Navy, 850 F. Supp. 874 (D. Nev. 1994) (denying motion to dismiss negligence claim against government based on duty of U.S. to act reasonably as occupant or possessor of premises in hotel where alleged Tailhook assaults were to have occurred); Bembenista v. United States, 275 U.S. App. D.C. 292, 866 F.2d 493 (D.C.Cir. 1989) (government not immune from claim based on duty to protect from foreseeable criminal acts of third persons). The Court will therefore consider whether New Jersey law permits plaintiffs to make out a negligence claim against the United States based on a duty of care which is independent of the employment relationship between Lupo and the government.
It is clear that New Jersey law recognizes a cause of action based on premises liability. The New Jersey Supreme Court has stated that "the proprietor of a premises to which the public is invited for business purposes of the proprietor owes a duty of reasonable care to those who enter the premises upon that invitation to provide a reasonably safe place to do that which is within the scope of the invitation." Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982); Keith v. Truck Stops Corp. of America, 909 F.2d 743, 745 (3d Cir. 1990). This duty includes the prevention of foreseeable criminal acts of third persons. Butler, 89 N.J. at 274. In holding that the duty of reasonable care extends to protecting invitees from foreseeable criminal acts of others, the New Jersey Supreme Court relied upon the reasoning of the Restatement (Second) of Torts, which states that a possessor of land is subject to liability "for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons..." and by the failure to discover the likelihood that such acts will be done or to give a warning sufficient to enable an invitee to avoid the harm. Restatement (Second) of Torts, § 344 at 223-224 (1965). See also, Bencivenga v. J.J.A.M.M., Inc., 258 N.J. Super. 399, 609 A.2d 1299 (App.Div.), cert. denied, 130 N.J. 598, 617 A.2d 1220 (1992) (plaintiff brought claim against dance club for injury caused by unknown intentional tortfeasor).
The cases permitting a claim of premises liability against the United States present a different scenario than that now before the Court. For example, in Hallett v. United States Department of Navy, 850 F. Supp. 874 (D. Nev. 1994), the premises upon which the assault occurred was not the place where the assailants worked. The hotel was a separate location over which the government arguably had control, and which was accessible to, and used by, people who were not there on government business. The assaults in Hallett were not within the scope of the assailants' employment. Indeed, neither the victims nor the assailants can be said to have been at the hotel in connection with or in furtherance of some government purpose.
To the contrary, the Court here is presented with a case where (1) the assailant was acting within the scope of his employment, (2) the assault occurred at the location where Officer Lupo performed his employment duties, however improperly, and (3) the plaintiff was at that premises in furtherance of the purpose for which the government maintained the facility. Any danger at the premises was caused by Lupo's behavior and therefore, any allegation of premises liability is actually a claim that the government failed to properly hire, train, or supervise him. While the Court recognizes that premises liability may, under certain circumstances, be the basis of a negligence claim against the United States, a theory of premises liability cannot be used as a subterfuge to mask a simple assault and battery claim based on inadequate hiring, training, or supervision of the offending employee.
Every day, across the country, thousands of federal employees interact with millions of citizens on government premises at post offices, administrative offices, courthouses, and other facilities. Tensions may rise during the course of these interactions, or government employees may fail to follow directives issued by their supervisors. Section 2680(h) was intended to bar claims arising from assaults by government employees. If the Court held that the government was subject to suit in such cases, it would overstep the bounds of the sovereign immunity waiver expressed by the government. Summary judgment will be granted to the defendant on this claim as well.
The Third Circuit has held that "'where the facts are in possession of the moving party a continuance of a motion for summary judgment for purposes of discovery should be granted almost as a matter of course." Miller v. Beneficial Mgt. Corp. 977 F.2d 834, 845 (3d Cir. 1992), quoting Costlow v. United States, 552 F.2d 560, 564 (3d Cir. 1977). Plaintiff submitted an affidavit pursuant to Fed. R. Civ. P. 56(f), in which her counsel states that no discovery has been completed in the case because the government filed its summary judgment motion immediately after the initial scheduling conference, and that discovery is needed to find out what the government knew, when they knew it, and what actions were taken, if any, to ensure that recruiting offices were safe. Plaintiff's Brief in Opposition, Exhibit 4. As the Court finds, however, that plaintiff is unable to state a cause of action against the United States arising out of the assault and battery by Officer Lupo, it is unnecessary to continue the summary judgment motion to complete discovery.
The Court finds that the language of 28 U.S.C. § 2680(h), which excepts the government from liability when an injury "arises out of" an assault, precludes plaintiff from bringing suit against the government based on Officer Lupo's actions. Officer Lupo acted in the scope of his employment, and a negligence claim against the government based on negligent supervision or on premises liability would inevitably be tied to Lupo's actions, and as such, would be barred by the assault and battery exception to the Federal Tort Claims Act. The Court lacks subject matter jurisdiction to hear the case. Defendant's motion for summary judgment therefore will be granted.
March 12, 1996
JOSEPH E. IRENAS