An obviously intoxicated off-duty serviceman (Carr) fired several rifle shots into petitioners' automobile on a public street near the Bethesda Naval Hospital where Carr worked, causing physical injury to one of the petitioners and damage to the car. Petitioners filed suit against the Government under the Federal Tort Claims Act (FTCA) in Federal District Court, alleging that their injuries were caused by the Government's negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The facts, as alleged in the complaint and as supplemented by discovery, were that, after finishing his work shift, Carr consumed a large amount of alcoholic beverages; that naval corpsmen found him in a drunken stupor in a hospital building and attempted to take him to the emergency room; that the corpsmen fled when they saw a rifle in his possession; that the corpsmen neither took further action to subdue Carr nor alerted the appropriate authorities that he was intoxicated and brandishing a weapon; and that he fired the shots into petitioners' car later that evening. The District Court dismissed the action on the ground that the claim was barred by the FTCA's intentional tort exception, 28 U.S.C. 2680(h), which provides that the Act's provisions subjecting the Government to liability for the negligent or wrongful act or omission of a Government employee while acting within the scope of his employment shall not apply to any claim "arising out of" an assault or battery. The court rejected petitioners' argument that 2680(h) was not applicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The Court of Appeals affirmed.
Petitioners' claim is not barred by 2680(h). Although the words "any claims arising out of" an assault or battery are broad enough to bar all claims based entirely on an assault or battery, in at least some situations the fact that injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Cf. United States v. Muniz, 374 U.S. 150 . Even assuming that, when an intentional tort is a sine qua non of recovery, the action "arises out of" that tort, nevertheless the 2680(h) exception does not bar recovery in this case. The intentional tort exception is inapplicable [487 U.S. 392, 393] to torts that fall outside the scope of the FTCA's general waiver of the Government's immunity from liability. Since the FTCA covers actions for personal injuries caused by the negligence or wrongful act or omission of any Government employee "while acting within the scope of his office or employment," if nothing more was involved here than Carr's conduct at the time he shot at petitioners, there would be no basis for imposing liability on the Government. 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 Carr's employment status. Assuming that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person, the mere fact that Carr happened to be an off-duty federal employee would not provide a basis for protecting the Government from liability that would attach if Carr had been a non-Government employed patient or visitor in the hospital. The fact that Carr's behavior is characterized as an intentional assault rather than a negligent act is also irrelevant. Pp. 398-403.
823 F.2d 820, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. WHITE, J., filed a concurring opinion, post, p. 403. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 404. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 408.
Michael J. Kator argued the cause for petitioners. With him on the briefs was Irving Kator.
Christopher J. Wright argued the cause for the United States. With him on the brief were Solicitor General Fried, Assistant Attorney General Bolton, Deputy Solicitor General Ayer, and Anthony J. Steinmeyer. *
[ Footnote * ] Briefs of amici curiae urging reversal were filed for George Bennett et al. by Roy B. Ward, Martha Blue, and Dale Itschner; and for John Doe One et al. by James P. Cunningham.
JUSTICE STEVENS delivered the opinion of the Court.
On February 6, 1982, an obviously intoxicated off-duty serviceman named Carr fired several rifle shots into an automobile being driven by petitioners on a public street near the [487 U.S. 392, 394] Bethesda Naval Hospital. Petitioners brought suit against the United States alleging that their injuries were caused by the Government's negligence in allowing Carr to leave the hospital with a loaded rifle in his possession. The District Court dismissed the action - and the Court of Appeals affirmed - on the ground that the claim is barred by the intentional tort exception to the Federal Tort Claims Act (FTCA or Act). The question we granted certiorari to decide is whether petitioners' claim is one "arising out of" an assault or battery within the meaning of 28 U.S.C. 2680(h). 1
When it granted the Government's motion to dismiss, the District Court accepted petitioners' version of the facts as alleged [487 U.S. 392, 395] in their complaint and as supplemented by discovery. That version may be briefly stated. After finishing his shift as a naval medical aide at the hospital, Carr consumed a large quantity of wine, rum, and other alcoholic beverages. He then packed some of his belongings, including a rifle and ammunition, into a uniform bag and left his quarters. Some time later, three naval corpsmen found him lying face down in a drunken stupor on the concrete floor of a hospital building. They attempted to take him to the emergency room, but he broke away, grabbing the bag and revealing the barrel of the rifle. At the sight of the rifle barrel, the corpsmen fled. They neither took further action to subdue Carr, nor alerted the appropriate authorities that he was heavily intoxicated and brandishing a weapon. Later that evening, Carr fired the shots that caused physical injury to one of the petitioners and property damage to their car.
The District Court began its legal analysis by noting the general rule that the Government is not liable for the intentional torts of its employees. The petitioners argued that the general rule was inapplicable because they were relying, not on the fact that Carr was a Government employee when he assaulted them, but rather on the negligence of other Government employees who failed to prevent his use of the rifle. The District Court assumed that the alleged negligence would have made the defendant liable under the law of Maryland, and also assumed that the Government would have been liable if Carr had not been a Government employee. Nevertheless, although stating that it was "sympathetic" to petitioners' claim, App. to Pet. for Cert. 26a, it concluded that Fourth Circuit precedents required dismissal because Carr "happens to be a government employee rather than a private citizen," id., at 23a.
The Court of Appeals affirmed. 823 F.2d 820 (CA4 1987). Like the District Court, it concluded that the Circuit's prior decisions in Hughes v. United States, 662 F.2d 219 (CA4 1981) (per curiam), and Thigpen v. United States, 800 F.2d 393 [487 U.S. 392, 396] (CA4 1986), 2 foreclosed the following argument advanced by petitioners:
The FTCA gives federal district courts jurisdiction over 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). However, among other limitations, the Act also provides that this broad grant of jurisdiction "shall not apply to . . . [a]ny claim arising out of assault, battery" or other specified intentional torts. 28 U.S.C. 2680(h).
The words "any claim arising out of" an assault or battery are unquestionably broad enough to bar all claims based entirely on an assault or battery. The import of these words is less clear, however, when they are applied to a claim arising out of two tortious acts, one of which is an assault or battery and the other of which is a mere act of negligence. Nonetheless, it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur. Thus, [487 U.S. 392, 399] in United States v. Muniz, 374 U.S. 150 (1963), we held that a prisoner who was assaulted by other inmates could recover damages from the United States because prison officials were negligent in failing to prevent the assault that caused his injury. 4
Two quite different theories might explain why Muniz' claim did not "arise out of" the assault that caused his injuries. First, it might be assumed that since he alleged an independent basis for tort liability - namely, the negligence of the prison officials - the claim did not arise solely, or even predominantly, out of the assault. Rather, the attention of the trier of fact is focused on the Government's negligent act or omission; the intentional commission is simply considered as part of the causal link leading to the injury. Under this view, the assailant's individual involvement would not give rise to Government liability, but antecedent negligence by Government agents could, provided of course that similar negligent conduct would support recovery under the law of the State where the incident occurred. See Note, Section 2680(h) of the Federal Tort Claims Act: Government Liability for the Negligent Failure to Prevent an Assault and Battery by a Federal Employee, 69 Geo. L. J. 803, 822-825 (1981) (advocating this view and collecting cases). [487 U.S. 392, 400]
In response to this theory, the Government argues that the "arising out of" language must be read broadly and that the Sheridans' negligence claim is accordingly barred, for in the absence of Carr's assault, there would be no claim. We need not resolve this dispute, however, because even accepting the Government's contention that when an intentional tort is a sine qua non of recovery the action "arises out of" that tort, we conclude that the exception does not bar recovery in this case. We thus rely exclusively on the second theory, which makes clear that the intentional tort exception is simply inapplicable to torts that fall outside the scope of 1346(b)'s general waiver.
This second explanation for the Muniz holding, which is narrower but not necessarily inconsistent with the first, adopts Judge (later Justice) Harlan's reasoning in Panella v. United States, 216 F.2d 622 (CA2 1954). In that case, as in Muniz, a prisoner claimed that an assault by another inmate had been caused by the negligence of federal employees. After recognizing that the "immunity against claims arising out of assault and battery can literally be read to apply to assaults committed by persons other than government employees," id., at 624, his opinion concluded that 2680(h) must be read against the rest of the Act. The exception should therefore be construed to apply only to claims that would otherwise be authorized by the basic waiver of sovereign immunity. Since an assault by a person who was not employed by the Government could not provide the basis for a claim under the FTCA, the exception could not apply to such an assault; rather, the exception only applies in cases arising out of assaults by federal employees.
In describing the coverage of the FTCA, Judge Harlan emphasized the statutory language that was critical to his analysis. As he explained, the Act covers actions for personal injuries "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 . . . (Italics supplied)." [487 U.S. 392, 401] Id., at 623. We need only move the emphasis to the next phrase - "while acting within the scope of his office or employment" - to apply his analysis to the assault and battery committed by the off-duty, inebriated enlisted man in this case. If nothing more was involved here than the conduct of Carr at the time he shot at petitioners, there would be no basis for imposing liability on the Government. 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 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 Carr's employment status. By voluntarily adopting regulations that prohibit the possession of firearms on the naval base and that require all personnel to report the presence of any such firearm, 5 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 Samaritan' task in a careful manner." Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955). The District Court and the Court of Appeals both assumed that petitioners' version of the facts would support recovery under Maryland law on a negligence theory if the naval hospital had been owned and operated by a private person. Although the Government now disputes this assumption, it is not our practice to re-examine a question of state law of that kind or, without good reason, to pass upon it in the first instance. 6 See Cort v. [487 U.S. 392, 402] Ash, 422 U.S. 66, 73 , n. 6 (1975). On this assumption, it seems perfectly clear that the mere fact that Carr happened to be an off-duty federal employee should not provide a basis for protecting the Government from liability that would attach if Carr 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 the Government because of the happenstance that Carr was on a federal payroll. 7 [487 U.S. 392, 403]
In a case of this kind, 8 the fact that Carr's behavior is characterized as an intentional assault rather than a negligent act is also quite irrelevant. If the Government has a duty to prevent a foreseeably dangerous individual from wandering about unattended, it would be odd to assume that Congress intended a breach of that duty to give rise to liability when the dangerous human instrument was merely negligent but not when he or she was malicious. In fact, the human characteristics of the dangerous instrument are also beside the point. For the theory of liability in this case is analogous to cases in which a person assumes control of a vicious animal, or perhaps an explosive device. Cf. Palsgraf v. Long Island R. Co., 248 N. Y. 339, 162 N. E. 99 (1928). Because neither Carr's employment status nor his state of mind has any bearing on the basis for petitioners' claim for money damages, the intentional tort exception to the FTCA is not applicable in this case.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
[ Footnote 2 ] The Court of Appeals explained its prior decisions as follows:
[ Footnote 3 ] See, e. g., Doe v. United States, 838 F.2d 220 (CA7 1988); Morrill v. United States, 821 F.2d 1426 (CA9 1987) (per curiam); Kearney v. United States, 815 F.2d 535 (CA9 1987); Bennett v. United States, 803 F.2d 1502 (CA9 1986); Hoot v. United States, 790 F.2d 836 (CA10 1986); Johnson v. United States, 788 F.2d 845 (CA2), cert. denied, 479 U.S. 914 (1986).
[ Footnote 4 ] Muniz involved two separate suits consolidated for our consideration. We described the relevant facts of one of the actions as follows:
[ Footnote 5 ] Allegedly, Carr's roommate was aware that Carr improperly possessed a firearm prior to the shooting incident, yet failed to comply with Navy regulations requiring that he report this violation to the appropriate authorities.
[ Footnote 6 ] The Government did not challenge this assumption before the District Court or the Court of Appeals. Its failure to do so may well simply be a [487 U.S. 392, 402] product of the Government's view that the District Court was without jurisdiction and thus, presumably, had no basis for considering whether the alleged facts might state a claim under Maryland law. Moreover, in now challenging this assumption, the Government cites no Maryland law. We think it appropriate, at least in the first instance, to allow the District Court to pass upon whether the complaint states a cause of action under Maryland law.
[ Footnote 7 ] The Government's responsibility for an assault may be clear even though the identity of the assailant is unknown. For example, the Court of Appeals for the Seventh Circuit concluded in Doe v. United States, 838 F.2d 220 (1988), that an action could be maintained under the FTCA even though discovery failed to reveal whether or not the assailant was a Government employee. The court described the factual setting of the case as follows:
[ Footnote 8 ] Because Carr's employment status is irrelevant to the outcome, it is not appropriate in this case to consider whether negligent hiring, negligent supervision, or negligent training may ever provide the basis for liability under the FTCA for a foreseeable assault or battery by a Government employee.
JUSTICE WHITE, concurring.
In United States v. Shearer, 473 U.S. 52 (1985), four Justices, including myself, were of the view that 28 U.S.C. 2680(h) barred recovery for damage caused from an assault by a Government employee said to be the result of a negligent act by another employee. But we did not address whether the assaulter was acting within the scope of his employment or whether that factor made a difference in applying [487 U.S. 392, 404] the 2680(h) exclusion. In any event, to the extent the views I shared there are inconsistent with my present understanding, I think the Court's opinion, which I join, has the better of it.
JUSTICE KENNEDY, concurring in the judgment.
The question before us is how to interpret the intentional tort exception in the Federal Tort Claims Act, 28 U.S.C. 1346(b) and 2671-2680, when a plaintiff's injury is caused both by an intentional tort and by negligence that precedes it. The intentional tort exception, 28 U.S.C. 2680(h), provides, in pertinent part, that the United States shall not be liable for "[a]ny claim arising out of assault, battery . . . ." Both the majority and the dissent provide persuasive reasons for their conclusions. I write separately to set forth the bases for my differences with those opinions, and for my conclusion that the Court correctly decides that the judgment of the Court of Appeals must be reversed.
In an adaptation of Judge Harlan's analysis in Panella v. United States, 216 F.2d 622 (CA2 1954), the Court asks whether the tortfeasor's actions occurred "while acting within the scope of his office or employment." Ante, at 400. Since "[t]he 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 whether that conduct is intentional or merely negligent," the Court concludes that the intentional tort exception is inapplicable to this case. Ante, at 401-403. In my view, this analysis is misdirected. Petitioners' claim here is that the Government acted negligently, quite apart from the intentional tort of its employee. The issue then is how to give effect to the Act's express authorization of suits grounded in negligence without eviscerating the Act's prohibition of claims "arising out of" intentional torts. Whether or not the intentional tortfeasor [487 U.S. 392, 405] was on duty will not necessarily resolve this question. The proper inquiry must depend on an analysis of the Government's acts or omissions and of the theory on which the Government's negligence is predicated.
The Court seems to recognize as much when it states that it would allow a claim against the Government if based on negligence "of other Government employees . . . entirely independent of [the intentional tortfeasor's] employment status." Ante, at 401. The Court, however, fails to clarify the meaning of "independent" negligence or to explain how the legal significance of antecedent negligence somehow changes with the employment status of the intentional tortfeasor. Although its opinion asserts that it avoids the question whether a negligent supervision claim may be pressed against the Government in such a case, ante, at 403, n. 8, that issue is unavoidable, both as an analytic matter and on the facts of this case. As I explain more fully below, our inquiry should address whether a finding of liability for negligent supervision would undermine substantially the intentional tort exception.
The dissenting opinion is correct to focus on the statutory language, but I submit, with all respect, that it reaches the wrong result. The dissent's fundamental premise seems to be that any injury in which an intentional act is a substantial cause necessarily arises only from that intentional act. This contradicts the basic rule that the same injury can arise from more than one wrongful act:
I am in substantial agreement with the opinion of Chief Judge Winter, who wrote the dissenting opinion when this case was before the Court of Appeals. To determine whether a claim arises from an intentional assault or battery and is therefore barred by the 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. See 823 F.2d 820, 824, 828 (CA4 1987). 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) [487 U.S. 392, 407] bars the claim. Otherwise, litigants could avoid the substance of the exception because it is likely that many, if not all, intentional torts of Government employees plausibly could be ascribed to the negligence of the tortfeasor's supervisors. To allow such claims would frustrate the purposes of the exception.
The Court is wrong to imply that this issue is somehow removed from the facts of this case. It is squarely implicated here, and the trial court should be advised how to deal with it, not left to wonder. It is quite plausible to argue that Carr was missupervised by Government officers who had authority over him and had, we may assume, the duty to control his unauthorized behavior and enforce the Government regulations restricting the possession of firearms on the naval base. Absent the exception set forth in 2680(h), the Government could be held negligent for failing to supervise Carr in a way such that the rifle would be discovered. We should state explicitly that this is not a theory that petitioners are free to pursue on remand.
An alternative theory of liability, however, is the Government's negligent performance of its Good Samaritan duty under the state law of Maryland, which I assume, as the Court does, provides for such liability if Carr had been a private person. Ante, at 401-403. On this theory, the Government's negligence is independent of its employment relation with Carr. The Government's duty to control the behavior of individuals on the naval base extended to all individuals, employee and nonemployee alike. This theory of liability does not depend on the employment status of the intentional tortfeasor. When the Government would be liable even if the tortfeasor had been a private person, say an individual who wandered onto the naval base, there is little danger that 2680(h) will be circumvented. The intentional tort exception does not preclude recovery under a theory of independent governmental negligence, despite the presence of a (barred) negligent supervision claim. Cf. Block v. Neal, [487 U.S. 392, 408] 460 U.S. 289, 297 -298 (1983) ("[T]he partial overlap between these two tort actions [of negligent misrepresentation and of negligent supervision regarding the construction of plaintiff's home] does not support the conclusion that if one is excepted under the Tort Claims Act, the other must be as well").
In sum, I would hold that where the plaintiff's tort claim is based on the mere fact of Government employment, a respondeat superior claim, or, a short step further, on the conduct of the employment relation between the intentional tortfeasor and the Government without more, a negligent supervision or negligent hiring claim, 2680(h)'s exception applies and the United States is immune. See also post, at 411. I concur in the Court's judgment insofar as it finds that 2680(h) does not bar tort claims based on the independent negligence of the Government. For these reasons, I agree that the judgment of the Court of Appeals must be reversed.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join, dissenting.
Petitioners seek to recover money damages under a section of the Federal Tort Claims Act (FTCA) that authorizes claims against the Government for personal injuries "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." 28 U.S.C. 1346(b). That section is subject to an exception for any claim "arising out of" an assault or battery. 28 U.S.C. 2680(h). Despite the unqualified language of this exception, the Court today holds that it does not protect the Government from liability for a battery committed by a Government employee who acted outside the scope of his employment, if other Government employees had a duty to prevent the battery.
If we were to construe the words according to their ordinary meaning, we would say that a claim "arises out of" a battery in any case in which the battery is essential to the claim. Thus when the Court construed another exception to [487 U.S. 392, 409] the FTCA for claims "arising in respect of . . . the detention of any goods" by customs or law enforcement officials, 28 U.S.C. 2680(c), we equated "arising in respect of" with "arising out of" and decided that the phrase includes "all injuries associated in any way with the `detention' of goods." See Kosak v. United States, 465 U.S. 848, 854 (1984). A parallel construction of the exception at issue here leads to the conclusion that it encompasses all injuries associated in any way with an assault or battery. Indeed, four Justices described the exception essentially in this way in United States v. Shearer, 473 U.S. 52 (1985). That case involved a claim against the Army for negligent supervision of a serviceman who kidnaped and murdered another serviceman. The plurality explained, in terms equally applicable here, why it thought the claim was barred.
The Court's decision in this case extends its erroneous interpretation of Muniz. The Court develops a theory to explain why the assault and battery exception does not bar a claim based on the negligent failure of Government employees to prevent a battery by a nonemployee, and shows why that theory applies with equal force to a battery by a Government employee like Carr who was not acting within the scope of his employment. Ante, at 400. Because I reject the interpretation of Muniz on which the majority's argument is premised, I reject this extension as well.
There is no support in the legislative history for the limitation of the assault and battery exception that the Court adopts today. When Congress enacted the exception, it was concerned with a particular factual situation. See Shearer, supra, at 55. Mr. Holtzoff, a Special Assistant to the Attorney General, told the Senate in general terms that the torts of assault and battery were excluded from the FTCA. Tort Claims Against the United States: Hearings on S. 2690 before a Subcommittee of the Senate Committee on the Judiciary, 76th Cong., 3d Sess., 39 (1940). At the House hearings, Mr. Holtzoff explained that "[t]he theory of these exemptions is that, since this bill is a radical innovation, perhaps we had better take it step by step and exempt certain torts and certain actions which might give rise to tort claims that would be difficult to defend, or in respect to which it would be unjust to make the Government liable." Tort Claims Against the United States: Hearings on H. R. 7236 before Subcommittee No. 1 of the House Committee on the [487 U.S. 392, 411] Judiciary, 76th Cong., 3d Sess., 22 (1940). Interpreting this remark, the Government suggests that Congress reasonably might have concluded that it would be unjust to make the Government liable for claims arising out of an assault or battery merely because Government employees other than the tortfeasor were negligent, since the individual tortfeasor plainly is the more culpable party. Indeed, intentional torts sometimes are found to be superseding causes that relieve a negligent party of liability. Restatement (Second) of Torts 448 (1965). This analysis applies whether the person committing the intentional tort is a Government employee, a nonemployee, or a Government employee acting outside the scope of his office.
The Court stops short of adopting petitioners' most ambitious argument, according to which the Government can be liable for negligently supervising a Government employee who commits an assault or battery while acting within the scope of his employment. Ante, at 403, n. 8. I trust that the courts will preserve at least this core of the assault and battery exception. I dissent from the Court's decision to confine the exception to such a narrow scope. [487 U.S. 392, 412]