In The

Supreme Court of the United States




Decided June 24, 1988

Justice O’Connor, Dissenting

Topic: Economic Activity*Court vote: 6–3
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Joining O'Connor opinion: Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA
Citation: 487 U.S. 392 Docket: 87–626Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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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 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, 465 U. S. 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.

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. Spelar, 338 U. S. 217, 338 U. S. 219 (1949).

Id. at 473 U. S. 55 (emphasis in original).

The Court acknowledges that the exception for claims arising out of assault or battery is phrased in broad terms. Ante at 487 U. S. 398. The Court believes, however, that we recognized implicit limitations on that exception in United States v. Muniz, 374 U. S. 150 (1963). One of the cases consolidated for decision in Muniz was brought by a prisoner who alleged that negligent Government employees failed to prevent other inmates from assaulting and beating him. The Court rejected the Government's argument that Congress did not intend to allow prisoners to bring claims under the FTCA. Id. at 374 U. S. 158. The majority infers from this decision that the Government can be liable under the FTCA when Government employees fail to prevent nonemployees from committing assault or battery. Ante at 487 U. S. 398 -399. But that inference is unnecessary, because the Court in Muniz expressly reserved judgment on whether one of the exceptions of § 2680 barred the prisoner's claim. 374 U.S. at 374 U. S. 163.

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 487 U. S. 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 473 U. S. 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 Judiciary, 76th Cong., 3d Sess., 22 (1940). Interpreting this remark, the Solicitor General 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 487 U. S. 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.

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