Francis A. Fahey and Josephine Fahey, as Administrators of the Estate of Eileen Fahey, Deceased v. United States

219 F.2d 445

Francis A. FAHEY and Josephine Fahey, as Administrators of the Estate of Eileen Fahey, Deceased, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.

No. 140.

Docket 23247.

United States Court of Appeals, Second Circuit.

Submitted February 9, 1955

Decided February 11, 1955.

Appeal from the United States District Court for the Southern District of New York; Edward J. Dimock, Judge.

1

Plaintiffs, Francis A. and Josephine Fahey, appeal from dismissal of their action under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671 et seq., charging governmental negligence in the release of a mentally disturbed veteran. The United States concedes the controlling force of Panella v. United States, 2 Cir., 216 F.2d 622, reversing a district court judgment to hold that the Act applies to assaults by persons not government employees when, however, the government may be charged with negligence.

2

Paul O'Dwyer (of O'Dwyer, Bernstien & Preusse), New York City, for plaintiffs-appellants.

3

Robert K. Ruskin, Asst. U. S. Atty., New York City (J. Edward Lumbard, U. S. Atty., New York City, on the brief), for defendant-appellee.

4

Before CLARK, Chief Judge, HINCKS, Circuit Judge, and SMITH, District Judge.

5

PER CURIAM.

6

Reversed. Panella v. United States, 2 Cir., 216 F.2d 622.