Appeal from an order of the United States District Court for the Northern District of New York, Edmund Port, Judge, dismissing plaintiff's tort action brought under the Federal Tort Claims Act, 28 U.S.C. § 1346 (b).
Moore, Oakes and Van Graafeiland, Circuit Judges. Oakes, Circuit Judge, concurring.
VAN GRAAFEILAND, Circuit Judge:
This is an appeal from an order of Judge Edmund Port of the United States District Court for the Northern District of New York dismissing plaintiff's action against the United States as barred by 28 U.S.C. § 2680(h). We affirm.
Appellant, an employee of Armour & Co., sustained serious injuries to his mouth as a result of the actions of one William Boslet, a meat inspector for the United States Department of Agriculture. For the most part, the circumstances of the incident are not in dispute. What variations do exist are not significant for purposes of this appeal.
On August 30, 1972, a truck shipment of beef arrived at the receiving dock of Armour's Syracuse plant. Plaintiff was one of the employees assigned to unload this truck. While he was so engaged, he was suddenly and without warning jumped by Boslet*fn1 who, screaming "boo", pulled plaintiff's wool stocking hat over his eyes and, climbing on his back, began to ride him piggyback. As a result of this action, plaintiff fell forward and struck his face on some meat hooks located on the receiving dock*fn2 suffering severe injuries to his mouth and teeth.
It is apparently agreed by all witnesses that the mishap was the result of one-sided horseplay with no intention on Boslet's part to injure plaintiff. Indeed, immediately after the incident Boslet apologized to plaintiff, telling him that he was only playing around and meant no harm.
Seeking redress for his injuries, plaintiff commenced the instant action against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b).
Traditionally, the sovereign has always been immune from suit. To alleviate the harshness of this rule, Congress enacted the Federal Tort Claims Act which permits civil actions against the United States for personal injury and property damage caused by the "negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment." 28 U.S.C. § 1346(b). 28 U.S.C. § 2680, however, lists several claims expressly excepted from the purview of the Act, among which are any claims arising out of an assault or battery.*fn3 Since the United States has not consented to be sued for these torts, federal courts are without jurisdiction to entertain a suit based on them. Gardner v. United States, 446 F.2d 1195, 1197 (2d Cir. 1971), cert. denied, 405 U.S. 1018, 92 S. Ct. 1300, 31 L. Ed. 2d 481 (1972); United States v. Taylor, 236 F.2d 649, 652 (6th Cir. 1956), cert. dismissed per stipulation, 355 U.S. 801, 78 S. Ct. 6, 2 L. Ed. 2d 19 (1957).
Although his order contains no express statement to that effect, the parties agree that the sole basis for Judge Port's dismissal was his conclusion that Boslet's actions constituted a battery. Appellant contests this conclusion and steadfastly maintains that his complaint sounds in negligence.*fn4
In determining the applicability of the § 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts. United States v. Faneca, 332 F.2d 872 (5th Cir. 1964), cert. denied, 380 U.S. 971, 14 L. Ed. 2d 268, 85 S. Ct. 1327 (1965); Klein v. United States, 268 F.2d 63 (2d Cir. 1959); Coffey v. United States, 387 F. Supp. 539 (D. Conn. 1975). Since there is no dispute as to the facts herein and no contention that all pertinent facts were not before the District Court, we need consider only whether Judge Port erred in labeling Boslet's attack upon plaintiff as a battery.
For the "ordinary common-law torts" which were "uppermost in the collective mind of Congress" when the Tort Claims Act was enacted, Dalehite v. United States, 346 U.S. 15, 28, 97 L. Ed. 1427, 73 S. Ct. 956 (1953), the law of the place where the act occurred is controlling. 28 U.S.C. § 1346(b); United States v. Muniz, 374 U.S. 150, 153, 10 L. Ed. 2d 805, 83 S. Ct. 1850 (1963); Feres v. United States, 340 U.S. 135, 142, 95 L. Ed. 152, 71 S. Ct. 153 (1950); Grant v. United States, 271 F.2d 651, 654 (2d Cir. 1959). The "law of the place" means the "whole law" of the state where the incident took place, i.e., "the principles of law developed in the common law and refined by statute and judicial decision." Richards v. United States, 369 U.S. 1, 7, 7 L. Ed. 2d 492, 82 S. Ct. 585 (1962).*fn5
The purpose of the Act was to remove the Government's sovereign immunity from suits in tort and, with certain exceptions, to render it liable "as a private individual would be under like circumstances." Id. at 6. Thus, if the state would look to a state or federal statute in determining the liability of a private person for the tort in question, the same statute will be applied in measuring the conduct of the Government; otherwise it will not. Hess v. United States, 361 U.S. 314, 319, 4 L. Ed. 2d 305, 80 S. Ct. 341 (1960); Gowdy v. United States, 412 F.2d 525 (6th Cir.), cert. denied, 396 U.S. 960, 24 L. Ed. 2d 425, 90 S. Ct. 437 (1969). The Government will not be required to comply with the "significantly different", Eaton v. Long Island R.R. Co., 398 F.2d 738, 741 (2d Cir. 1968), and "substantially more liberal", Lindauer v. New York Central R.R. Co., 408 F.2d 638, 640 (2d Cir. 1969), standards of negligence of such statutes as the Federal Employers Liability Act or the Jones Act if a private individual in a like situation would not be required to do so.
It is hornbook law in New York, as in most other jurisdictions, that the intent which is an essential element of the action for battery is the intent to make contact, not to do injury. Masters v. Becker, 22 A.D. 2d 118, 254 N.Y.S.2d 633 (2d Dept. 1964); Baldinger v. Banks, 26 Misc. 2d 1086, 201 N.Y.S.2d 629 (Sup. Ct. Kings Co. 1960); N. Y. Pattern Jury Instructions 584; W. Prosser, Law of Torts § 8, at 31 (4th ed. ...