US SUPREME COURT DECISIONS

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.

Held: 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 chanrobles.com-red

Page 487 U. S. 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. 487 U. S. 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. 487 U. S. 403. KENNEDY, J., filed an opinion concurring in the judgment, post, p. 487 U. S. 404. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C.J.,and SCALIA, J., joined, post, p. 487 U. S. 408.