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Durden v U.S.

Case No. 12-2212 (C.A. 4, Nov. 20, 2013)

On December 13, 2009, U.S. Army Specialist Aaron Pernell unlawfully entered the home of Maria Durden while inebriated and raped Durden in front of her children. Durden subsequently sued the government pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346(b), alleging that the Army was negligent and therefore is liable for the sexual assault against her. The government moved to dismiss Durden’s complaint for lack of subject matter jurisdiction and, alternatively, for failure to state a claim upon which relief can be granted. The district court granted the government’s motion with respect to subject matter jurisdiction, and Durden appealed. For the reasons set forth below, we affirm.



Pernell joined the Army at age eighteen and was deployed to Iraq after he completed his initial training in Georgia and a two-day stay at Fort Bragg, North Carolina. Upon returning to Fort Bragg subsequent to his deployment, Pernell struggled emotionally and began using drugs and abusing alcohol. In March and August of 2009, Pernell told his staff sergeant that he desired to kill himself and eleven current and former members of his unit. After each instance, the sergeant discouraged Pernell from seeking mental-health treatment and cautioned Pernell that receiving such treatment could blemish Pernell’s military record. In September 2009, Pernell confided in a fellow soldier that he was unable to sleep due to his drug and alcohol use; the solider also advised Pernell not to seek mental-health treatment because it could “mess up [Pernell’s] career.”

On September 10, 2009, Pernell burglarized a home in Fayetteville, North Carolina (which is adjacent to Fort Bragg) and assaulted the home’s occupants with a pellet gun. Civilian law enforcement arrested Pernell and charged him with burglary and assault. Pernell was then detained at a civilian jail from September 11 to October 22, 2009, at which time his parents posted bail on his behalf and his platoon leader retrieved him and returned him to Fort Bragg. During the transport back to Fort Bragg, Pernell again expressed a desire to kill himself and eleven members of his unit.


Judge(s): Henry Floyd
Jurisdiction: U.S. Court of Appeals, Fourth Circuit
Related Categories: Civil Remedies , Government / Politics , Torts
Circuit Court Judge(s)
Henry Floyd
Roger Gregory
Paul Niemeyer

Trial Court Judge(s)
James Dever III

Appellant Lawyer(s) Appellant Law Firm(s)
Joseph Anderson Anderson Pangia & Associates PLLC
Douglas Desjardins Transportation Injury Law Group
Nathan Harrill Wake Forest University School of Law

Appellee Lawyer(s) Appellee Law Firm(s)
Jennifer May-Parker U.S. Department of Justice
Joshua Royster U.S. Department of Justice
Thomas Walker U.S. Department of Justice



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the criminality (or not) of pernell’s desires, durden has not court has been clear that “evidence pertaining to the court granted the government’s motion with respect to subject fayetteville, north carolina (which is adjacent to fort bragg) but durden has failed to set forth what additional information plan, insufficient to support a conspiracy-to-murder charge); to ensure that the orders were followed. allegations regarding the ways that the government restricted and “[a]t least 12 of the episodes occurred during the three and would attach if [he] had been an unemployed civilian a claim that had been converted into a motion for summary before niemeyer, gregory, and floyd, circuit judges. he could not do without first obtaining permission. through an army cannot be said to have a “special relationship” with him carolina, for appellee. the government pursuant to the federal tort claims act (ftca), knowledge of [pernell’s] tendency to commit criminal acts general negligence theory. see id. at 589–90. specifically, assume jurisdiction and proceed to the intertwined merits no reason to suspect that pernell committed the burglaries and 240, 242 (n.c. ct. app. 1982) (denying summary judgment on allegations are true, the complaint fails to set forth facts 3. despite recognizing that the issue at hand was “both a question [the corpsman] would become intoxicated at his first his unit. at the time that pernell raped durden, the army had “an action [for negligence] under the ftca may only be pernell’s frequent drug and alcohol abuse—would have been chief district judge. (5:11-cv-00442-d) the second of connelly’s three foreseeability criteria insofar 12 to know or undisputedly did not know prior to pernell’s rape of pernell was permitted to leave his barracks at night to use control pernell, durden’s claim that the government is liable civilian jail and the reasons for the restrictions. according pernell’s september 10, 2009 burglary and assault in connelly v. family inns of am., inc., 540 s.e.2d 38, 41 (n.c. complaint on this alternative basis. mental-health evaluation on october 30, 2009, after which it was harm to innocent base residents.” durden also claims that these 28 u.s.c. § 1346(b)(1). “in general, there is neither a duty to control the actions respect to the restrictions placed on pernell, the government’s indeed, a prior criminal activity—we are satisfied that it meets “exception” limited to “criminal activity in the area sheridan—where the drunken tortfeasor’s status as a government establishing foreseeability of armed robbery). and drugs and committed a violent crime at some point in the court’s grant of summary judgment to the government. for dismissal. we address these bases in turn. challenges to jurisdiction arise under the latter framework. 27 durden foreseeable to the government before december 13, 2009, argued: nathan harrill, wake forest university school of law, receiving such treatment could blemish pernell’s military that he was unable to sleep due to his drug and alcohol use; the 442-d, 2012 wl 3834934, at *8 (e.d.n.c. aug. 31, 2012) (“durden the [negligence] issue as though it were the basis of a motion additionally and alternatively, the government argues that intoxicated on ether that remained in his vehicle and, as a accordingly, durden has failed to establish that pernell’s 13 douglas p. desjardins, transportation injury law group, pernell’s september 10, 2009 burglary and assault, pernell’s was dishonorably discharged from the army. on august 11, 2011, necessary for the protection of a third person, or his property, considerations restrict [courts] as to which evidence established by a landlord’s knowledge of a specific threat kidnapping, assault, vehicle theft, and larceny deemed relevant information about pernell that the army would have had no reason three theories of a duty that the army owed to her under north because the individuals knew that the tortfeasor abused alcohol challenges to the complaint, durden “is afforded the same however, discovery is not for the purpose of learning new satisfies the subject matter jurisdiction requirement that the iv. under the law of the state where the negligent act occurred.” government—placed pernell on barracks restriction and ordered or his prior expressed desires to kill himself and members of defendant may contest subject matter jurisdiction in one of two 2011 wl 341709, at *3 (“a duty to evict . . . may arise . . . durden’s complaint is barred by the ftca’s intentional-tort september 10, 2009 arrest, pernell’s tendency to commit violent accordingly, discovery would serve no purpose, and it was not durden’s safety based solely on the september 10, 2009 incident omission occurred—a defendant cannot be held liable for a criminal act was foreseeable is evidence of prior jurisdiction. after all, the government only acquired such no. 12-2212 omitted)); id. at *10 (“even accepting as true durden’s on a “special relationship” between the army and pernell, durden that he be monitored at all times. “special relationship” can arise between the defendant and the to durden, pernell’s commanding officer issued orders on judgment on the merits without the opportunity for discovery or regardless, even assuming that pernell’s september 10, 2009 18 demonstrate how such desires fall within the purview of “prior interstate-highway intersection but on the south carolina side prior criminal activity”). fayetteville. pernell subsequently requested mental-health for protecting the government from liability that pernell prior to the rape and that she might learn during that duty. stein v. asheville city bd. of educ., 626 s.e.2d and sexual assaults that occurred in 2008 and 2009 in id. at 589 (second alteration in original) (quoting mullis v. criminal activity committed. however, certain north carolina law. see durden v. united states, no. 5:11-cv- matter jurisdiction, and durden appealed. for the reasons set the district court held that the fact that the army gained 263, 267 (n.c. 2006). accordingly, dismissal of durden’s for the reasons set forth below, however, we hold auth., 439 s.e.2d 771, 774 (n.c. ct. app. 1994) (citation simply has not demonstrated how factfinding would assist her in then, is that the army, as landlord of fort bragg, breached a desired to kill himself and eleven current and former members of alleges, was necessary for the protection of others. on this carolina law, the army owed any duty to durden and, if it did, published pursuant to a voluntarily assumed duty, durden has not set forth however, certain “[s]pecial relationships create a protection of another, and they arise only in narrow version of the facts that differs from durden’s version with plaintiff, or between the defendant and a third-party law enforcement arrested pernell and charged him with burglary and north carolina courts require more than the for lack of subject matter jurisdiction, “the court considered the most probative evidence on the question of whether points to a single incident—pernell’s september 10, 2009 to be checked on hourly to ensure that he remained in his on december 13, 2009, u.s. army specialist aaron pernell the government, it would seem perverse to exonerate 25 first, with respect to durden’s theory of negligence based barracks or a civilian equivalent thereto. to hold otherwise carolina law and that durden’s complaint is barred by the ftca’s drugs and consume alcohol and, further, that pernell’s superior negligence absent a duty owed to the plaintiff and breach of government employee was a but-for element of durden’s negligence “as a sovereign, the united states is immune from all suits therefore is liable for the sexual assault against her. the nothing to do with the basis for imposing liability on proceedings and [does] not go absent without leave.” the both unreasonable and foreseeable.” id. at 582. upon the return of his vehicle, the corpsman became 4 summary judgment). in doing so, we examine in turn durden’s are not the types of incidents to be considered for purposes of durden. subject matter jurisdiction and, alternatively, for failure to carolina would be found to have owed a duty of ordinary care to caution, the army ordered that pernell be checked on every two iraq after he completed his initial training in georgia and a this alternative basis was therefore erroneous. kerns, 585 f.3d at 194 (citing 28 u.s.c. § 1346(b)(1)). in a voluntarily assumed duty to protect her fails. monitoring and controlling pernell following his release from plaintiff’s complaint—not merely their legal sufficiency, see three naval corpsmen encountered the tortfeasor, also a naval government to durden under north carolina’s version of the good medium risk of harm to himself and others. following this the district courts . . . shall have exclusive on december 8, 2010, a general court-martial convicted a. the government paints a somewhat different picture of the § 1346(b)(1) (holding the government liable only “under pernell’s alcohol abuse and drug use, even if criminal acts, do result, he injured the plaintiffs and killed one other person. posted bail on his behalf and his platoon leader retrieved him in contrast to the tortfeasor in lumsden, pernell had been exclusively within the walls of the defendant” might be true tenants.” (emphasis added))). 1994) (considering only prior criminal activity that occurred information that might assist the plaintiff on the intertwined judgment. 840 f.2d at 239. criminal history. discovery, then, would serve the purpose of ability (i.e., legal duty) to control a tortfeasor must be may have had reason to know that pernell was a serial offender 19 we conclude that the district court erred in dismissing durden’s mere wishing of harm upon another person to establish criminal issue, lumsden v. united states, 555 f. supp. 2d 580 (e.d.n.c. see also state v. miller, 477 s.e.2d 915, 921 (n.c. 1996) (crime burglary and assault in fayetteville and the site of pernell’s jurisdictional discovery). 20 suspect in durden’s rape and consented to giving a dna sample because it could “mess up [pernell’s] career.” tortfeasor] had, on several occasions, acquired and inhaled the independent of the tortfeasor’s status as a government employee, to the government, pernell was not required to have an escort criminal activity.” see connelly, 540 s.e.2d at 41 (emphasis aware that pernell posed a safety risk to others, had a duty to b. intersection.”); urbano v. days inn of am., inc., 295 s.e.2d s.e.2d at 42 (considering, for a crime that occurred in north provides for one such waiver, wherein against it absent an express waiver of its immunity.” welch v. at least the reason that they are not the same type of prior “[u]nder certain circumstances, one who undertakes to ii. united states, 823 f.2d 820, 823 (4th cir. 1987). the supreme government moved to dismiss durden’s complaint for lack of state a claim upon which relief can be granted. the district durden “foreseeable” under north carolina law, see connelly, 540 2008), is instructive. in lumsden, marine corpsmen returned to corps, through its agents or officers, were aware that [the against the government to proceed, reasoning that and august of 2009, pernell told his staff sergeant that he off the military installation and the other on the military the government’s efforts to restrain pernell, these allegations court defined the scope of the intentional-tort exception in 15 cannot demonstrate (nor has she alleged) that the army had the argument that pernell’s prior expressed desires to kill himself september 11 to october 22, 2009, at which time his parents whether it breached that duty. of durden “foreseeable” under north carolina law. was a serial offender, and durden does not dispute the pernell insofar as the army (1) ”[knew] or should [have] know[n] being involved in the prior incidents. it might be a different challenged the truthfulness of the allegations in the of [pernell’s] violent propensities” and (2) “ha[d] the ability and returned him to fort bragg. during the transport back to ability to control pernell independent from his status as a any prior crimes that should have put the army on notice that he do not establish the existence [of] a duty owed by the persons against his dangerous propensities.” king v. durham and opportunity to control [pernell] at the time” that he raped propensities and the extent of the restrictions placed upon him. where the prior crimes occurred”—the north carolina supreme general considerations are [1] the location where the plaintiff - appellant, 364 s.e.2d at 397–98 (“the plaintiff presented evidence that one of criminal activity taking place on its motel premises during a indicates that in the five years preceding the armed robbery sheridan v. united states, 487 u.s. 392 (1988). in sheridan, district of north carolina, at raleigh. james c. dever iii, incorrect statement” purporting to dismiss durden’s complaint “behavior thus triggers duty [because] the risk is reasons. stemmed solely from [his] government employment, the 9 unlawfully entered the home of maria durden while inebriated and restrictions placed on pernell following his release from actor to control the [tortfeasor’s] conduct and to guard other here, there is no indication in the record regarding the september 10, 2009 burglary and assault was sufficiently far to bear on the foreseeability of a rape on fort bragg. see id. first, durden cannot demonstrate that the army should have the tortfeasor later shot and injured one of the plaintiffs and guide [the] determination” of foreseeability. id. at 41 the army’s ability to control pernell that attached solely government’s claim that it was only after pernell raped durden communicated the desires to those members of his unit whom he assessment, pernell’s commanding officer lifted the bihourly the army did not breach a duty owed to her as landlord of fort pernell that she believes that the army knew in the first commanding officer first learned of pernell’s desires to harm not abuse its discretion by ruling on the government’s motion the government by way of the three corpsmen for negligently negligence of the supervising employees when the underlying tort treatment, and it was then determined that pernell posed a (internal quotation marks omitted). however, decisions determined that, inter alia, pernell exhibited a low potential the army did not breach any duty owed to durden under north merits issue, id. at 196. by contrast, this court in rivanna, would be liable”). stated otherwise, durden has presented no plaintiffs’ ftca claim and allowed the lawsuit to proceed on a officer escort at all times—both off and on fort bragg—and was government employment was enough to nullify durden’s claims pernell specifically, that committed the 2008 and 2009 sexual independent of pernell’s employment status and, accordingly, the pernell raped durden on december 13, 2009, at durden’s duty when pernell raped her. [his] bag and revealing the barrel of the rifle.” id. at 395. the government because of the happenstance that [the added). to wit, durden has not alleged what “crime” the mere pernell joined the army at age eighteen and was deployed to first, even assuming that pernell’s desires tend to show that he of prior criminal activity is properly considered. knowledge of pernell’s allegedly violent propensity via his complaint on the theory that the allegations are insufficient to damaged the plaintiffs’ vehicle. id. the plaintiffs then sued turning now to the september 10, 2009 burglary and assault— 5 argued: september 19, 2013 decided: november 20, 2013 liability. see, e.g., state v. merrill, 530 s.e.2d 608, 612–13 8 court, however, reversed and allowed the plaintiffs’ claim october 22, 2009, that pernell was to have a noncommissioned united states, 409 f.3d 646, 650 (4th cir. 2005). the ftca liable for her injuries. accordingly, the district court did render a future attack foreseeable for purposes of landlord “obviously intoxicated.” id. at 393–94. reasonable care to protect his tenants from third-party criminal the mere fact that [the tortfeasor] happened to be an authority suggesting that a private person—even knowing of occurred prior to the rape and that should have alerted the army pursuant to his employment status as a soldier, the army must fails to establish that the army breached a duty to her under with respect to what the army knew about pernell prior to the (powell, j. (ret.), sitting by designation). durden characterizes pernell’s desires to kill himself and towards the accomplishment of the desired result to amount to activity that occurred within the defendant’s apartment complex leave-and-pass privilege off fort bragg is common while the ct. app. 2000) (citations omitted). foreseeability may also be section 2680(h) still negates the court’s subject matter cir. 1988), but resolved those cases differently. in kerns, as an initial matter, we reject for two reasons durden’s relevant—if at all—the september 10, 2009 incident is in a s.e.2d 392, 397–98 (n.c. 1988) (prior crimes of armed robbery, (excluding from a foreseeability analysis prior crimes that tenant on fort bragg, let alone durden specifically. see 21 samaritan doctrine.”). moreover, as we explain in greater sexual assaults that occurred in 2008 and 2009 in fayetteville; knowledge of the tortfeasor’s propensity for violence or maria nicole durden, developing a new legal theory under which the army had the allowing the tortfeasor to leave the hospital with a gun while error for the district court to reach the merits of durden’s although durden does not raise this argument, we note that render the government liable under any of her three theories of for determining whether sexual assault against plaintiff was states attorney, jennifer p. may-parker, assistant united states test for a special relationship). even assuming, arguendo, that provided the keys to his car and a canister of ether, hospital. id. at 394–95. the corpsmen “attempted to take [the affidavit, the government asserts that revoking a soldier’s this case is more akin to rivanna than kerns insofar as the b. government’s breach of any duty owed to [durden] was not (n.c. ct. app. 2011). durden’s first theory of negligence, “[he] knew a report of that kind ought to automatically trigger intentional-tort exception, 28 u.s.c. § 2680(h). the district pursuant to the ftca still fails. that is because “[t]he employee, in a drunken stupor in the hallway of a naval civilian confinement, the army voluntarily assumed a duty to united states of america, from pernell pursuant to that relationship, and breached that burglary and assault—which is not sufficient in hindsight to inc. v. carefirst pregnancy ctrs., inc., 334 f.3d 390, 402–03 army did not become aware that pernell was involved with the assault[] [or] battery.” 28 u.s.c. § 2680(h). the supreme where there is a history of violence by one tenant against other bragg. “assume the truthfulness of the facts alleged,” id. at 193). burglary and assault is sufficiently near in proximity to the in north carolina, “a landlord has a duty to exercise a. desire to harm or kill another person, without more, by the negligent or wrongful act or omission of any determining whether pernell’s rape of durden was foreseeable for defendant - appellee. prior criminal acts occurring on the premises,” and “criminal determining whether the army knew of pernell’s criminal history; employee was wholly irrelevant to imposing liability on the emotionally and began using drugs and abusing alcohol. in march s.e.2d at 41; rather, durden’s discovery requests pertain to assaultive behavior . . . .”))). the same could be said, the commencement of the consummation”). second, setting aside 23 id. at *13 (“[a]ccepting as true durden’s allegations regarding if the plaintiffs can show that the government’s v. second, durden has not presented any authority suggesting (4th cir. 2003) (standard of review for decisions regarding circumstances where the united states, if a private person, court granted the government’s motion, and durden appealed. id.—and this court concluded that discovery “could” reveal have had some other legal authority to control him. but durden foreseeable). with respect to the first prong—“the location held that “even if the government’s knowledge of pernell’s liability. see davenport, 718 s.e.2d at 191 (citing anderson, tortfeasor. scadden, 733 s.e.2d at 93 n.2. when the latter government argued—and the district court held—that, even durden’s second theory of negligence therefore also fails. 2009 burglaries and sexual assaults in fayetteville. thus, past. soldier undergoes the process of being administratively s.e.2d at 93. the ftca is clear, however, that the government negligent in the first instance—were it not for their government procedures, and policies regarding the duties of the [army] as criminal history and any propensity for violence or, at a as it qualifies as the same “type of prior crime[]” as pernell’s durden. stein, 626 s.e.2d at 269 (setting forth the two-pronged the corpsmen then fled from the scene and took no further action v. bryson’s jewelers, inc., 443 s.e.2d 768, 770 (n.c. ct. app. himself and others. the government claims that pernell recanted second, with respect to durden’s theory of negligence based 10 and members of his unit established foreseeability of the rape. protect her from pernell and breached that duty when pernell resulting from his failure to exercise reasonable care in such inextricably intertwined, the trial court should ordinarily c. claim, thus barring the claim. specifically, the district court washington, d.c., for appellant. thomas g. walker, united suspect in that rape that authorities also identified him as employee of the government while acting within the landlord knows of a specific threat that one tenant poses to the dangerous propensities of pernell,” and any “regulations, claim at this stage of the litigation. on september 10, 2009, pernell burglarized a home in she requests, and even if her allegations regarding the orders and others, which we have already excluded categorically—that execute the october 22, 2009 orders that, according to durden, her desire that the victim be dead,” absent assent to the murder 7 jurisdiction of civil actions on claims against the not qualify as “prior criminal activity” for purposes of although durden’s claim that relevant evidence is “held at 93; see also 28 u.s.c. § 1346(b)(1). court overstated the exception’s reach, however, and therefore (n.c. ct. app. 2000) (“evidence [of] defendant’s expressions of 2008 and 2009 crimes until after pernell raped her. matter of law. see fed. r. civ. p. 56(a) (standard for granting physical distance between the site of the september 10, 2009 cooksey v. futrell, 721 f.3d 226, 234 (4th cir. 2013). a asserted claims,” treated the district court’s dismissal for counseling on october 22, 2009, at which time pernell’s especially where the jurisdictional question and the merits of undertaking.” quail hollow e. condo. ass’n v. donald j. scholz others as “threats.” pernell, however, did not state in his of her foreseeable: pernell’s repeated expressed desires to kill required (or permitted, for that matter) by law to place pernell durden sued the government. durden alleged that the army was the appellant’s claim were intertwined.” in particular, durden hospital that night—and thus would not have gained knowledge of eleven members of his unit. employment. crimes. see connelly, 540 s.e.2d at 42 (“instances of public independent of the employment relationship.” (citing bajkowski for the fourth circuit within three blocks of defendant’s property); see bennett v. is limited to “[1] the location where the prior crimes occurred, duty to protect her from pernell’s reasonably foreseeable activity.” durden does not identify any additional criminal that the army should have known that pernell was a threat to cnty. mental health developmental disabilities & substance abuse jurisdictional facts and the facts central to a tort claim are pursuant to the ftca’s intentional-tort exception. the district committed, and [3] the amount of prior criminal 28 2 the drunken tortfeasor and put themselves in a position to be identifies two incidents that she believes render pernell’s rape i. had a propensity for violence, durden has still failed to desires to his staff sergeant and platoon leader in an effort to to state a claim. specifically, the government asserted that issues.” 585 f.3d at 193. notably, the government in kerns 2013) (citation omitted) (internal quotation marks omitted). a subsequent rape of durden. see, e.g., murrow v. daniels, 364 lack of subject matter jurisdiction as one for failure to state (unpublished table decision) (considering only prior criminal discovery that would render the government liable. presumably, in which the employment status of the assailant has the place where the act or omission occurred. the district court in sheridan dismissed the plaintiffs’ equity residential, 692 s.e.2d 489 (n.c. ct. app. 2010) of subject matter jurisdiction and an element of appellants’ the issue of foreseeability occurred at the [relevant] motion to dismiss for lack of subject matter jurisdiction. north carolina—where the army’s alleged negligent act or complaint as barred by the intentional-tort exception, and this appeal from the united states district court for the eastern fayetteville.1 this court vacated the district court’s dismissal for lack of theory of negligence, then, is that by undertaking the task of liable to the claimant in accordance with the law of landlord.” but durden has not shown how information pertaining united states court of appeals acts occurring near the premises in question may be relevant to united states, for money damages, . . . for injury or is liable only “under circumstances where the united states, if evening checks. scadden v. holt, 733 s.e.2d 90, 92 (n.c. ct. app. 2012). however, about the corpsmen’s knowledge of the intoxicated separated, or subsequent to being in civilian confinement, “to away from pernell’s rape of durden, then it is “too remote to davenport v. d.m. rental props., inc., 718 s.e.2d 188, 189–90 render services to another which he should recognize as of immunity that bars recovery for “[a]ny claim arising out of to dismiss for failure to state a claim that had been converted what additional information the army might have known about four corners of the complaint and to assess whether, under north subsequent to murrow have fashioned murrow’s language as an loss of property, or personal injury or death caused than mere physical ability to control. rather, it must rise to accordingly, we hold that, although the government’s [2] the type of prior crimes committed, and [3] the amount of tortfeasor in sheridan: presumably, the corpsmen alleged to have with the law of the place where the act or omission occurred.” this court reviews de novo a district court’s decision on a that it was foreseeable that she would be attacked. cf. murrow, we turn now to whether the district court correctly carolina, for appellee. on brief: joseph l. anderson, anderson that was used to identify him as durden’s assailant. pernell co., 268 s.e.2d 12, 15 (n.c. ct. app. 1980). durden’s final for the reasons set forth above, we affirm the district davenport, 718 s.e.2d at 191 (citing anderson v. 124 green expressed desires to kill himself and members of his unit, and monroe oil co., 505 s.e.2d 131, 136–37 (n.c. 1998)). that, “under similar circumstances, a private person in north is an assault or battery by a government employee.” sheridan v. required to have an escort only when he left fort bragg, which winston-salem, north carolina, for appellant. joshua bryan solider also advised pernell not to seek mental-health treatment case if the army knew that it was one of its own soldiers, and for self-harm and harm to others. as a result of this 29 royster, office of the united states attorney, raleigh, north 22 connelly’s third criterion—“the amount of prior criminal . . . , one hundred instances of criminal activity bearing on seeks discovery pertaining primarily to what pernell’s issue. thus, despite the district court’s “technically the army’s knowledge of any and all incidents of “prior criminal the level of custody, or legal right to control.” scadden, 733 affirmed carolina, prior criminal activity that occurred at the same these desires at that time; however, out of an abundance of 28 u.s.c. § 1291. government owed her a duty before the intentional tort was required that pernell be escorted at all times while on fort persons in [durden’s] position.” id. at 589–90; see 28 u.s.c. that these incidents are not sufficient to render pernell’s rape 28 u.s.c. § 1346(b), alleging that the army was negligent and constitutes,2 ability and opportunity to control [a third party] must be more the court noted that, began the process of administratively separating him. according 14 a private person, would be liable to the claimant in accordance 1. this court considered appeals arising under the same the tortfeasor (also a corpsman) his vehicle after the vehicle durden claims that the army had a special relationship with acts that occur on the premises if such acts are foreseeable.” government for the corpsmen’s negligence—pernell’s status as a drunkenness, shoplifting, vandalism[,] and disorderly conduct” for purposes of an ftca claim. see stein, 626 s.e.2d at 269. this court has jurisdiction over durden’s appeal pursuant to rape of durden on fort bragg. although one incident occurred exception. because these are facial—as opposed to factual— foreseeability calculus with respect to pernell’s rape of and third, with respect to durden’s theory of negligence affidavit that he ever intended to act on his desires or that he knowledge in the course of pernell’s employment.” durden, 2012 accordingly, durden’s argument that the government breached [his] commitment to a mental health facility.” even if true, do not establish that the army acted negligently. indeed, it was only after pernell raped durden and became a 16 court affirmed, holding that “§ 2680(h) bars actions alleging did not harm himself. pernell then underwent a scheduled would render every private individual liable for the intentional additional information about the distance between the locations immediately upon pernell’s return to fort bragg, the army carolina law and allegedly breached. sheridan, 487 u.s. at 402. two-day stay at fort bragg, north carolina. upon returning to where plaintiff resided). ways: by attacking the veracity of the allegations contained in (emphasis added)). durden does not dispute, however, that the iii. pernell’s affidavit and, moreover, how that information might intersection area had been reported to the sheriff’s department specifically, the government contends that durden’s allegations, foreseeability of [a] criminal attack shall not be limited to under twenty-four-hour surveillance and to confine him to his agents knew or had reason to know that upon being receive mental-health treatment because, according to pernell, activity” on fort bragg that might render pernell’s rape of ct. jan. 21, 2011) (“a duty to evict . . . may arise where the connelly, 540 s.e.2d at 42 (“the evidence in this case . . . trawlers unlimited v. thompson trawlers, inc., 840 f.2d 236 (4th pernell after pernell returned to fort bragg following his given by pernell’s commanding officer were confirmed, her fort bragg subsequent to his deployment, pernell struggled type of special relationship exists, “there is a duty upon the release from civilian confinement. cf. id. at 582 (“[t]he marine committed. . . . durden’s alleged facts do not establish that relationship with pernell, owed to her a duty to protect her one half months preceding plaintiff’s injury”). rather, durden pernell of raping durden. as a result, pernell was sentenced to forth below, we affirm. of attempt requires an overt act that “must reach far enough attack. attorney, office of the united states attorney, raleigh, north is subject to liability to the third person for injuries theories of negligence would still fall short of the army being officers knew that pernell violated the orders but did not act “the full extent of [the] awareness [of pernell’s commanding assuming that durden’s allegations are true, the complaint still the complaint or by contending that, even assuming that the the government breached a duty that it owed to her.” (citation on appeal, durden opposes each of the government’s bases tortfeasor] was on a federal payroll. acts did not cause pernell to be in the government’s custody.”); pangia & associates, pllc, winston-salem, north carolina; 11 where the united states, if a private person, would be chemical compound, ether, belonging to the government.” 6 residence on fort bragg. in january 2010, pernell became a pernell made known in his affidavit all facts relevant to his rule 12(b)(6) consideration,” kerns, 585 f.3d at 192 (i.e., we hundred incidents of criminal activity at the [relevant] from seeking mental-health treatment and cautioned pernell that rape of her was foreseeable under north carolina law, and thus soldier (i.e., government employee). see scadden, 733 s.e.2d protect her from pernell, and breached that duty by failing to was also identified at that time as being involved in burglaries of a third party, nor to protect another from a third party.” hours during the evening while in his barracks to ensure that he ability to control pernell pursuant to some legal authority in which judge niemeyer and judge gregory concurred. durden can satisfy both prongs of the special-relationship test 1 tortfeasor] to the emergency room, but he broke away, grabbing opportunity and immediately would attempt to drive on of the intersection). nevertheless, it is possible that if the torts of another person against unknown third parties simply of the incidents, however, we are unable to determine how [the tortfeasor] were not an employee of the army, the army demonstrated that the army should have gleaned from those durden. pernell’s affidavit does not state that he committed f.3d 187, 192 (4th cir. 2009). here, despite presenting a subject matter jurisdiction, stating that where “the to restrain the tortfeasor or to alert authorities that the off-duty federal employee should not provide a basis the government moved to dismiss durden’s complaint for lack barracks. durden alleges that the orders were given to “prevent evaluation, the army—for the first time, according to the (foreseeability determined by “prior criminal activity,” which another . . . .”)). activity—other than pernell’s expressed desires to kill himself installation, north carolina courts do not appear to be 2. discretion by transforming the [rule] 12(b)(1) motion into a street llc, no. 09-2626-h, 2011 wl 341709, at *3 (mass. super. give rise to a negligence claim requires us to look beyond the floyd, circuit judge: tendency to commit criminal acts made pernell’s assaulting circumstances.” bridges v. parrish, 742 s.e.2d 794, 797 (n.c. himself and members of his unit (viewed collectively) and maintained if the government would be liable as an individual v. united states, 787 f. supp. 539, 541–42 (e.d.n.c. 1991) (“if to pernell, specifically, and military policy, generally, comes commanding officers knew regarding pernell’s allegedly violent affirmed by published opinion. judge floyd wrote the opinion, of subject matter jurisdiction and, alternatively, for failure wished to harm; rather, pernell indicated that he expressed the into a motion for summary judgment.” rivanna, 840 f.3d at 239 negligence claim where defendant “knew of at least 42 episodes cross-examination of the witnesses making affidavits, and fifty years’ imprisonment, had his military rank reduced, and officer], or the awareness of others in the chain of command, of and assaulted the home’s occupants with a pellet gun. civilian orders were not enforced. specifically, durden claims that the ftca carves out an exception to its own general waiver as an alternative basis for dismissing durden’s complaint, scope of his office or employment, under circumstances rape, durden’s argument that the rape was foreseeable fails on se, nullify an ftca claim. the district court’s dismissal on detail below, durden’s discovery requests, even if granted, 24 here, the district court below held that, unlike in 3 would not assist her on the merits of the underlying negligence durden also argues that “[t]he district court abused its record. in september 2009, pernell confided in a fellow soldier responsibility to take affirmative action for the aid or 17 government also notes that pernell received event-oriented concerned with such formal line-drawing. see connelly, 540 the question of foreseeability.” id. at 397 (citation omitted) against individuals. see davenport, 718 s.e.2d at 191. durden fort bragg, pernell again expressed a desire to kill himself and raped her. however, this theory of a duty fails for two determined that the government is entitled to judgment as a omitted) (internal quotation marks omitted). durden’s second [during the four and a half years leading up to the crime].”); theory of negligence, then, is that the army had a special bragg and be checked on hourly when in his barracks. was impounded when it was discovered that he was inhaling ether. and thus owed to durden a duty to control pernell upon his his unit. after each instance, the sergeant discouraged pernell instance and that she would know by way of pernell. not required to be checked on hourly; rather, pernell was on landlord liability, durden does not seek discovery regarding prior crimes occurred, [2] the type of prior crimes activity. 26 id. the court denied the government’s motion to dismiss the without granting discovery to durden. see carefirst of md., procedural posture as durden’s appeal in kerns and rivanna immediately surrounding [the] defendant[’s] premises.” purvis rape, durden has not put forth any facts or information about wl 3834934, at *9; see id. (“[b]ecause the government’s a public street while so intoxicated, then the agents’ criminal history gained as a result of such status does not, per tortfeasor was intoxicated and in possession of a firearm. id. would not have had . . . knowledge of his prior criminal and and assault. pernell was then detained at a civilian jail from to raping durden, and there is nothing in the record to indicate acted negligently would not have been present in the naval might be uncovered through discovery beyond the statements in raped durden in front of her children. durden subsequently sued desires the notion that pernell would sexually assault any ensure that the soldier [is] available for administrative released from civilian confinement for more than six weeks prior 2 minimum, durden would have alleged that pernell had such a and gave a dna sample that pernell was linked to the 2008 and while on fort bragg, was not confined to his barracks, and was negligence. for even if durden were granted the discovery that 28 u.s.c. § 1346(b)(1) (emphasis added). thus, setting aside procedural protection as [s]he would receive under a occurred in a neighboring town twenty miles away). absent assaults in fayetteville. under those circumstances, the army patient or visitor in the hospital. indeed, in a case recognized that enforcing the october 22, 2009 orders, as durden period of three years preceding the date of plaintiff’s injury,” and, moreover, that the government was negligent in failing to upon which jurisdiction is proper. kerns v. united states, 585

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