Appeal from a November 4, 1985, order of the United States District Court for the Southern District of New York (Broderick, J.) that dismissed appellants' Joshua Alexander Miele, an infant, et al., Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., claims against the United States. Appellants also appeal from a second order that dismissed their complaint against private defendants for lack of pendent jurisdiction. Affirmed.
Before: KEARSE, CARDAMONE and PIERCE, Circuit Judges.
CARDAMONE, Circuit Judge:
Recently, a plurality of the Supreme Court stated that a plaintiff assaulted by a government employee may not frame his complaint against the United States in terms of negligent failure either to prevent the injury or to supervise the government employee. United States v. Shearer, 473 U.S. 52, 105 S. Ct. 3039, 3042, 87 L. Ed. 2d 38 (1985). We adopted this plurality position in Johnson v. United States, 788 F.2d 845 (2d Cir. 1986), and held that the plain language of 28 U.S.C. § 2680(h) (1982) prohibits a plaintiff from dressing an assault and battery suit in negligence clothing by claiming the government negligently failed to supervise its employee.
This appeal raises only two issues. The first is the same one we ruled on in Johnson. The second is the contention that because the government employee in question was insane at the time of the act, he was incapable of forming the necessary intent to commit the assault, and the intentional tort exception to the government's waiver of sovereign immunity is inapplicable in this case. We are aware of how tragic the circumstances of this case must be for the infant plaintiff and his parents. But Congress has made it clear that responsibility for this sort of tortious activity may not be laid at the doorstep of the United States.
Plaintiffs, Joshua Alexander Miele, an infant, and his parents, Jean and Isabella Miele, appeal from a November 4, 1985 order of the United States District Court for the Southern District of New York (Broderick, J.) dismissing their Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (FTCA or the Act), suit against the United States for lack of subject matter jurisdiction. We affirm.*fn1
The facts are largely undisputed. Defendant Basilio Bouza, a soldier in the United States Army, had been absent from the Army without leave (AWOL) since September 10, 1973. On October 5, 1973 Bouza threw sulphuric acid into the fact of four year-old Joshua Miele blinding him permanently and disfiguring his face. Plaintiffs maintain that even prior to this incident Bouza had consistently indicated general hostility toward the Mieles and to Joshua. In particular he threw a brick through the Miele's window and hurled a "Molotov cocktail" in their backyard ostensibly to set the house on fire. In their complaint plaintiffs allege that the Army negligently failed to: (1) appreciate Bouza's paranoid schizophrenic mental state; (2) adequately supervise him; and (3) warn plaintiffs of Bouza's delusionary preoccupation toward them. Plaintiffs further allege that the Army knew or should have known that Bouza presented an imminent threat to the Miele family.
Bouza was tried in the New York State Supreme Court, Kings County, in 1975 on two counts of criminal assault and battery arising from the incident. The court in acquitting him by reason of insanity stated that at the time of this incident Bouza suffered "from a defect of reason, and possessed an unreality of his surroundings and the consequences of his act."
A. Intentional Tort, Not Negligence Claimed
We turn briefly to the first issue. The FTCA's waiver of sovereign immunity does not apply to "Any claim arising out of assault, battery, false imprisonment, false, arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680(h) (emphasis added). The intentional tort exception to the Act bars not only claims for assault and battery, but also any claim arising out of the assault and battery."It is inescapable that the phrase 'arising out of assault [or] battery' is broad enough to encompass claims sounding in negligence." Shearer, 105 S. Ct. at 3043.
Allowing claims against the government that are stated in negligence, but actually arise from an assault and battery would defeat Congress' purpose to bar suits against the government for injuries caused by a government employee's commission of an assault and battery. Johnson, 788 F.2d at 850. "These cases demonstrate that although § 2680(h) deals primarily with intentional torts and the general policy of the FTCA is to permit negligence suits, the provision nonetheless has been interpreted to except claims based on negligence leading to intentional torts." Id. at 852.
B. Regardless of Employee's Mental Incapacity, Sovereign Immunity Not Waived For Intentional Tort
Appellants' other claim, not specifically decided in Johnson, is that the intentional tort exception does not apply in this case. Because Bouza was a adjudicated insane, appellants assert that he was not capable of forming the intent necessary to commit an assault, appellants assert that the action against the government could not arise out of an assault and battery and should not have been dismissed. The district court rejected appellants' argument that the insanity finding rendered inapplicable the assault and battery exception to the government's ...