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Billups v. United States

United States District Court, E.D. Virginia, Richmond Division

January 14, 2020

ANDREW J. BILLUPS, III, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.

          MEMORANDUM OPINION

          DAVID J. NOVAK UNITED STATES DISTRICT JUDGE

         Plaintiff Andrew J. Billups, III ("Plaintiff), brings this action against the United States of America ("Defendant") pursuant to the Federal Tort Claims Act (the "FTCA" or "Act"), 28 U.S.C. §§ 1346, 2671 et seq., for injuries sustained when an employee of the United States Postal Service ("USPS") sounded a modified horn on his vehicle while Plaintiff stood in close proximity to it. This matter comes before the Court on Defendant's Motion to Dismiss (ECF No. 9), moving to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6). For the reasons set forth below, the Court GRANTS Defendant's Motion to Dismiss (ECF No. 9) and DISMISSES WITH PREJUDICE all claims by Plaintiff for direct liability against Defendant and DISMISSES WITHOUT PREJUDICE all claims by Plaintiff for vicarious liability against Defendant.

         I. BACKGROUND

         In resolving a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court will accept Plaintiffs well-pleaded factual allegations as true, though the Court need not accept Plaintiffs legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, when, as here, a defendant "challenges the factual predicate of subject matter jurisdiction, [a] trial court may then go beyond the allegations of the complaint" to determine if there are facts that support the jurisdictional allegations. Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009) (internal quotations and citations omitted). Based on these standards, the Court accepts the following facts.

         A. Factual Background

         On September 13, 2017, Plaintiff visited the USPS office at 239 North Main Street, Kilmarnock, Virginia 22482 (the "Post Office"). (Compl. (ECF No. 1)¶7.) Plaintiff parked his vehicle near a pickup truck owned and controlled by Ronald Cain ("Cain"), who the USPS employed as a custodian at the Post Office. (Compl. ¶¶ 8-10.) Cain was on duty at the time of the incident. (Compl. ¶ 11.) Cain had backed his truck into its parking space so that the grill of the truck faced the parking lot. (Compl. ¶ 12.) Cain had modified the truck's horn or alarm to create an unusually loud noise. (Compl. ¶ 13.)

         As Plaintiff exited his vehicle and stood approximately ten feet from Cain's truck, he heard a loud horn blast emanating from the truck. (Compl. ¶ 14.) Plaintiff approached the truck to examine the grill and determine the source of the loud noise. (Compl. ¶ 15.) As Plaintiff approached the truck and bent down to look at the truck's grill, and while he stood approximately five to six feet from the truck, Cain caused the loud alarm or horn to sound a second time. (Compl. ¶¶ 15-16.) Plaintiff immediately began to experience ringing in both of his ears, as well as moderate deafness. (Compl. ¶ 17.) Because Plaintiff knew Cain from his regular visits to the Post Office, he attempted to locate Cain inside the Post Office to no avail. (Compl. ¶¶ 18-19.) Plaintiff returned to the Post Office several days later and noticed that the truck's alarm activated again while he stood approximately twenty feet away. (Compl. ¶ 20.)

         On or about September 30, 2017, Plaintiff continued to experience bilateral ringing and deafness in his ears and went to the Post Office to investigate the cause of his problems. (Compl. ¶ 21.) At the Post Office, Plaintiff spoke with a USPS employee, who asked him to return on October 2, 2017, to speak with the postmistress, Mildred San Juan ("San Juan"). (Compl. ¶ 22.) Plaintiff returned to the Post Office on October 2, and Cain approached him in the parking lot. (Compl. ¶¶ 23-24.) Cain admitted to causing the truck's alarm to activate using the alarm feature on his key remote control. (Compl. ¶ 25.) Cain explained that at least two of his co-workers watched Plaintiff react to the alarm sound through a hole cut in the Venetian blinds inside the Post Office. (Compl. ¶ 26.) Cain indicated that he sounded the alarm on his truck as a practical joke. (Compl. ¶ 28.)

         After speaking with Cain in the parking lot, Plaintiff entered the Post Office and met with San Juan. (Compl. ¶ 29.) San Juan apologized to Plaintiff and told him that she would meet with Cain and other members of the staff to review and update their customer service training. (Compl. ¶ 30.) San Juan later provided Plaintiff with contact information for the USPS's Tort Claims Coordinator. (Compl. ¶ 31.) Plaintiff sustained acoustical trauma to both of his ears, and physicians diagnosed him with permanent and bilateral high-frequency hearing loss and tinnitus. (Compl. ¶¶ 38-39.) In October 2018, Plaintiff, through counsel, presented an administrative claim for damages to the USPS, which the USPS denied by a letter dated May 21, 2019. (Compl. ¶¶ 2-3.) Plaintiff now brings the instant suit.

         B. Plaintiffs Complaint

         On September 5, 2019, Plaintiff filed suit in this Court, alleging that Cain had a habit of activating the alarm on his truck as customers passed by. (Compl. ¶ 32.) Plaintiff alleges that Cain's supervisors and co-workers knew of and even participated in Cain's habit, rendering it foreseeable to them that his conduct created a danger of harming customers. (Compl. ¶¶ 35-37.) Plaintiff alleges several torts that proximately caused his injuries, namely: (1) Cain's negligent activation of his truck horn; (2) negligent supervision of Cain; (3) negligent training of Cain; and, (4) negligent retention of Cain. (Compl. ¶ 40.) Plaintiff seeks up to $3 million in monetary damages for the physical, mental and economic harm caused by these alleged torts. (Compl. ¶4l.)

         C. Defendant's Motion to Dismiss

         On November 27, 2019, Defendant filed its Motion to Dismiss (ECF No. 9), moving to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure to state a claim pursuant to Rule 12(b)(6). In support of its Motion, Defendant argues that the United States has not waived its sovereign immunity as to Plaintiffs claims, because 28 U.S.C. § 2680(h) explicitly preserves the United States' sovereign immunity for "[a]ny claim arising out of assault [or] battery." (Mem. in Supp. of Def.'s Mot. to Dismiss ("Gov't Mem.") (ECF No. 10) at 5.) Although Plaintiff describes Cain's conduct as negligent, Defendant contends that substantively Plaintiffs claims arise from Cain's intentional conduct and, therefore, the FTCA's intentional tort exception applies. (Gov't Mem. at 6-8.) Defendant further maintains that Plaintiffs claims for negligent supervision, training and retention by Cain's supervisors must also fail, because Cain's intentional conduct underlies those claims. (Gov't Mem. at 8-9.) And Defendant argues that the independent-duty exception espoused by the Supreme Court in Sheridan v. United States, 487 U.S. 392 (1988), does not rescue Plaintiffs claims, because Plaintiff can point to no independent duty owed by the USPS to Plaintiff. (Gov't Mem. at 9-13.)

         Alternatively, Defendant argues that the Court should dismiss Plaintiffs negligent supervision, training and retention claims under the FTCA's discretionary function exception. (Gov't Mem. at 13.) Defendant contends that the decisions related to the supervision, training and retention of Cain fall under the USPS's statutory right to manage its own ...


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