Lambertson v. United States

528 F.2d 441 (2d Cir. 1976)



In determining the applicability of the 28 U.S.C.S. § 2680(h) exception, a court must look, not to the theory upon which the plaintiff elects to proceed, but rather to the substance of the claim which he asserts.


Appellant meat company employee suffered severe injuries to his mouth and teeth after a meat inspector for appellee federal government engaged in one sided horseplay at appellant's receiving dock as a shipment of beef arrived. Appellee leapt on the back of appellant, causing the latter to fall on some meat hooks. Seeking redress for his injuries, appellant commenced an action against appellee alleging that the inspector's attack upon him occurred without provocation or justification. But also alleging that the inspector acted negligently and/or wrongfully. The witnesses were unanimous that the horseplay was one-sided but without any intention on the part of the appellee to injure the appellant. The lower court dismissed appellant's action as barred by the Federal Tort Claims Act.


Whether injuries sustained on one-sided horseplay qualifies as assault or battery?




On appeal, the court affirmed, concluding that the federal tort act expressly excluded claims arising out of an assault or battery.  The court has previously ruled that it is battery to play a joke upon another which involves a harmful or offensive contact. In this case, there was not the remotest suggestion that the inspector's leap onto appellant's back, piggy back ride and use of appellant's hat as a blindfold might have been accidental, it was not error to conclude that the offense was a battery.

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