The opinion of the court was delivered by: GERTNER
On November 29, 1990, Carol Cuttle was kidnapped from a parking lot at Conn Barracks, a United States Army installation at Schweinfurt, Germany. Ms. Cuttle, who lived in a nearby town with her husband, an Army captain, was subsequently taken to another location, where she was beaten, raped, robbed and ultimately strangled to death. The perpetrator of this crime was one Private Dwan Gates, who later confessed to the offense and was sentenced by a general court martial to life imprisonment.
An investigation by the United States Army Inspector General (IG) subsequently determined that, at the time he had enlisted in the Army, Private Gates had had an extensive criminal record, including a previous rape conviction. The IG's investigation further determined that the Army personnel involved in Gates' recruitment and enlistment had failed properly to investigate his criminal background, and thus had not discovered Gates' criminal past. Had this past been discovered, Gates would have been excluded by law and Army policy from enlisting in the Army.
The plaintiff, the administratrix of Ms. Cuttle's estate, brought this action under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) ("FTCA"), charging that the negligence of the United States was the proximate cause of Ms. Cuttle's rape and murder. Plaintiff contends that the United States breached a duty to Ms. Cuttle when the Army failed to investigate Gates' criminal background prior to his enlistment, when it failed to prevent him from coming into contact with her subsequent to his enlistment, and when it failed to warn her of his violent tendencies.
The United States moved to dismiss the complaint, claiming that plaintiff's claims were barred by various exceptions to the FTCA, which prohibit claims arising out of assault and battery, claims arising on foreign soil, or claims arising from the exercise of discretion by government officials. 28 U.S.C. §§ 2680(a), (h), (k). By memorandum dated March 31, 1995, I denied the United States' motion. I found that to the extent plaintiffs' claim was based on the negligence of Army recruiters in failing to follow mandatory recruitment procedures, it arose neither from an assault and battery, on foreign soil, nor as the result of a discretionary act. See Mulloy v. United States, 884 F. Supp. 622, 626-631, 632-634 (D.Mass. 1995).
I further concluded that plaintiff stated a cause of action under Illinois law.
I found that, under certain circumstances, Illinois imposed a duty on certain individuals to protect others from the unlawful acts of third parties, and that such a duty arose under the circumstances alleged by plaintiff. Mulloy, 884 F. Supp. at 631-632.
The United States now moves for summary judgment. It asks that I revisit my conclusion that it owed a duty toward plaintiff's decedent. It further contends that the rape and murder of Ms. Cuttle was not proximately caused by the negligence of Army recruiters. For the following reasons, the United States' motion is DENIED.
A. Carol Cuttle's Relation to the Military Community at Schweinfurt
The facts are set forth below in the light most favorable to the plaintiff. Santiago-Ramirez v. United States, 62 F.3d 445, 446 (1st Cir. 1995).
Carol and Mark Cuttle were married on September 1, 1990, in Fitchburg, Massachusetts. Mark Cuttle was, at the time, a captain in the United States Army and was stationed at Conn Barracks in Schweinfurt, Germany. After a honeymoon in Greece, the couple took up residence in Mechenried-Riedbach, Germany, a town about 20 miles from Conn Barracks. Shortly thereafter, Captain Cuttle applied for and received a "Uniformed Services Identification and Privilege Card," which Ms. Cuttle could use to gain admittance to Conn Barracks. Captain Cuttle also enrolled Ms. Cuttle in the medical care program for military dependents.
Prior to and after their arrival in Germany, Captain Cuttle provided his wife with various publications describing her role as an officer's wife and a member of the military community. One book, entitled "The Officer's Family Social Guide," described various military customs and protocols, and the duties of an officers' wife. Another book, entitled "Ruffles and Flourishes, A Guide to Customs and Courtesies of the Military," described in great detail how officers' wives were to behave at military functions, even to the point of prescribing a protocol for pouring coffee and tea.
Ms. Cuttle also received from the Army a copy of the "Schweinfurt Military Community Information Guide," which outlined the range of services available to members of the community, including various retail businesses, medical services, legal services, recreation, a community newspaper, a social services agency, and the like. Other publications distributed to Ms. Cuttle detailed educational offerings for military families at Schweinfurt.
Upon Ms. Cuttle's arrival in Germany in September of 1990, she quickly became an active member of the military community in Schweinfurt. She was introduced at a reception, after attending a brigade change of command ceremony. A few days later, she attended a brunch for company grade officers and their wives at the home of a lieutenant colonel. She also attended "family day," a battalion-level family picnic where she was introduced to the soldiers under Captain Cuttle's command, as well as to their spouses and children.
Also in September, Ms. Cuttle attended her first "Hail and Farewell," a monthly event for new members arriving in the community and those who were departing. She was formally welcomed at this event by her husband's battalion and presented with a gift. She obtained an Army issued driver's license, library card and officers' club membership.
In the subsequent months, and in fulfillment of her duties as an officer's wife, Ms. Cuttle attended numerous "coffees," "teas," luncheons and dinners at Conn Barracks. She joined the German-American Club, attended additional Hails and Farewells, and participated in a two-day, comprehensive orientation for new family members of the community. She and her husband also gave a Halloween party for the children of his soldiers.
In August of 1990, Iraq invaded Kuwait, and United States forces in Europe were mobilized in anticipation of Operation Desert Shield. Captain Cuttle received orders deploying him to Grafenwohr Training Area for maneuvers. Shortly before Captain Cuttle's departure, his battalion commander asked that all company commanders and their spouses attend a briefing concerning the planned deployment. The meeting was intended to address rumors about the deployment, and to enlist the ongoing assistance of those in attendance in helping families prepare for the impending separation of soldiers from their loved ones. He commended the Family Support Group, in which Ms. Cuttle played an active role, for its leadership in this regard.
B. The Rape and Murder of Carol Cuttle
On November 29, 1990, Carol Cuttle joined a friend, Jane Oliver, to drive to Wuerzburg, Germany in Ms. Cuttle's vehicle. Upon their return that evening, Ms. Cuttle drove to Conn Barracks to drop off Ms. Oliver at the Barracks' Education Center, where she was taking a class. After leaving Ms. Oliver, Ms. Cuttle drove to a "shoppette" located in the Finney Recreation Center on Conn Barracks. She parked her car in the rear of the complex next to the closest entrance for the shoppette. It was dark at the time.
After purchasing a candy bar at the shoppette, Ms. Cuttle returned to her car. Private Gates had seen Ms. Cuttle leave the shoppette and followed her to her car. There he confronted her and forced his way into the car. He grabbed Ms. Cuttle by the hair and punched her in the face causing a severe injury to her left eye. She was very frightened and begged him not to hurt her. There were no people around to offer help.
Gates then forced Ms. Cuttle to drive off the base to the rear of some buildings in the town of Schweinfurt. There he forcibly raped her and strangled her with his bare hands. After stealing Ms. Cuttle's wedding band and engagement ring, he fled.
C. Private Gates' Enlistment
The facts relating to Private Gates' enlistment are largely undisputed and derive primarily from the IG's report dated September 8, 1992. As described in greater detail in my March 31, 1995 memorandum, see Mulloy, 884 F. Supp. at 624-626, the IG found that Private Gates had been permitted to enlist in the Army in May of 1990 despite his having an extensive criminal record which made him ineligible for enlistment. He was first arrested on January 22, 1986 for purse snatching, and was placed on juvenile supervision. On April 20, 1987, Gates was convicted as a juvenile of aggravated burglary and rape. On April 29, 1987, Gates was convicted as an adult of a subsequent aggravated burglary and theft. On September 26, 1989, Gates was convicted of unlawful use of a weapon. Gates was still on probation on the weapon charge at the time he enlisted.
Under Army regulations, Gates was ineligible for enlistment because he was on probation. More significantly, 10 U.S.C. § 504 provides that "no person who ... has been convicted of a felony, may be enlisted in any armed force. However, the Secretary concerned may authorize exceptions, in meritorious cases, for the enlistment of ... person convicted of felonies." Nevertheless, because Gates had been convicted of two or more felonies, Army policy prohibited a waiver in his case. Thus, Gates' multiple felony convictions stood as a legal barrier to his ever becoming a soldier.
It is also clear from the IG's report that, had the Army recruitment personnel followed proper procedures, Private Gates' ineligibility for enlistment would have been readily discovered, and the rape and murder of Ms. Cuttle would have never occurred. According to the IG's report, six recruiting experts "clearly opined that had any one person involved with PVT Gates' enlistment process complied with established policies, regulatory guidance, proper procedures, and accepted recruiting practices, PVT Gates' ineligibility for enlistment into the U.S. Army would have been readily disclosed." (IG's Report at 24).
Three instances of apparent negligence stand out as particularly significant. First, there is evidence suggesting that when Gates was interviewed by his recruiter at the time of his enlistment, he volunteered that he had a juvenile record but was told by his recruiter "I'm not worried about any juvenile convictions." Accordingly, Gates did not advise his recruiter of his juvenile convictions, including the rape conviction central to this case. (Testimony of Dwan Gates, March 12, 1992, Exhibit 4 to Plaintiff's Opposition to Defendant's Motion for Summary Judgment).
Moreover, Gates' recruiters failed to investigate a glaring inconsistency in the personal data which Gates provided them at the time of his enlistment -- an inconsistency which, if investigated, would have revealed the existence of Gates' criminal history. As part of Army enlistment procedures, Gates was required to complete a United States Army Recruiting Command Form 200-C, which required him to provide various items of biographical data. Question 24 on Form 200-C asked for a listing of "all high schools and colleges attended." Gates stated that he had attended "Lawrence Gardner High School" in Kansas from September, 1984 through June, 1986, and National Technical College from August, 1986 to November, 1989. Although Gates claimed to have graduated from Lawrence Gardner High School, he provided no explanation of why he only attended for two years, and did not indicate that he had attended any other high school. Had recruiters investigated the circumstances of Gates' attendance at Lawrence Gardner High School, they would have discovered that it was a school serving juveniles incarcerated by the State of Kansas.
The final major instance of apparent negligence involved the Army's handling of its own investigation of Gates' criminal history. The Army utilizes a system called "Entrance National Agency Check" (ENTNAC) to screen potential enlistees with criminal backgrounds. ENTNACs are performed by the Defense Investigative Service (DIS), which checks national crime databases to determine whether the potential enlistee has a criminal history and provides the results to Army recruiters.
In Gates' case, he was permitted to enlist before his recruitment station requested an ENTNAC from DIS. The recruitment station requested an ENTNAC on Gates a few days later, and it took approximately two weeks for DIS to complete it. Upon completion, DIS advised Gates' recruitment station that its investigation had ...