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Doe Parents No. 1 v. State11/27/2002
t drew a line between negligence claims "based entirely on a theory of respondeat superior," which, in its view, were foreclosed by the intentional tort exception, and claims predicated upon "independent negligent acts or omissions by the [federal g]overnment that are legal causes of the [plaintiff's] harm," which fell outside the scope of the intentional tort exception, even if the plaintiff's harm was directly caused by a federal employee's intentionally tort. Id. (citing Bennett, 803 F.2d at 1504). SeealsoBrock v. United States, 64 F.3d 1421 (9th Cir. 1995) (holding that an employee's negligent supervision claim predicated on Forest Service's failure to supervise plaintiff's supervisor, who had raped her and subjected her to continuing sexual harassment, and to supervise her co-workers, who had retaliated against her for filing a claim with the Equal Employment Opportunity Commission against the supervisor, was not barred by the FTCA's intentional tort exception); Morrill v. United States, 821 F.2d 1426 (9th Cir. 1987) (holding that negligent supervision claim advanced by "go-go dancer," who the Navy hired to perform in club for enlisted men and who was assaulted and raped by enlisted man, was not barred by FTCA's intentional tort exception); Kearny v. United States, 815 F.2d 535 (9th Cir. 1987) (holding that negligent supervision claim predicated upon federal employee's release of an Army officer, initially detained for rape, who subsequently murdered plaintiff's wife, was not barred by FTCA's intentional tort exception).
In Bennett, a pre-Sheridan decision upon which the Senger court relied, the Ninth Circuit observed that the policy underlying the FTCA's intentional tort exception "was to insulate the government from liability for acts it was powerless to prevent or which would make defense of a lawsuit unusually difficult." 803 F.2d at 1503 (citation omitted). In the Bennett court's view, a third person's assault or battery is "especially difficult to prevent where there is no known history of similar behavior," which was why, at common law, a third person's crime or intentional tort constituted an "'independent, intervening cause'" that would, generally speaking, preclude a defendant's antecedent negligence from being a legal cause of the assaulted or battered person's injuries. Id. (citation omitted). The Bennett court emphasized, however, that, in the case before it, the plaintiffs had not based their claim upon the doctrine of respondeat superior, under which they would have asserted that, as the employer of an intentional tortfeasor, the federal government was liable for the intentional tortfeasor's acts and omissions committed within the scope of his or her employment. Id. at 1503-04. Rather, the plaintiffs had predicated their claim upon the federal government's negligent supervision, hiring, and investigation of the intentional tortfeasor, i.e., upon the negligent acts and omissions of employees other than the assailant. Id.
Expressing its disagreement with the Shearer plurality's apparent distinction between assailants who are federal employees and those who are not, see id. at 1504-05, the Bennett court regarded the "historical evidence" for drawing such a distinction as "far from clear." Id. at 1504. The Bennett court noted that its review of the FTCA's plain language and legislative history unearthed no explanation as to why Congress would waive sovereign immunity from liability for claims arising out of negligent supervision of federal wards -- such as inmates and patients -- but retain immunity with respect to claims arising out of intentional acts committed by negligently supervised federal employees. Id. In the Bennett court's view, the intentional tort exception's "arising out
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