Wilburn et al v. United States of America
Filing
97
MEMORANDUM OPINION by Senior Judge Charles R. Simpson, III on 7/30/2018: The Court will GRANT the Defendant's motion for summary judgment and DISMISS with prejudice the Amended Complaint. An order will be entered in accordance with this opinion. cc: counsel (JM)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
AT LOUISVILLE
DAVID J. WILBURN, JR., et al.
v.
PLAINTIFFS
CIVIL ACTION NO. 3:13-cv-384-CRS
UNITED STATES OF AMERICA
DEFENDANT
MEMORANDUM OPINION
This matter is before the court on motion of the Defendant, the United States of America,
for summary judgment in favor of the Defendant on the Plaintiffs’ claims, pursuant to Fed. R.
Civ. P. (“Rule”) 56(c). For the reasons stated herein, the court will GRANT the Defendant’s
motion.
I.
BACKGROUND
1. Factual Background
On September 11, 2007, United States Army Sgt. Brent Burke (“Burke”) fatally shot his
estranged wife, Tracy Burke (“Tracy”), and Tracy’s mother-in-law from a former marriage,
Karen Comer (“Comer”), in Comer’s home in Rineyville, Kentucky. (DN 22, ¶ 2.) Tracy and
Burke’s two minor children, Eion M. Burke and Raegan A. Burke, and Tracy’s minor son from
her former marriage, Matthew T. Pete, were present at Comer’s home at the time of the shooting.
(Id. at ¶ 3.) On May 8, 2012, a seven-person military tribunal found Burke guilty of the murders
of Tracy and Comer. (Id. at ¶ 4.)
According to the Plaintiffs, the underlying tragedy of this action did not come without
warning. The Plaintiffs contend that Burke began demonstrating violent tendencies in 2005,
while he was deployed in Egypt. There, Burke allegedly made numerous concerning statements
to others, including comments that he would kill himself and/or Tracy if Tracy left him. (DN 904, 5.) These statements twice caused Burke to be put under supervision. (DN 90-6.) After
purportedly telling another soldier that he had found the perfect location to murder his platoon
leader, the Army removed Burke from his platoon, transferred him to mental health counseling,
and ultimately returned him early to Fort Campbell, Kentucky. (DN 90-4, 5.) For a time, Burke
continued to receive mental health counseling and prescription medication to treat various mental
health issues. (Id. at 6 – 7.) In January 2006, the Army released Burke to active duty and
deployed him to Afghanistan. (DN 90-4, 7.) Yet, Burke allegedly continued to exhibit violent
tendencies, especially towards detainees at the detention center where he was acting as a
detention center guard. (Id. at 8.)
Upon returning from deployment, Burke lived off-base with Tracy and their children in
Burke’s home in Clarksville, Tennessee. Throughout the summer of 2007, the Plaintiffs allege
that the Army knew that Tracy feared Burke. (DN 90-4, 12.) The Army also was aware of two
domestic violence incidents between Tracy and Burke in which the police were called to
intervene.
The first reported domestic violence incident occurred in May 2007.
The police
responded to a call at Burke’s home where “[b]oth parties gave written statements and stated no
physical activity occurred.” (DN 86, Exh. 5.) This incident was reported to Burke’s chain of
command and the Army investigated the situation pursuant to a written internal policy called
“Policy 7: Command Response to Incidents of Domestic Violence” (“Policy 7”). (DN 90-4, 10;
DN 90-2.) Under Policy 7, all Unit Commanders are required to respond to credible reports of
domestic violence. (DN 90-4, 10.) The investigation resulted in the Army ordering a “72-hour
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cooling off period” in which Burke was provided a room in the Fort Campbell barracks. (Id.)
Burke was required to attend counseling and social services sessions and was not allowed to
contact Tracy until after he spoke to a counselor. (Id.) Fort Campbell’s Family Advocacy
Program’s Case Review Committee subsequently closed the matter, finding that “no further
services [were] needed or requested by the family at this time.” (DN 86, Exh. 5.)
After this incident, Tracy and Burke physically separated and Tracy filed for divorce.
(DN 86-9.) Burke moved back into the Army barracks and a Marital Dissolution Agreement was
entered on July 23, 2007.
(DN 90-4, 11; DN 86-10.)
On August 11, 2007, local law
enforcement responded to another domestic violence incident between Tracy and Burke, to
which the Army was notified. (DN 90-4, 12.) The Clarksville Police Department in Clarksville,
Tennessee did not prepare a report related to this call, and the Army did not take any action in
response. (Id.)
On September 11, Burke shot and killed Tracy and Comer in Comer’s home in
Rineyville, Kentucky. On April 5, 2013, the Plaintiffs, representatives of Tracy’s minor children
and administrators of the estates of Tracy and Comer, filed a Complaint against the United States
for damages related to the shooting under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§
1346(b), 2671 – 2680.
2. Procedural History
In 2013, the United States filed a motion to dismiss the Plaintiffs’ Amended Complaint
pursuant to Rule 12(b)(6). Therein, the United States argued that the Plaintiffs’ claims were
barred by the intentional tort and discretionary function exceptions of the FTCA. The court
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granted the United States’ motion, finding that the Plaintiffs’ claims were barred by the
intentional tort exception, and dismissed the case.1 (DN 32.)
The Plaintiffs timely appealed the court’s order dismissing the action. In August of 2015,
the Sixth Circuit reversed and remanded the case back to this court, finding that “it is not evident
from the pleadings that either the FTCA’s intentional tort exception or its discretionary function
exception would bar these claims.” (DN 35, 2.) Over the next several years, the parties engaged
in discovery efforts. Now before the court is the United States’ Motion for Summary Judgment.
II.
STANDARD
A party moving for summary judgment must show that “there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a).
The moving party bears the burden of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Additionally, the Court must draw all
factual inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986). A genuine issue for trial exists when “there is sufficient
evidence favoring the nonmoving party for a jury to return a verdict for that party.” Anderson v.
Liberty Lobby, 477 U.S. 242, 249 (1986). It is the burden of the nonmoving party to “direct the
court’s attention to those specific portions of the record upon which it seeks to rely to create a
genuine issue of material fact.” In re Morris, 260 F.3d 654, 655 (6th Cir. 2001).
III.
DISCUSSION
The Plaintiffs allege that the United States beached a duty to Tracy and Comer to protect
them from Burke, and as such, the United States is liable to the Plaintiffs for damages from the
fatal shooting on September 11, 2007. In its motion for summary judgment, the United States
Because the court found that each of the Plaintiffs’ claims were barred under the intentional tort exception of the
FTCA, the court did not consider whether the claims were barred under the discretionary function exception.
1
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argues that the Plaintiffs have not provided sufficient evidence to show that the United States
owed a duty to Tracy or Comer, and therefore that the motion should be granted. Before turning
to the Defendant’s motion, the court first will review the applicable law.
1. The Federal Tort Claims Act
While the United States is generally immune from suit, the FTCA provides a waiver of
the federal government’s sovereign immunity in certain circumstances and, in fact, is “the
exclusive remedy for suits against the United States or its agencies sounding in tort.” Himes v.
United States, 645 F.3d 771, 776 (6th Cir. 2011) (citing 28 U.S.C. § 2679(a)). Under the FTCA,
immunity is waived when a federal government employee, acting within the scope of
employment, causes personal injury or death due to a “negligent or wrongful act or omission.”
28 U.S.C. § 1346(b)(1). In such instances, the federal government is “liable to the claimant in
accordance with the law of the place where the act or omission occurred.” Id. Here, the
substantive law of Kentucky applies as the incidents giving rise to this action occurred in
Kentucky.
However, the United States’ waiver of sovereign immunity is not without limit. Section
2680 provides a list of exceptions to the FTCA. “If a case falls within the statutory exceptions of
28 U.S.C. § 2680, the court lacks subject matter jurisdiction.” Feyers v. United States, 749 F.2d
1222, 1225 (6th Cir. 1984) (citations omitted). These exceptions include intentional torts. 28
U.S.C. § 2680(h).
Under the intentional tort exception, the United States retains sovereign immunity for
claims “arising out of” assault and battery, among other intentional torts. The phrase “arising out
of” has been interpreted broadly by courts; not only is the United States immune from suit for
any intentional acts committed by a government employee, but the United States is also immune
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from suit for claims framed as the “negligent failure to prevent the assault or battery” by a
government employee. United States v. Shearer, 473 U.S. 52, 55 (1985) (plurality opinion)
(“Section 2680(h) does not merely bar claims for assault and battery; in sweeping language it
excludes any claim arising out of assault or battery. We read this provision to cover claims like
respondent’s that sound in negligence but stem from a battery committed by a Government
employee.”) (emphasis in original).2
The holding in Shearer, however, does not categorically preclude liability for every claim
against the United States simply because it concerns an underlying assault or battery. Two years
after Shearer, the Supreme Court clarified in Sheridan v. United States, 487 U.S. 392 (1988) that
the intentional tort exception does not bar claims that rest on a theory of liability “entirely
independent of” the intentional tortfeasor’s status as a government employee. Id. at 401. If the
United States is subject to a duty under the applicable state law that is separate from employment
status, the intentional tort exception will not bar a claim against the United States simply because
the tortfeasor happened to be a government employee. As such, the court only has subject matter
jurisdiction of this action if the Plaintiffs can show that the United States held an independent
duty to Tracy or Comer under Kentucky Law.
2. The Sixth Circuit’s Opinion
In its Opinion, the Sixth Circuit found that the Plaintiffs had stated a plausible claim for
relief on two theories of liability under the FTCA independent from Burke’s status as a
government employee.3 First, the Court found that the Plaintiffs adequately stated a claim that
The plurality’s reasoning in Shearer was later adopted by the Sixth Circuit in Scatterfield v. United States, 788
F.2d 395 (6th Cir. 1986). Therein, the Court found that the intentional tort exception barred a claim by a soldier’s
mother that the Army negligently supervised its servicemen who beat her son to death while on leave together. Id.
at 399 – 400.
3
The Sixth Circuit held that the Plaintiffs had not stated a plausible claim under a third theory of liability, that is, a
tort claim based on an alleged duty arising from a special relationship between the Army and Tracy. The Plaintiffs
pointed to no Kentucky law which would impose such a duty and as such the Court dismissed this theory of liability.
2
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the United States is liable under a voluntary assumption of duty to Tracy and Comer. Kentucky
has adopted § 323 of the Restatement (Second) of the Law of Torts (“Section 323”) when
assessing whether a defendant has voluntarily assumed a duty to a plaintiff. Horn v. Horn, 630
S.W.2d 70, 73 (Ky. 1982); Murphy v. Second St. Corp., 48 S.W.3d 571, 575 n. 16 (Ky. Ct. App.
2001). Section 323 states:
One who undertakes, gratuitously or for consideration, to render services to
another which he should recognize as necessary for the protection of the other's
person or things, is subject to liability to the other for physical harm resulting
from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other's reliance upon the
undertaking.
Restatement (Second) of Torts § 323 (1965). In this case, the Plaintiffs argue that the Army
assumed a duty to Tracy because Tracy relied upon Policy 7 and Burke’s chain of command to
protect her. Upon assessing this claim, the Sixth Circuit held:
Each bare fact – that the Army did not follow its own regulations, the Sgt. Dean
took and then returned Burke’s gun, or that Tracy told Burke’s command that she
feared Burke – is not sufficient to show that the Army assumed a duty to warn or
protect her. Tracy must also show that the [A]rmy took some action upon which
she relied.
(DN 35, 9) (emphasis in original). On remand, the Sixth Circuit directed the Plaintiffs to
“present evidence sufficient to enable a reasonable trier of fact to conclude that Tracy reasonably
relied on some action taken by the army.” (DN 35, 9.)
Next, the Sixth Circuit held that the Plaintiffs’ Amended Complaint sufficiently stated a
claim for relief under the duty of mental health professionals pursuant to Kentucky Revised
Statute (“KRS”) § 202A.400. KRS § 202A.400 imposes a duty on mental health providers to
take reasonable precautions to protect victims of their patients if the “patient has communicated
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to the mental health professional an actual threat of physical violence against a clearly identified
or reasonably identifiable victim, or [ ] the patient has communicated to the mental health
professional an actual threat of some specific violent act.” KRS § 202A.400(1). Because the
Plaintiffs’ Amended Complaint alleges that the Army ordered Burke to attend counseling, and
alleges that he had made statements about killing Tracy to numerous members of the military
community, the Sixth Circuit found it plausible that Burke had communicated threats about
harming Tracy or Comer to mental health professionals. The Court remanded the case for
discovery on whether a duty existed to Tracy and Comer under KRS § 202A.400.
It should also be noted that the Sixth Circuit found that the discretionary function
exception did not bar the Plaintiffs’ claims at the pleading stage and therefore reversed and
remanded on this issue. However, as the United States has not addressed the discretionary
function exception in its motion for summary judgment, the court will not engage in an analysis
on whether this exception applies.
3. Motion for Summary Judgement
In February of 2018, the Defendants filed the present motion for summary judgment,
arguing that the Plaintiffs cannot present sufficient evidence for a reasonable trier of fact to
conclude that the United States breached a duty to Tracy or Comer under either Section 323 or
KRS § 202A.400. The Plaintiffs in their response concede that there does not exist sufficient
evidence to support a claim under the duty of a mental health professional to warn Tracy or
Comer.
(DN 90, 12) (“Petitioners acknowledge having elicited no evidence to show the
applicability of KRS § 202A.400.”). The Defendant’s motion for summary judgment therefore
will be granted as to a duty under KRS § 202A.400. The only remaining issue before the court is
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whether the Plaintiffs have provided sufficient evidence that the Army voluntarily assumed a
duty of care to Tracy for her protection under Section 323.
As noted by the Sixth Circuit in its Opinion, the Plaintiffs must show some evidence of
detrimental reliance to succeed on a claim under Section 323. 4 Even construing the facts in the
light most favorable to the Plaintiffs, there does not exist sufficient evidence of reliance by Tracy
or Comer on any alleged representations or actions of the Army that caused Tracy or Comer to
suffer harm.
The evidence provided by the Plaintiffs on the issue of reliance, at best, constitutes mere
speculation, which is insufficient to create a genuine issue of fact on the matter. For example,
the Plaintiffs argue that “one can [ ] reasonably infer” that Tracy was imparted with “a certain
measure of confidence,” that the Army would protect Tracy because Tracy talked to an Army
Case Assessment Manager regarding the May 2007 domestic violence incident. Yet, even if this
conversation did impart some “confidence” in Tracy that the Army was investigating Burke, it
does not indicate that Tracy somehow acted – or failed to act – in reliance upon the investigation.
Further, documents suggest that Tracy wanted an emergency protection order, but no
such order was granted by the Army. (DN 90-4, 11 – 13.) Neither is there evidence that the
Army told Tracy that it did or would issue such an order. (Id.) Thus, a jury could not find from
the evidence that Tracy reasonably relied upon a representation of the Army that it would issue
an emergency protection order for her protection.5
The Plaintiffs’ response to the motion for summary judgment argues that sufficient evidence exists under Section
323(b), which requires harm to be suffered because of reliance on a voluntary undertaking. While the Plaintiffs’
response, at times, references the language of Section 323(a), the Plaintiffs have not attempted to provide evidence
to support a claim under Section 323(a).
5
Tracy, in her Complaint for Absolute Divorce, also requested that a Restraining Order be issued by the Chancery
Court for Montgomery County, Tennessee. (DN 90-16, 3.) The evidence does not indicate whether this Court
issued a Restraining Order.
4
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Next, there is no evidence that Tracy relied upon the Army to secure Burke’s privately
owned weapons. Communications between Burke’s command and Tracy indicate that Tracy
was aware that Burke had weapons in the home. (DN 90-4, 12.) Further, while evidence shows
that an Army officer kept Burke’s 9mm pistol at his home for a brief period in August of 2007,
there is no indication that Tracy was aware that this officer had Burke’s weapon in his
possession, or that she relied upon the officer to keep it from Burke for her safety. (Id. at 13; DN
95-1.)
The Plaintiffs also contend that Tracy’s reliance is evident through her communications
with co-workers, but affidavits only indicate that Tracy told multiple co-workers that she feared
Burke and was communicating with Fort Campbell about her fears. (DN 90-17; DN 90-18.)
Once again, as stated by the Sixth Circuit, merely communicating with the Army about Burke’s
behavior does not indicate that Tracy relied upon an undertaking or representation by the Army
that it would protect her.
Lastly, to the extent that Tracy relied upon any specific undertakings of the Army, these
examples are not relevant to whether Tracy relied upon the Army for her safety at the time of the
murder. After Burke moved into the barracks following the May 2007 domestic violence
incident, the Plaintiffs allege that Tracy relied on the Army to provide a military police escort to
accompany Burke when he returned to the Burkes’ marital home to retrieve some personal items.
(DN 90-9, 2.) Even in the light most favorable to the Plaintiffs, this only indicates that Tracy
relied upon a specific action immediately following the domestic violence incident, not that she
relied on the Army’s continual protection after moving out of the marital home.
To the contrary, available evidence indicates that Tracy did not rely on the Army to
protect her at the time of the murder. Tracy’s Complaint for Absolute Divorce, filed on May 30,
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2007, states that “[c]omplainant fears that when [Burke] is released from the barracks, he will
return home and irreparable injury will occur to her and the parties’ minor children.” (DN 90-16,
4.) Tracy was thus aware that the Army would not continue to hold Burke in the barracks
indefinitely for her protection. Similarly, an affidavit by one of Tracy’s co-workers stated that
Tracy had talked to Fort Campbell about her fear of Burke, but conceded that “[the reports to
Fort Campbell] would not stop him.” Perhaps most significantly, Tracy did not continue to live
at or near the Burkes’ marital home in Clarkesville, Tennessee. There is no dispute that when
she was killed on September 11, 2007, Tracy and her children were staying at the home of
Comer in Rineyville, Kentucky.
This evidence contradicts the Plaintiffs’ tenuous and
generalized allegations of reliance at the time of the murder.
In sum, the Plaintiffs’ evidence assumes that Tracy relied upon the Army because she
had communicated her fears to the Army, was aware that the Army had implemented Policy 7
regulations, and knew that it pursued an investigation in response to the May 2007 incident.
The Plaintiffs have pointed to no statements or actions by Tracy reasonably indicating
detrimental reliance on a voluntary undertaking of the Army to protect her at the time of her
death. Additionally, the Plaintiffs’ response to the Defendant’s motion emphasizes how the
Army could or should have acted differently under the circumstances. Yet, alleged deficiencies
in the Army’s handling of the situation, alone, cannot establish liability. While the murders of
Tracy and Comer at the hands of Burke certainly are tragic, the available evidence does not
indicate that the Army took any actions to protect Tracy or Comer upon which they relied
pursuant to Section 323. Without such evidence, a reasonable trier of fact could not find for the
Plaintiffs on their claims. The court will grant the Defendant’s motion for summary judgment
and this action will be dismissed.
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IV.
CONCLUSION
For the reasons stated, the court will GRANT the Defendant’s motion for summary
judgment and DISMISS with prejudice the Amended Complaint.
An order will be entered in accordance with this opinion.
July 30, 2018
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