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Doe Parents No. 1 v. State11/27/2002
im was foreclosed by its precedents, specifically Hughes v. United States, 662 F.2d 219 (4th Cir. 1981) (per curiam) (affirming district court's dismissal of plaintiffs' negligence claim because it arose out of postal employee's sexual indecencies with two minor girls while on his mail route and not as result of supervisor's purported negligence in allowing him to remain in position where he came into contact with children after he had pled guilty to similar sexual offense), and Thigpen v. UnitedStates, 800 F.2d 393 (4th Cir. 1986) (affirming district court's dismissal of plaintiffs' negligence claim because it arose out of naval corpsman's sexual indecencies with two minor girls while they were hospitalized at naval hospital and not as result of Navy's negligent supervision of offending corpsman). Sheridan, 487 U.S. at 395-97 & n.1. Chief Judge Winter, however, dissented. Id. at 397-98.
In Chief Judge Winter's view, cases such as Hughes and Thigpen, which involved negligent hiring or retention and negligent supervision claims, were inapposite to situations in which "the basis for the [federal g]overnment's alleged liability has nothing to do with the assailant's employment status." Id. at 397. As quoted by Justice Stevens, writing for the Sheridan majority, Chief Judge Winter had believed that "claims of negligent hiring and/or supervision" are essentially grounded in the doctrine of respondeat superior. In these cases, the government's liability arises, if at all, only because of the employment relationship. If the assailant were not a federal employee, there would be no independent basis for a suit against the government. It is in this situation that an allegation of government negligence can legitimately be seen as an effort to 'circumvent' the [28 USC] § 2680(h) bar; it is just this situation -- where government liability is possible only because of the federal paychecks -- that [28 USC] § 2680(h) was designed to preclude. . . .
On the other hand, where governmental liability is independent of the assailant's employment status, it is possible to discern two distinct torts: the intentional tort (assault and battery) and the government negligence that precipitated it. Where no reliance is placed on negligent supervision or respondeat superior principles, the cause of action against the government cannot really be said to "arise out of" the assault and battery; rather it is based on the government's breach of a separate legal duty. Id. at 397-98 (quoting 823 F.2d 820, 824) (internal citations omitted) (some internal quotation signals omitted) (emphasis in original).
Recognizing a split among the federal appellate circuits that mimicked the split between the majority and dissenting opinions in the Fourth Circuit's Sheridan opinion, the United States Supreme Court granted certiorari "to decide . . . whether" the plaintiffs' "claim is one 'arising out of' an assault or battery within the meaning of" 28 USC § 2680(h); a majority of the Court reversed the Fourth Circuit's opinion. Id. at 394, 398.
The Sheridan Court initially observed that the intentional tort exception to the FTCA was "unquestionably broad enough to bar all claims based entirely on an assault and battery." Id. at 398 (emphasis in original). However, citing United States v. Muniz, 374 U.S. 150 (1963) (holding that a federal prisoner, who was assaulted by other inmates, could recover damages against the United States because prison officials negligently failed to prevent the assault), the Sheridan Court, as we have noted, acknowledged "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 [federal g]overnment for ne
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