Fogel v. Two Unknown Employee

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 96-1230
JENNIFER MICHELLE FOGEL,
Plaintiff - Appellant,
and
VICKI DENISE FOGEL,
Plaintiff,
versus
TWO UNKNOWN EMPLOYEES OF THE MORALE, WELFARE &
RECREATION DEPARTMENT, Marine Corps Air Sta-
tion, Cherry Point, North Carolina; UNITED
STATES OF AMERICA,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of North Carolina, at Greenville. Malcolm J. Howard,
District Judge. (CA-94-40-H1)
Argued: May 6, 1997 Decided: May 30, 1997
Before RUSSELL and HALL, Circuit Judges, and Joseph F. ANDERSON,
Jr., United States District Judge for the District of South
Carolina, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: David Peter Voerman, DAVID P. VOERMAN, P.A., New Bern,
North Carolina, for Appellant. Barbara Dickerson Kocher, Assistant
United States Attorney, Raleigh, North Carolina, for Appellees. ON
BRIEF: Janice McKenzie Cole, United States Attorney, Raleigh, North
Carolina, for Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Jennifer Fogel appeals the order granting judgment after a
bench trial to the United States* in this negligence action brought
pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671
et seq.; she also appeals the order denying reconsideration of the
judgment. We agree with the district court that, under the prem-
ises liability law of North Carolina, an intervening criminal act
of a third party breaks the chain of causation between the negli-
gence of the premises owner and the injury caused by the criminal
act, except in three narrowly defined circumstances not present in
this case. Accordingly, we affirm on the reasoning of the district
court. Fogel v. United States, CA-94-40-H1 (E.D.N.C. Nov. 28,
1995) ("Order").
AFFIRMED
*
Fogel sued both the United States and "Two Unknown Employees
of the Morale, Welfare & Recreation Department, Marine Corps Air
Station, Cherry Point, North Carolina," and we are unable to find
that these "unknown employees" were ever formally dismissed from
the case. The United States has never disputed that these "unknown
employees," whose identities became known but who were never added
as parties, were acting within the scope of their federal employ-
ment when the events constituting the alleged negligence occurred.
Under 28 U.S.C. § 2679(d)(1), the United States should have been
the only defendant below. However, this case has always proceeded
as if the United States was indeed the only defendant. For
example, the district court's memorandum orders include only the
United States in the caption, and the defendant is referred to
throughout as the United States or "the government."
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