Durden v. United States, No. 12-2212 (4th Cir. 2013)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Fourth Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Fourth Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Plaintiff filed suit against the government under the Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), alleging that the Army was negligent and therefore liable for an Army Specialist's sexual assault against plaintiff. The court affirmed the district court's grant of summary judgment to the government, concluding that plaintiff failed to establish that the sexual assault was foreseeable under North Carolina law, and thus the Army did not breach a duty owed to plaintiff as landlord of Fort Bragg; the Army did not have a special relationship with the assailant for purposes of an FTCA claim; the government did not breach a voluntarily assumed duty to plaintiff; and, because discovery would serve no purpose, it was not error for the district court to reach the merits of plaintiff's claim at this stage of the litigation. The court also concluded that, although the government's ability to control a tortfeasor must be independent of the tortfeasor's status as a government employee, knowledge of the tortfeasor's propensity for violence or criminal history did not, per se nullify an FTCA claim. Accordingly, the district court's dismissal on this alternative basis was erroneous.
Download PDF
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-2212 MARIA NICOLE DURDEN, Plaintiff - Appellant, v. UNITED STATES OF AMERICA, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, Chief District Judge. (5:11-cv-00442-D) Argued: September 19, 2013 Decided: November 20, 2013 Before NIEMEYER, GREGORY, and FLOYD, Circuit Judges. Affirmed by published opinion. Judge Floyd wrote the opinion, in which Judge Niemeyer and Judge Gregory concurred. ARGUED: Nathan Harrill, WAKE FOREST UNIVERSITY SCHOOL OF LAW, Winston-Salem, North Carolina, for Appellant. Joshua Bryan Royster, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Joseph L. Anderson, ANDERSON PANGIA & ASSOCIATES, PLLC, Winston-Salem, North Carolina; Douglas P. Desjardins, TRANSPORTATION INJURY LAW GROUP, Washington, D.C., for Appellant. Thomas G. Walker, United States Attorney, Jennifer P. May-Parker, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. FLOYD, Circuit Judge: On December 13, 2009, U.S. Army Specialist Aaron Pernell unlawfully entered the home of Maria Durden while inebriated and raped Durden in front of her children. Durden subsequently sued the government pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging that the Army was negligent and therefore is liable for the sexual assault against her. government moved to dismiss Durden s complaint for lack The of subject matter jurisdiction and, alternatively, for failure to state a claim upon which relief can be granted. The district court granted the government s motion with respect to subject matter jurisdiction, and Durden appealed. For the reasons set forth below, we affirm. I. A. Pernell joined the Army at age eighteen and was deployed to Iraq after he completed his initial training in Georgia and a two-day stay at Fort Bragg, North Carolina. Upon returning to Fort Pernell Bragg subsequent to his deployment, emotionally and began using drugs and abusing alcohol. struggled In March and August of 2009, Pernell told his staff sergeant that he desired to kill himself and eleven current and former members of his unit. After each instance, the sergeant discouraged Pernell 2 from seeking mental-health treatment and cautioned Pernell that receiving record. such treatment could blemish Pernell s military In September 2009, Pernell confided in a fellow soldier that he was unable to sleep due to his drug and alcohol use; the solider also advised Pernell not to seek mental-health treatment because it could mess up [Pernell s] career. On September 10, 2009, Pernell burglarized a home in Fayetteville, North Carolina (which is adjacent to Fort Bragg) and assaulted the home s occupants with a pellet gun. Civilian law enforcement arrested Pernell and charged him with burglary and assault. Pernell was then detained at a civilian jail from September 11 to October 22, 2009, at which time his parents posted bail on his behalf and his platoon leader retrieved him and returned him to Fort Bragg. During the transport back to Fort Bragg, Pernell again expressed a desire to kill himself and eleven members of his unit. Immediately upon Pernell s return to Fort Bragg, the Army began the process of administratively separating him. to Durden, Pernell s commanding officer issued According orders on October 22, 2009, that Pernell was to have a noncommissioned officer escort at all times both off and on Fort Bragg and was to be checked barracks. on hourly to ensure that he remained in his Durden alleges that the orders were given to prevent harm to innocent base residents. 3 Durden also claims that these orders were not enforced. Specifically, Durden claims that Pernell was permitted to leave his barracks at night to use drugs and consume alcohol and, further, that Pernell s superior officers knew that Pernell violated the orders but did not act to ensure that the orders were followed. The government paints a somewhat different picture of the restrictions placed on Pernell following his release civilian jail and the reasons for the restrictions. from According to the government, Pernell was not required to have an escort while on Fort Bragg, was not confined to his barracks, and was not required to be checked on hourly; rather, Pernell was required to have an escort only when he left Fort Bragg, which he could not do without first obtaining permission. affidavit, the leave-and-pass soldier government privilege undergoes asserts off the Fort process that revoking Bragg is of Through an a common being soldier s while the administratively separated, or subsequent to being in civilian confinement, to ensure that the soldier [is] proceedings and [does] not government also notes that counseling on October 22, go available absent Pernell 2009, at for without received which administrative leave. The event-oriented time Pernell s commanding officer first learned of Pernell s desires to harm himself and others. The government claims that Pernell recanted these desires at that time; however, out of an abundance of 4 caution, the Army ordered that Pernell be checked on every two hours during the evening while in his barracks to ensure that he did not harm himself. Pernell then underwent a scheduled mental-health evaluation on October 30, 2009, after which it was determined that, inter alia, Pernell exhibited a low potential for self-harm assessment, and harm Pernell s to others. commanding As officer a result lifted of this the bihourly at Durden s evening checks. Pernell raped Durden on residence on Fort Bragg. December 13, 2009, In January 2010, Pernell became a suspect in Durden s rape and consented to giving a DNA sample that was used to identify him as Durden s assailant. Pernell was also identified at that time as being involved in burglaries and sexual assaults Fayetteville. treatment, medium risk evaluation, that Pernell and it of the government placed subsequently was harm occurred then to Pernell the on and first barracks 2008 and requested determined himself Army for in that others. time, 2009 in mental-health Pernell posed Following according restriction to and a this the ordered that he be monitored at all times. On December 8, 2010, Pernell of raping Durden. a general court-martial convicted As a result, Pernell was sentenced to fifty years imprisonment, had his military rank reduced, and was dishonorably discharged from the Army. 5 On August 11, 2011, Durden sued the government. Durden alleged that the Army was aware that Pernell posed a safety risk to others, had a duty to protect her from Pernell, and breached that duty by failing to execute the October 22, 2009 orders that, according to Durden, required that Pernell be escorted at all times while on Fort Bragg and be checked on hourly when in his barracks. The government moved to dismiss Durden s complaint for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. Specifically, the government asserted that the Army did not breach any duty owed to Durden under North Carolina law and that Durden s complaint is barred by the FTCA s intentional-tort exception, 28 U.S.C. § 2680(h). court granted the government s motion, and The district Durden appealed. This Court has jurisdiction over Durden s appeal pursuant to 28 U.S.C. § 1291. B. This Court reviews de novo a district court s decision on a motion Cooksey to v. dismiss for Futrell, 721 lack F.3d of subject 226, 234 matter (4th jurisdiction. Cir. 2013). A defendant may contest subject matter jurisdiction in one of two ways: by attacking the veracity of the allegations contained in the complaint or by contending that, even assuming that the allegations are true, the complaint fails to set forth facts 6 upon which jurisdiction is proper. Kerns v. United States, 585 F.3d Here, 187, 192 (4th Cir. 2009). despite presenting a version of the facts that differs from Durden s version with respect to the restrictions placed on Pernell, the government s challenges to jurisdiction arise under the latter framework. Specifically, the government contends that Durden s allegations, even if true, do not establish that the Army acted negligently. Additionally Durden s and alternatively, complaint exception. challenges procedural Because to the is barred these protection as by are complaint, the the government FTCA s facial as Durden [s]he is would argues that intentional-tort opposed to factual afforded the same receive under a Rule 12(b)(6) consideration, Kerns, 585 F.3d at 192 (i.e., we assume the truthfulness of the facts alleged, id. at 193). On appeal, Durden opposes each of the government s bases for dismissal. We address these bases in turn. II. A. As a sovereign, the United States is immune from all suits against it absent an express waiver of its immunity. Welch v. United States, 409 F.3d 646, 650 (4th Cir. 2005). The FTCA provides for one such waiver, wherein 7 the district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1). An action [for negligence] under the FTCA may only be maintained if the Government would be liable as an individual under the law of the state where the negligent act occurred. Kerns, 585 North Carolina where omission F.3d at 194 occurred a (citing the 28 U.S.C. Army s defendant alleged cannot § 1346(b)(1)). negligent be held act liable In or for negligence absent a duty owed to the plaintiff and breach of that duty. 263, 267 Stein v. Asheville City Bd. of Educ., 626 S.E.2d (N.C. 2006). Accordingly, dismissal of Durden s complaint on the theory that the allegations are insufficient to give rise to a negligence claim requires us to look beyond the four corners of the complaint and to assess whether, under North Carolina law, the Army owed any duty to Durden and, if it did, whether it breached that duty. This procedural Court considered posture as appeals Durden s arising appeal in under Kerns the and same Rivanna Trawlers Unlimited v. Thompson Trawlers, Inc., 840 F.2d 236 (4th 8 Cir. 1988), but resolved those cases differently. In Kerns, this Court vacated the district court s dismissal for lack of subject matter jurisdiction, stating that where the jurisdictional facts and the facts central to a tort claim are inextricably assume intertwined, jurisdiction issues. the and proceed 585 F.3d at 193. challenged the plaintiff s complaint not id. and this trial to the should ordinarily intertwined merits Notably, the government in Kerns truthfulness Court court of merely concluded the their that allegations legal in sufficiency, discovery could the see reveal information that might assist the plaintiff on the intertwined merits issue, id. at 196. By contrast, this Court in Rivanna, despite recognizing that the issue at hand was both a question of subject matter jurisdiction and an element of appellants asserted claims, treated the district court s dismissal for lack of subject matter jurisdiction as one for failure to state a claim that judgment. had been converted into a motion for summary 840 F.2d at 239. This case is more akin to Rivanna than Kerns insofar as the government argued and the district court held that, even assuming that Durden s allegations are true, the complaint still fails to establish that the Army breached a duty to her under North Carolina law. See Durden v. United States, No. 5:11-CV- 442-D, 2012 WL 3834934, at *8 (E.D.N.C. Aug. 31, 2012) ( Durden 9 satisfies the subject matter jurisdiction requirement that the government owed her a duty before the intentional tort was committed. . . . Durden s alleged facts do not establish that the government breached a duty that it owed to her. (citation omitted)); id. at *10 ( Even accepting as true Durden s allegations regarding the ways that the government restricted Pernell after Pernell returned to Fort Bragg following his September 10, 2009 arrest, Pernell s tendency to commit violent acts did not cause Pernell to be in the government s custody. ); id. at *13 ( [A]ccepting as true Durden s allegations regarding the government s efforts to restrain Pernell, these allegations do not establish the existence [of] a duty owed by the government to Durden under North Carolina s version of the Good Samaritan detail Doctrine. ). below, Durden s Moreover, discovery as we explain requests, even in if greater granted, would not assist her on the merits of the underlying negligence issue. Thus, despite incorrect statement the district purporting to court s dismiss technically Durden s complaint for lack of subject matter jurisdiction, the court considered the [negligence] issue as though it were the basis of a motion to dismiss for failure to state a claim that had been converted into a motion for summary judgment. Rivanna, 840 F.3d at 239 (Powell, J. (Ret.), sitting by designation). 10 We turn determined now that matter of law. to the whether the government is district entitled court to correctly judgment as a See Fed. R. Civ. P. 56(a) (standard for granting summary judgment). In doing so, we examine in turn Durden s three theories of a duty that the Army owed to her under North Carolina law and allegedly breached. B. 1. In North Carolina, a landlord has a duty to exercise reasonable care to protect his tenants from third-party criminal acts that occur on the premises if such acts are foreseeable. Davenport v. D.M. Rental Props., Inc., 718 S.E.2d 188, 189 90 (N.C. Ct. App. 2011). Durden s first theory of negligence, then, is that the Army, as landlord of Fort Bragg, breached a duty to protect her from Pernell s reasonably foreseeable attack. The most probative evidence on the question of whether a criminal act was foreseeable is evidence of prior criminal activity committed. However, certain considerations restrict [courts] as to which evidence of prior criminal activity is properly considered. General considerations are [1] the location where the prior crimes occurred, [2] the type of prior crimes committed, and [3] the amount of prior criminal activity. 11 Connelly v. Family Inns of Am., Inc., 540 S.E.2d 38, 41 (N.C. Ct. App. 2000) (citations omitted). established by a landlord s against individuals. Foreseeability may also be knowledge of a specific threat See Davenport, 718 S.E.2d at 191. Durden identifies two incidents that she believes render Pernell s rape of her foreseeable: Pernell s repeated expressed desires to kill himself and Pernell s members of September Fayetteville. 1 10, his unit 2009 (viewed burglary collectively) and assault and in For the reasons set forth below, however, we hold that these incidents are not sufficient to render Pernell s rape of Durden foreseeable under North Carolina law. As an initial matter, we reject for two reasons Durden s argument that Pernell s prior expressed desires to kill himself and members of his unit established foreseeability of the rape. First, even assuming that Pernell s desires tend to show that he had a propensity for violence, Durden has still failed to demonstrate how such desires fall within the purview of prior criminal activity. See Connelly, 540 S.E.2d at 41 (emphasis 1 Although Durden does not raise this argument, we note that Pernell s alcohol abuse and drug use, even if criminal acts, do not qualify as prior criminal activity for purposes of determining whether Pernell s rape of Durden was foreseeable for at least the reason that they are not the same type of prior crimes. See Connelly, 540 S.E.2d at 42 ( instances of public drunkenness, shoplifting, vandalism[,] and disorderly conduct are not the types of incidents to be considered for purposes of establishing foreseeability of armed robbery). 12 added). desire To wit, Durden has not alleged what crime the mere to harm or kill another person, without more, constitutes, 2 and North Carolina courts require more than the mere wishing of harm upon another person to establish criminal liability. See, e.g., State v. Merrill, 530 S.E.2d 608, 612 13 (N.C. Ct. App. 2000) ( evidence [of] defendant s expressions of her desire that the victim be dead, absent assent to the murder plan, insufficient to support a conspiracy-to-murder charge); see also State v. Miller, 477 S.E.2d 915, 921 (N.C. 1996) (crime of attempt requires an overt act that must reach far enough towards the accomplishment of the desired result to amount to the commencement of the consummation ). Second, setting aside the criminality (or not) of Pernell s desires, Durden has not demonstrated that desires notion tenant the on Davenport, Fort 718 the Army that Bragg, S.E.2d should Pernell let alone at 191 have would gleaned sexually Durden (citing from assault specifically. Anderson those v. 124 any See Green Street LLC, No. 09-2626-H, 2011 WL 341709, at *3 (Mass. Super. 2 Durden characterizes Pernell s desires to kill himself and others as threats. Pernell, however, did not state in his affidavit that he ever intended to act on his desires or that he communicated the desires to those members of his unit whom he wished to harm; rather, Pernell indicated that he expressed the desires to his staff sergeant and platoon leader in an effort to receive mental-health treatment because, according to Pernell, [he] knew a report of that kind ought to automatically trigger [his] commitment to a mental health facility. 13 Ct. Jan. 21, 2011) ( A duty to evict . . . may arise where the landlord knows of a specific threat that one tenant poses to another . . . . )). Turning now to the September 10, 2009 burglary and assault indeed, a prior criminal activity we are satisfied that it meets the second of Connelly s three foreseeability criteria insofar as it qualifies as the same type of prior crime[] as Pernell s subsequent rape of Durden. See, e.g., Murrow v. Daniels, 364 S.E.2d 392, 397 98 (N.C. 1988) (prior crimes of armed robbery, kidnapping, assault, vehicle theft, and larceny deemed relevant for determining foreseeable). where Court the has whether sexual assault against plaintiff was With respect to the first prong the location prior crimes been clear occurred the that North evidence Carolina pertaining Supreme to the foreseeability of [a] criminal attack shall not be limited to prior criminal acts occurring on the premises, and criminal acts occurring near the premises in question may be relevant to the question of foreseeability. (internal quotation marks subsequent to have exception Murrow limited to Id. at 397 (citation omitted) omitted). fashioned criminal However, Murrow s activity decisions language in the immediately surrounding [the] defendant[ s] premises. as an area Purvis v. Bryson s Jewelers, Inc., 443 S.E.2d 768, 770 (N.C. Ct. App. 1994) (considering only prior criminal activity that occurred 14 within three blocks of defendant s property); see Bennett v. Equity Residential, (unpublished table 692 S.E.2d decision) 489 (N.C. (considering Ct. only App. prior 2010) criminal activity that occurred within the defendant s apartment complex where plaintiff resided). Here, there is no indication in the record regarding the physical distance between the site of the September 10, 2009 burglary and assault in Fayetteville and the site of Pernell s rape of Durden on Fort Bragg. off the military installation, concerned installation North with Although one incident occurred and Carolina such formal the courts other do on not line-drawing. the military appear See to be Connelly, 540 S.E.2d at 42 (considering, for a crime that occurred in North Carolina, prior criminal activity that occurred at the same interstate-highway intersection but on the South Carolina side of the intersection). Nevertheless, it is possible that if the September 10, 2009 burglary and assault was sufficiently far away from Pernell s rape of Durden, then it is too remote to guide [the] (excluding occurred in determination from a a of foreseeability. foreseeability neighboring town analysis twenty Id. prior miles at crimes away). 41 that Absent additional information about the distance between the locations of the incidents, relevant if at however, all the we September 15 are 10, unable 2009 to determine incident is how in a foreseeability calculus with respect to Pernell s rape of Durden. Regardless, even assuming that Pernell s September 10, 2009 burglary and assault is sufficiently near in proximity to the rape, Durden s argument that the rape was foreseeable fails on Connelly s activity. third criterion the amount of prior criminal Durden does not identify any additional criminal activity other than Pernell s expressed desires to kill himself and others, which we have already excluded categorically that occurred prior to the rape and that should have alerted the Army that it was foreseeable that she would be attacked. Cf. Murrow, 364 S.E.2d at 397 98 ( The plaintiff presented evidence that one hundred incidents of criminal activity at the [relevant] intersection area had been reported to the sheriff s department [during the four and a half years leading up to the crime]. ); Connelly, 540 S.E.2d at 42 ( The evidence in this case . . . indicates that in the five years preceding the armed robbery . . . , one hundred instances of criminal activity bearing on the issue of foreseeability occurred at the [relevant] intersection. ); Urbano v. Days Inn of Am., Inc., 295 S.E.2d 240, 242 (N.C. Ct. App. 1982) (denying summary judgment on negligence claim where defendant knew of at least 42 episodes of criminal activity taking place on its motel premises during a period of three years preceding the date of plaintiff s injury, 16 and [a]t least 12 of the episodes occurred during the three and one half months preceding plaintiff s injury ). points to a single incident Pernell s Rather, Durden September 10, 2009 burglary and assault which is not sufficient in hindsight to render a future liability. attack foreseeable for purposes of landlord See Davenport, 718 S.E.2d at 191 (citing Anderson, 2011 WL 341709, at *3 ( A duty to evict . . . may arise . . . where there is a history of violence by one tenant against other tenants. (emphasis added))). Accordingly, Durden has failed to establish that Pernell s rape of her was foreseeable under North Carolina law, and thus the Army did not breach a duty owed to her as landlord of Fort Bragg. 2. In general, there is neither a duty to control the actions of a third party, nor to protect another from a third party. Scadden v. However, Holt, certain responsibility protection of circumstances. to 733 S.E.2d 90, [s]pecial take another, 92 Ct. relationships affirmative and (N.C. they action arise for only App. 2012). create the in aid a or narrow Bridges v. Parrish, 742 S.E.2d 794, 797 (N.C. 2013) (citation omitted) (internal quotation marks omitted). A special relationship can arise between the defendant and the 17 plaintiff, or tortfeasor. between the defendant and Scadden, 733 S.E.2d at 93 n.2. a third-party When the latter type of special relationship exists, there is a duty upon the actor to control the [tortfeasor s] conduct and to guard other persons against his dangerous propensities. King v. Durham Cnty. Mental Health Developmental Disabilities & Substance Abuse Auth., 439 S.E.2d 771, 774 (N.C. Ct. App. omitted) (internal quotation marks omitted). theory of negligence, then, is that the 1994) (citation Durden s second Army had a special relationship with Pernell, owed to her a duty to protect her from Pernell pursuant to that relationship, and breached that duty when Pernell raped her. Durden claims that the Army had a special relationship with Pernell insofar as the Army (1) [knew] or should [have] know[n] of [Pernell s] violent propensities and (2) ha[d] the ability and opportunity to control [Pernell] at the time that he raped Durden. Stein, 626 S.E.2d at 269 (setting forth the two-pronged test for a special relationship). Even assuming, arguendo, that Durden can satisfy both prongs of the special-relationship test and, moreover, that the government was negligent in failing to control Pernell, Durden s claim that the government is liable pursuant to the FTCA still fails. That is because [t]he ability and opportunity to control [a third party] must be more than mere physical ability to control. 18 Rather, it must rise to the level of custody, or legal right to control. S.E.2d at 93. Scadden, 733 The FTCA is clear, however, that the government is liable only under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. 28 U.S.C. § 1346(b)(1) (emphasis added). the Army s ability to control Pernell Thus, setting aside that attached solely pursuant to his employment status as a soldier, the Army must have had some other legal authority to control him. But Durden cannot demonstrate (nor has she alleged) that the Army had the ability to control Pernell pursuant to some legal authority independent of Pernell s employment status and, accordingly, the Army cannot be said to have a special relationship with him for purposes of an FTCA claim. See Stein, 626 S.E.2d at 269. Durden s second theory of negligence therefore also fails. 3. [U]nder render certain services to circumstances, another which one he who should undertakes to recognize as necessary for the protection of a third person, or his property, is subject to liability to the third person for injuries resulting from his failure to exercise reasonable care in such undertaking. Quail Hollow E. Condo. Ass n v. Donald J. Scholz Co., 268 S.E.2d 12, 15 (N.C. Ct. App. 1980). 19 Durden s final theory of negligence, then, is that by undertaking the task of monitoring and controlling Pernell following his release from civilian confinement, the Army voluntarily assumed a duty to protect her from Pernell and breached that duty when Pernell raped her. However, this theory of a duty fails for two reasons. First, Durden cannot demonstrate that the Army should have recognized that enforcing the October 22, 2009 orders, as Durden alleges, was necessary for the protection of others. On this issue, Lumsden v. United States, 555 F. Supp. 2d 580 (E.D.N.C. 2008), is instructive. In Lumsden, Marine corpsmen returned to the tortfeasor (also a corpsman) his vehicle after the vehicle was impounded when it was discovered that he was inhaling ether. Id. at 582. Upon the return of his vehicle, the corpsman became intoxicated on ether that remained in his vehicle and, as a result, he injured the plaintiffs and killed one other person. Id. The court denied the government s motion to dismiss the plaintiffs FTCA claim and allowed the lawsuit to proceed on a general negligence theory. See id. at 589 90. Specifically, the court noted that, If the plaintiffs can show that the Government s agents knew or had reason to know that upon being provided the keys to his car and a canister of ether, [the corpsman] would become intoxicated at his first opportunity and immediately would attempt to drive on a public street while so intoxicated, then the agents 20 behavior thus triggers duty [because] both unreasonable and foreseeable. the risk is Id. at 589 (second alteration in original) (quoting Mullis v. Monroe Oil Co., 505 S.E.2d 131, 136 37 (N.C. 1998)). In contrast to the tortfeasor in Lumsden, Pernell had been released from civilian confinement for more than six weeks prior to raping Durden, and there is nothing in the record to indicate that the Army should have known that Pernell was a threat to Durden s safety based solely on the September 10, 2009 incident or his prior expressed desires to kill himself and members of his unit. At the time that Pernell raped Durden, the Army had no reason to suspect that Pernell committed the burglaries and sexual assaults that occurred in 2008 and 2009 in Fayetteville; indeed, it was only after Pernell raped Durden and became a suspect in that rape that authorities also identified him as being involved in the prior incidents. It might be a different case if the Army knew that it was one of its own soldiers, and Pernell specifically, that committed the 2008 and 2009 sexual assaults in Fayetteville. Under those circumstances, the Army may have had reason to know that Pernell was a serial offender and thus owed to Durden a duty to control Pernell upon his release from civilian confinement. Cf. id. at 582 ( [T]he Marine Corps, through its agents or officers, were aware that [the tortfeasor] had, on several occasions, acquired and inhaled the 21 chemical compound, (emphasis added)). ether, belonging to the Government. Durden does not dispute, however, that the Army did not become aware that Pernell was involved with the 2008 and 2009 crimes until after Pernell raped her. Second, Durden has not presented any authority suggesting that, under similar circumstances, a private person in North Carolina would be found to have owed a duty of ordinary care to persons in [Durden s] position. § 1346(b)(1) (holding circumstances where would be liable ). the the Id. at 589 90; see 28 U.S.C. government United liable States, if a only under private person, Stated otherwise, Durden has presented no authority suggesting that Pernell s September 10, a private person even 2009 burglary and knowing assault, of Pernell s expressed desires to kill himself and members of his unit, and Pernell s frequent drug and alcohol abuse would have been required (or permitted, for that matter) by law to place Pernell under twenty-four-hour surveillance and to confine him to his barracks or a civilian equivalent thereto. To hold otherwise would render every private individual liable for the intentional torts of another person against unknown third parties simply because the individuals knew that the tortfeasor abused alcohol and drugs and committed a violent crime at some point in the past. 22 Accordingly, Durden s argument that the government breached a voluntarily assumed duty to protect her fails. C. Durden also argues that [t]he District Court abused its discretion by transforming the [Rule] 12(b)(1) motion into a judgment on the merits without the opportunity for discovery or cross-examination of the witnesses making affidavits, and especially where the jurisdictional question and the merits of the appellant s claim were intertwined. seeks discovery pertaining primarily In particular, Durden to what Pernell s commanding officers knew regarding Pernell s allegedly violent propensities and the extent of the restrictions placed upon him. But Durden has failed to set forth what additional information might be uncovered through discovery beyond the statements in Pernell s affidavit and, moreover, how that information might render the government liable under any of her three theories of negligence. For even if Durden were granted the discovery that she requests, and even if her allegations regarding the orders given by Pernell s commanding officer were confirmed, her theories of negligence would still fall short of the Army being liable for her injuries. Accordingly, the district court did not abuse its discretion by ruling on the government s motion without granting discovery to Durden. 23 See Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 03 (4th Cir. 2003) (standard of review for decisions regarding jurisdictional discovery). First, with respect to Durden s theory of negligence based on landlord liability, Durden does not seek discovery regarding the Army s knowledge of any and all incidents of prior criminal activity on Fort Bragg that might render Pernell s rape of Durden foreseeable under North Carolina law, see Connelly, 540 S.E.2d at 41; rather, Durden s discovery requests pertain to the full extent of [the] awareness [of Pernell s commanding officer], or the awareness of others in the chain of command, of the dangerous propensities of Pernell, and any regulations, procedures, and policies regarding the duties of the [Army] as landlord. But Durden has not shown how information pertaining to Pernell, specifically, and military policy, generally, comes to bear on the foreseeability of a rape on Fort Bragg. See id. (foreseeability determined by prior criminal activity, which is limited to [1] the location where the prior crimes occurred, [2] the type of prior crimes committed, and [3] the amount of prior criminal activity ). Second, with respect to Durden s theory of negligence based on a special relationship between the Army and Pernell, Durden simply has not demonstrated how factfinding would assist her in developing a new legal theory under 24 which the Army had the ability to control Pernell independent soldier (i.e., government employee). from his status as a See Scadden, 733 S.E.2d at 93; see also 28 U.S.C. § 1346(b)(1). And third, with respect to Durden s theory of negligence pursuant to a voluntarily assumed duty, Durden has not set forth what additional Pernell prior information to the Army might and rape the that she have might known learn discovery that would render the government liable. about during Presumably, Pernell made known in his affidavit all facts relevant to his criminal history minimum, Durden and any would criminal history. propensity have alleged for that violence Pernell or, had at a such a Discovery, then, would serve the purpose of determining whether the Army knew of Pernell s criminal history; however, discovery is not for the purpose of learning new information about Pernell that the Army would have had no reason to know or undisputedly did not know prior to Pernell s rape of Durden. Pernell s affidavit does not state that he committed any prior crimes that should have put the Army on notice that he was a serial offender, and Durden does not dispute the government s claim that it was only after Pernell raped Durden and gave a DNA sample that Pernell was linked to the 2008 and 2009 burglaries although and Durden s sexual claim assaults that in relevant Fayetteville. evidence is Thus, held exclusively within the walls of the defendant might be true 25 with respect to what the Army knew about Pernell prior to the rape, Durden has not put forth any facts or information about Pernell that instance she and believes that she that the would Army knew by way know in the of first Pernell. Accordingly, discovery would serve no purpose, and it was not error for the district court to reach the merits of Durden s claim at this stage of the litigation. III. As an alternative basis for dismissing Durden s complaint, the district knowledge government court of held Pernell s employment that the allegedly was fact that violent enough to the Army propensity nullify via Durden s pursuant to the FTCA s intentional-tort exception. gained his claims The district court overstated the exception s reach, however, and therefore we conclude that the district court erred in dismissing Durden s complaint on this alternative basis. The FTCA carves out an exception to its own general waiver of immunity that bars recovery for [a]ny claim arising out of assault[] [or] battery. 28 U.S.C. § 2680(h). The Supreme Court defined the scope of the intentional-tort exception in Sheridan v. United States, 487 U.S. 392 (1988). In Sheridan, three naval corpsmen encountered the tortfeasor, also a naval employee, in a drunken stupor 26 in the hallway of a naval hospital. Id. at 394 95. The corpsmen attempted to take [the tortfeasor] to the emergency room, but he broke away, grabbing [his] bag and revealing the barrel of the rifle. Id. at 395. The corpsmen then fled from the scene and took no further action to restrain the tortfeasor or to alert authorities that tortfeasor was intoxicated and in possession of a firearm. the Id. The tortfeasor later shot and injured one of the plaintiffs and damaged the plaintiffs vehicle. the government by way of the Id. three The plaintiffs then sued corpsmen for negligently allowing the tortfeasor to leave the hospital with a gun while obviously intoxicated. Id. at 393 94. The district court in Sheridan dismissed the plaintiffs complaint as barred by the intentional-tort exception, and this Court affirmed, holding that § 2680(h) bars actions alleging negligence of the supervising employees when the underlying tort is an assault or battery by a government employee. Sheridan v. United States, 823 F.2d 820, 823 (4th Cir. 1987). The Supreme Court, however, reversed and allowed the plaintiffs claim against the government to proceed, reasoning that the mere fact that [the tortfeasor] happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if [he] had been an unemployed civilian patient or visitor in the hospital. Indeed, in a case in which the employment status of the assailant has nothing to do with the basis for imposing liability on the Government, it would seem perverse to exonerate 27 the Government because of the happenstance that [the tortfeasor] was on a federal payroll. Sheridan, 487 U.S. at 402. Here, the district court below held that, unlike in Sheridan where the drunken tortfeasor s status as a government employee was wholly irrelevant to imposing liability on the government for the corpsmen s negligence Pernell s status as a government employee was a but-for element of Durden s negligence claim, thus barring the claim. held that tendency even to if the commit Specifically, the district court government s criminal acts knowledge made of Pernell s Pernell s assaulting Durden foreseeable to the government before December 13, 2009, section 2680(h) jurisdiction. still After negates all, the the court s government subject only matter acquired such knowledge in the course of Pernell s employment. Durden, 2012 WL government s 3834934, knowledge stemmed of at *9; id. [Pernell s] solely government s see from breach tendency [his] of ( [B]ecause any to commit government duty owed the to criminal acts employment, the [Durden] was not independent of the employment relationship. (citing Bajkowski v. United States, 787 F. Supp. 539, 541 42 (E.D.N.C. 1991) ( If [the tortfeasor] were not an employee of the Army, the Army would not have had . . . knowledge of his prior criminal and assaultive behavior . . . . ))). 28 The same could be said, however, about the corpsmen s knowledge of the intoxicated tortfeasor in Sheridan: presumably, the corpsmen alleged to have acted negligently would not have been present in the naval hospital that night and thus would not have gained knowledge of the drunken tortfeasor and put themselves in a position to be negligent in the first instance were it not for their government employment. Accordingly, ability (i.e., we legal hold that, duty) to although control a the government s tortfeasor must be independent of the tortfeasor s status as a government employee, knowledge of the tortfeasor s propensity for violence or criminal history gained as a result of such status does not, per se, nullify an FTCA claim. The district court s dismissal on this alternative basis was therefore erroneous. IV. For the reasons set forth above, we affirm the district court s grant of summary judgment to the government. AFFIRMED 29
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
