Garcia v. United States, 776 F.2d 116 (5th Cir. 1985). · Go Syfert
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Garcia v. United States, 776 F.2d 116 (5th Cir. 1985). Cases Citing This Book View Copy Cite
92 citation events (14 in the last 25 years) across 25 distinct courts.
Strongest positive: Rittgers v. United States (txsd, 2015-09-15)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
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Top citers, strongest first. 42 distinct citers. How cited ↗
cited Cited as authority (rule) Rittgers v. United States
S.D. Tex. · 2015 · confidence medium
E.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985) (assault and battery exception cannot be circumvented by labeling his claim as one for “negligence”).
cited Cited as authority (rule) Mentis El Paso, LLP v. Health Care Service Corp.
W.D. Tex. · 2014 · confidence medium
Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995) (citing Garcia v. United States., 776 F.2d 116, 117 (5th Cir.1985)). .
cited Cited as authority (rule) Armstrong v. Tygart
W.D. Tex. · 2012 · confidence medium
Saraw P’ship v. United States, 67 F.3d 567, 569 (5th Cir.1995); Garcia v. United States, 776 F.2d 116, 117 (5th Cir.1985).
cited Cited as authority (rule) Fairchild v. Internal Revenue Service
M.D. La. · 2006 · confidence medium
Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) Ryan v. United States
N.D. Ill. · 2001 · confidence medium
See Johnson by Johnson v. United States, 788 F.2d 845, 850-54 (2d Cir.1986); Thigpen v. United States, 800 F.2d 393, 395 (4th Cir.1986); Hoot v. United States, 790 F.2d 836, 838 , (10th Cir.1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) Stidham v. United States
5th Cir. · 2001 · confidence medium
In factual circumstances almost identical to those here, this court has held that allegations of sexual misconduct or assault are excludable under § 2680(h), because they amount to “assault” or “battery.” Garcia v. United States, 776 F.2d 116, 116-17 (5th Cir. 1985).
discussed Cited as authority (rule) Doe v. United States (2×) also: Cited "see"
S.D. Tex. · 2000 · confidence medium
See § 2680(h) (providing exception to waiver of sovereign immunity to “any claim arising out of’ libel and slander); Truman, 26 F.3d at 594 (If plaintiffs claim can fairly be read to arise out of conduct that would establish an excepted cause of action, it is barred, “[e]ven if a plaintiff styles a claim so that it is not one that is enumerated in section 2680(h)”); McNeily, 6 F.3d at 347 ; Garcia, 776 F.2d at 118 (plaintiff may not artfully plead around limitations of § 2680(h)); Atorie Air, Inc., 942 F.2d at 958 (the limitations and conditions upon which the government consents to …
discussed Cited as authority (rule) Wise v. United States (2×)
E.D. Va. · 1998 · confidence medium
As with all provisions of the FTCA, the “intentional torts” exemption set forth in section 2680(h) “must be strictly construed in favor of the sovereign.” Thigpen v. United States, 800 F.2d 393, 394 (4th Cir.1986) (citing Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985)).
discussed Cited as authority (rule) Fleischer v. United States Department of Veterans Affairs (2×)
S.D. Tex. · 1997 · confidence medium
Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995); Garcia v. United States, 776 F.2d 116, 117 (5th Cir.1985).
cited Cited as authority (rule) Jolly v. Klein
S.D. Tex. · 1996 · confidence medium
Saraw Partnership v. United States, 67 F.3d 567, 569 (5th Cir.1995); Garcia v. United States, 776 F.2d 116, 117 (5th Cir.1985).
cited Cited as authority (rule) Saraw Partnership v. United States
5th Cir. · 1995 · confidence medium
Garcia v. United States, 776 F.2d 116, 117 (5th Cir.1985).
discussed Cited as authority (rule) Mcneily v. United States
5th Cir. · 1993 · confidence medium
Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985). 20 In dismissing McNeily's claims against the United States, the district court noted that the FTCA provides the only basis of jurisdiction over the United States in the complaint.
cited Cited as authority (rule) McNeily v. United States
5th Cir. · 1993 · confidence medium
Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) Elias v. Commissioner
Tax Ct. · 1993 · confidence medium
Waivers of sovereign immunity must be narrowly read, Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985), and in construing such waiver, we are not at liberty to extend or narrow the waiver beyond what Congress intended, Houston v. USPS, 823 F.2d 896, 898 (5th Cir. 1987).
discussed Cited as authority (rule) Cynthia Hall Urbach, George I. Urbach, Jr., Veronica Shadrock and the Estate of George I. Urbach, Sr., Deceased v. United States
5th Cir. · 1989 · confidence medium
Underwood v. United States, 356 F.2d 92 (5th Cir.1966) (applying Alabama law). *835 Underwood’s precedential authority has been undercut by a finding that its holding is now “equivocal.” See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) FDIC v. Hartford Ins. Co. of Illinois
N.D. Ill. · 1988 · confidence medium
See United States v. King, 395 U.S. 1 , 89 S.Ct. 1501 , 23 L.Ed.2d 52 (1969); United States v. Shaw, 309 U.S. 495 , 60 S.Ct. 659 , 84 L.Ed. 888 (1940); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) Federal Deposit Insurance v. Hartford Insurance
N.D. Ill. · 1988 · confidence medium
See United States v. King, 395 U.S. 1 , 89 S.Ct. 1501 , 23 L.Ed.2d 52 (1969); United States v. Shaw, 309 U.S. 495 , 60 S.Ct. 659 , 84 L.Ed. 888 (1940); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) John Doe, Alexis Doe v. United States (2×)
7th Cir. · 1988 · confidence medium
See, e.g., Shearer, 473 U.S. at 54 , 105 S.Ct. at 3041 ; Sheridan v. United States, 823 F.2d 820 (4th Cir.1987); Thigpen, 800 F.2d at 394 ; Miele v. United States, 800 F.2d 50 (2d Cir.1986); Hoot v. United States, 790 F.2d 836, 837 (10th Cir.1986); Johnson, 788 F.2d at 847 ; Satterfield v. United States, 788 F.2d 395 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 116-17 (5th Cir.1985).
discussed Cited as authority (rule) Robert C. Guccione v. United States
2d Cir. · 1988 · confidence medium
See Sheridan v. United States, 823 F.2d 820 (4th Cir.1987), cert. granted, — U.S. —, 108 S.Ct. 747 , 98 L.Ed.2d 760 (1988); Thigpen v. United States, 800 F.2d 393 (4th Cir.1986); Hoot v. United States, 790 F.2d 836 (10th Cir.1986); Satterfield v. United States, 788 F.2d 395, 399 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Wine v. United States, 705 F.2d 366 (10th Cir.1983); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885 , 101 S.Ct. 240 , 66 L.Ed.2d 111 (1980).
discussed Cited as authority (rule) In the Estate of Norman L. Johnson, Deceased. Melvin M. Engel, of the Estate of Norman L. Johnson, Deceased v. United States
5th Cir. · 1988 · confidence medium
Waivers of sovereign immunity must be narrowly read, Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985), and, in construing such waivers, we are not at liberty to extend or narrow the waiver beyond what Congress intended, Houston v. United States Postal Service, 823 F.2d 896, 898 (5th Cir.1987).
discussed Cited as authority (rule) Bembenista v. United States
D.D.C. · 1988 · confidence medium
Id. at 118. 4 The Bembenistas contend, however, that § 2680(h)’s exclusion of assaults (and certain other intentional torts) from the FTCA’s otherwise general waiver of sovereign immunity for negligence is itself subject to an exception when a so-called “assault” occurs in a medical context.
discussed Cited as authority (rule) Dorothy E. Snodgrass v. United States
5th Cir. · 1987 · confidence medium
See, e.g., Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299, 306 (5th Cir.1985), cert. denied, 475 U.S. 1081 , 106 S.Ct. 1458 , 89 L.Ed.2d 716 (1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Knights of Ku Klux Klan v. East Baton Rouge Parish, 735 F.2d 895 , 902 (5th Cir.1984). 3 . 511 F.2d 661, 662 (1975) (quoting First National Bank of Emlenton, Pa. v. United States, 265 F.2d 297, 299-300 (3d Cir.1959)).
discussed Cited as authority (rule) Guccione v. United States
S.D.N.Y. · 1987 · confidence medium
See also United States v. Shearer, 473 U.S. 52, 55 , 105 S.Ct. 3039, 3042 , 87 L.Ed.2d 38 (1985) (plurality opinion); Thigpen v. United States, 800 F.2d 393 (4th Cir.1986); Satterfield v. United States, 788 F.2d 395, 399-400 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 117-18 (5th Cir.1985); Wine v. United States, 705 F.2d 366 (10th Cir.1983); Naisbitt v. United States, 611 F.2d 1350 (10th Cir.), cert. denied, 449 U.S. 885 , 101 S.Ct. 240 , 66 L.Ed.2d 111 (1980).
discussed Cited as authority (rule) Michael N. Sheridan and Mary A. Sheridan v. The United States (2×)
4th Cir. · 1987 · confidence medium
See Johnson by Johnson v. United States, 788 F.2d 845, 850 (2d Cir.1986); Satterfield v. United States, 788 F.2d 395, 399 (6th Cir.1986); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983).
examined Cited as authority (rule) Thigpen v. United States (3×) also: Cited "see"
4th Cir. · 1986 · confidence medium
Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
examined Cited as authority (rule) Thigpen v. United States (3×) also: Cited "see"
4th Cir. · 1986 · confidence medium
Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited as authority (rule) Hogan v. United States
S.D. Cal. · 1986 · confidence medium
Satterfield v. United States, 788 F.2d 395, 399-400 (6th Cir.1986); accord, Johnson by Johnson v. United States, 788 F.2d 845, 850 (2d Cir.1986) (“[w]e agree with the Chief Justice that the plain language of § 2680(h) prohibits claimants from clothing assault and battery actions in the garb of negligent failure to prevent the attack”); Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); see also, Naisbitt v. United States, 611 F.2d 1350, 1353-54 (10th Cir.) cert. denied, 449 U.S. 885 , 101 S.Ct. 240 , 66 L.Ed.2d 111 (1980) (barring FTCA suit for negligent supervision).
discussed Cited as authority (rule) Transorient Navigators Company, S.A., Cross-Appellant v. M/s Southwind, Her Engines, Tackle, Apparel, Etc., in Rem and Westwind Africa Line, Ltd., Defendants-Third Party Cross-Appellees v. M/v Astros, in Rem and Transorient Navigators Co., S.A. In Personam, Third-Party Cross-Appellants. Flour Mills of Nigeria, Ltd. v. M/v Astros, in Rem and Transorient Navigators Co., S.A. In Personam, Cross-Appellants v. Westwind Africa Line, Ltd., and the M/s Southwind, Her Engines, Tackle, Apparel, Etc., in Rem, Appellant-Cross Westwind Africa Line, Ltd v. The United States of America and the U.S. Army Corp of Engineers, New Orleans District
3rd Cir. · 1986 · confidence medium
Bearing in mind the principle that waivers of sovereign immunity are to be strictly construed, see, e.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299, 306 (5th Cir.1985), we hold that the United States cannot be made to pay more than 20% of Transorient's damages plus 4% interest from the date Transorient filed suit against the Army Corps of Engineers.
discussed Cited as authority (rule) Transorient Navigators Co. v. M/S Southwind
5th Cir. · 1986 · confidence medium
Bearing in mind the principle that waivers of sovereign immunity are to be strictly construed, see, e.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Interfirst Bank Dallas, N.A. v. United States, 769 F.2d 299, 306 (5th Cir. 1985), we hold that the United States cannot be made to pay more than 20% of Transorient’s damages plus 4% interest from the date Transorient filed suit against the Army Corps of Engineers.
discussed Cited as authority (rule) Melissa Johnson, an Infant by Barbara Johnson, Her Mother and Natural Guardian and Barbara Johnson, Individually v. United States (2×)
2d Cir. · 1986 · confidence medium
Most recently, the Fifth Circuit in Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985), cited the Chief Justice's opinion in Shearer, supra, and concluded that claims alleging negligent failure to prevent an assault by a government employee are barred by Sec. 2680(h).
examined Cited as authority (rule) Doe v. Durtschi (4×)
Idaho · 1986 · confidence medium
That principle requires that in reading this proviso to the sovereign’s consent to suit any ambiguity is to be resolved against consent.” 776 F.2d at 118 (emphasis added.) Based on this reasoning, the court concluded that the government had not consented to suit under the facts of the case before it. 4 Of the cases relied upon in the majority opinion in support of their interpretation of I.C. § 6-904(4), none of them were decided prior to 1971, the year that Idaho adopted the analogous provision from the Federal Tort Claims Act.
cited Cited "see" Roe v. United States of America
W.D. Tex. · 2024 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985).
discussed Cited "see" Cross v. United States
5th Cir. · 2005 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985) (holding that the federal courts have no jurisdiction to hear a claim for negligent supervision of a government employee who committed sexual assault); Truman, 26 F.3d at 593 (5th Cir.1994) (holding that federal courts have jurisdiction where the claim did not derive from conduct specifically excluded from the reach of the FTCA by § 2680(h)).
discussed Cited "see" Lesa M. Primeaux, Formerly Known as Lesa M. Lamont, Formerly Known as Lisa M. Bad Wound v. United States (2×)
8th Cir. · 1998 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Doe v. United States, 838 F.2d 220, 226 (7th Cir.1988) (Manion, J., dissenting, and cases cited).
cited Cited "see" Lesa Primeaux v. United States
8th Cir. · 1998 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985); Doe v. United States, 838 F.2d 220, 226 (7th Cir. 1988) (Manion, J., dissenting, and cases cited).
cited Cited "see" Hassan v. Louisiana Department of Transportation & Development
W.D. La. · 1996 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985).
discussed Cited "see" Diane Hoot v. United States (2×)
10th Cir. · 1986 · signal: see · confidence high
See Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985). 3 Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980), aff'd sub nom, Hughes v. United States, 662 F.2d 219 (4th Cir.1981) (per curiam) (alleged negligence of government in retaining employee was not proximate cause of assault; there would have been no assault except for separate and independent acts of employee); United States v. Shively, 345 F.2d 294 (5th Cir.), cert. denied, 382 U.S. 883 , 86 S.Ct. 177 , 15 L.Ed.2d 124 (1965) (negligence of government in issuing pistol to off-duty sergeant not proximate cause of his shooting forme…
discussed Cited "see, e.g." Holmes v. United States
S.D. Miss. · 2019 · signal: see, e.g. · confidence medium
See, e.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir. 1985) (explaining assault and battery exception cannot be circumvented by labeling his claim as one for “negligence”).
discussed Cited "see, e.g." Bodin v. United States
5th Cir. · 2006 · signal: see also · confidence low
Notes: 1 487 U.S. 392 , 403 n. 8, 108 S.Ct. 2449 , 101 L.Ed.2d 352 (1988) 2 Ante, at 489-90 n. 7. 3 See Leleux v. United States, 178 F.3d 750, 757 (5th Cir.1999) (concluding that " Sheridan stands for the principle that negligence claims related to a Government employee's [28 U.S.C.] § 2680(h) intentional tort may proceed where the negligence arises out of an independent, antecedent duty unrelated to the employment relationship between the tortfeasor and the United States"). 4 FED.R.CIV.P. 52(c) 5 28 U.S.C. § 1346 (b) 6 Id. § 2680(h). 7 487 U.S. 392 , 108 S.Ct. 2449 , 101 L.Ed.2d 352 8 Id. …
discussed Cited "see, e.g." Olsen v. United States Ex Rel. Department of the Army
10th Cir. · 2005 · signal: see also · confidence medium
Sheridan.” Id. at 23; see also Garcia v. United States, 776 F.2d 116, 117-18 (5th Cir.1985) (holding that the FTCA’s intentional tort exception barred claim against the United States for alleged negligence in supervising military recruiter who allegedly sexually assaulted a potential recruit).
cited Cited "see, e.g." Miami North, Inc. v. United States Department of Labor Penobscot Job Corps Center
D. Me. · 1996 · signal: see, e.g. · confidence medium
See, e.g., Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985); Thigpen v. United States, 800 F.2d 393, 395 (4th Cir.1986).
discussed Cited "see, e.g." Cynthia Elaine Satterfield, Administratrix of the Estate of Charles Arthur Hulstine v. United States
6th Cir. · 1986 · signal: see also · confidence medium
See also Garcia v. United States, 776 F.2d 116, 118 (5th Cir.1985) (Circuit court in reviewing applicability of § 2680(h) to a negligent supervision claim against the military “cannot ignore this strong signal from the Supreme Court,” whereupon it adopted and applied the *400 Shearer court rationale to bar plaintiffs claim).
Retrieving the full opinion text from the archive…
Evelyn Garcia, Eloise Garcia, and Thomas Garcia
v.
United States of America, Unknown Superior Officers of Daniel Torres I Through Xx of U.S. Army, Daniel Torres
85-2244.
Court of Appeals for the Fifth Circuit.
Nov 12, 1985.
776 F.2d 116
Cited by 16 opinions  |  Published

776 F.2d 116

54 USLW 2276

Evelyn GARCIA, Eloise Garcia, and Thomas Garcia, Plaintiffs-Appellants,
v.
UNITED STATES of America, Unknown Superior Officers of
Daniel Torres I Through XX of U.S. Army, Daniel
Torres, Defendants-Appellees.

No. 85-2244

Summary Calendar.

United States Court of Appeals,
Fifth Circuit.

Nov. 12, 1985.

David W. Showalter, Pamela J. Prince, Bellaire, Tex., for plaintiffs-appellants.

Henry K. Oncken, U.S. Atty., Samuel G. Longoria, C.J. (Neil) Calnan, James R. Gough, Michael J. Brown, Asst. U.S. Attys., Houston, Tex., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before CLARK, Chief Judge, and WILLIAMS and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

[*~116]1

The Garcias sued the federal government and its agencies under the Federal Tort Claims Act alleging negligence in the supervision of a military recruiter who is alleged to have engaged in sex acts with Evelyn Garcia, a young potential recruit. The district court dismissed the complaint holding that the government has not consented to claims arising out of assaults and batteries. We affirm.

2

* Because this is an appeal from dismissal under Rule 12 we accept the Garcias' statement of facts. Evelyn Garcia was a student at a high school in Houston, Texas and was interested in an Army ROTC scholarship. Daniel Torres worked in the Army's recruiting office across the street from the school. Torres invited Evelyn to training sessions in his office to prepare her for the examination needed for the scholarship. Over a period of weeks, Torres made sexual advances toward Evelyn. As a result of her encounter with Torres, she has suffered severe mental and emotional problems.

3

Evelyn and her parents filed a complaint alleging that the United States and Sgt. Torres's superior officers were negligent in their supervision of Torres, and attempting to state a claim for damages under the FTCA, 28 U.S.C.A. Secs. 2671 et seq. The government urges that it has not consented to a suit for assault or for any claim for negligence that arises from an assault. The FTCA in pertinent part provides that "[T]he provisions of this chapter and section 1346(b) of this title shall not apply to--(h) Any claim arising out of assault, battery,...." 28 U.S.C.A. Sec. 2680 (West 1965 & Supp.1985) (emphasis supplied). We are persuaded that this provision applies to this case and that the Garcias' complaint was properly dismissed.

II

4

* The Garcias' argue that they might, with discovery, develop that Evelyn's injury resulted from the negligent supervision of Torres by his superior officers and that a claim for negligence can therefore be maintained under the FTCA. The Fourth and Tenth Circuits have rejected claims of negligent supervision, concluding that they are captured by the "arising from" language of the proviso. The Tenth Circuit, in Naisbitt v. United States, 611 F.2d 1350, 1355 (10th Cir.), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111 (1980), stated that a plaintiff could not circumvent the policy of Sec. 2680(h) by simply alleging negligence on the part of the government. That court reaffirmed its position in Wine v. United States, 705 F.2d 366, 367 (10th Cir.1983). There a plaintiff sued the government for the negligent supervision of an off-duty airman who sexually assaulted her. The court rejected the claim as an effort to circumvent the provisions of Sec. 2680(h). See also Hughes v. Sullivan, 514 F.Supp. 667 (E.D.Va.1980) aff'd sub nom. Hughes v. United States, 662 F.2d 219 (4th Cir.1981) (per curiam).

5

The Third Circuit in Shearer v. United States, 723 F.2d 1102 (3d Cir.1984), rev'd --- U.S. ----, 105 S.Ct. 3039, 87 L.Ed.2d 38 (1985), concluded that a claim was stated despite Sec. 2680(h). The court said that while the claim resulted from an intentional tort, it was grounded in negligence. Id. at 1106-07. See also Gibson v. United States, 457 F.2d 1391 (3d Cir.1972). Shearer was reversed with four (Powell, J., did not participate) Justices rejecting that reasoning, explaining that:

6

Respondent cannot avoid the reach of Sec. 2680(h) by framing her complaint in terms of negligent failure to prevent the assault and battery. Section 2680(h) does not merely bar claims for assault or 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 by a Government employee.

7

Shearer v. United States, --- U.S. ----, 105 S.Ct. 3039, 3042, 87 L.Ed.2d 38 (1985) (emphasis in original).

2

8

Our reading of the proviso has been uneven. In United States v. Shively, 345 F.2d 294 (5th Cir.1965), we concluded that:... appellee's claim here is a "claim arising out of assault," which is, in those words, specifically excepted from recovery under the Federal Court Claims Act, 28 U.S.C. Sec. 2680(h). It is not necessary to the ruling here, and we do not determine whether every assault intervening between a shown negligence of the United States and injury to third parties is barred under the Federal Court Claims Act by this exclusionary language. Id. at 297 (Citation omitted).

9

In Shively the negligence of the government was not a proximate cause of the harm. The following year in Underwood v. United States, 356 F.2d 92 (5th Cir.1966), we reversed a dismissal of a claim against the government for its negligence in issuing a weapon to an unstable soldier who used it to kill his wife. The government in Underwood, did not rely on Sec. 2680, and the Underwood panel distinguished Shively on the basis that in Shively the criminal was not a foreseeable tortfeasor. The Underwood opinion suggested that, if argued, it would not have found Sec. 2680(h) to be applicable to the situation before it. The panel's heavy reliance on Alabama law in concluding that a shooting was foreseeable and that the government was negligent, together with the government's failure to assert Sec. 2680(h), leaves Underwood as an equivocal precedent. As noted, while only four Justices in Shearer joined the language interpreting the "arising out of" proviso, the other four Justices did not reject its applicability but joined the decision to reverse on another ground. Such an intervening decision might not be sufficient to free this panel from clear circuit precedent, but it is sufficient to allow our retreat from Underwood and its reasoning, now so seriously questioned. We cannot ignore this strong signal from the Supreme Court.

III

10

This claim indisputably arose from the contacts between Daniel Torres and Evelyn Garcia to which she gave no legal consent. In a FTCA case, the law of the place applies. 28 U.S.C.A. Sec. 2674 (West 1965). Applying the law of Texas, the district court found that the actions of Torres constituted sexual assault. Tex. Penal Code Ann. Sec. 22.011 (Vernon Supp.1985). The definition of an assault is the same whether it is the subject of a criminal prosecution or a civil suit for damages. If the relationship was nonconsensual, then it falls squarely within the sexual assault statute. Tex. Penal Code Ann. Sec. 22.011(a)(1)(B) & (C) (Vernon's Supp. 1985).

11

Arguably, the "arising from" language becomes ambiguous when the asserted claim is for a negligent act which precedes the assault. Does a claim for negligent failure to prevent an assault arise from the assault or from the earlier occurring negligence? While we think the language in context is straight-forward, even if there were ambiguity or uncertainty of application inherent in the language of the proviso, it would not alter the result. The government's waiver of sovereign immunity is to be narrowly read. That principle requires that in reading this proviso to the sovereign's consent to suit any ambiguity is to be resolved against consent. So read, the government has not consented to this suit.

[*~117]12

AFFIRMED.