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August 30, 1996

MARY F. MULLOY, as Administratrix of the Estate of Carol Mulloy Cuttle, Plaintiff,

The opinion of the court was delivered by: GERTNER

 August 30, 1996



 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. *fn1" 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. *fn2"

 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.

 After her husband's departure, Ms. Cuttle continued to participate in the life of the Schweinfurt military community, attending luncheons and "coffees," and performing some volunteer work for the Army Exceptional Family Member program. On Thanksgiving, a week before her death, Ms. Cuttle and other officer's wives served dinner in the Mess Hall to the soldiers who had not been deployed and to the community's families. During that time, Ms. Cuttle's brother had offered her a free plane ticket back to the United States. Ms. Cuttle declined to accept it, deciding instead to remain in Germany because she felt a sense of obligation to stay at Schweinfurt and take part in the social support network for military families there.

 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. ...

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