Reported / Citable
Background
Plaintiffs Jessica Nichols and Gabryelle Daniels brought a Federal Tort Claims Act negligence suit on behalf of themselves and their minor children, alleging the Department of the Army was negligent in responding to Rashad Parkinson, a former soldier and serial sexual predator. The plaintiffs alleged the Army knew of sexual assault allegations against Parkinson as early as 2019, interviewed and polygraphed him in 2020 regarding those allegations, and was involved in a law enforcement interview that resulted in Parkinson’s arrest and release. Days after his release, Parkinson allegedly sexually assaulted plaintiff J.A., and weeks later assaulted plaintiff D.D. The plaintiffs contend Parkinson sexually assaulted up to 120 victims total.
The plaintiffs alleged the Army violated multiple regulations requiring investigation of sexual assault allegations, coordination with local law enforcement, and reporting of suspected child sexual abuse. They asserted a single negligence claim based on the Army’s alleged negligent undertaking of duties to investigate sexual assaults and coordinate with civilian authorities. The Army moved to dismiss for lack of subject matter jurisdiction under several exceptions to the FTCA’s limited waiver of sovereign immunity.
The Court’s Holding
The magistrate judge recommended denying the motion to dismiss as to the plaintiffs’ negligent undertaking claim. The court held that plaintiffs adequately alleged a duty independent of Parkinson’s employment status as a servicemember. Although the FTCA’s intentional tort exception normally bars claims “arising out of assault, battery,” and similar intentional conduct, the exception does not apply when the alleged duty is independent of the tortfeasor’s employment relationship. Here, the Army voluntarily adopted regulations (Army Regulation 600-20 Chapter 7, AR 195-2, Rules for Courts-Martial) requiring investigation of sexual assault allegations and coordination with civilian law enforcement regardless of whether the assailant is a servicemember. At the pleading stage, indulging all reasonable inferences in the plaintiffs’ favor, the court found the plaintiffs stated sufficient facts to support a negligent undertaking claim not barred by the intentional tort exception.
The court also rejected the government’s arguments based on the misrepresentation exception and discretionary function exception. On the misrepresentation exception, the court found the gravamen of the complaint concerns negligent performance of an operational duty (investigating sexual assault), not communication of misinformation. On the discretionary function exception, the court found that at the pleading stage, without the benefit of discovery, the plaintiffs adequately alleged violations of non-discretionary regulatory requirements to investigate every sexual assault allegation. The court recommended granting the motion only as to the plaintiffs’ negligence per se claims, finding Texas law does not impose a general duty on private persons to report suspected child sexual abuse.
Key Takeaways
- An FTCA negligence claim can survive a sovereign immunity challenge even when the underlying intentional tort (sexual assault) was committed by a government employee, if the plaintiff alleges a duty independent of the employee’s employment status.
- When a government agency voluntarily adopts regulations establishing duties to investigate and protect third parties, those duties may support negligent undertaking liability independent of the employment relationship of the person committing the underlying tort.
- At the pleading stage in Rule 12(b)(1) jurisdictional challenges, courts must indulge all reasonable inferences in the plaintiff’s favor, and plaintiffs need not identify specific unperformed duties before discovery.
- Negligence per se claims based on failure-to-report statutes are not viable under current Texas law, even in federal court applying Texas substantive law.
Why It Matters
This decision is significant for military sexual assault litigation and FTCA practice generally. It establishes that even when a predator is an active servicemember, the government may face negligence liability for failing to adequately investigate known sexual assault allegations and coordinate with civilian law enforcement. By holding that voluntarily adopted regulatory duties to protect third parties can exist independent of the employment relationship, the court allows plaintiffs to proceed past summary judgment based on theories that do not directly hold the government liable for the predator’s intentional misconduct, but rather for the government’s own negligence in investigation and protection.
The decision may have broader implications for cases involving institutional failures to respond to known threats, opening pathways for negligent undertaking theories in military sexual assault cases where previous litigation had encountered sovereign immunity barriers. However, the ultimate liability will depend on whether the plaintiffs can prove at trial that the Army failed to exercise reasonable care in investigating Parkinson despite knowledge of his prior conduct.