Deborah Wine, Plaintiff-appellant, v. the United States of America, Defendant-appellee, 705 F.2d 366 (10th Cir. 1983)

Thomas J. Constantine, Englewood, Colo. (Neil E. Lipson, Denver, Colo., with him on brief), for plaintiff-appellant.

Joseph Dolan, U.S. Atty., and Nancy E. Rice, Asst. U.S. Atty., Denver, Colo., for defendant-appellee.

Before SETH, Chief Judge, McWILLIAMS, Circuit Judge, and BROWN, Senior District Judge.^* 

BROWN, Senior District Judge.

Appellant brings this appeal from the Order of the district court granting the motion of the United States to dismiss the action. The facts are not in dispute, and may be briefly stated. On February 20 and 21, 1978, appellant and her companion, Stuart Smolin, were kidnapped by Dana E. Morgan. Morgan assaulted and fatally shot Mr. Smolin and sexually assaulted and shot appellant. At the time of the incident, Morgan was a sergeant in the United States Air Force, stationed at Lowry Air Force Base in Denver, Colorado. It is admitted that Morgan was off duty and was not acting within the scope of his employment with the United States when he committed the criminal acts described above.

For the purpose of its motion, the United States also admitted that the Air Force, through Morgan's supervisors, had failed to provide Morgan with psychiatric care, and had placed unreasonable pressure and stress upon Morgan in the performance of his duties. Appellant filed an administrative claim with the Air Force, claiming negligence of Morgan's supervisors, which was denied. She then brought this action alleging the same negligence under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) and Sec. 2671 et seq. The sole basis on which the district court granted dismissal was its finding that appellant's claim was barred by 28 U.S.C. § 2680(h), as that section was construed by this Court in Naisbitt v. United States, 611 F.2d 1350 (10 Cir.), cert. denied 449 U.S. 885, 101 S. Ct. 240, 66 L. Ed. 2d 111 (1980). 28 U.S.C. § 2680(h) provides an exception to the general waiver of sovereign immunity contained in the Federal Tort Claims Act where the claim arises out of assault, battery, or various other enumerated torts.

Naisbitt, supra, arose on facts very similar to those at bar. There, two off-duty airmen committed various assaults, rapes, batteries, and murders against the plaintiffs and their decedents. In Naisbitt, as here, plaintiffs argued that their action against the United States sounded in negligence, not in the assaults and batteries of the government employees. Thus, they contended that the bar of Sec. 2680(h) did not apply. The Naisbitt Court refuted that contention, noting that while Sec. 2680(h) did not apply to cases in which the assailant was not a government employee, it did bar suit against the government in all cases where the intentional tort was committed by a government employee.

Since the government has waived liability only in negligence cases and has retained its immunity in intentional tort cases in accordance with Sec. 2680(h), an attempt to establish liability on a negligence basis is indeed an effort to circumvent the retention of immunity provided in Sec. 2680(h).

Naisbitt, supra, 611 F.2d at 1355.

Appellant concedes that where the government could be sued for the intentional torts of its employees under the doctrine of respondeat superior but for Sec. 2680(h), Naisbitt is right in considering a claim of negligence in those circumstances to be an effort to circumvent Sec. 2680(h). However, she argues, where employees are off duty and the government therefore could not in any case be held liable under respondeat superior for their intentional torts, the claim of negligence is not an attempt to circumvent Sec. 2680(h). Thus, that section should not bar the claim. In short, appellant argues that off-duty employees should be treated as non-employees, and suits brought in negligence, arising out of the intentional torts of either group, should be allowed as within the Tort Claims Act's waiver of sovereign immunity.

The controlling law in this Circuit, as stated definitively by Naisbitt, supra, is to the contrary. Naisbitt holds that the retention of immunity in Sec. 2680(h) is not restricted to the limits of liability under respondeat superior. Quoting Pennington v. United States, 406 F. Supp. 850, 852 (E.D.N.Y. 1976) at 611 F.2d 1354, fn. 2, the Court in Naisbitt recognized that both the distinction between a non-employee and an off-duty employee, and the distinction between on-duty and off-duty employees, are logically flawed. Still Naisbitt found the former to be the better approach, and we agree. The following summary by the Naisbitt Court of its holding on this point states, we believe, the well-reasoned basis on which the dismissal of the present action must be affirmed.

There is a strong thread running through most of these cases ... which recognizes the immunity of the government where the assailant is an employee of the government. This is applied regardless of whether the employee is on duty.... The rationale for this appears 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 the Sec. 2680(h) provision. There is a dearth of authority allowing an action to be prosecuted against the government under the Tort Claims Act where the intervening assailant was an employee. In any case in which the 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. This may well be because of the doctrine of respondeat 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.

Naisbitt, supra, 611 F.2d at 1356, (emphasis added).

The Order of the district court dismissing this action for lack of jurisdiction is AFFIRMED.