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Home / Courts / Tort/Negligence – FTCA – Scope of Employment – National Guard – Assault on Recruit – Negligent Supervision

Tort/Negligence – FTCA – Scope of Employment – National Guard – Assault on Recruit – Negligent Supervision

Pittman v. United States (Lawyers Weekly No. 12-02-0126, 7 pp.) (Terrence W. Boyle, J.) 5:10-CV-517; E.D.N.C.

Holding: Even though the Federal Tort Claims Act does not waive the government’s sovereign immunity with regard to intentional torts, plaintiff has nevertheless stated a claim by alleging that a National Guard sergeant failed to intervene while a specialist under his command gave alcohol to a 17-year-old recruit and engaged in sexual relations with her.

The government’s motion to dismiss is denied.

Scope of Employment

Since the relevant acts occurred in North Carolina, N.C. law applies. N.C. law holds a principal liable for the tortious acts of its agent when the act is expressly authorized or the agent had implied authority from the principal.

Sergeant First Class (SFC) Tyrone Brown was on recruiting orders pursuant to 32 U.S.C. § 503 at the time of the assault. He and Specialist (SPC) Quontavia McGeachy were using a government-owned vehicle to pick up several recruits and drive them to a preparatory session for the Armed Services Vocational Aptitude Battery. They took the recruits to dinner afterward, dropped all but plaintiff off, and indicated they would take plaintiff home.

Instead, they detoured to buy alcohol, allowed the 17-year-old plaintiff to drink the alcohol, and then SPC McGeachy engaged in sexual relations with her. Plaintiff alleges that SFC Brown was SPC McGeachy’s immediate supervisor and had a duty to supervise his civilian recruiting officer.

Further factual development is necessary to determine whether SFC Brown was acting within the scope of his employment at the time of the assault or whether the time spent with plaintiff was a “frolic” in which SFC Brown took a “total departure” from the course of the government’s business.

Private-Person Liability

In North Carolina, evidence of negligent supervision by the supervisor of an employee can support a claim for negligent infliction of emotional distress (NIED). The question is not whether the improper sexual conduct at issue caused severe emotional distress but whether evidence of a failure by SFC Brown to properly supervise SPC McGeachy satisfies the elements of NIED.

Plaintiff has sufficiently alleged that SFC Brown owed a duty of care to her as a National Guard recruit. She has alleged that her emotional distress was reasonably foreseeable because she was a minor, she was more than 10 years younger than SPC McGeachy, she was intimidated by their apparent authority, and she perceived them as “gate keepers to a career option which she desired strongly.” She has also alleged that she sought medical care as a result of the incident and was diagnosed with severe depression which persisted for many months.

The government’s motion to dismiss is denied.

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