Plaintiff’s decedent, the first mate, returned to his ship accompanied by the chief steward, second mate, and two other friends who were civilian employees of the United States. The sentry, pursuant to orders, refused to allow the civilians aboard the ship and asked them to leave. An argument ensued whereupon the sentry drew his pistol and fired one shot wildly. Both the deceased and the chief steward lunged for the sentry in an effort to disarm him and in the ensuing struggle for the pistol the deceased was shot. Plaintiff, wife of the deceased, brought suit against the United States under the Federal Tort Claims Act. Held: the court rejected the government’s contention that this injury came within the assault and battery exception of the Federal Tort Claims Act and awarded the plaintiff $68,000 damages.
The federal government has waived its general immunity from tort claims through passage of the Federal Tort Claims Act. The act provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances. This waiver does not extend to certain situations which are expressly set forth as exceptions in the act. The scope of this note will be limited to the assault and battery exception contained in Section 2680. This section provides: “The provisions of this chapter and Section 1346 (b) of this title shall not apply to . . . (h) 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.”
Torts—Federal Tort Claims Act—Exception as to Assault and Battery,
34 Neb. L. Rev. 567
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