                             In the
 United States Court of Appeals
               For the Seventh Circuit
                          ____________

No. 02-3583
LM, GUARDIAN ON BEHALF OF KM, A MINOR,
                                               Plaintiff-Appellant,
                                 v.


UNITED STATES OF AMERICA,
                                              Defendant-Appellee.

                          ____________
            Appeal from the United States District Court
       for the Northern District of Illinois, Eastern Division.
        No. 01 C 8538—Joan Humphrey Lefkow, Judge.
                          ____________
ARGUED FEBRUARY 27, 2003—DECIDED SEPTEMBER 24, 2003
                    ____________



 Before KANNE, DIANE P. WOOD, and EVANS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. No one can condone
the sexual abuse of a young child. Nevertheless, however
deplorable such behavior is, the question here is whether
someone other than the perpetrator him- or herself is re-
sponsible for the resulting injury. Specifically, we must de-
cide whether the United States is liable under the Federal
Tort Claims Act (FTCA) for a mail carrier’s sexual abuse of
2                                               No. 02-3583

a seven-year-old girl who lived in a home on his mail deliv-
ery route. The answer is yes only if the United States Postal
Service (USPS or Postal Service) undertook a voluntary,
Good Samaritan duty to protect the girl and other children
from the mail carrier when it temporarily assigned him to
desk duty pending the investigation of earlier sexual abuse
allegations, and then if it breached that duty when it later
reassigned the mail carrier to a delivery route in a nearby
suburb. The district court dismissed the complaint filed by
the girl’s father on the government’s motion, finding a lack
of jurisdiction. FED. R. CIV. P. 12(b)(1). Although we feel
great sympathy for the child and family involved, we must
affirm the district court’s judgment.


                             I
  LM filed a lawsuit invoking the FTCA, 28 U.S.C. §§ 1346,
2671 et seq., after exhausting his administrative remedies
by submitting a claim to the USPS, and then filing a writ-
ten request for reconsideration after his claim was denied.
The facts set forth in LM’s complaint were properly taken
as true by the district court in deciding the government’s
motion to dismiss. Transit Express, Inc. v. Ettinger, 246
F.3d 1018, 1023 (7th Cir. 2001). We do the same on appeal.
Thompson v. Illinois Dep’t of Prof’l Regulation, 300 F.3d
750, 753 (7th Cir. 2000).
  From some time prior to 1990 until after August 11, 1998,
the USPS employed a mail carrier, Leslie Tucker. Tucker
came to be called “Lester the Molester” by his co-workers
because of his notorious sexual abuse of the children
who lived along his routes. LM is the father and guardian
of KM, a minor, who resides in Park Forest, Illinois. He
brought this lawsuit on his daughter’s behalf, alleging that
she was sexually abused by Tucker when she was seven
years old. LM claimed that on August 11, 1998, a neighbor
observed Tucker lure KM behind his truck where he “re-
No. 02-3583                                                3

peatedly inserted his hands inside her pants, intermittently
removing, smelling, and tasting his fingers, before proceed-
ing again numerous times over a period of approximately
eight minutes.” The neighbor who witnessed these events
called 911. Tucker was subsequently prosecuted by the
state, pleaded guilty to criminal charges, and was still in
prison at the time LM filed his complaint.
  According to LM, during the course of Tucker’s career
with the Postal Service, he sexually abused at least 10 mi-
nor girls who ranged in age from two to twelve years old.
LM further alleged that the USPS learned of Tucker’s
inappropriate and criminal conduct toward young girls both
through numerous complaints from relatives of his various
victims and through notice from the Richton Park police
that Tucker was being investigated for sexually molesting
a two-year-old girl and a four-year-old girl. LM alleged that
at some point in 1990, in response to this information, the
USPS removed Tucker from his mail delivery route. During
this period Tucker was assigned to desk duty. Some time
after 1990, Tucker was reassigned to a postal route. Well
before 1998, when the events giving rise to this appeal
occurred, the authorities responsible for the Park Forest
branch post office were notified by a concerned grandmother
that Tucker was a known child molester, and that he was
observed delivering mail in Park Forest.
  Based on these facts, LM sued, initially claiming that the
USPS had negligently hired, screened, and retained Tucker,
a known child molester. LM asserted that by removing
Tucker from his assigned route, the USPS “assumed re-
sponsibility to keep Tucker out of the neighborhoods.” When
Tucker was subsequently given another delivery route, LM
continued, the Postal Service breached “an affirmative duty
to protect the public, given its knowledge of Tucker’s sexual
molestation of children while on his carrier routes.” In
response to the government’s motion to dismiss his com-
plaint, LM disavowed the portion of his complaint that
4                                                No. 02-3583

sought relief for the USPS’s negligent hiring, supervision
and retention of Tucker. Instead, he confined himself to the
argument that USPS was liable because it had breached an
affirmative, voluntarily assumed duty to protect the
children who lived along Tucker’s mail carrier route. The
district court, finding no support in Illinois law for LM’s
claim that the Postal Service undertook a voluntary duty to
protect children from harm based on its knowledge of the
risk that Tucker may have posed, dismissed LM’s com-
plaint.


                             II
  The U.S. government, like other sovereign entities, enjoys
sovereign immunity from liability for its agents’ tortious
acts. Doe v. United States, 838 F.2d 220, 221 (7th Cir. 1988).
Congress waived this immunity for a wide range of tort
claims when it enacted the Federal Tort Claims Act. Id. at
221. The FTCA permits a tort suit against the United
States “where injury to person or property is ‘caused by the
negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment.’ ” Id. (quoting 28 U.S.C. § 1346(b)). While
this waiver of sovereign immunity is broad, it is not with-
out limit. Calderon v. United States, 123 F.3d 947, 948
(7th Cir. 1997) (explaining that “many important classes of
tort claims are excepted from the Act’s coverage”). For ex-
ample, the government has not consented to be sued for the
intentional torts of its employees and agents. 28 U.S.C.
§ 2680(h); Sheridan v. United States, 487 U.S. 392, 395
(1988). The FTCA contains a jurisdictional limitation that
specifies that its “broad grant of jurisdiction ‘shall not ap-
ply to . . . [a]ny claim arising out of assault, battery’ or
other specified intentional torts.” 487 U.S. at 398 (quoting
28 U.S.C. § 2680(h)) (alterations in original).
  The so-called “assault and battery” exception to the FTCA
has been the subject of judicial and scholarly interpretation
No. 02-3583                                                 5

because the phrase “arising out of assault, battery” is sus-
ceptible to both a broad and narrow interpretation. Id. at
399-400 (citing Note, Section 2680(h) of the Federal Tort
Claims Act: Government Liability for the Negligent Failure
to Prevent an Assault and Battery by a Federal Employee, 69
GEO. L.J. 803, 822-25 (1981)); Senger v. United States, 103
F.3d 1437, 1441-42 (9th Cir. 1996); see also Rebecca L.
Andrews, Note, So the Army Hired an Ax-Murderer: The
Assault & Battery Exception to the Federal Tort Claims Act
Does Not Bar Suits for Negligent Hiring, Retention and
Supervision, 78 WASH. L. REV. 161, 168-70 (2003); Geri Ann
Benedetto, Note, Torts—The Talismanic Language of
Section 2680(h) of the Federal Tort Claims Act, 60 TEMP.
L.Q. 243 (1987). As the Court explained in Sheridan, this
phrase could be interpreted literally as a bar to recovery for
any claim that originates in an assault or battery, but it
need not be. 487 U.S. at 400. And the phrase offers little
guidance where a plaintiff seeks to recover for the govern-
ment’s ordinary negligence when it occurs in conjunction
with an employee’s assault or battery. Id. Despite this am-
biguity, a majority of the Court in Sheridan believed that §
2680(h) should not be interpreted so broadly that it serves
as a bar against relief where a plaintiff demonstrates that
the government, in violation of a duty it owed to the victim,
negligently allowed an intentional tort to occur independ-
ently of its employment relationship with the tortfeasor. Id.
at 401-02; see also Leleux v. United States, 178 F.3d 750,
757 (5th Cir. 1999) (“Sheridan stands for the principle that
negligence claims related to a Government employee’s
§ 2680(h) intentional tort may proceed where the negligence
arises out of an independent, antecedent duty unrelated to
the employment relationship between the tortfeasor and the
United States.”).
  LM relies heavily on Sheridan and Doe in support of his
claim that the USPS breached a duty that it owed his
daughter that was unrelated to its employment relationship
6                                                No. 02-3583

with Tucker. In Sheridan, an off-duty member of the mili-
tary injured the plaintiff when he fired shots at the plain-
tiff’s car as the plaintiff drove by the Bethesda Naval Hos-
pital. Id. at 393-94. The Court found the government liable
for the plaintiff’s injuries because earlier in the evening
several naval corps members found the off-duty serviceman
drunk and in possession of a loaded rifle, both in violation
of navy rules. Their subsequent failure to take any steps
to alert base authorities that the serviceman was drunk and
wielding a gun, combined with the Navy’s voluntary deci-
sion to draft rules under which such conduct was pro-
hibited, formed the basis of the government’s tort liability.
As the Court explained: “the negligence of other Govern-
ment employees who allowed a foreseeable assault and bat-
tery to occur may furnish a basis for Government liability
that is entirely independent of Carr’s [the off-duty Naval
corps member] employment status.” Id. at 401 (emphasis
added). The Court distinguished the source of liability in
the case before it from the hypothetical case in which an off-
duty member of the military commits an intentional tort
that the government (or, as in Sheridan, its agents) has
done nothing to try to prevent. Id.
   Four Justices, including Justice White, joined Justice
Stevens’s majority opinion in Sheridan. Justice White also
filed a separate concurring opinion and Justice Kennedy
(as a sixth vote) concurred in the Court’s judgment. Justice
White’s one-paragraph concurrence expressly disavowed the
position that he had taken three years earlier when he
joined then-Chief Justice Burger’s plurality opinion in
United States v. Shearer, 473 U.S. 52 (1985). In a section of
the Shearer opinion that commanded the votes of only four
justices, Chief Justice Burger had advocated a very broad
interpretation of the assault and battery exception, stating:
    Respondent cannot avoid the reach of § 2680(h) by
    framing her complaint in terms of negligent failure to
No. 02-3583                                                7

    prevent the assault and battery. Section 2680(h) does
    not merely bar claims for assault or battery; in sweep-
    ing language it excludes any claim arising out of assault
    or battery. We read this provision to cover claims like
    respondent’s that sound in negligence but stem from a
    battery committed by a Government employee. Thus
    “the express words of the statute” bar respondent’s
    claim against the Government.
473 U.S. at 55. The majority in Sheridan rejected this po-
sition. It concluded instead that the government’s consent
to suit under the FTCA extends to cases claiming an injury
that is in part the result of an intentional tort, so long as
the government negligently allowed the independent tort to
occur in a way that is “entirely independent of [the tortfea-
sor’s] employment status.” 487 U.S. at 401. This court’s
earlier decision in Doe v. United States, 838 F.2d 220,
supra, is consistent with Sheridan.
  Doe involved the sexual abuse of young children in a
government-run child-care facility. In that case, the facts
did not conclusively establish that employees of the facility
had abused the children. The Doe court accordingly con-
cluded that the harm was visited upon the children by an
act of negligence independent of the employment relation-
ship between the government and the day-care providers.
We drew a distinction between cases involving harms that
result from a breach of a duty that the government assumed
prior to the actual assault, which are actionable under the
FTCA, 838 F.2d at 223, and cases such as Shearer, in which
“the alleged duty of the government to the victim arises
only at the time of the assault and because of the assault.”
Only the latter cases fall within the exception to the waiver
of immunity created by the FTCA. Id. See Sheridan, 487
U.S. at 401-02.
  Sheridan and Doe make clear that there is no respondeat
superior liability under the FTCA for garden-variety inten-
8                                                No. 02-3583

tional torts. Sheridan, 487 U.S. at 401; Doe, 838 F.2d at
224. LM has evidently recognized this, as he has abandoned
the portion of his complaint that sought relief for the ulti-
mate assault based on USPS’s negligent hiring, retention
and supervision of Tucker. It is perhaps worth noting that
a different district court also dismissed a complaint alleging
(on behalf of a different child) that USPS was guilty of
negligent hiring, supervision and retention of Tucker, for
failure to state a claim. See Ryan v. United States, 156 F.
Supp. 2d 900 (N.D. Ill. 2001). With negligent hiring, super-
vision and retention off the table, in order to invoke the
court’s jurisdiction under the FTCA, LM had to allege facts
that if proven at trial would establish that the USPS
voluntarily undertook to protect his daughter from Tucker’s
abuse and then negligently performed that duty prior to
her actual assault. As the FTCA commands, we turn to
Illinois law to resolve these questions. See 28 U.S.C.
§ 1346(b)(1) (adopting “law of the place where the act or
omission occurred”); Stratmeyer v. United States, 67 F.3d
1340, 1345 (7th Cir. 1995); Midwest Knitting Mills, Inc. v.
United States, 950 F.2d 1295, 1297 (7th Cir. 1991).
   Illinois recognizes an affirmative duty of care independent
of a special relationship (which LM does not argue exists
between the USPS and his daughter) where a voluntary
undertaking is shown. See Rhodes v. Illinois Central Gulf
R.R., 665 N.E.2d 1260, 1273 (Ill. 1996). The Illinois Su-
preme Court has on several occasions clarified the volun-
tary undertaking theory of tort liability. As early as Nelson
v. Union Wire Rope Corp., 199 N.E.2d 769 (Ill. 1964), and as
recently as Wakulich v. Mraz, 785 N.E.2d 843, 854 (Ill.
2003), the state Supreme Court has considered whether a
defendant’s actions were sufficient to impose a duty upon
it that it then negligently performed. In the state court’s
view, whether a voluntary undertaking has been assumed
is necessarily a fact-specific inquiry. For example, in
Nelson, the court found that the evidence supported the
No. 02-3583                                                 9

conclusion that an insurance company’s gratuitous safety
inspections were not “solely for its own internal purposes,”
199 N.E.2d at 776, and concluded that the various inspec-
tions and reports were “directed to the safety of the employ-
ees on the project.” Id. at 778. The evidence was easily
sufficient to permit a jury to conclude that the defendant’s
safety inspector negligently performed his voluntarily un-
dertaken duty to inspect a piece of construction equipment.
Id. at 784. Relying on this negligent performance of a vol-
untary undertaking, the court held that a jury could find
the insurance company liable for the deaths and injuries
that resulted when a temporary construction hoist snapped
and caused 19 construction workers to plunge six floors
down. Id. Although Nelson applied Florida law, the Su-
preme Court of Illinois has cited it with approval. See, e.g.,
Vesey v. Chicago Housing Auth., 583 N.E.2d 538, 543 (Ill.
1991); Cross v. Wells Fargo Alarm Servs., 412 N.E.2d 472,
474 (Ill. 1980). Other cases in which the court has found a
voluntary undertaking involve facts where the defendant
undertook to provide assistance and then did so negligently,
Wakulich, 785 N.E.2d at 854 (finding voluntary assumption
of duty to care for young woman who became unconscious
after consuming quart of alcoholic beverage); or the defen-
dant voluntarily undertook to provide security services in a
public housing facility, and then did so negligently. Cross,
412 N.E.2d at 474-75 (finding housing authority’s voluntary
assumption of duty to provide guard services obligated it “to
use reasonable care not to create increased dangers to
persons lawfully on its property”).
  Once a voluntary undertaking exists, it must be per-
formed with reasonable care. Rowe v. State Bank of
Lombard, 531 N.E.2d 1358, 1365 (Ill. 1988). Illinois relies
on §§ 323 and 324 of the Restatement (Second) of Torts
to assess when a breach of a voluntary undertaking has
occurred. Wakulich, 785 N.E.2d at 855-56. Specifically,
§ 324A establishes liability for breach of a voluntary
10                                              No. 02-3583

undertaking if: (1) a party undertakes to do something and
then fails to exercise reasonable care in a way that in-
creases a third party’s risk of harm; (2) undertakes to per-
form a duty that a different party was obligated to perform
and then negligently fulfills its duty; or (3) a third party
relies to its detriment on the fact that a duty has been
voluntarily undertaken.
  The United States contends that LM cannot establish
that the Postal Service assumed a voluntary duty to protect
KM when it assigned Tucker to a desk position in 1990. It
is also the government’s position that even if we find that
the USPS assumed such a duty when it stripped Tucker of
his mail carrier duties, that duty was not breached several
years later when Tucker was assigned to a mail route in
Park Forest. While we certainly hope that Tucker was not
released upon the community as a known sexual predator,
we agree with the district court that knowledge of the risk
that Tucker may have posed, without more, is not enough
to permit an inference that USPS’s act of assigning him to
a desk job was at the same time a voluntary undertaking
perpetually to protect the local children from him. Even
though we must assume at the motion to dismiss stage that
the USPS did in fact remove Tucker from his original route
while he was being investigated by the Richton Park police,
we simply cannot agree with LM that the procedural
posture of this case warrants the further assumption that
Tucker was removed from his route in order to protect
children from abuse. Moreover, there is also nothing in the
record to suggest that the reassignment was intended to be
permanent, or that USPS communicated any such under-
taking to the community.
  Not only has LM not cited any case that supports his
position that knowledge of a risk, together with the reas-
signment of a worker, imposes an affirmative duty, but his
argument is foreclosed by a decision of the Supreme Court
of Illinois. In Frye v. Medicare-Glaser Corp., 605 N.E.2d 557
No. 02-3583                                                 11

(Ill. 1992), the court refused to find that a pharmacist had
a duty to warn plaintiff’s decedent of the risk of consum-
ing alcohol while taking a certain prescription drug simply
because the pharmacist both knew of that and other risks
that the drug posed and chose only to warn the decedent
that the drug may cause drowsiness. Id. at 560-61. Frye
makes clear that a voluntary undertaking is just that—
voluntary—and as such, the scope of the duty that is
assumed is limited to the extent of the undertaking. Id. at
561; Castro v. Brown’s Chicken & Pasta, Inc., 732 N.E.2d
37, 42 (Ill. App. Ct. 2000) (“Under the voluntary undertak-
ing doctrine of liability, the duty of care to be imposed upon
the defendant is limited to the extent of the undertaking.”).
LM’s complaint asks us to find that the Postal Service’s act
of reassigning Tucker amounted to a voluntarily assumed
duty to protect local children. But that act might have been
motivated by a number of considerations, including the de-
sire to permit time for investigation of the charges, protec-
tion of Tucker’s due process rights pending that investiga-
tion, as well as protection of children in case the allegations
turned out to be well founded. A finding that the simple re-
assignment was enough to create liability would have the
undesirable effect of discouraging the Postal Service (or any
government entity) from taking precautionary steps in the
first place. Frye, 605 N.E.2d at 560 (“[I]f we were to hold
that by choosing to place the ‘drowsy eye’ label on Frye’s
prescription container defendants were assuming the duty
to warn Frye of all of Fiorinal’s side effects, we believe that
pharmacists would refrain from placing warning labels on
containers.”).
  The district court did not reach the related question
whether the USPS negligently performed its voluntary un-
dertaking because it found no duty in the first instance.
Nonetheless, we should point out that LM would face a
serious hurdle in the test spelled out in § 324A of the
Restatement (Second) of Torts (which Illinois follows) before
12                                              No. 02-3583

he could prove breach of a voluntary duty. To establish neg-
ligent performance of a voluntary undertaking under the
Restatement, LM would have to prove that the Postal
Service’s reassignment of Tucker to a delivery route in Park
Forest either: (1) increased the risk of harm that the chil-
dren faced; (2) relieved a third party of its duty to protect
the children who were then left without any protection; or
(3) caused the children to suffer harm in reliance on the
voluntary undertaking. Frye, 605 N.E.2d at 560. We do not
see how LM could establish any element of this test.


                            III
  The judgment of the district court is AFFIRMED.

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—9-24-03
