Negligence claim survives FTCA’s intentional tort exception

The 4th U.S. Circuit Court of Appeals held that although the Federal Tort Claims Act barred most claims arising from an alleged assault by a postal employee, a negligence claim against the United States could proceed because the complaint plausibly alleged the postmaster independently created the foreseeable risk of the attack.

The plaintiff alleged she was assaulted by a postal employee while attempting to retrieve her mail after complaining about missing deliveries and employee conduct at a South Carolina post office. According to the complaint, the postmaster unlocked secured doors to allow the employee into the customer area, where the employee allegedly attacked the plaintiff. The plaintiff further alleged the postmaster refused to summon medical assistance or permit her to call for help after the incident. She sued the United States under the Federal Tort Claims Act, while also asserting constitutional and Freedom of Information Act claims.

The 4th Circuit concluded that the FTCA’s intentional tort exception barred claims based directly on the alleged assault, regardless of how those claims were characterized. The court likewise held that claims premised on negligent supervision or the postmaster’s physical conduct during the incident were foreclosed by sovereign immunity.

The court reached a different conclusion, however, regarding allegations that the postmaster knowingly created the danger by unlocking secured doors to permit an employee with a history of aggressive behavior to confront the plaintiff. Relying on the U.S. Supreme Court’s decision in Sheridan v. United States, the panel held that South Carolina law recognizes an independent duty of care when a person negligently creates a foreseeable risk of harm. Because that duty existed independently of the employee’s federal employment, the negligence claim fell within the narrow Sheridan exception to the FTCA’s intentional tort bar.

The court affirmed dismissal of the remaining claims, holding that the negligent hiring and supervision claim was barred by the FTCA’s discretionary-function exception, declining to extend a damages remedy under Bivens, and concluding the plaintiff failed to exhaust administrative remedies on her FOIA claim.

The 20 page opinion is Lusk v. Merchant, Lawyers Weekly No. 001-245-26.