Durden v. United States, No. 12-2212 (4th Cir. 2013)Annotate this Case
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.