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Posted: November 5, 2018

Judge Korman Holds that the “Foreign Country” and “Intentional Torts” Exceptions to the FTCA Barred Claims by Estate of Panamanian Woman Murdered by U.S. Servicemember

Posted by Solomon N. Klein, Litigation Partner

District Judge Edward R. Korman dismissed an action against the U.S. by the estate and family of a Panamanian woman murdered by a U.S. servicemember in Panama. Rogelio Rodriguez, et al. v. Omar Velez-Pagan, et al. , 17-cv-3911 (E.D.N.Y. Oct. 26, 2018) (ERK) (SJB).

The civil case arose from a “brutal murder” by Omar Velez-Pagan, a U.S. servicemember stationed in Panama to assist in the training of the National Police Force of the Republic of Panama. During his stay in Panama, Velez-Pagan was romantically involved with a local woman, Vanesa Itzel Rodriguez Chavarria (“Rodriguez”). In June 2014, perhaps under the influence of illegal drugs, Velez-Pagan murdered Ms. Rodriguez inside a vehicle that the U.S. embassy had provided to Velez-Pagan. Velez-Pagan was returned to the U.S. for trial and convicted by a military court.

Rodriguez’s estate and family sued various U.S. agencies and the United States. “Broadly, plaintiffs claim that the United States was negligent in hiring and supervising Velez-Pagan and in failing to verify his compliance with regulations governing drug use, ultimately leading to Rodriguez’s death.” Defendants filed a motion to dismiss for lack of subject matter jurisdiction in that, as a sovereign, the United States is immune from suit, except where it has consented to be sued.

A little background on the Federal Tort Claims Act (“FTCA”) would be helpful. The United States passed the FTCA as a limited waiver of sovereign immunity that allows for monetary claims against the government “for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant . . ..”

However, the FTCA does not apply to events outside the U.S. Additionally, the FTCA does not waive immunity for intentional torts. Counsel for plaintiffs attempted to get around these exceptions with two primary arguments: First, they argued that the murder occurred in the vehicle provided to Velez-Pagan by the U.S. embassy (thus the event occurred inside property of the U.S.). Second, although the murder was intentional, the claims against the U.S. were styled as negligent hiring and supervision claims.
However, the Court rejected both arguments:

The plaintiffs, however, argue that because “the murder . . . occurred inside [a] vehicle owned by the United States,” Am. Compl. ¶ 30, and, because “the diplomatic vehicle where Velez-Pagan injured and later murdered [her] is considered . . . territory of the United States,” the murder did not actually occur in a foreign country, Opp. Br. 10-11. . ..

Control of property is not the appropriate benchmark for determining whether an event arose in a foreign country. United States v. Spelar, 338 U.S. 217 (1949), is on point. The Supreme Court there held that, even though an accident occurred on an airbase leased by the United Kingdom to the United States, torts arising from that accident were not permitted under the FTCA because the lease did not transfer sovereignty of the area to the United States. Spelar, 338 U.S. at 219. Similarly, here, events that occurred inside the vehicle did not occur in the United States simply because the United States owned the vehicle. Even American embassies are treated as being in foreign countries for purposes of the FTCA. See Asmah v. U.S. Consulate Accra Ghana, No. 15-CV-3742 (JPO), 2016 WL 2993203, at *4 (S.D.N.Y. May 23, 2016) (collecting cases holding that a tort committed at an American embassy or consulate arose in a foreign country under the FTCA); see also McKeel v. Islamic Republic of Iran, 722 F.2d 582, 588 (9th Cir. 1983) (holding in an analogous context that “[a] United States embassy . . . does not constitute territory of the United States”), cited with approval in Harrison v. Republic of Sudan, 838 F.3d 86, 95 (2d Cir. 2016); Restatement (Third) of Foreign Relations § 466 cmt. a (1987) (“That [consular] premises are inviolable does not mean that they are extraterritorial. Acts committed on those premises are within the territorial jurisdiction of the [host] state.”). Thus, events that transpire inside a vehicle owned by the U.S. Embassy while it is being driven on a Panamanian road occur in a “foreign country” for FTCA purposes.

The Court similarly rejected plaintiffs’ argument regarding the intentional torts exception.

Section 2680(h) of the FTCA forecloses any claims arising out of intentional torts, including “[a]ny claim arising out of assault [or] battery,” 28 U.S.C § 2680(h), even if the claim otherwise sounds in negligence. United States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion). “In determining the applicability of the § 2680(h) exception”—that is, the bar on claims arising out of intentional torts—“a court must look, not to the theory upon which the plaintiff[s] elect[] to proceed, but rather to the substance of the claim.” Dorking Genetics v. United States, 76 F.3d 1261, 1265 (2d Cir. 1996) (quoting Lambertson v. United States, 528 F.2d 441, 443 (2d Cir. 1976)).

Plaintiffs urge me to adopt the holding in Bennett v. United States, 803 F.2d 1502, 1504 (9th Cir. 1986), which held that the assault and battery exception does not bar negligent hiring and supervision claims where the “negligence amounts to almost reckless disregard.” Putting aside the fact that plaintiffs do not allege negligence amounting to reckless disregard, the Second Circuit has repeatedly held that, even where a government agency is aware of an individual’s prior misconduct or hostility, the “broad . . . scope of section 2680(h) in the context of mixed claims of negligent and intentional conduct” requires dismissal where “the allegation of negligence merely present[s] the assault claim in artfully redrawn form.” Guccione v. United States, 847 F.2d 1031, 1034 (2d Cir. 1988) (discussing Miele v. United States, 800 F.2d 50 (2d Cir. 1986)); see also, e.g., Johnson ex rel. Johnson v. United States, 788 F.2d 845 (2d Cir. 1986). But where the government assumes responsibility over an individual’s conduct outside the employment relationship—such as “voluntarily undertaking to provide care to a person who [is] visibly drunk and visibly armed”—the United States may be held responsible for torts committed by that individual. Sheridan v. United States, 487 U.S. 392, 401-03 (1988). In sum, where the “complaint does not allege a claim based on negligence ‘independent’ of defendant’s hiring and supervision of its employee,” the “claim is within the § 2680(h) exception” and is not permitted by the FTCA. Kenna v. United States, 927 F. Supp. 62, 66 (E.D.N.Y. 1996).

Here, plaintiffs’ three negligence claims and their wrongful death claim are not “‘independent’ of defendant’s hiring and supervision” of Velez-Pagan. Id. Plaintiffs’ claims are based on the assertion that, had defendants not acted negligently in hiring, deploying, and supervising Velez-Pagan, Rodriguez “would not have been assaulted and murdered.” Am. Compl. ¶¶ 34-38; see also id. ¶¶ 40, 44-45, 47, 52, 61, 63; Opp. Br. 13-15. The substance of each claim arises out of an assault or battery claim, and the United States’ alleged negligence is predicated on its employment of Velez-Pagan.

Rogelio Rodriguez, et al. v. Omar Velez-Pagan, et al. , 17-cv-3911 (E.D.N.Y. Oct. 26, 2018) (ERK) (SJB).

Posted by Solomon N. Klein, Litigation Partner

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