Kerry Senger v. United States

103 F.3d 1437 65 USLW 2504 , 12 IER Cases 598 , 96 Cal. Daily Op. Serv. 9466, 96 Daily Journal D.A.R. 15 ,573 Kerry SENGER, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee. No. 94-35688. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 18, 1995. Decided Dec. 27, 1996. Barry L. Adamson, Lake Oswego, OR; Charles F. Mitchell, Hedges and Mitchell, Oregon City, OR, for plaintiff-appellant. Anthony J. Steinmeyer and Steven Frank, United States Department of Justice, Washington, DC; William W. Youngman, Assistant United States Attorney, Portland, OR, for defendant-appellee. Appeal from the United States District Court for the District of Oregon, Donald C. Ashmanskas, Magistrate Judge, Presiding. D.C. No. CV-93-00544-DCA. Before: WALLACE, D. W. NELSON, and BRUNETTI, Circuit Judges. D. W. NELSON, Circuit Judge: 1 Appellant Kerry Senger brings this action against the U.S. Government pursuant to the Federal Tort Claims Act ("FTCA"). He claims damages for injuries that allegedly were inflicted by a U.S. Postal Service employee who assaulted him as he was attempting to tow the employee's car from the post office parking lot. Senger asserts three…

Appellant Kerry Senger brings this action against the U.S. Government pursuant to the Federal Tort Claims Act (“FTCA”). He claims damages for injuries that allegedly were inflicted by a U.S. Postal Service employee who assaulted him as he was attempting to tow the employee’s car from the post office parking lot. Senger asserts three negligence claims: (1) negligence in hiring; (2) negligence in supervision; (3) negligent failure to warn. The district court dismissed the first two claims for lack of subject matter jurisdiction pursuant to the “assault and battery” exception to the FTCA. See 28 U.S.C. § 2680 (h). The district court granted summary judgment in favor of the United States on the claim of negligent failure to warn, finding as a matter of law that the employee’s attack on Senger was unforeseeable. Senger appeals both the dismissal of his first two claims and the grant of summary judgment on the third claim. We have jurisdic *1439 tion under 28 U.S.C. § 1291 . We reverse and remand.

BACKGROUND

In February 1991, Kerry Senger, a tow truck driver for Speed’s Towing, responded to a request from the Postal Service to remove an illegally parked vehicle from the parking lot of…

concurring and dissenting:

I concur in part I of the majority opinion, respectfully dissent to part II, and would not reach the issues decided in part III.

Questions of fact, like foreseeability, are issues for the jury and are generally inappropriate to decide on summary judgment. *1445 Thomas v. Newton International Enterprises, 42 F.3d 1266, 1269 (9th Cir.1994). There are, however, cases where the allegedly tortious act is so remote that Oregon eourts have ruled the act unforeseeable as a matter of law. See, e.g., Uihlein v. Albertson’s, Inc., 282 Or. 631 , 580 P.2d 1014 (1978) (Uihlein). I have carefully considered that portion of Brown’s history of violent acts known to the Postal Service or which the Postal Service reasonably should have known. There is no genuine issue of material fact of whether the harm Senger suffered was foreseeable under Oregon law. Neely v. St. Paul Fire and Marine Ins. Co., 584 F.2d 341, 345 (9th Cir.1978) (“[i]n defining the primary rights and obligations of parties in a diversity suit arising from state law, including elements of. a plaintiffs cause of action, we are, of course, obligated to apply the substantive law of the state”). I conclude as…