Taylor v. USA CV-95-127-M 10/19/95 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Richard Tavlor, Plaintiff,

v. Civil No. 95-127-M

United States of America, Defendant.

O R D E R

Plaintiff, Richard Taylor, brings this action against the

United States of America, alleging jurisdiction under the Federal

Tort Claims Act (the "FTCA"),

(b), 2671 et seq.

He claims that the government's negligent supervision of its

military personnel and eguipment proximately caused him to

sustain physical and emotional injuries. He also asserts that

the government is liable to him for intentional infliction of

emotional distress. The government moves for partial dismissal

of plaintiff's claims, arguing that the court lacks subject

matter jurisdiction. See Fed.R.Civ.P. 12(b)(1). For the reasons

set forth below, the government's motion for partial dismissal is

granted.

Standard of Review A motion to dismiss under Fed.R.Civ.P. 12(b)(1) challenges

the statutory or Constitutional authority of the court to

adjudicate a particular case. FDIC v. Pearson, No. 92-174-JD,

at *4 (D.N.H. 1994). In determining

whether it has jurisdiction, the court will construe the

allegations in the complaint in the light most favorable to the

plaintiff. Scheuer v. Rhodes,

(1974) . The

court may also consider evidence outside the pleadings, such as

affidavits, without converting a 12(b)(1) motion to dismiss into

a motion for summary judgment. Richmond, F. & P. R.R. v. United

States,

, 768 (4th Cir. 1991), cert, denied,

(1992); Lawrence v. Dunbar,

(11th Cir.

1990). Finally, in the context of a motion to dismiss for lack

of subject matter jurisdiction, the court must be "mindful that

the party invoking the jurisdiction of a federal court carries

the burden of proving its existence." Taber Partners, I v. Merit

Builders,

, 60 (1st Cir.), cert, denied,

(1993) .

Background

Construing all reasonable inferences from the facts pled in

the complaint in plaintiff's favor, the pertinent facts appear as

follows. In 1991, plaintiff was a member of the Cadet Rangers of

2 America ("CRA"), a non-profit corporation organized under the

laws of the State of New Hampshire "to develop character,

physical fitness, leadership qualities and love of country in our

youth." CRA Articles of Agreement. Roland Forest was president

of CRA and Keith Morrissette was a member of its board of

directors. Forest was also a member of the U.S. Army Selected

Reserve. Morrissette was a member of the Individual Ready

Reserve, which is comprised of individuals who are "liable for

order to active duty to augment the active forces in time of war

or national emergency."

(4). See also Kolkhorst

v. Tilqhman,

, 1283 (4th Cir. 1990), cert, denied,

(1992);

.

On the weekend of August 16, 1991, plaintiff participated in

a CRA-sponsored weekend retreat, lead by Morrissette and Forest.

One purpose of the retreat was to provide the cadets with mock

prisoner of war training. To facilitate that exercise,

Morrissette and/or Forest obtained certain equipment from the

U.S. Army, including "deuce and 1/2" trucks, M-16 rifles

(presumably not capable of firing live rounds), gas masks, and

dummy grenades. While it is unclear whether the Army actually

authorized Forest or Morrissette to use this equipment, it was

the Army's policy to permit nonprofit community groups to use

3 some of its facilities and equipment. In fact, the CRA had used

the U.S. Army Reserve Center in the past as a meeting place to

coordinate off-site activities.

The retreat took place at Temple Mountain, at a facility

neither owned nor controlled by the Army. During the course of

that weekend. Forest and Morrissette subjected plaintiff to

physical and sexual abuse. Both Morrissette and Forest were

subsequently indicted on a variety of felonies and misdemeanors

associated with the weekend's events. Eventually, Morrissette

pled guilty to criminal restraint and endangering the welfare of

a minor and Forest pled guilty to criminal restraint and simple

assault. Both were sentenced to terms of imprisonment.

Plaintiff asserts that the United States Army is liable for

injuries he sustained during (and following) the weekend in

question because: (i) Forest and Morrissette were government

employees acting within the scope of their employment; (11) the

government permitted the CRA to meet at one of its Reserve

Centers and provided the CRA with various military equipment; and

(ill) the government breached its duty to provide reasonable

supervision of its employees and equipment and, thereby,

proximately caused his injuries (Count I). Plaintiff also claims

4 that the government is liable for intentional infliction of

emotional distress (Count II).

Discussion

I. The Federal Tort Claims Act.

It is well settled that the United States, as sovereign, is

immune from suit except as it consents to be sued. United States

v. Sherwood,

(1941). The FTCA provides a

limited waiver of the sovereign's immunity from suit, Corte-Real

v. United States,

(1st Cir. 1991), and grants

district courts exclusive jurisdiction over:

civil actions or 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.

(b). Other provisions of the FTCA, however, limit

its waiver of sovereign immunity. For example, the government is

not liable for "any claim arising out of assault, battery, [or]

false imprisonment, . . .."

(h).

5 Under the FTCA, the government's liability, if any, for the

tortious conduct of its employees is governed by state law.

Determination of whether an individual is an employee of the

government is, however, a guestion of federal law. Brooks v. A.

R. & S. Enterprises, Inc.,

(1st Cir. 1980). The

FTCA provides that the phrase "employee of the government"

includes:

members of the military or naval forces of the United States, members of the National Guard while engaged in training or duty . . .

"Acting within the scope of his office or employment", in the case of a member of the military or naval forces . . . means acting in line of duty.

(emphasis added).

II. Count I - Negligent Supervision.

Count I of the complaint alleges, in part, that the

government had a duty to oversee and supervise the conduct of

Forest and Morrissette during the weekend retreat and that by

breaching that duty, it facilitated the abuse of plaintiff.

Plaintiff claims that the government's failure to adeguately

supervise Forest and Morrissette proximately caused the injuries

for which he now seeks compensation.

6 The government responds by claiming that despite his

membership in the Individual Ready Reserve ("IRR"), Morrissette

was not its employee at any time relevant to this proceeding.

Therefore, it asserts that it cannot be held liable for his

wrongful conduct. With regard to Forest, the government claims

that he was not acting within the scope of his employment when he

assaulted plaintiff. Accordingly, it argues that plaintiff's

claim does not fit within the limited waiver of sovereign

immunity provided by the FTCA.

For purposes of addressing the government's motion to

dismiss, the court will assume, without deciding, that both

Forest and Morrissette were employees of the government at all

times pertinent to this proceeding.1 The relevant inguiry then

becomes whether Forest or Morrissette was "acting in line of

duty" when plaintiff was assaulted.

. As the

court of appeals for this circuit has noted:

1 Although done in somewhat less than clear terms, plaintiff appears to concede that Morrissette was not a federal employee in August of 1991. Plaintiff's Objection to Motion for Partial Dismissal at 54. However, because Morrissette's employment status has no bearing on the outcome on the pending motion, the court need not, at this time, determine whether members of the IRR are federal employees for the purposes of the FTCA.

7 It is settled that the phrase "acting in line of duty," while having a military sound, and, apparently, a different meaning in connection with benefit claims of military personnel against the government, with respect to the Tort Claims Act merely invokes the state law of respondeat superior.

Merritt v. United States,

(1st Cir. 1964).

The acts forming the basis of plaintiff's complaint occurred

in New Hampshire. Accordingly, the court will apply New

Hampshire's law of respondeat superior, which provides that "[i]f

the act causing the injury is connected with or grows out of the

service the servant is doing, the latter is within the scope of

his employment and the master is liable." Richard v. Amoskeaq

M fq. C o .,

(1920). More recently, the New

Hampshire Supreme Court adopted section 228 of the Restatement

(Second) Agency and noted:

behavior within the scope of employment must be actuated at least in part by an object to serve the employer. Restatement, supra §228(1)(c), and this view accords with an earlier statement of the New Hampshire rule that the act must have been performed in "furtherance" of the employer's business.

Daigle v. City of Portsmouth,

(1987). Section

228 of the Restatement provides:

(1) Conduct of a servant is within the scope of employment if, but only if: (a) it is of the kind he is employed to perform;

(b) it occurs substantially within the authorized time and space limits;

(c) it is actuated, at least in part, by a purpose to serve the master; and

(d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master.

(2) Conduct of a servant is not within the scope of employment if it is different in kind from that authorized, far beyond authorized time or space limits, or too little actuated by a purpose to serve the master.

Restatement (Second) Agency §228.

Here, it is plain that neither Forest nor Morrissette was

acting within the scope of his employment (if any) by the Army

when he assaulted plaintiff. First, leading a retreat sponsored

by a private, non-profit youth organization such as the CRA was

not the kind of activity for which the government employed Forest

and Morrissette. Restatement (Second) Agency, §228(1) (a).

Second, the conduct of Forest and Morrissette described in the

complaint did not occur "substantially within the authorized time

and space limits." Restatement (Second) Agency, §228(1) (b) .

Neither Forest nor Morrissette was on duty on the weekend in

guestion and their participation in CRA activities was strictly

voluntary and was accomplished on their own time. See DeFusco Declaration at 3; Lane Declaration at 5. Moreover, the assault

on plaintiff did not occur on government property, or at a duty

station to which either Forest or Morrissette had been assigned,

or at a location to which either had been authorized to travel on

behalf of the government. Id.

Third, plaintiff has failed to demonstrate (or even allege)

that the conduct of Forest or Morrissette was "actuated, at least

in part, by a purpose to serve the [ g o v e r n m e n t ] R e s t a t e m e n t

(Second) Agency, §288(1)(c). Because the tortious actions of

Forest and Morrissette were "part of non-official, voluntary

activities, [they] were not done with an intention to perform as

part of or incident to services on account of which the members

of the military were employed." Hallett v. United States,

(D.Nev. 1995) (citing Restatement (Second)

Agency, §235) .

Based upon the foregoing, the court concludes that plaintiff

has failed to demonstrate that Forest and/or Morrissette was

acting within the scope of his employment when plaintiff was

assaulted or that the government might be liable on a theory of

respondeat superior. Accordingly, plaintiff has failed to carry

his burden of demonstrating that the court has jurisdiction over

10 that portion of Count I which alleges negligent supervision of

military personnel.

Even assuming, however, that the court found Forest and/or

Morrissette to be acting within the scope of his federal

employment during the weekend retreat, dismissal of plaintiff's

negligent supervision of personnel count would still be

appropriate because it is barred by the assault and battery

exception to the FTCA.

(h). Although plaintiff

attempts to avoid application of the FTCA's assault and battery

exception by pleading negligent supervision, that claim "arises

out of" an assault and battery (and conceivably, false

imprisonment) and is, therefore, barred.

(h).

Here, as in United States, v. Shearer,

(1985),

plaintiff cannot circumvent the provisions of section 2680(h) by

recasting an assault and battery claim as one for negligent

supervision:

The Federal Tort Claims Act's waiver of sovereign immunity does not apply to "[a]ny claim arising out of assault [or] battery,"

(h), and it is clear that respondent's claim arises out of the battery committed by Private Heard. No semantical recasting of events can alter the fact that the battery was the immediate cause of Private Shearer's death and, conseguently, the basis of respondent's claim.

11 Respondent cannot avoid the reach of §2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or battery; in sweeping language it excludes any claim arising out of assault or battery. We read this provision to cover claims like respondent's that sound in negligence but stem from a battery committed by a Government employee. Thus "the express words of the statute" bar respondent's claim against the Government.

United States, v. Shearer,

(1985) (citation

omitted) (emphasis in original).

The facts of this case readily distinguish it from Sheridan

v. United States,

(1988), in which the court held

that the plaintiff's negligence claim was not barred by section

2680(h). In Sheridan, the plaintiff was injured by the tortious

conduct (assault and battery) of an intoxicated off-duty

serviceman, wielding a firearm. The court recognized, however,

that the plaintiff's negligent supervision claim against the

government arose from the government's alleged breach of an

independent duty which the government had voluntarily assumed

with regard to the plaintiff; the claim was not based on

respondeat superior liability for the intentional torts committed

by a federal employee:

The tortious conduct of an off-duty serviceman, not acting within the scope of his office or employment, does not in itself give rise to Government liability

12 whether that conduct is intentional or merely negligent.

As alleged in this case, however, the negligence of other Government employees who allowed a foreseeable assault and battery to occur may furnish a basis for Government liability that is entirely independent of [the serviceman's] employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that reguire all personnel to report the presence of any such firearm, and by further voluntarily undertaking to provide care to a person who was visibly drunk and visibly armed, the Government assumed responsibility to "perform its 'good Samaritan1 task in a careful manner."

(citation omitted) (emphasis added) .

In Sheridan, the Supreme Court recognized that one category

of assault and battery cases escapes the preclusive effect of

section 2680(h). "Specifically, when a negligence claim against

the government arises out of an incident of battery but is in no

way contingent on the perpetrator's federal employment status,

i.e., when the government's liability is based on its breach of a

duty owed the victim that is independent of its relationship, if

any, to the perpetrator, §2680(h) does not bar recovery under the

FTCA." Franklin v. United States,

(10th Cir.

1993). Justice Kennedy made this point clear in his concurring

opinion in Sheridan:

To determine whether a claim arises from an intentional assault or battery and is therefore barred by the

13 exception, a court must ascertain whether the alleged negligence was the breach of a duty to select or supervise the employee-tortfeasor or the breach of some separate duty independent from the employment relation. If the allegation is that the Government was negligent in the supervision or selection of the employee and that the intentional tort occurred as a result, the intentional tort exception of §2680(h) bars the claim.

Sheridan v. United States,

(Kennedy, J.,

concurring).

Plaintiff has failed to direct the court to any regulations

or policies adopted by the government which would arguably give

rise to an independent duty to protect plaintiff from foreseeable

risks associated with attending the CRA weekend retreat to Temple

Mountain. Accordingly, the exception to section 2680(h)

articulated by the court in Sheridan is inapplicable and

plaintiff's negligent supervision claim is barred. See, e.g.,

Truman v. United States,

(5th Cir. 1994) ("If

the conduct upon which a claim is based constitutes a claim

'arising out o f 1 any one of the torts listed in section 2680(h),

then the federal courts have no jurisdiction to hear that claim.

Even if a Plaintiff styles a claim so that it is not one that is

enumerated in section 2680(h), the Plaintiff's claim is still

barred 'when the underlying governmental conduct essential to the

Plaintiff's claim can fairly be read to arise out of conduct that

14 would establish an excepted cause of action.'"); Baikowski v.

United States,

(E.D.N.C. 1991) ("The

[Sheridanl Court did not, however, challenge the [proposition] .

. . that negligent supervision claims fall within the assault-

and-battery exception. . . . Government liability here is not

'premised on something other than the employment relationship,1

and Plaintiff's claim falls sguarely within section 2680(h).").

III. Count II - Intentional Infliction of Emotional Distress.

Unlike claims for assault, battery, and false imprisonment,

an action against the government for intentional infliction of

emotional distress is not barred by section 2680(h). "And even

in the case where the facts of the complaint might give rise to

similar torts, 'the partial overlap between two tort actions does

not support the conclusion that if one is excepted under the Tort

Claims Act the other must be as well.1" Santiaao-Ramirez v.

Secretary of Dept, of Defense,

(1st Cir. 1993)

(citations omitted).

As with Count I, the government's liability, if any, with

regard to plaintiff's claim for intentional infliction of

emotional distress is determined under New Hampshire law.

(b). For the reasons set forth above, even

15 assuming that Forest and Morrissette were government employees in

August, 1991, plaintiff cannot prevail against the government on

a theory of respondeat superior. In fact, plaintiff concedes as

much. Plaintiff's Objection, at 57.

Instead, plaintiff claims that he has stated a viable claim

against the government based upon "the breach of independent

duties of the United States, which resulted in the intentional

infliction of emotional distress on the plaintiff by a government

employee." Plaintiff's Objection, at 57. Apparently, Count II

of the complaint is based upon the allegation that the government

negligently failed to supervise its military personnel and

eguipment which failure led to the intentional infliction of

emotional distress upon plaintiff.

Under New Hampshire law, however, such a claim fails as a

matter of law. In Morancv v. Morancv,

(1991), the

New Hampshire Supreme Court recognized the tort of intentional

infliction of emotional distress and adopted section 46 of the

Restatement (Second) of Torts, which provides:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

16 Morancv,

(quoting Restatement (Second) of Torts

§46) (emphasis added). In order to avoid dismissal, plaintiff

must allege that a tortfeasor acted intentionally or recklessly,

proximately causing his injuries and that the government is

liable for his resulting damages. Because plaintiff is, by his

own admission, not proceeding on a theory of respondeat superior,

the fact that Forest and Morrissette may have acted intentionally

or recklessly is not relevant; plaintiff is not seeking to hold

the government vicariously liable for the intentional torts of

Forest and Morrissette.

In order to prevail, therefore, plaintiff must articulate

some scenario under which the government -- the purported

tortfeasor -- acted intentionally or recklessly and proximately

caused his injuries. Plaintiff has failed to do so. At best, he

alleges that the government was negligent in performing some ill-

defined duty to protect him from foreseeable risks associated

with participating in the CRA weekend retreat. Under New

Hampshire law, one cannot be held liable on a theory of

intentional infliction of emotional distress for mere negligence;

the defendant's conduct must be intentional or, at a minimum,

reckless. See Restatement (Second) of Torts, §46, comment i

("The rule stated in this Section applies where the actor desires

17 to inflict severe emotional distress, and also where he knows

that such distress is certain, or substantially certain, to

result from his conduct. It applies also where he acts

recklessly, as that term is defined in §500, in deliberate

disregard of a high degree of probability that the emotional

distress will follow.").

Conseguently, Count II of the complaint fails to state a

claim under New Hampshire law, is outside the scope of the

government's limited waiver of sovereign immunity, and must be

dismissed for lack of subject matter jurisdiction.

Conclusion

For the foregoing reasons, that portion of Count I which

purports to state a claim for negligent supervision of military

personnel is dismissed for lack of subject matter jurisdiction.

Likewise, Count II is dismissed in its entirety. Defendant's

Motion for Partial Dismissal (document no. 4) is granted.

18 SO ORDERED.

Steven J. McAuliffe United States District Judge

October 19, 1995

cc: Gary Casinghino, Esq. Gretchen Leah Witt, Esq.

19