Lambertson v. United States

528 F.2d 441 (1976)

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Nature of the Case

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Facts

A truck shipment of beef arrived at the receiving dock of Armour's Syracuse plant. While P was unloading the beef, he was suddenly and without warning jumped by Boslet. Boslet screamed 'boo' and pulled P's wool stocking hat over his eyes. Boslet climbed on P's back and began to ride P piggyback. P fell forward and struck his face on some meat hooks located on the receiving dock suffering severe injuries to his mouth and teeth. All the witnesses agreed that the mishap was the result of one-sided horseplay with no intention on Boslet's part to injure P. Boslet apologized to P, telling him that he was only playing around and meant no harm. Boslet was a meat inspector working for D. P sued D pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Several claims are expressly excepted from the purview of the Act, among which are any claims arising out of an assault or battery. P’s suit was dismissed. P appealed. The parties agree that the sole basis for Judge's dismissal was his conclusion that Boslet's actions constituted a battery. P contends that the complaint sounds in negligence.