Torts — FTCA — special relationship

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Torts — FTCA — special relationship

The Veterans Administration does not have a special relationship with veterans that imposes a duty on it to protect veterans from abuse by therapists.

“The essence of the ‘special relationship’ tort (a better term might be ‘relational tort’), as suggested by our examples, is that the relation between the parties creates a potential danger to one of them; the danger becomes the ground for imposing on the other party a duty of care that he would not otherwise have. Keeton et al., supra, § 56, p. 381; Restatement, supra, § 321; Stockberger v. United States, 332 F.3d 479, 482 (7th Cir. 2003). Custody is the most common example of such a relation. It needn’t be involuntary (the prison case)—innkeepers and common carriers have a duty of care, in the sense of protection, to their customers. So do property owners who invite the public onto their land. Restatement, supra, §§ 314A(2)-(3). A hospital, including a mental hospital, likewise has a duty of care to its inpatients that is based on its housing them away from their homes. Keeton et al., supra, § 56, at 383; Restatement, supra, § 320, comment a. Although the plaintiff received both inpatient and outpatient treatment from the Veterans Administration, the former implying hospitalization, he was not hospitalized
during the period in which the therapist was assaulting him sexually. He was living at home, and the assaults occurred during outpatient visits to her office and in visits to her home. He was not a ward of the VA. He was in no different situation from someone who has the wrong tooth pulled, by an incompetent dentist, and sues the clinic that employs the dentist, arguing that it should have discovered that he was incompetent and fired him. That is a negligent-supervision claim, not a relational-tort claim.”

Affirmed.

12-1138 Glade v. U.S.

Appeal from the United States District Court for the Northern District of Illinois, Zagel, J., Posner, J.

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