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171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
(Cite as: 171 F.Supp.2d 281)
United States District Court,
S.D. New York.
Eric ZIMMERMAN, Individually and as Next
Friend of Guinevere Zimmerman, an Infant,
Plaintiff,
v.
UNITED STATES of America, Defendant.
No. 01 CIV 5019(CM).
Oct. 17, 2001.
Military officer whose minor daughter had been
sexually assaulted by fellow officer brought Federal
Tort Claims Act (FTCA) suit, alleging that person-
nel associated with United States Military
Academy-sponsored youth ministry should have
been alerted to danger posed by fellow officer
through information obtained from ministry parti-
cipants, but failed to respond in violation of feder-
al-facilities child abuse reporting act. Officer also
asserted claims under state statutory and common
law. On government's motion to dismiss, the Dis-
trict Court, McMahon, J., held that: (1) Feres doc-
trine barred officer's FTCA claim on his own be-
half, but did not bar claim on behalf of daughter;
(2) ministry coordinator was potential federal em-
ployee under FTCA; (3) officer failed to state claim
for violation of state reporting statute; (4) officer
stated claim for violation of federal reporting stat-
ute; (5) youth ministry personnel potentially had
common-law duty to assist daughter as imperiled
person; and (6) clergy status of some ministry per-
sonnel did not automatically exempt them from re-
quirements of federal reporting statute.
Motion granted in part and denied in part.
West Headnotes
[1] Federal Civil Procedure 170A 2533.1
170A Federal Civil Procedure
170AXVII Judgment
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 1
170AXVII(C) Summary Judgment
170AXVII(C)3 Proceedings
170Ak2533 Motion
170Ak2533.1 k. In General. Most
Cited Cases
District court need not convert motion to dismiss
for failure to state claim into summary judgment
motion in order to consider additional materials
submitted by movant, where plaintiff has actual no-
tice of all information in movant's papers and has
relied upon these documents in framing complaint.
Fed.Rules Civ.Proc.Rules 12(b)(6), 56, 28 U.S.C.A.
[2] Federal Civil Procedure 170A 1832
170A Federal Civil Procedure
170AXI Dismissal
170AXI(B) Involuntary Dismissal
170AXI(B)5 Proceedings
170Ak1827 Determination
170Ak1832 k. Matters Considered
in General. Most Cited Cases
District court in evaluating motion to dismiss for
lack of personal jurisdiction may resolve disputed
jurisdictional fact issues by reference to evidence
outside pleadings, such as affidavits. Fed.Rules
Civ.Proc.Rule 12(b)(1), 28 U.S.C.A.
[3] Federal Civil Procedure 170A 1742(1)
170A Federal Civil Procedure
170AXI Dismissal
170AXI(B) Involuntary Dismissal
170AXI(B)2 Grounds in General
170Ak1742 Want of Jurisdiction
170Ak1742(1) k. In General. Most
Cited Cases
On motion to dismiss for lack of personal jurisdic-
tion, where jurisdiction is so intertwined with mer-
its that its resolution depends on resolution of mer-
its, district court uses standard applicable to motion
for summary judgment and dismisses only where no
triable issues of fact exist. Fed.Rules Civ.Proc.Rule
12(b)(1), 28 U.S.C.A.
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
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[4] United States 393 78(16)
393 United States
393V Liabilities
393k78 Torts
393k78(16) k. Armed Services Personnel,
Injuries To. Most Cited Cases
Under Feres doctrine, Federal Tort Claims Act
(FTCA) waiver of sovereign immunity by govern-
ment does not apply to liability for injuries to mem-
bers of military if these injuries arise out of or are
incident to service. 28 U.S.C.A. §§ 1346, 2671 et
seq.
[5] United States 393 78(16)
393 United States
393V Liabilities
393k78 Torts
393k78(16) k. Armed Services Personnel,
Injuries To. Most Cited Cases
Factors in determination of whether military service
member's injuries were incurred “incident to ser-
vice,” precluding Federal Tort Claims Act (FTCA)
action under Feres doctrine, include: (1) individu-
al's status as member of military at time of alleged
incident giving rise to claim; (2) relationship of
activity to individual's membership in service; (3)
location of conduct giving rise to underlying tort
claim; and (4) whether activity is limited to military
personnel and whether service member is taking ad-
vantage of privilege or enjoying benefit conferred
as result of military service. 28 U.S.C.A. §§ 1346,
2671 et seq.
[6] United States 393 78(16)
393 United States
393V Liabilities
393k78 Torts
393k78(16) k. Armed Services Personnel,
Injuries To. Most Cited Cases
Feres doctrine barred Federal Tort Claims Act
(FTCA) suit by military officer whose minor
daughter had been sexually assaulted by fellow of-
ficer at United States Military Academy, alleging
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 2
violation of federal-facilities child abuse reporting
act, insofar as officer asserted claim on his own be-
half rather than on behalf of daughter; officer was
on active duty at all relevant times and lived in mil-
itary housing, personnel alleged to have violated act
were military, worked in conjunction with
Academy's chaplaincy program, and met on
Academy grounds, and fellow officer was punished
pursuant to military code. 28 U.S.C.A. §§ 1346,
2671 et seq.; 42 U.S.C.A. §13031.
[7] United States 393 78(16)
393 United States
393V Liabilities
393k78 Torts
393k78(16) k. Armed Services Personnel,
Injuries To. Most Cited Cases
Feres doctrine is not limited to cases in which
worker's compensation-like remedy is available to
plaintiff.
[8] United States 393 78(4)
393 United States
393V Liabilities
393k78 Torts
393k78(4) k. Acts of Officers, Agents or
Employees in General. Most Cited Cases
Sovereign immunity precludes claims brought
against United States for injuries caused by its inde-
pendent contractors.
[9] United States 393 78(14)
393 United States
393V Liabilities
393k78 Torts
393k78(14) k. Place of Injury and Law
Governing. Most Cited Cases
Whether person is government employee or inde-
pendent contractor for purposes of Federal Tort
Claims Act (FTCA) is question of federal law. 28
U.S.C.A. §§ 1346, 2671 et seq.
[10] United States 393 78(4)
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171 F.Supp.2d 281
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393 United States where state statutes contained analogue to federal

393V Liabilities act; FTCA complaint did not have to claim underly-
393k78 Torts ing violation of state law. 28 U.S.C.A. §§1346,
393k78(4) k. Acts of Officers, Agents or 2671 et seq.; 42 U.S.C.A. §13031; N.Y. Soc. Serv.
Employees in General. Most Cited Cases L. §413.
In general, person is federal employee rather than
independent contractor, for purposes of Federal [13] United States 393 78(14)
Tort Claims Act (FTCA), when government exer-
393 United States
cises day-to-day control over person's detailed
393V Liabilities
physical performance; when, in contrast, govern-
393k78 Torts
ment exercises broad supervisory powers, reserves
393k78(14) k. Place of Injury and Law
right to inspect, or monitors compliance with feder-
Governing. Most Cited Cases
al law, independent contractor relationship is likely.
Reference to “law of the place” in Federal Tort
28 U.S.C.A. §§ 1346, 2671 et seq.
Claims Act (FTCA) means whole law of state
[11] United States 393 78(4) where incident took place, including federal law. 28
U.S.C.A. §§ 1346, 2671 et seq.
393 United States
393V Liabilities [14] Infants 211 13.5(1)
393k78 Torts
211 Infants
393k78(4) k. Acts of Officers, Agents or
211II Protection
Employees in General. Most Cited Cases
211k13.5 Duty to Report Child Abuse
Fact that United States Military Academy had boil-
211k13.5(1) k. In General. Most Cited
erplate form contract with youth ministry organiza-
Cases
tion for provision of on-post ministry services to
Plaintiff failed to state claim for violation of New
children of active service members did not, by it-
York child abuse reporting statute by alleging that
self, establish that ministry's coordinator was inde-
defendants had “negligently” failed to report in-
pendent contractor rather than federal employee, so
formation concerning person who posed threat to
as to preclude Federal Tort Claims Act (FTCA) suit
children; allegation of “willfulness,” or at very least
by service member alleging coordinator's violation
inference of willfulness from non-conclusory alleg-
of federal-facilities child abuse reporting act. 28
ations of complaint, was required. N.Y.McKinney's
U.S.C.A. §§ 1346, 2671 et seq.; 42 U.S.C.A. §
Social Services Law §§ 413, 420.
13031.
[15] Infants 211 13.5(1)
[12] United States 393 78(14)
211 Infants
393 United States
211II Protection
393V Liabilities
211k13.5 Duty to Report Child Abuse
393k78 Torts
211k13.5(1) k. In General. Most Cited
393k78(14) k. Place of Injury and Law
Cases
Governing. Most Cited Cases
Potential for viable claim under federal-facilities
Federal Tort Claims Act's (FTCA) “law of the
child abuse reporting act existed, alleging that fed-
place” requirement was satisfied by alleged viola-
eral employees failed to report suspicious informa-
tion of federal-facilities child abuse reporting act,
tion received via girls' accounts of encounters with
where under state's common law breach of federal
man later convicted of sexual assault, even though
statutory duty amounted to negligence per se, and

© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.

171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
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employee's written account of girls' accounts did
not meet act's “sexual abuse,” “sexually explicit
conduct,” or “physical injury” standards; possibility
existed that written account did not summarize all
information received from girls and that “mental in-
jury” standard could be met upon further fact devel-
opment. 42 U.S.C.A. § 13031.
[16] Infants 211 13.5(1)
211 Infants
211II Protection
211k13.5 Duty to Report Child Abuse
211k13.5(1) k. In General. Most Cited
Cases
Under New York common-law duty to assist the
imperiled, youth ministry personnel potentially had
duty to girl who later became sexual abuse victim
to report to authorities information concerning per-
petrator's actions with other girls, not amounting to
sexual abuse or physical injury, learned in months
preceding assault on victim; existence of duty de-
pended on reasonable expectations and states of
mind of ministry personnel, ministry's parent or-
ganization, attendees, and attendees' parents.
[17] Infants 211 13.5(2)
211 Infants
211II Protection
211k13.5 Duty to Report Child Abuse
211k13.5(2) k. Liabilities; Immunity.
Most Cited Cases
Clergy status of United States Military Academy
chaplain and officer involved in on-post youth min-
istry program did not automatically exempt chap-
lain and officer from liability under federal-facil-
ities child abuse reporting act; exemption depended
on whether they were acting in clerical capacity at
time of alleged failure to report abuse. 42 U.S.C.A.
§ 13031(b).
*283 David O. Fuller, Jr.,Bosworth, Gray & Fuller,
Bronxville, NY, for Eric Zimmerman.
David J. Kennedy, U.S. Atty., Southern District of
NY, New York City, for U.S.
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Page 4
MEMORANDUM DECISION AND ORDER
GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS THE
COMPLAINT
McMAHON, District Judge.
Plaintiff Eric Zimmerman, individually and on be-
half of his daughter Guinevere *284 Zimmerman,
brings this action under the Federal Tort Claims
Act, 28 U.S.C. §§ 2671-2680 and § 1346 (the
“FTCA”), alleging that the negligent actions of
agents and employees of the United States resulted
in injuries to his daughter and to himself. The com-
plaint pleads three causes of action: (1) breach of a
federal statutory duty created by 42 U.S.C. § 13031
to report incidents of suspected child abuse; (2)
breach of a state statutory duty created by N.Y.
Soc. Serv. L. § 413 to report or cause to be reported
information that “if correct, would render the child
an abused or maltreated child;” and, (3) breach of a
common law duty to assist the imperiled.
The Government moves to dismiss plaintiff's com-
plaint under Federal Rules of Civil Procedure
12(b)(1) and 12(b)(6) on the following grounds: (1)
the Court lacks subject matter jurisdiction over
plaintiff Eric Zimmerman individually; (2) the
Court lacks subject matter jurisdiction over Eric Zi-
mmerman on behalf of Guinevere Zimmerman; and
(3) the Complaint fails to state a claim upon which
FN1
relief can be granted.
FN1. The Government has also petitioned
this Court for a stay of discovery pending
the resolutions of this motion. Because the
World Trade Center disaster has severely
impacted the operations of the Civil Divi-
sion of the United States Attorney's Office,
the Court has not yet conferenced the case
and no discovery schedule has been set.
This Court has already entered an order
imposing a 60 day stay in all civil matters
involving the United States. Thus, the mo-
tion for a stay of discovery is now moot.
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
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For the reasons stated below, the Government's mo-
tion to dismiss Eric Zimmerman's personal claims
is granted. The motion to dismiss the claims
brought by Zimmerman on behalf on Guinevere Zi-
mmerman is granted in part and denied in part.
FACTS PERTINENT TO THE MOTION
The following facts are drawn from the complaint
and from documents incorporated by reference
therein.
At the time the following events occurred, Lieuten-
ant Colonel Eric Zimmerman was a commissioned
officer of the United States Army, on active duty at
the United States Military Academy (“USMA”) at
West Point, New York. Eric Zimmerman lived on
post with his family. His daughter Guinevere was
seven years old.
On June 3, 2000, Lieutenant Commander Mark
Stone, a naval officer who, along with his wife and
young children, also resided at the USMA at West
Point, sexually assaulted Guinevere Zimmerman
while she was an overnight guest of one of his
daughters. Stone was arrested and charged with
various offenses, including forcible sodomy upon a
minor. At a court-martial on April 18, 2001, Stone
pled guilty to charges of forcible sodomy against
Guinevere Zimmerman. A military judge sentenced
him to 13 years confinement, total forfeitures, and
dismissal from the United States Navy.
Plaintiff alleges that this sexual assault upon
Guinevere Zimmerman could have been prevented
had certain personnel of a youth ministry program
called “God's Gang” reported prior sexual assaults
by Stone upon other little girls who were spending
the night at his home. God's Gang is a program
sponsored and operated by the Post (Protestant
Chapel) of the USMA. It holds meetings for youths
of different ages to discuss various issues. USMA
cadets act as counselors and mentors to the adoles-
cent participants in God's Gang.
[1] During one of the God's Gang youth meetings,
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Page 5
held at some unspecified *285 time in the months
prior to the assault on Guinevere Zimmerman, three
girls informed West Point Cadet Ariel Jones, who
served as a God's Gang counselor, that each of
them awakened during the night, while sleeping
over with Stone's daughter, to find Stone standing
over them in the dark. One of the girls told Jones
that she believed Stone had touched her hand while
she slept, and had then, after she moved away from
his touch, moved her back to her place on the bed.
Neither of the other girls reported any knowledge
that Stone had touched them. One of the girls also
mentioned that Stone's own daughter had said she
FN2
felt she had to lock her door at night.
FN2. This account of what was said during
the youth meeting is derived from both the
complaint and the text of a memo sent
from Cadet Jones to her supervisor. It is
permissible to rely on such evidence, even
if it is not directly quoted in the complaint.
Both parties have submitted additional
materials in support of their motions. I
have the option of converting this to a
motion for summary judgment pursuant
to Fed.R.Civ.P. 12(c). However, I am
not required to do so, at least not to con-
sider Cadet Jones' memorandum, which
is the only document I choose to con-
sider for the 12(b)(6) motion. A court
need not convert a 12(b)(6) motion into
a summary judgment motion to consider
additional materials “[w]here plaintiff
has actual notice of all the information in
the movant's papers and has relied upon
these documents in framing the com-
plaint.” Cortec Indus., Inc. v. Sum Hold-
ing L.P., 949 F.2d 42, 47-48 (2d
Cir.1991), cert. denied, 503 U.S. 960,
112 S.Ct. 1561, 118 L.Ed.2d 208 (1992).
See also Envirosource, Inc. v. Horse-
head Resource Dev. Co., Inc., No. 95
CIV. 5106, 1996 WL 363091, at *5
(S.D.N.Y. July 1, 1996) (“In ruling on a
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
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Rule 12(b)(6) motion, the Court may
properly take notice of documents out-
side the four corners of the complaint
where, as here, the plaintiff has actual
notice of the documents and has relied
upon them in framing the complaint.”).
Moreover, “when a plaintiff chooses not
to attach to the complaint or incorporate
by reference a [document] upon which it
solely relies and which is integral to the
complaint,” the court may nevertheless
take the document into consideration in
deciding the defendant's motion to dis-
miss, without converting the proceeding
to one for summary judgment. Cortec,
949 F.2d at 47-48.
The Government quoted Cadet Jones'
memorandum in its motion to dismiss
and provided a copy of it in its affidavit
in support of its motion. Plaintiff had no-
tice of the memorandum in drafting his
complaint, and relied on the contents of
the memorandum in drafting his causes
of action. Since the content of the
memorandum from Cadet Jones to Shel-
burne is vital to determining whether
plaintiff has alleged violations of the
state and federal reporting statutes, its
text will be relied upon in determining
whether plaintiff has failed to state a
claim pursuant to Rule 12(b)(6).
The girls asked Cadet Jones what they should do
about the incidents. Jones responded that she would
consult her supervisors and get back to them. Cadet
Jones then wrote a memorandum about this conver-
sation to Darren Shelburne, the civilian “Youth
Ministry Coordinator” of the God's Gang program.
She asked him how she should handle the matter.
The information contained in Cadet Jones' memo
was allegedly disseminated to at least two members
of the Chaplain's Office: Colonel Scott McChrystal,
a USMA Chaplain, and another officer now known
to be Major Tom Wild. Ultimately, Shelburne, Mc-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 6
Chrystal, Wild or someone else who had heard
about Jones' memo informed Jones that the reports
did not warrant further investigation. Jones then
told the three girls that further investigation into the
matter was unnecessary.
Plaintiff argues that Jones, Shelburne, McChrystal,
and Wild knew or should have known: (1) that
Stone had committed sexual offenses against the
three minor girls; (2) that the girls had not reported
these offenses to anyone who had the responsibility
of ensuring their safety or of investigating the of-
fenses; (3) that the girls were relying upon agents
of the United States *286 to advise them whether
they should report the offenses to others; (4) that
the girls were relying on agents of the United States
to tell them what they should do to avoid further
crimes against them and against other children who
had been and would be visitors to the Stone home;
and (5) that minor female children, other than those
who had spoken with Cadet Jones, were frequently
invited to spend the night at the Stone residence,
and in the absence of intervention by someone act-
ing to ensure their safety, would do so in the future.
On October 3, 2000, Eric Zimmerman presented the
Army with a claim for damages for personal injury
to Guinevere and for damages suffered by him. At
the time the case was filed, six months had elapsed
since these claims were filed and Zimmerman had
received no response.
Plaintiff alleges that the God's Gang personnel, spe-
cifically Jones, Shelburne, McChrystal, and Wild,
should have concluded that the acts reported by the
three minor girls were sufficient to raise a suspicion
of child abuse; that they had a duty to report such
incidents pursuant to 42 U.S.C. § 13031, and that
they negligently failed to do so. Plaintiff also al-
leges that the God's Gang personnel, including
Jones, Shelburne, McChrystal, and Wild, had a duty
under N.Y. Soc. Serv. L. § 413 to report suspected
incidents of child abuse and negligently failed to do
so. Finally, plaintiff alleges that Jones, Shelburne,
McChrystal and Wild acted as agents and employ-
ees of the United States when they received and
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weighed the confidences of these young girls, and
in so doing “voluntarily assumed for themselves
and for the United States,” the duty to assist
Guinevere Zimmerman and other minor children
who were at risk for sexual assaults because they
might spend the night at the Stone home. Plaintiff
contends that their failure to report the conduct of
Stone, investigate the matter, and take action to en-
sure the safety of such minor children was a breach
of their (and by extension the United States') com-
mon law duty to assist the imperiled.
DISCUSSION
I. Defendant's Motion to Dismiss for Lack of Sub-
ject Matter Jurisdiction
[2][3] In evaluating a motion to dismiss for lack of
subject matter jurisdiction, a court must “accept as
true all material factual allegations in the com-
plaint,” Shipping Fin. Serv. Corp. v. Drakos, 140
F.3d 129, 131 (2d Cir.1998) (citing Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40
L.Ed.2d 90 (1974)), but refrain from “drawing from
the pleadings inferences favorable to the party as-
serting [jurisdiction].” Id.(citing Norton v. Larney,
266 U.S. 511, 515, 45 S.Ct. 145, 69 L.Ed. 413
(1925)). Courts evaluating Rule 12(b)(1) motions
“may resolve the disputed jurisdictional fact issues
by reference to evidence outside the pleadings, such
as affidavits.” Zappia Middle East Constr. Co. v.
Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d
Cir.2000). Where jurisdiction is “so intertwined
with the merits that its resolution depends on the
resolution of the merits,” the court should use the
standard “applicable to a motion for summary judg-
ment” and dismiss only where “no triable issues of
fact” exist. London v. Polishook, 189 F.3d 196,
198-99 (2d Cir.1999) (citation omitted); see also
Europe and Overseas Commodity Traders, S.A. v.
Banque Paribas London, 147 F.3d 118, 121 n. 1
(2d Cir.1998).
A. Claims Brought By Eric Zimmerman Individu-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 7
ally
[4] Eric Zimmerman brings his personal claims un-
der the FTCA, which allows civil actions against
the Government *287 based on negligent acts or
omissions of its employees. 28 U.S.C.A. §§
2671-2680, 1346. The Supreme Court has held,
however, that this waiver of sovereign immunity by
the Government does not apply to liability for injur-
ies to members of the military if these injuries
“arise out of or are incident to service.” See Feres
v. United States, 340 U.S. 135, 146, 71 S.Ct. 153,
159, 95 L.Ed. 152 (1950). This has become known
as the Feres doctrine.
[5] When the Government invokes the Feres doc-
trine on a motion to dismiss, a court must first de-
termine whether a service member's injuries were
incurred “incident to service.” Some factors that
courts have considered are (1) the individual's
status as a member of the military at the time of the
alleged incident giving rise to the claim, see Wake,
89 F.3d at 58 (citing Persons v. United States, 925
F.2d 292, 296 (9th Cir.1991)); (2) the relationship
of the activity to the individual's membership in the
service; (3) the location of the conduct giving rise
to the underlying tort claim, see e.g., Bozeman v.
United States, 780 F.2d 198. 200-01 (2d Cir.1985)
(barring claim arising from automobile crash which
occurred off base while service member was off
duty because service member's intoxication oc-
curred at a military club); and, (4) whether the
activity is limited to military personnel and whether
the service member is taking advantage of a priv-
ilege or enjoying a benefit conferred as a result of
military service, see e.g., Sanchez v. United States,
878 F.2d 633, 637 (2d Cir.1989) (“Sanchez III ”)
(barring a claim brought by a serviceman injured in
a car fixed by an on-base mechanic shop because
the facility was open exclusively to military person-
nel as a privilege of service, and because the case
would involve impermissible civilian inquiry into
policies and procedures for operation of facility un-
der control of military forces). No single factor is
dispositive.
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
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Taking these factors as a guide, I conclude that Eric
Zimmerman's injuries were incurred incident to
military service.
[6] At the time of Stone's assault upon his daughter,
as well as during the period when defendants al-
legedly should have reported or investigated the
story told to Cadet Jones, Zimmerman was a mem-
ber of the military on active duty. God's Gang
meetings were an adjunct of the military's chap-
laincy program. They took place on the military
base. They were staffed by military personnel. Zim-
merman and his family lived in military housing.
The crime against Guinevere Zimmerman was com-
mitted by a military officer who was later punished
pursuant to the military code. These facts are suffi-
cient to bar plaintiff's individual claims under
Feres.
Plaintiff argues, that the underlying rationales of
Feres would be offended if the doctrine were in-
voked to bar the suit. I disagree.
Three rationales underlie the Feres doctrine: (1)
concern for keeping courts away from delicate
questions involving military discipline; (2) an in-
tention to replace the contingencies of local tort law
with a uniform federal scheme; and (3) a desire that
this uniformity be achieved through exclusive re-
course to the federal system of death and disability
benefits. See Taber v. Maine, 67 F.3d 1029, 1049
(2d Cir.1995); see also Feres, 340 U.S. at 146, 71
S.Ct. 153; United States v. Johnson, 481 U.S. 681,
688-91, 107 S.Ct. 2063, 2068-69, 95 L.Ed.2d 648
(1987); Wake v. United States, 89 F.3d 53, 57 (2d
Cir.1996).
Plaintiff argues that the Second Circuit's 1995 de-
cision in Taber v. Maine clarified Feres by
“divin[ing] a rationale” that limited application of
the Feres doctrine to cases that were “predicated on
the availability*288 of a worker's compensation-
like remedy.” (Pl. Mem. in Opp. to Def. Mot. to
Dismiss, at 8.) Since Eric Zimmerman could not
obtain compensation for the injuries in suit under
worker's compensation, he insists that Feres should
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 8
not apply.
[7] Plaintiff's argument that Taber limits applica-
tion of the Feres doctrine to worker's compensation
cases is unsound. See Wake v. United States, 89
F.3d 53, 61 (2d Cir.1996) (dismissing plaintiff's ar-
gument on appeal that Taber created a new test for
determining the applicability of the Feres doctrine).
The Taber Court itself rejected plaintiff's argument
that Taber limited the application of the Feres doc-
trine. In Taber, a Navy serviceman brought a per-
sonal injury claim against the Government for in-
juries sustained while he was off-duty in an off-
base accident with another off-duty serviceman
who had been drinking on-base. Plaintiff claimed
that the Government was vicariously liable for the
actions of the defendant, who allegedly acted negli-
gently in driving while he was intoxicated. The
Government moved for summary judgment on
plaintiff's claims citing Feres. The district court
granted summary judgment in favor of the Govern-
ment. The Court of Appeals reversed.
On appeal, the court determined that the proper jur-
isdictional issue in this particular case was whether
plaintiff was entitled to worker's compensation for
his injuries. If he was entitled to benefits, then he
was injured while acting in the scope of his em-
ployment and incident to service. Barring his
claims would fulfill the third underlying Feres ra-
tionale of preserving a uniform federal death and
disability benefits program as the sole recourse of
injured servicemen. Taber, 67 F.3d at 1053. If he
was entitled to no worker's compensation benefits,
he was not injured while acting in the scope of his
employment and incident to service, and no under-
lying Feres rationale applied to his claims. The
Court of Appeals found that plaintiff would not be
entitled to federal disability payments for his injur-
ies, and his claims against the Government should
not be dismissed.
The fact that the Court of Appeals allowed plaintiff
to bring his claims against the Government in
Taber had no impact upon the applicability of the
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other underlying rationales of Feres. In fact, the
Taber court affirmatively found that another of the
three Feres rationales, the need to avoid significant
judicial interference in military decisions, still
played a role in the application of the doctrine. This
rationale, once the primary concern in the applica-
tion of the Feres doctrine, has diminished in im-
portance over the years. See Taber, 67 F.3d at 1052
(noting that the other two Feres factors-the exist-
ence of a federal compensation scheme and the de-
sirability of a uniform federal rule-were tantamount
to disciplinary considerations). But the Court of
Appeals acknowledged that there are rare cases in
which the discipline of the party who causes the in-
jury is crucial to the application of a Feres bar,
while the other two rationales do not apply. Id.
(noting that the court applied Feres in Bozeman and
Sanchez III because plaintiffs' allegations of negli-
gence in the supervision of the tortfeasors, would
require the military to defend its employment and
other decisions related to certain of their policies).
Eric Zimmerman's individual claims implicate del-
icate military judgments, namely the decision-mak-
ing process concerning the hiring and supervision
of officers and civilians within the USMA Chap-
lain's Office, the discipline of such officers and ci-
vilians, and the approval and supervision of con-
tractors who operate within the military base. Feres
prevents this court from *289 interfering in such
military matters when the plaintiff is a member of
the military whose injuries arose incident to ser-
vice. Plaintiff's individual claims would require this
court to second-guess the USMA's contractual rela-
tionship, hiring, supervision, and discipline of its
Chaplain's Office and of God's Gang,-a role on
which the Feres doctrine frowns.
Feres bars only Eric Zimmerman's individual
claims. His claims on behalf of his daughter are not
barred by Feres, even though they raise exactly the
same issues and considerations. This may seem in-
congruous, but Feres does not bar suits against the
government when the injured plaintiff is a civilian.
See, e.g., Sheridan v. United States, 487 U.S. 392,
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401, 108 S.Ct. 2449, 101 L.Ed.2d 352 (1988)
(injured civilian shot by drunken serviceman could
sue under FTCA for navy personnel's negligence in
allowing drunken serviceman to leave base with a
rifle); Kohn v. United States, 680 F.2d 922, 926 (2d
Cir.1982) (although Feres did bar recovery by the
estate of a murdered serviceman, it did not bar
claims brought by his parents for the Army's al-
leged infliction of emotional distress on them sub-
sequent to their son's death). This is true even if the
civilian is a military dependent. See Romero v.
United States, 954 F.2d 223, 225 (4th Cir.1992)
(reversing district court's dismissal of civilian de-
pendent's claims, explaining that “claims brought
by civilians and civilian dependents of service
members who have directly sustained injuries from
military personnel are not Feres-barred”).
B. Claims Brought by Eric Zimmerman on Behalf
of Guinevere Zimmerman
[8] The Government argues that there is no subject
matter jurisdiction over the claims brought by Eric
Zimmerman on behalf of his daughter to the extent
Zimmerman alleges any negligent action by Shel-
burne, because a theory of sovereign immunity pre-
cludes claims brought against the United States for
FN3
injuries caused by its independent contractors.
The Government correctly states the rule. See
United States v. Orleans, 425 U.S. 807, 813, 96
S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976); Roditis v.
United States, 122 F.3d 108, 110 (2d Cir.1997).
However, application of the rule requires a factual
determination of whether an entity is an independ-
ent contractor as contemplated in the FTCA, see
Leone v. United States, 910 F.2d 46, 49 (2d
Cir.1990). The Government rests on the proposition
that Shelburne, as the coordinator of God's Gang,
was an independent contractor who acted outside of
USMA supervision. That may be true, but I cannot
make any such determination on the record before
me.
FN3. Zimmerman made this argument in
his own behalf as well, but it is not neces-
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sary to reach the question since the Court
lacks subject matter jurisdiction over his
personal claims.
[9] Whether a person is a government employee or
an independent contractor for the purposes of the
FTCA is a question of federal law. See Leone v.
United States, 910 F.2d 46, 49 (1990) (citing Logue
v. United States, 412 U.S. 521, 528, 93 S.Ct. 2215,
37 L.Ed.2d 121 (1973)). In Leone, the estates of
two passengers killed in a plane crash when the pi-
lot suffered a heart attack brought an action against
the United States under the FTCA. Id., at 47
Plaintiffs alleged that private physicians, who are
designated by the Federal Aviation Administration
(“FAA”) as Aviation Medical Examiners
(“AMEs”), were negligent in failing to discover the
pilot's unhealthy physical condition when issuing
him a medical certificate. Id. The Government
moved for summary judgment on the grounds that
the AMEs were independent *290 contractors and
not government employees. The district court
denied the Government's motion, and the Govern-
ment appealed.
[10] On appeal, the Court addressed the central
question of whether the AMEs were government
employees or independent contractors. The FTCA's
limited waiver of sovereign immunity makes the
Government liable for certain torts of government
employees, 28 U.S.C. §§ 1346(b), 2671, but not li-
able for the actions of independent contractors, see
United States v. Orleans, 425 U.S. 807, 813-14, 96
S.Ct. 1971, 1975-76, 48 L.Ed.2d 390 (1976). The
Court of Appeals found that the “strict control test”
governed the inquiry. Leone, 910 F.2d at 50. The
strict control test asks whether the contractor's day-
to-day operations are supervised by the Federal
Government. Id. Generally, an employee relation-
ship will be found when the government exercises
“day-to-day control” over the “detailed physical
performance of the contractor.” Orleans, 425 U.S.
at 813-14, 96 S.Ct. 1971 (citation omitted). When,
in contrast, the government exercises broad super-
visory powers, reserves the right to inspect, or mon-
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itors compliance with federal law, an independent
contractor relationship will most often be found.
See Moschetto v. United States, 961 F.Supp. 92, 95
(S.D.N.Y.1997); Lipka v. United States, 369 F.2d
288, 291 (2d Cir.1966). In Leone, the Court of Ap-
peals reversed the district court, finding that the
evidence proved that the AMEs were not govern-
ment employees for the purposes of the FTCA be-
cause the FAA did not maintain control over their
performance and provided no insurance or worker's
compensation for the AMEs, and the AMEs relied
on their own professional judgment in making de-
cisions, decided who they would examine, were
paid directly by the patient, and supplied their own
tools, instruments and place of work. Leone, 910
F.2d at 50. The record presented by the parties does
not allow me to draw any conclusion, one way or
the other, about the status of Shelburne.
[11] The Government has provided the Court with a
contract between the USMA and Military Com-
munity Youth Ministries (“MCYM”), the organiza-
tion that runs God's Gang. (Kennedy Aff., Exh. C.)
The contract consists of a boilerplate form contract
titled “Solicitation/Contract/Order for Commercial
Items,” and two attached schedules. This contract is
the only factual evidence before the Court that goes
to the degree of control the Chaplain's Office exer-
cised over God's Gang. Standing alone, it is insuffi-
cient allow this Court to make a determination of
the degree of control exercised. The Government
also asserts that there is no subject matter jurisdic-
tion over the Complaint to the extent that it alleges
any negligent action by Cadet Jones because Jones
acted outside her official capacity as a USMA cadet
when serving as a God's Gang counselor. See28
U.S.C. § 2679(b)(1). Again, that may be the case.
But there are allegations in the complaint that sug-
gest otherwise. I am in no position to foreclose
plaintiff from developing a record that would rebut
the Government's rather conclusory contentions in
this regard.
The Government also argues that since Jones repor-
ted the girls' allegations to Shelburne, plaintiff's
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claims can not be based on Jones' failure to report. I
have little doubt that given Cadet Jones' position in
the chain of command, she did all she could by ask-
ing her supervisor and superior officers for guid-
ance. That may well entitle her to summary judg-
ment; it does not mean that subject matter jurisdic-
tion is lacking over the claims against her.
*291 The Government's factual attacks on jurisdic-
tion should be supported by ample “affidavits, de-
position testimony, and other materials outside the
complaint.” See Ensign-Bickford Co. v. ICI Explos-
ives USA, Inc., 817 F.Supp. 1018, 1023
(D.Ct.1993). Both parties have submitted a negli-
gible amount of supplemental materials, but the
factual record is insufficient to permit me either to
accept or reject the Government's arguments. I
therefore deny the motion without prejudice to the
Government's renewing it on a full record after dis-
covery.
II Defendant's Motion to Dismiss Guinevere's
Claims For Failure to State a Claim
Plaintiff pleads three alternative causes of action
against the Government: (1) breach of a federal
statutory duty to report incidents of suspected child
abuse pursuant to 42 U.S.C. § 13031; (2) breach of
state statutory duty to report suspected child abuse
pursuant to Title 6, § 413 of the New York Social
Services Law; and, (3) breach of a common law
duty to assist the imperiled. Defendant challenges
these causes of action as legally insufficient under
Fed.R.Civ.P. 12(b)(6).
The Government articulates five alternative theories
in its motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6): (A) failure to state a
claim under the federal statute because the FTCA's
“law of the place” requirement can not be satisfied
by the violation of a federal statute standing alone;
(B) failure to state a claim for failure to comply
with the state statute because plaintiff did not allege
defendant's willful failure to report incidents of sus-
pected child abuse; (C) failure to state a claim for
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failure to comply with the state and federal report-
ing statutes because the memorandum written by
Jones to Shelburne does not describe incidents of
sexual or child abuse; (D) failure to state a claim
because the God's Gang personnel did not have a
duty to report suspected child abuse under the state
and federal statutes or under New York law; (E)
failure to state a claim because neither the federal
or state statutes includes priests, ministers, chap-
lains or clergy in their lists of mandatory reporters.
The role of a district court in considering a motion
to dismiss is “not to weigh the evidence that might
be presented at trial but merely to determine wheth-
er the complaint itself is legally sufficient.” Gold-
man v. Belden, 754 F.2d 1059, 1067 (2d Cir.1985).
The court must accept as true the factual allegations
made in the complaint, see LaBounty v. Adler, 933
F.2d 121, 123 (2d Cir.1991), and the complaint
should not be dismissed “unless it appears beyond a
doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to re-
lief.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94
S.Ct. 1683, 40 L.Ed.2d 90 (1974) (quoting Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2
L.Ed.2d 80 (1957)).
A. “Law of the place” requirement under the FTCA
28 U.S.C. § 1346(b) provides for the district court's
jurisdiction of claims under the FTCA:
[T]he district courts ... shall have exclusive juris-
diction of civil actions on claims against the United
States, for money damages, accruing on and after
January 1, 1945, for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the
Government while acting within the scope of his
office or employment, under circumstances where
the United States, if a private person, would be li-
able to the claimant, in accordance with the law of
*292 the place where the act or omission occurred.
[12] The Government argues that plaintiff's cause
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of action under the federal statute, 28 U.S.C. §
13031, should be dismissed because the FTCA's
“law of the place” requirement can not be satisfied
by a violation of federal law standing alone. The
Government contends that the FTCA mandates that
a federal violation must constitute violations of du-
ties that are “analogous to those imposed under loc-
al law.” While this statement is true, the federal
statute does create a duty, the breach of which can
result in a claim of negligence under state law. I
therefore conclude that plaintiff's first cause of ac-
tion under the federal reporting statute should not
be dismissed.
[13] “The reference in § 1346(b) to the ‘law of the
place’ means the ‘whole law’ of the state where the
incident took place.” Caban v. United States, 728
F.2d 68, 72 (2d Cir.1984) (quoting Lambertson v.
United States, 528 F.2d 441, 443 (2d Cir.1976)).
Application of the “whole law” requires that I look
to all law, including federal law, that a state court
would apply in similar circumstances involving a
private defendant. Id. (citing Southern Pacific
Transportation Co. v. United States, 462 F.Supp.
1193, 1213 (E.D.Cal.1978)). It is true that in the
vast majority of FTCA cases, the “law of the place”
will, in fact, be the law of that state, but the lan-
guage of the Act does not mandate that state law be
applied when the state courts themselves would be
required to refer to and apply federal law to determ-
ine the liability of a private person. See Southern
Pacific Transportation Co., 462 F.Supp. at 1213.
In Caban, the court permitted the application of
federal law in a suit for false imprisonment brought
under the FTCA. Caban, 728 F.2d at 73. The Court
of Appeals reviewed the district court's dismissal of
a false imprisonment charge brought under the
FTCA for the wrongful detention by INS of a Span-
ish speaking citizen. On appeal, Caban challenged
the district court's application of federal standards
to the actions of the INS, arguing that under the
FTCA's “law of the place” requirement, the Gov-
ernment had the burden of proving that plaintiff's
detention was justified under New York law, and
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not federal law. Id. at 71. The Court of Appeals
held that the district court applied proper legal prin-
ciples in ruling that INS acted in conformance with
proper federal standards regarding treatment of ap-
plicants for entry to the United States. Id. at 73. The
court determined that the district court properly
began its inquiry by looking to New York's law of
false imprisonment. Under New York law, the legal
justification for an alleged false imprisonment did
not have to be found in New York's substantive
law, but could be found in some other body of law,
such as federal law. Id. at 73. Since New York
courts could conceivably apply federal law to de-
termine whether a confinement by federal officials,
acting pursuant to federal law, was justified and
therefore privileged, such an analysis was permiss-
ible under the FTCA. Id.
Section 13031 imposes reporting requirements re-
lated to suspected cases of child abuse. It applies to
“[a] person ... engaged in a professional capacity or
activity [as defined in the statute] ... on Federal
land or in a federally operated (or contracted) facil-
ity.” If plaintiff had brought this action against
Jones, Shelburne, McChrystal and Wild as private
individuals in New York state court, he could state
a negligence claim for breach of a duty to report a
suspected incident of child abuse under 28 U.S.C. §
13031 against each individual as a professional lis-
ted in the statute working in a federal *293 facility.
A New York court would invoke the New York
common law doctrine that the breach of a statutory
duty is negligence per se. The court would then ap-
ply the federal reporting requirement created by §
13031(a). A breach of this duty to report is negli-
gence per se under New York law. See Chen v.
United States, 854 F.2d 622, 627 (2d Cir.1988) (“In
New York, the ‘unexcused omission’ or violation of
a duty imposed by statute for the benefit of a partic-
ular class ‘is negligence itself.’ ”); German by Ger-
man v. Federal Home Loan Mortgage Group, 896
F.Supp. 1385, 1396 (S.D.N.Y.1995).
The Government argues that no federal statute can
be the basis of a FTCA claim because the Second
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Circuit has never decided whether “it would be suf-
ficient under the FTCA for a plaintiff to prove
breach of a federal statutory duty if the state where
the breach took place recognized the doctrine of
negligence per se.” (Defendant's Reply Brief, at 9
(quoting Dorking v. United States, 76 F.3d 1261,
1266 (2d Cir.1996)).) However, as here, the Second
Circuit has not definitively ruled against the pro-
position, a district court is free to embrace it. Other
Circuits have affirmatively concluded that in cases
brought under the FTCA, if the federal law has a
state analogue, claims based on a breach of a feder-
al statutory can be maintained. See Johnson v. Saw-
yer, 47 F.3d 716, 727 (5th Cir.1995); Gelley v. As-
tra Pharmaceutical Prods. Inc., 610 F.2d 558, 562
(8th Cir.1979) (“[F]ederally imposed obligations,
whether general or specific, are irrelevant to our in-
quiry under the FTCA, unless state law imposes a
similar obligation upon private persons.”); Zabala
Clemente v. United States, 567 F.2d 1140, 1149
(1st Cir.1977) (“... even where specific behavior of
federal employees is required by federal statue, li-
ability to the beneficiaries of that statute may not be
founded on the Federal Tort Claims Act if state law
recognizes no comparable private liability”). Here,
N.Y. Soc. Serv. L. § 413 is analogous to 28 U.S.C.
§ 13031. In light of Johnson, Gelley, and Zabala,
and in light of Caban, I find the Government's ar-
guments unpersuasive.
This “law of the place” requirement of the FTCA is
not violated by application of the duty created by
the federal statute. Defendant's motion to dismiss
plaintiff's first claim on this basis is denied.
B. Failure to allege willful failure to report pursuant
to the New York statute
[14] The Government next alleges that Zimmerman
failed to adequately plead a violation under the
New York reporting statute, N.Y. Soc. Serv. L. §
413, because he failed to plead willfulness. Section
413 mandates that certain persons and officials are
required to report cases of suspected child abuse or
FN4
maltreatment. The Government argues that
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 13
N.Y. Soc. Serv. § 420, a companion to § 413,
provides for *294 liability for a failure to report ab-
use only if plaintiff pleads a knowing and willful
FN5
failure to report, and that Zimmerman failed to
plead any willfulness. The Government argues that
this failure leaves Guinevere's second cause of ac-
tion legally insufficient.
FN4. § 413. Persons and officials required
to report cases of suspected child abuse or
maltreatment
1. The following persons and officials
are required to report or cause a report to
be made in accordance with this title
when they have reasonable cause to sus-
pect that a child coming before them in
their professional or official capacity is
an abused or maltreated child, or when
they have reasonable cause to suspect
that a child is an abused or maltreated
child where the parent, guardian, cus-
todian or other person legally respons-
ible for such child comes before them in
their professional or official capacity and
states from personal knowledge facts,
conditions or circumstances which, if
correct, would render the child an ab-
used or maltreated child: any physician;
registered physician assistant; surgeon;
medical examiner; coroner; dentist; dent-
al hygienist; osteopath; optometrist;
chiropractor; podiatrist; resident; intern;
psychologist; registered nurse; hospital
personnel engaged in the admission, ex-
amination, care or treatment of persons;
a Christian Science practitioner; school
official; social services worker; day care
center worker; provider of family or
group family day care; employee or vo-
lunteer in a residential care facility
defined in subdivision seven of section
four hundred twelve of this chapter or
any other child care or foster care work-
er; mental health professional; substance
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abuse counselor; alcoholism counselor;
peace officer; police officer; district at-
torney or assistant district attorney; in-
vestigator employed in the office of a
district attorney; or other law enforce-
ment official. Whenever such person is
required to report under this title in his
or her capacity as a member of the staff
of a medical or other public or private
institution, school, facility or agency, he
or she shall immediately notify the per-
son in charge of such institution, school,
facility or agency, or his or her desig-
nated agent, who then also shall become
responsible to report or cause reports to
be made. However, nothing in this sec-
tion or title is intended to require more
than one report from any such institu-
tion, school or agency. At the time of the
making of a report, or at any time there-
after, such person or official may exer-
cise the right to request, pursuant to
paragraph (A) of subdivision four of sec-
tion four hundred twenty-two of this art-
icle, the findings of an investigation
made pursuant to this title or section
45.07 of the mental hygiene law.
FN5. Section 420, titled “Penalties for fail-
ure to report” states:
1. Any person, official or institution re-
quired by this title to report a case of
suspected child abuse or maltreatment
who willfully fails to do so shall be
guilty of a class A misdemeanor.
2. Any person, official or institution re-
quired by this title to report a case of
suspected child abuse or maltreatment
who knowingly and willfully fails to do
so shall be civilly liable for the damages
proximately caused by such failure.
In his complaint, plaintiff only pleads that “agents,
servants, employees and personnel of the Chaplain's
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Office, USMA, ... obtained information pertaining
to the alleged incidents of sexual child abuse
suffered by the three, unnamed, minor, female
members of God's Gang,” (Compl.¶ 46), and that
these same persons “were negligent and failed to
report this information, thereby breaching this
duty,” (Compl.¶ 48). The words “knowingly” and
FN6
“willfully” are not used.
FN6. Plaintiff failed to respond to this ar-
gument in his opposition papers.
Defendant is correct that New York's Social Ser-
vices Law provides for civil liability only for the
willful failure to report cases of suspected abuse.
SeeN.Y. Soc. Serv. § 420; Kimberly S.M. v. Brad-
ford Central School, 226 A.D.2d 85, 88, 649
N.Y.S.2d 588, 590 (N.Y.App.Div.1996) (stating
that when school official has reasonable cause to
suspect that a child is abused or mistreated, the
New York Social Services Law provides for civil
liability for a willful failure to report such abuse).
The question is whether an allegation of
“willfulness” can be inferred from the other non-
conclusory allegations of the complaint. Ordinarily,
I would say yes, it can be. But, because plaintiff
specifically denominated defendant's state of mind
as negligent, not willful, his complaint is insuffi-
cient. Negligence is simply not sufficient under the
New York statute, and plaintiff failed to provide
any argument to support an alternative analysis of
the statute.
Plaintiff's second cause of action is dismissed
without prejudice. Plaintiff may amend his com-
plaint to comply with the requirements of § 420.
C. Sufficiency of the memorandum written by
Jones under the reporting statutes
[15] The Government asserts that the information in
the memorandum prepared *295 by Cadet Jones
was insufficient to trigger a reporting requirement
under state and federal statute. Since plaintiff's
second cause of action based on the state reporting
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statute has been dismissed, I will focus only on the
federal statute.
Section 13031 provides that once a person “learns
of facts that give reason to suspect that a child has
suffered an incident of child abuse,” he must “as
soon as possible make a report of the suspected ab-
use” to a designated agency. 42 U.S.C. § 13031(a).
The statute defines child abuse as follows:
(1) the term “child abuse” means the physical or
mental injury, sexual abuse or exploitation, or neg-
ligent treatment of a child;
(2) the term “physical injury” includes but is not
limited to lacerations, fractured bones, burns, in-
ternal injuries, severe bruising or serious bodily
harm;
(3) the term “mental injury” means harm to a
child's psychological or intellectual functioning
which may be exhibited by severe anxiety, depres-
sion, withdrawal or outward aggressive behavior, or
a combination of those behaviors, which may be
demonstrated by a change in behavior, emotional
response or cognition;
(4) the term “sexual abuse” includes the employ-
ment, use, persuasion, inducement, enticement, or
coercion of a child to engage in, or assist another
person to engage in, sexually explicit conduct or
the rape, molestation, prostitution, or other form of
sexual exploitation of children, or incest with chil-
dren;
(5) the term “sexually explicit conduct” means ac-
tual or simulated-
(A) sexual intercourse, including sexual contact in
the manner of genital-genital, oral-genital, anal-
genital, or oral-anal contact, whether between per-
sons of the same or of opposite sex; sexual contact
means the intentional touching, either directly or
through clothing, of the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with
an intent to abuse, humiliate, harass, degrade, or
arouse or gratify sexual desire of any person.
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42 U.S.C. § 13031(c).
Plaintiff alleges that the accounts of Stone's actions
given to Jones by the three girls, and the subsequent
memorandum written by Jones to Shelburne consti-
tuted descriptions of incidents of child abuse and
that Jones, Shelburne, McChrystal and Wild had
“reason to suspect” that Stone had committed acts
amounting to child abuse as defined by § 13031.
(Compl.¶ 37.) In order to assess whether plaintiff
has stated a viable claim, I must look at the text of
the memorandum, submitted by the Government,
with the names of the young girls redacted
(Kennedy Aff., Exh. B):
Darren,
Here are the details the girls gave me....
* * * *:
said she felt breathing on her face and turned over
to see LCDR Stone standing next to her. He said “
* * * *, are you ok?” She said “Yes, what are you
doing?” He stuttered and said he was fixing the
heater. She lay awake until he left the room. This
happened in December.
* * * *:
* * * * said she never wakes up at night but that she
has been awakened on 3 different occasions while
sleeping over at * * * * 's house. Her story is simil-
ar to * * * * 's. Each time, she woke up to find him
standing over her but she would be still until he
left.
* * * *:
*296 Also says she never wakes up at night. She
thought she felt something on her hand so she woke
up. He was standing over her so she snuggled close
to * * * *. He said “ * * * *, you are crushing * * *
*. Move over here,” and then moved * * * * back to
her side of the bed. * * * * lay still until he left.
* * * * has friends sleep over a lot. The older
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
(Cite as: 171 F.Supp.2d 281)
daughter * * * * 's friends say that “she feels like
she has to lock her door at night.”
I think that's all. Please let me know what Chaplain
Wild says and whether you think we should ap-
proach anyone else. Thanks for your help!
Ariel
Several things are clear. The memorandum does not
describe “sexual abuse” or “sexually explicit con-
duct,” as defined in § 13031. The memorandum
contains no suggestion that the girls suffered
“physical injury.” The memorandum does not in-
dicate that the girls exhibited “severe anxiety, de-
pression, withdrawal or outward aggressive behavi-
or, or a combination of those behaviors,” which are
the hallmarks of “mental injury” under § 13031. So,
the statutory reporting requirements were not
triggered by the memorandum.
However, in a pre-answer motion to dismiss under
Rule 12(b)(6), a court must not dismiss a claim un-
less it is clear that plaintiff can prove no set of cir-
cumstances that would entitle him to relief. See
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974). I cannot infer that the
memorandum included all the information given to
Cadet Jones, or all of the impression she formed
about the girls' mental states. Neither can I con-
clude that the memo contained all the information
that Jones gave to Shelburne or her superior of-
ficers. Indeed, on its face, the memo appears to
have been written after Jones had a conversation
with Shelburne. The record does not reveal what
was said in that conversation.
Given the statutory reporting parameters-which are
quite specific and quite narrow-it may well be that
the Government will be entitled to summary judg-
ment on this claim. However, the complaint suffi-
ciently pleads a cause of action, and plaintiff is en-
titled to discovery to learn (1) what the girls said to
Jones and how they said it; and (2) whether Jones
said anything to her supervisor or to her superior
officers that would cause a reasonable person to be-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 16
lieve they had suffered “mental injury” as defined
in § 13031. The motion to dismiss on this ground is
denied.
D. Duty owed by God's Gang personnel to potential
victims
[16] The Government argues that the members of
God's Gang personnel had no duty to the potential
victims of Stone's future crimes, and specifically
had no duty to Guinevere Zimmerman, and their
failure to report should not be the basis for any re-
covery by plaintiff.
The federal and state reporting statutes do not re-
quire proof of a common law duty to certain indi-
viduals, so the Government's argument has no bear-
ing on those claims. Sections 13031 and 413 im-
pose a statutory duty on persons acting in specific
professional capacities to report any suspected in-
cidents of child abuse. The complaint alleges that
Jones, Shelburne, McChrystal, and other unnamed
“agents, servants, employees and personnel of the
USMA Chaplain's Office” were “acting in one or
more of the professional capacities and/or perform-
ing one of the activities enumerated” in the federal
statute and were “among the persons or officials
enumerated” in the New York statute. (Compl.¶¶
37, 46.) Plaintiff does not need to prove a common
*297 law duty to potential victims of Stone in order
to allege a violation of the reporting statutes. The
Government's argument that plaintiff has failed to
allege a common law duty has no effect on the
claims based on the breach of statutory duties.
The Government's argument does pertain to the
plaintiff's common law claim. The Government ar-
gues that plaintiff failed to sufficiently allege that
God's Gang had a “specific duty” to protect
Guinevere Zimmerman. (Gov. Reply. Mem., at p.
7). To the contrary, plaintiff alleged that the various
agents and employees of the United States “by their
conduct, voluntarily assumed for themselves and
for the United States, the duty to assist the im-
periled, including without limitation, all those
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
(Cite as: 171 F.Supp.2d 281)
minors for whom it was reasonably foreseeable that
they would be invited to spend the night at the
Stone residence, and in the absence of intervention
by someone to ensure their safety, might, in the fu-
ture, spend the night at the Stone residence.”
(Compl. ¶ 55.) Plaintiff specifically included
Guinevere Zimmerman in the group of foreseeable
victims. (Compl.¶ 56.)
In order for this Court to dismiss the common law
claim on a Rule 12(b)(6) motion to dismiss, I would
have to make factual determinations of the reason-
able expectations and states of mind of both God's
Gang personnel, the USMA Chaplain's Office, the
members of God's Gang and the parents of those
members. See Palka v. Servicemaster Mgmt. Servs.
Corp., 83 N.Y.2d 579, 611 N.Y.S.2d 817, 634
N.E.2d 189 (1994) (“[W]hile the existence of a
duty involves scrutiny of the wrongfulness of a de-
fendant's action or inaction, it correspondingly ne-
cessitates an examination of an injured person's
reasonable expectation of the care owed and the
basis for the expectation and the legal imposition of
a duty.”) The factual record is insufficient to permit
me to accept or reject the Government's arguments
at this time. The motion to dismiss on this ground is
denied.
E. Duty Owed by priests, ministers, chaplains or
clergy
[17] Finally, the Government claims that the Chap-
lains supervising the God's Gang program had no
duty to report incidents of child abuse under either
the state or federal reporting statutes. Both statutes
exclude clergy, chaplains, priests, and ministers
from the list of mandatory reporters, unless they are
engaged in specific non-clerical activities. The
Government claims that the God's Gang personnel
acted as religious personnel at all times, and there-
fore had no duty to report suspected incidents of
child abuse.
The complaint does not specifically allege that the
defendants were engaged in nonreligious or non-
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 17
clerical activities, and plaintiff does not mention
the specific activity or profession the chaplains
were engaged in to satisfy the requirements of the
reporting statutes.
Section 13031 provides that the following individu-
als are mandatory reporters:
Persons engaged in the following professions and
activities are subject to the requirements of subsec-
tion (a) of this section:
(1) Physicians, dentists, medical residents or in-
terns, hospital personnel and administrators, nurses,
health care practitioners, chiropractors, osteopaths,
pharmacists, optometrists, podiatrists, emergency
medical technicians, ambulance drivers, under-
takers, coroners, medical examiners, alcohol or
drug treatment personnel, and persons performing a
healing role or practicing the healing arts.
(2) Psychologists, psychiatrists, and mental health
professionals.
*298 (3) Social workers, licensed or unlicensed
marriage, family, and individual counselors.
(4) Teachers, teacher's aides or assistants, school
counselors and guidance personnel, school officials,
and school administrators.
(5) Child care workers and administrators.
(6) Law enforcement personnel, probation officers,
criminal prosecutors, and juvenile rehabilitation or
detention facility employees.
(7) Foster parents.
(8) Commercial film and photo processors.
FN7
42 U.S.C. § 13031(b).
FN7. The New York statute, N.Y. Soc.
Serv. L. § 413, which is not applicable un-
less plaintiff chooses to replead that cause
of action, imposes mandatory reporting du-
ties on the following persons:
171 F.Supp.2d 281 FOR EDUCATIONAL USE ONLY
171 F.Supp.2d 281
(Cite as: 171 F.Supp.2d 281)
any physician; registered physician as-
sistant; surgeon; medical examiner; cor-
oner; dentist; dental hygienist; osteo-
path; optometrist; chiropractor; podiat-
rist; resident; intern; psychologist; re-
gistered nurse; hospital personnel en-
gaged in the admission, examination,
care or treatment of persons; a Christian
Science practitioner; school official; so-
cial services worker; day care center
worker; provider of family or group fam-
ily day care; employee or volunteer in a
residential care facility defined in subdi-
vision seven of section four hundred
twelve of this chapter or any other child
care or foster care worker; mental health
professional; substance abuse counselor;
alcoholism counselor; peace officer; po-
lice officer; district attorney or assistant
district attorney; investigator employed
in the office of a district attorney; or oth-
er law enforcement official.
Although it is true that the reporting statutes do ex-
clude clergy, the complaint does allege (albeit in
conclusory form) that Jones, Shelburne, McChrys-
tal, and other unnamed “agents, servants, employ-
ees and personnel of the USMA Chaplain's Office”
were “acting in one or more of the professional ca-
pacities and/or performing one of the activities enu-
merated” in the federal statute and were “among the
persons or officials enumerated” in the New York
statute. (Compl.¶¶ 37, 46.) Furthermore, neither
Jones nor Shelburne is a member of the clergy, and
so cannot take advantage of the clerical exemption.
In fact, plaintiff refers to Jones as a counselor
throughout his complaint, a professional covered in
the federal statute. 42 U.S.C. § 13031(b)(3). For
this reason alone, plaintiff's claims cannot be dis-
missed.
The Government provides no authority for the pro-
position that because someone is a member of the
clergy, he can not be a mandated reporter if he is
engaged in a non-clerical activity. Indeed, the law
© 2009 Thomson Reuters/West. No Claim to Orig. US Gov. Works.
Page 18
is to the contrary. See e.g., People v. Hodges, 13
Cal.Rptr.2d 412, 10 Cal.App. 4th Supp. 20, 34
(1992) (affirming conviction of pastor and assistant
pastor, who were also president and principal of
church-run school, for violation of statute requiring
child care custodian to report known or suspected
instances of child abuse, finding that they acted in
their roles as school officials, and not as members
of the clergy); State v. Motherwell, 114 Wash.2d
353, 788 P.2d 1066, 1069 (1990) (finding that al-
though legislature intended to exempt clergy from
child abuse reporting statute, “[s]imply establishing
one's status as “clergy” is not enough to trigger ex-
emption in all circumstances;” rather, one “must
also be functioning in that capacity for exemption
to apply”) (emphasis in original). The fact that Mc-
Chrystal and Wild are clergy is not sufficient to
trigger an exemption from the reporting statutes;
the Government will have to show that they were
acting in that capacity.
CONCLUSION
The Government's motion to dismiss Eric Zimmer-
man's individual claims is *299 granted. The Gov-
ernment's motion to dismiss the second claim
brought by Zimmerman on behalf of his daughter
Guinevere pursuant to N.Y. Soc. Serv. L § 413 is
granted; this claim is dismissed without prejudice.
The government's motion to dismiss all other
claims brought by Zimmerman on behalf of
Guinevere is denied.
This constitutes the order and decision of the Court
S.D.N.Y.,2001.
Zimmerman ex rel. Zimmerman v. U.S.
171 F.Supp.2d 281
END OF DOCUMENT
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KEYCITE

Zimmerman ex rel. Zimmerman v. U.S., 171 F.Supp.2d 281 (S.D.N.Y.,Oct 17, 2001) (NO. 01 CIV
5019(CM))
History

Direct History

=> 1 Zimmerman ex rel. Zimmerman v. U.S., 171 F.Supp.2d 281 (S.D.N.Y. Oct 17, 2001) (NO. 01
CIV 5019(CM))

Court Documents

Dockets (U.S.A.)

S.D.N.Y.
2 ZIMMERMAN v. THE UNITED STATES OF, NO. 7:01cv05019 (Docket) (S.D.N.Y. Jun. 06,
2001)

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Westlaw Delivery Summary Report for CROTTY,PATRICK

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Citation Text: 171 F.Supp.2d 281
Service: KeyCite
Lines: 155
Documents: 1
Images: 0

The material accompanying this summary is subject to copyright. Usage is governed by contract with Thomson Reuters,
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 AUTHORIZED FOR EDUCATIONAL USE ONLY

Date of Printing: May 28, 2009

KEYCITE

Zimmerman ex rel. Zimmerman v. U.S., 171 F.Supp.2d 281 (S.D.N.Y. Oct 17, 2001) (NO. 01 CIV
5019(CM))
Citing References

Positive Cases (U.S.A.)

Cited
1 Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F.Supp.2d 313,
362 (N.D.N.Y. Jul 28, 2003) (NO. 5:82-CV-783)
2 Johnson v. City University of New York, 2003 WL 21435474, *2 (S.D.N.Y. Jun 19, 2003) (NO.
00CV8119(WK)(RLE)) HN: 1 (F.Supp.2d)
3 Loftin v. N.Y.S. Dept. of Mental Health, 2003 WL 221767, *1 (S.D.N.Y. Jan 31, 2003) (NO. 02
CIV. 4532(RWS)) HN: 1 (F.Supp.2d)
4 Harrison v. U.S., 2005 WL 2135146, *3+ (W.D.Wash. Sep 02, 2005) (NO. C05-5146RBL) " HN:
12 (F.Supp.2d)
5 R.C. v. Diesfeld, 785 N.Y.S.2d 325, 326, 6 Misc.3d 205, 206, 2004 N.Y. Slip Op. 24453, 24453
(N.Y.Sup. Nov 08, 2004) (NO. 64464) HN: 6 (F.Supp.2d)

Mentioned
6 In re Ingram Barge Co., 2007 WL 837181, *3 (E.D.La. Mar 14, 2007) (NO. CIV.A. 05-4419)
HN: 4 (F.Supp.2d)

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7 Serviceman's right to recover under Federal Tort Claims Act (28 U.S.C.A. secs. 2671 et seq.), 31
A.L.R. Fed. 146 (1977)
8 Federal Procedural Forms s 63:35, State or federal law as applicable to FTCA judicial actions
(2009)
9 Federal Procedure, Lawyers Edition s 73:434, Generally (2008)
10 Litigating Tort Cases s 66:32, Defeating sovereign or governmental immunity--Federal Tort
Claims Act (FTCA)--Exception for military service claims (2008)
11 14 Wright & Miller: Federal Prac. & Proc. s 3658, Statutory Exceptions to Sovereign Immunity-
-Actions Under the Federal Tort Claims Act: General Procedural Requirements (2009) HN: 4,6
(F.Supp.2d)
12 2 Am. Jur. Proof of Facts 3d 327, Psychotherapist's Liability For Failure To Protect Third Person
(2008)
13 Am. Jur. 2d Federal Tort Claims Act s 114, Negligence per se (2009)

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 AUTHORIZED FOR EDUCATIONAL USE ONLY

14 Am. Jur. 2d Federal Tort Claims Act s 53, Maintenance of buildings--Military facilities (2009)

Court Documents

Appellate Court Documents (U.S.A.)

Appellate Petitions, Motions and Filings

15 Lester CHAMBERS, d/b/a The Chambers Brothers, Carl Gardener, d/b/a The Coasters, Bill
Pinkney, d/b/a/ The Original Drifters, Tony Silvester, d/b/a/ The Main Ingredient on behalf of
themselves and all others similarly situated, Plaintiffs-Appellants, v. TIME WARNER, INC., in
its own right and as successor in interest to Warner Bros. Records, Atlantic Records, Elektra Re-
cords, and associated labels, Sony Corporation of America, in its own right and as, 2002 WL
32750834, *32750834+ (Appellate Petition, Motion and Filing) (2nd Cir. Mar 13, 2002) Defend-
ants-Appellees' Petition for Rehearing (NO. 01-7010) HN: 1,2 (F.Supp.2d)

Appellate Briefs
16 State of WISCONSIN, Plaintiff-Respondent, v. Marvin J. MOSS, Defendant-Appellant., 2003
WL 23837301, *23837301+ (Appellate Brief) (Wis.App. II Dist. 2003) Brief of Plaintiff-Re-
spondent (NO. 03-0436-) HN: 17 (F.Supp.2d)

Trial Court Documents (U.S.A.)

Trial Motions, Memoranda and Affidavits

17 Susan KING, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant., 2005 WL
3226669, *3226669 (Trial Motion, Memorandum and Affidavit) (D.Conn. Oct 14, 2005) United
States' Memorandum in Support of its ... (NO. 304-CV-02098-MRK)
18 In the Matter of THE COMPLAINT OF INGRAM BARGE COMPANY, as Owner of the ING
4727, Petitioning for Exoneration from or Limitation of Liability., 2006 WL 5156041, *5156041
(Trial Motion, Memorandum and Affidavit) (E.D.La. Nov 20, 2006) Opposition to United
States' Motion to Dismiss (NO. 05-04419)
19 Jeanne DEGAN, Plaintiff, v. GOLDWELL OF NEW ENGLAND, INC. and R.G. Shakour, Inc.,
Defendants., 2005 WL 2096547, *2096547 (Trial Motion, Memorandum and Affidavit) (D.Mass.
Jul 08, 2005) Memorandum in Support of Defendants' Motion for ... (NO. 04CV1024RWZ)

20 The Estate of Shirley Diane LEDFORD, by and Through Administrator, Michael I. Jarnigan,
Plaintiff, v. UNITED STATES, Defendant., 2004 WL 1960889, *1960889 (Trial Motion,
Memorandum and Affidavit) (W.D.N.C. Mar 08, 2004) Corrected Brief in Support of
Plaintiff's Rule 59 ... (NO. 103CV160)
21 The Estate of Lisa Michelle PURKEY, by and through Administrator James Scott Purkey,
Plaintiff, v. UNITED STATES, Defendant., 2004 WL 3655188, *3655188 (Trial Motion,
Memorandum and Affidavit) (W.D.N.C. Mar 08, 2004) Corrected Brief in Support of
Plaintiff's Rule 59 ... (NO. 103CV159)

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 AUTHORIZED FOR EDUCATIONAL USE ONLY

22 The Estate of Shirley Diane LEDFORD, by and Through Administrator, Michael I. Jarnigan,
Plaintiff, v. UNITED STATES, Defendant., 2004 WL 1960886, *1960886 (Trial Motion,
Memorandum and Affidavit) (W.D.N.C. Mar 02, 2004) Brief in Support of Plaintiff's Motion
for ... (NO. 103CV160)
23 The Estate of Lisa Michelle PURKEY, by and through Administrator James Scott Purkey,
Plaintiff, v. UNITED STATES, Defendant., 2004 WL 1961161, *1961161 (Trial Motion,
Memorandum and Affidavit) (W.D.N.C. Mar 02, 2004) Brief in Support of Plaintiff's Motion
for ... (NO. 103CV159)
24 Sal SANTAFE-GOMEZ, an infant, by his mother and natural guardian Marina Santafe-Gomez,
and Marina Santafe-Gomez, individually, Plaintiffs, v. UNITED STATES OF AMERICA, De-
fendant., 2005 WL 2547363, *2547363 (Trial Motion, Memorandum and Affidavit) (E.D.N.Y.
Aug 11, 2005) Pre-Trial Memorandum (NO. CV-04-1652, LDW)
25 Susan SHORTSLEEVES, as Administrator of the Estate of Taylor Usher, an Infant, deceased,
Plaintiff, v. GLENS FALLS HOSPITAL, Irene Flatau, M.D., and John Bulova, M.D., Defend-
ants., 2005 WL 2171737, *2171737+ (Trial Motion, Memorandum and Affidavit) (N.D.N.Y. Jan
14, 2005) Defendant Hospital's Memorandum of Law in Support ... (NO. 103-CV-1012)
HN: 14 (F.Supp.2d)
26 GLOBAL MEDIA CORPORATION, Plaintiff, v. GATEWAY DISTRIBUTORS, LTD., Florian
R. Ternes, and Richard A. Bailey, Defendants., 2007 WL 1991901, *1991901 (Trial Motion,
Memorandum and Affidavit) (S.D.N.Y. May 02, 2007) Memorandum of Law in Opposition to
Motions to ... (NO. 0613415, RMB)
27 Michael H. DORAN, Individually, Michael H. Doran & Associates, P.C, Doran & Murphy LLP,
Michael H. Doran as Plan Administrator of the Michael H. Doran & Associates Voluntary Em-
ployee Beneficiary Association and Trust, Thomas A. Doran and Christopher M. Murphy,
Plaintiffs, v. Marc M. BARANSON, Benefit Concepts, Ltd., Nicholas P. Magalhaes, Pinnacle
Wealth Group LLC, Pinnacle Wealth Enterprises, LLC, Pinnacle Wealth Group of Mt. Vernon,
LLC, Strategic Ventures Inc.,, 2005 WL 2912152, *2912152+ (Trial Motion, Memorandum and
Affidavit) (W.D.N.Y. Sep 16, 2005) Massachusetts Mutual Life Insurance Company's ... (NO.
105-CV-00364-RJA-HKS)
28 Tiffany Jane HARRISON, a married woman as her individual estate, Plaintiff, v. UNITED
STATES OF AMERICA, Defendant., 2005 WL 4133593, *4133593+ (Trial Motion, Memor-
andum and Affidavit) (W.D.Wash. Jun 30, 2005) Plaintiff's Response to Defendant's Cross-
Motion ... (NO. C05-5146-RBL)

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