Durden v. United States, No. 12-2212

Decided: November 20, 2013

The Fourth Circuit affirmed the district court, holding that, under North Carolina law, the plaintiff’s negligence claim failed because she was unable to establish that the Army owed her a duty, under the circumstances, to protect her from sexual assault.

On December 13, 2009, Aaron Pernell (“Pernell”), a member of the Army, unlawfully entered Maria Durden’s (“Durden”) home while inebriated, and raped her in front of her children. The record revealed that Pernell struggled emotionally and began using drugs and abusing alcohol upon returning to Ford Bragg following his deployment to Iraq. On several occasions, Pernell told his commanding officer and a fellow soldier that he was abusing alcohol and desired to kill himself and eleven current and former members of his unit. In September of 2009, Pernell burglarized a home in Fayetteville, North Carolina and assaulted the home’s occupants with a pellet gun. Civilian law enforcement arrested him and he was detained from September 11 to October 2, 2009. Upon his return to Fort Bragg, the Army began proceedings to administratively separate him. Here, each side disagreed over certain restrictions placed on Pernell following his release from jail. Durden insisted the army placed significant restrictions on him in order to protect the public from danger and his commanding officers were aware the restrictions were not properly followed. The government, however, disagreed. Following Durden’s rape in December 2009, Pernell became a suspect in January 2010 and ultimately consented to giving a DNA sample that identified him as the assailant. At this time, Pernell was also identified as being involved in burglaries and sexual assaults that occurred in 2008 and 2009 in Fayetteville. A mental health evaluation was then performed. It determined that Pernell posed a medium risk of harm to himself and others. Following the evaluation, according the government, the Army for the first time placed barracks restrictions and ordered that he be monitored at all times.

In December 2010, Pernell was convicted of raping Durden in a general court-martial proceeding. He was sentenced to fifty years imprisonment and dishonorably discharged from the Army.  Subsequently, alleging negligence by the Army, Durden sued the government pursuant to the Federal Tort Claims Act (“FTCA”). The district court, however, granted the government’s motion to dismiss for lack of subject matter jurisdiction and, alternatively, for failure to state a claim. Specifically, that the Army did not breach any duty owed to Durden under North Carolina law and that Durden’s complaint was barred by the FTCA’s intentional-tort exception. This appeal followed.

On appeal, the Fourth Circuit held that, even assuming that Durden’s allegations were true, the complaint still failed to establish that the Army breached a duty to her under North Carolina law. The court so held despite the district court’s “technically incorrect statement” purporting to dismiss Durden’s complaint for lack of subject matter jurisdiction because the district court considered the negligence issue as though it were the basis of a motion to dismiss for failure to state a claim that had been converted into a motion for summary judgment. In so doing, the court rejected Durden’s three theories that the Amry owed a duty to her under North Carolina law. The three theories alleged included: a theory based on the Army’s relationship with Durden as the landlord of Fort Bragg; a theory based on a special relationship creating a responsibility to take affirmative action for the aid or protection of another; and a theory based on the undertaking to render services to another, subjecting such person to liability to the third person for injuries resulting from his failure to exercise reasonable care in such undertaking. Next, the court rejected Durden’s contention that the district court abused its discretion by transforming the 12(b)(1) motion into a judgment on the merits without the opportunity for discovery. In doing so, the court noted that, even assuming Durden’s discovery requests were granted, her theories of negligence would still fall short of the Army being liable for her injuries.

Lastly, the Fourth Circuit addressed the district court’s alternative basis for dismissing Durden’s complaint: that the fact that the Army gained knowledge of Pernell’s allegedly violent propensity via his government employment was enough to nullify Durden’s claims pursuant to the FTCA’s intentional-tort exception. The court held that the district court erred in its dismissal on this alternative basis, noting that mere knowledge of a tortfeasor’s propensity for violence or criminal history gained as a result of the tortfeasor’s status as a government employee does not, per se, nullify an FTCA claim.

Full Opinion

-W. Ryan Nichols

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