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A federal appeals court has revived a suit brought by a man who suffered a broken neck when he was attacked by a federal worker, holding that while the government is immune from suit over the intentional assault, it may nonetheless be liable for the alleged negligence of the attacker’s co-workers if they were aware of his violent nature and failed to prevent the incident. In Matsko v. United States of America, the 3rd U.S. Circuit Court of Appeals said it agreed with a lower court’s ruling that the Federal Tort Claims Act “does not waive the United States’ immunity for intentional assaults by government workers who are acting outside the scope of their employment.” But the unanimous three-judge panel concluded that the lower court erred in dismissing John J. Matsko III’s second claim under the FTCA that was premised on the theory that the government is liable because the attacker’s supervisors and co-workers “did not act to prevent the assault.” Writing for the court, U.S. Circuit Judge Richard L. Nygaard found that, if Matsko is able to prove that the supervisors and co-workers were negligent, “then his claim would be squarely within the FTCA’s waiver of sovereign immunity.” The ruling is a victory for attorney Vincent J. Barbera of Barbera Clapper Beener Rullo & Melvin in Somerset, Pa., who argued that since Matsko was in a government office as a business invitee, the government had an “affirmative duty” to keep him safe from harm. According to court papers, Matsko was working as the director of safety for PBS Coals Inc. when he visited the offices of the Mine Safety and Health Administration, a division of the U.S. Department of Labor, for a meeting with Earl Miller, an MSHA inspector. The meeting was held at Miller’s desk after Miller pulled up a chair from fellow MSHA inspector Rudy Kotor’s desk for Matsko to sit in, the suit says. Kotor returned to his desk during the meeting, the suit says, and grew angry and began cursing about Matsko’s use of his chair. According to the suit, before Matsko was able to give the chair back, and without provocation, Kotor slammed Matsko’s face into a briefcase that was lying on Miller’s desk. Matsko suffered a fractured vertebra and herniated disc in his neck, the suit says. Matsko claims that as he was leaving the MSHA offices, Kotor’s supervisors and co-workers suggested that they were not surprised by Kotor’s behavior. One of the MSHA inspectors allegedly told Matsko: “I told you don’t piss Rudy [Kotor] off,” and another supervisor “smirked” at the comment. Kotor later pleaded guilty to charges of simple assault, harassment and stalking. Matsko initially filed an administrative tort claim with the Department of Labor, which was denied, and then filed suit in U.S. District Court against Kotor and the United States, seeking $5 million in damages. But government lawyers moved for dismissal, arguing that the court lacked jurisdiction because the government had not waived its sovereign immunity. U.S. District Judge Joy Flowers Conti agreed and dismissed all claims against the government. Conti also refused to exercise supplemental jurisdiction over Matsko’s state law claim against Kotor, suggesting that it should be filed in state court. Matsko has since filed suit against Kotor in state court. On appeal, Matsko argued that Conti erred in dismissing both of his FTCA claims. Now the 3rd Circuit has ruled that Conti was correct in dismissing the first claim because the government cannot be held liable for Kotor’s violent actions. Nygaard, in an opinion joined by Judges Theodore A. McKee and Joseph F. Weis, found that Conti properly concluded that Kotor was not acting “within the scope of his employment” when he perpetrated the attack. Barbera argued that Conti erred by taking too narrow a view of the incident and focusing solely on Kotor’s assault. Instead, he argued, she should have looked at the entire incident, including Kotor’s retrieval of his chair. Nygaard disagreed, saying “we will not focus on the minimally offensive conduct — retrieval of the chair — when it was the aggregate of Kotor’s actions that caused Matsko’s injury.” Kotor’s actions, Nygaard found, were “motivated by personal animus, rather than any intent to serve the United States.” Barbera also argued that Kotor’s assault qualified for the FTCA’s special treatment of assaults by investigative or law enforcement officers. Nygaard rejected that argument, too, saying “while Kotor was an inspector for the MSHA, which included authority to inspect mines and investigate possible violations, the FTCA did not intend to bring within its scope actions by ‘officers’ not within the bounds of an investigation.” But Nygaard found that Conti was too quick to dismiss Matsko’s second FTCA claim that focused on the alleged negligence of the other MSHA workers in failing to prevent the assault. “The fact that a government employee acting outside the scope of his employment committed an injurious assault or battery will not preclude liability against the government for negligently allowing the assault to occur,” Nygaard wrote. The negligence claim, Nygaard said, “stems from the United States’ undertaking a duty to protect Matsko when it invited him to a meeting at the MSHA offices.” Such a duty, Nygaard found, “is entirely separate from any respondeat superior claim for Kotor’s actions.” But despite reviving the claim, Nygaard also suggested in a footnote that Matsko bears a heavy burden in proving such a claim. “One could question whether the United States, by and through the MSHA officers, knew that Kotor had a propensity for violence or whether the MSHA officials had time to intervene to stop Kotor,” Nygaard wrote in the footnote. But since the court was reviewing a ruling on a motion to dismiss, Nygaard concluded that Matsko had satisfied the liberal pleading standard. “Matsko has sufficiently pleaded the existence of the duty, breach, and causation elements of his negligence claim,” Nygaard wrote.

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