                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1138

R ONALD L EE G LADE, a disabled person, by
D ICK L UNDSKOW,
                                        Plaintiff-Appellant,
                            v.

U NITED S TATES OF A MERICA,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
                No. 10 C 3942—James B. Zagel, Judge.



      A RGUED JULY 11, 2012—D ECIDED A UGUST 22, 2012




  Before P OSNER, M ANION, and T INDER, Circuit Judges.
  P OSNER, Circuit Judge. This suit under the Federal Tort
Claims Act was dismissed on the pleadings. So we take
as true the allegations of the complaint, according to
which the plaintiff is a resident of southern Wisconsin
and a 64-year-old Navy veteran discharged at the age
of 18 or 19, soon after joining the Navy, because of
mental illness from which he continues to suffer. Sexually
2                                                 No. 12-1138

abused by his parents and others as a child, he has long
suffered from post-traumatic stress disorder, panic disor-
der, and bipolar disorder. He may also be schizophrenic;
he “has multiple daily episodes where he experiences
separation of himself in different personalities and
loses contact with reality.” He has received intensive
inpatient and outpatient psychiatric treatment over
the last 23 years from employees of the Veterans Ad-
ministration.
  Beginning late in 2007 a therapist employed at a
VA medical center in Chicago but working out of a
satellite VA office in Wisconsin and assigned to treat
the plaintiff began a sexual relationship with him. He
didn’t want to have sex with her but she convinced
him that it was a necessary part of her treatment of his
mental illnesses. The sex acts apparently all occurred in
Wisconsin, either in her home or in the satellite VA
office. In 2008 the plaintiff complained to his psycho-
logist about the therapist and the VA conducted an in-
vestigation that resulted in her admitting the sexual
relationship. The complaint alleges that the relation-
ship inflicted emotional distress on the plaintiff and
made his mental illnesses worse.
  The Federal Tort Claims Act makes the federal govern-
ment liable for acts or omissions by its employees
that would be torts in the state in which they occurred
had they been committed by someone other than a
federal employee. 28 U.S.C. § 2674. But there are excep-
tions, including one for claims “arising out of . . . battery,”
id., § 2680(h), which the parties agree is the tort com-
No. 12-1138                                                   3

mitted by the therapist. (Sexual battery by deception is
a common form of battery by medical personnel.
Robert I. Simon, Clinical Psychiatry and the Law, 417, 430
(2d ed. 1992) (tab. 17-7); Kenneth S. Pope & Jacqueline C.
Bouhoutsos, Sexual Intimacy Between Therapists and
Patients 6-8 (1986); John F. Decker & Peter G. Baroni,
“’No’ Still Means ‘Yes’: The Failure of the ‘Non-Consent’
Reform Movement in American Rape and Sexual Assault
Law,” 101 J. Crim. L. & Criminology 1081, 1135 n. 365
(2011); AMA Council on Ethical and Judicial Affairs,
“Sexual Misconduct in the Practice of Medicine,” 266
JAMA 2741, 2741-42 (1991).) But the therapist is not a de-
fendant; the Act governs suits not against federal em-
ployees but against their employer, the federal govern-
ment. Therefore the exception for certain torts precludes
imposing liability on the government for those torts
under the doctrine of respondeat superior; otherwise the
exception would be empty. LM ex rel. KM v. United
States, 344 F.3d 695, 700 (7th Cir. 2003); Doe v. United States,
838 F.2d 220, 223 (7th Cir. 1988); Kearney v. United
States, 815 F.2d 535, 537 (9th Cir. 1987).
  The plaintiff seeks to elude the exception by pointing
out that his suit charges not battery by the therapist but
negligence by her supervisors in failing to detect and
prevent her sexual battery of him. Respondeat superior
makes an employer liable for torts committed by its
employees within the scope of their employment even
if the employer was not negligent in hiring, training,
monitoring, or retaining the employee who committed
a tort for which the employer has been sued. But if
there was negligence by the employer, and not just by
4                                              No. 12-1138

the employee who was the immediate author of the
injury—negligence in hiring or retaining or supervising
that employee—the plaintiff has an independent negli-
gence claim (as distinct from a claim based on respondeat
superior) against the employer. See Sheridan v. United
States, 487 U.S. 392, 401-03 (1988); West v. Waymire, 114
F.3d 646, 649 (7th Cir. 1997). Respondeat superior
liability is derivative (“vicarious”); liability for an em-
ployer’s negligence is direct.
  The plaintiff’s theory of liability is not, however, a
conventional negligent-employer theory, which might
for example support a claim that the therapist’s super-
visors knew or should have known that she had a pro-
clivity for improper sexual relationships with patients
yet did nothing to prevent or stop them. (Whether
such a claim is possible under the Tort Claims Act
is actually a contested issue, which we discuss briefly
at the end of this opinion.) His theory rather is that
the Veterans Administration had a “special relationship”
with him that created a duty, independent of an em-
ployer’s normal duty to screen and supervise its
employees carefully, to use due care to protect him
from being injured by VA medical personnel.
  The term “special relationship” is lamentably vague.
Paine v. Cason, 678 F.3d 500, 510 (7th Cir. 2012). What is
intended to be conveyed by the term is a relation that
creates a duty of care. There is no tort of negligence
without a breach of a duty owed the victim by the tortfea-
sor. The duty of care to a stranger is generally limited
to avoiding negligently injuring him, however, and thus
No. 12-1138                                              5

does not include a duty of protection, prevention, or
rescue. If you are sitting on a beach and see a person
struggling in the water and you’re a strong swimmer
and could save him but you do nothing and he drowns,
you bear no tort liability for his death. W. Page Keeton
et al., Prosser & Keeton on the Law of Torts § 56, p. 375
(5th ed. 1984). But it would be different if you had
invited him to go sailing with you and he fell off the
boat and you refused to toss him a life jacket; having
placed him in a situation of potential danger you are
held to have assumed a duty to take reasonable care for
his safety. Id. at 376; see Paine v. Cason, supra, 678 F.3d
at 510-11. Even if in our first example you attempted
to rescue the person (though you had no duty to do so)
but were careless and as a result he drowned, you
would be liable, on the theory that had you not inter-
vened incompetently someone else might have rescued
the person. Keeton et al., supra, § 56, p. 378.
  Similarly a prison has a duty to its inmates to protect
them against violence by other inmates because by im-
prisoning a person it has blocked his access to forms
of self-protection and police protection that he would
have on the outside. Id. at 383-84; Restatement (Second)
of Torts § 320, comment b (1965). The plaintiff argues
that his many years of inpatient and outpatient
treatment by the VA made the agency responsible for
protecting him from misconduct by its employees and
therefore liable to him if he was injured as a result of
the agency’s failure to discharge its responsibility.
 The government makes several counterarguments.
One, which the district court accepted and is the ground
6                                             No. 12-1138

on which it dismissed the suit, is that the administrative
claim that the plaintiff was required to file with the
Veterans Administration as a condition precedent to
suing the VA under the Tort Claims Act, 28 U.S.C.
§ 2675(a), does not mention a failure of anyone to use
due care besides the therapist, and therefore the
plaintiff failed to exhaust his administrative remedies.
Reading the administrative claim you would think the
plaintiff was just seeking damages under a theory of
respondeat superior against an employer for an
employee’s battery, and we know that such a theory
won’t fly under the Tort Claims Act.
  The plaintiff argues that anyone in the VA’s legal de-
partment reading the claim should have realized that
precisely because respondeat superior is not available
when a complaint alleges only a tort for which the Tort
Claims Act does not provide a remedy, he must have
been seeking to fasten a different tort on the employer.
But the different tort would have to be based on
factual allegations beyond just the allegation of sexual
misconduct by an employee, and there are no other
allegations. The administrative claim need not set forth
a legal theory, but it must allege facts that would clue
a legally trained reader to the theory’s applicability.
Palay v. United States, 349 F.3d 418, 425-26 (7th Cir.
2003); Murrey v. United States, 73 F.3d 1448, 1452-53 (7th
Cir. 1996). The plaintiff’s claim didn’t do that. The
legally trained reader would assume that the plaintiff
simply was unaware that the mere fact of a battery by a
VA employee would not impose liability on the em-
No. 12-1138                                                   7

ployer. We’re about to see that the “special relationship”
tort theory advanced in the plaintiff’s complaint
(as distinct from the administrative claim) is outside the
bounds of plausibility—hardly the sort of theory that
the VA’s legal department should have guessed would
be the ground of a lawsuit.
  So the plaintiff did fail to exhaust his administra-
tive remedies, as the district court held, and this alone
should bar his suit, since the Tort Claims Act requires
exhaustion of administrative remedies as a prerequisite
to suit. 28 U.S.C. § 2675(a). In Parrott v. United States,
536 F.3d 629, 634 (7th Cir. 2008), however, and the fol-
lowing year in Collins v. United States, 564 F.3d 833, 838
(7th Cir. 2009), we explained that the Act’s requirement
of exhausting administrative remedies is not jurisdic-
tional, the Supreme Court having made clear recently
that the term “subject-matter jurisdiction” is “reserved
‘for prescriptions delineating the classes of cases . . . within
a court’s adjudicatory authority.’ Kontrick v. Ryan, 540
U.S. 443, 455 (2004)…. Thus ‘to say that Congress has
authorized the federal courts to decide a class of
disputes is to say that subject-matter jurisdiction is pres-
ent.’ United States v. T & W Edmier Corp., 465 F.3d 764,
765 (7th Cir. 2006). Obviously the federal courts are
authorized to decide suits under the Federal Tort
Claims Act; indeed, no other court system is. 28 U.S.C.
§ 1346(b)(1).” Kontrick supersedes opinions that term
the exhaustion requirement jurisdictional, such as
Sullivan v. United States, 21 F.3d 198, 206 (7th Cir. 1994).
Since the requirement of exhaustion is not jurisdictional,
8                                                  No. 12-1138

it can be waived or forfeited, or otherwise forgiven.
But that hardly matters in this case, for in any event
the plaintiff’s claim has no merit.
   The essence of the “special relationship” tort (a better
term might be “relational tort”), as suggested by our
examples, is that the relation between the parties
creates a potential danger to one of them; the danger
becomes the ground for imposing on the other party a
duty of care that he would not otherwise have. Keeton
et al., supra, § 56, p. 381; Restatement, supra, § 321;
Stockberger v. United States, 332 F.3d 479, 482 (7th Cir. 2003).
Custody is the most common example of such a relation.
It needn’t be involuntary (the prison case)—innkeepers
and common carriers have a duty of care, in the sense
of protection, to their customers. So do property owners
who invite the public onto their land. Restatement, supra,
§§ 314A(2)-(3). A hospital, including a mental hospital,
likewise has a duty of care to its inpatients that is based
on its housing them away from their homes. Keeton et al.,
supra, § 56, at 383; Restatement, supra, § 320, comment a.
Although the plaintiff received both inpatient and out-
patient treatment from the Veterans Administration, the
former implying hospitalization, he was not hospitalized
during the period in which the therapist was assaulting
him sexually. He was living at home, and the assaults
occurred during outpatient visits to her office and in
visits to her home. He was not a ward of the VA. He was
in no different situation from someone who has the
wrong tooth pulled, by an incompetent dentist, and sues
the clinic that employs the dentist, arguing that it
should have discovered that he was incompetent and fired
No. 12-1138                                                9

him. That is a negligent-supervision claim, not a relational-
tort claim.
   This conclusion holds whether the applicable tort law
is that of Illinois or Wisconsin—a threshold issue not
addressed by the district court. The Tort Claims Act
directs the court to determine in which state “the act or
omission occurred” that is alleged to give rise to federal
tort liability, and to apply the conflict of law rules of
that state. 28 U.S.C. § 1346(b)(1); Richards v. United
States, 369 U.S. 1, 9-10 (1962); LeGrande v. United States,
2012 WL 2913730, at *6 (7th Cir. Aug. 14, 2012); Gould
Electronics Inc. v. United States, 220 F.3d 169, 180 (3d Cir.
2000). Although the sexual assaults apparently occurred
in Wisconsin as we said, the allegedly negligent acts
or omissions by the Veterans Administration that
enabled the assaults may have occurred in Illinois as
well as, or instead of, in Wisconsin; and it is the state
or states in which those acts or omissions occurred
whose law would determine whether they created
liability under a relational-tort theory. But we cannot
find any cases in either state that bear on our issue, and
are given no reason to think that the states disagree
with each other or would disagree with the applicable
principles set forth in the Restatement and the Keeton
treatise.
  For completeness we note the government’s alterna-
tive merits defense that the suit is barred because it
“aris[es] out of” an excluded tort, namely battery. There
is a sense in which that’s true, and another sense in
which it’s not true. It’s true in the sense that had there
10                                                No. 12-1138

been no sexual assaults, the plaintiff would have no case.
But his claim equally can be said to arise from a failure
by the defendant to exercise due care for his safety. The
second interpretation is the sounder. Doe v. United
States, supra, 838 F.2d at 223-25; see also Sheridan v.
United States, supra, 487 U.S. at 400; Leleux v. United States,
178 F.3d 750, 757 (5th Cir. 1999). Had there been no
sexual assaults the plaintiff would have no case, but
equally had the defendants by exercising due care pre-
vented the assaults he would have had no case. Both the
therapist’s battery and the VA’s negligence played a causal
role in the harm for which the suit seeks redress. If the
battery that was the immediate cause of the harm
would not have occurred had it not been for negligence
by the Veterans Administration, that negligence was a
cause of the plaintiff’s injury from the battery. Sheridan
v. United States, supra, 487 U.S. at 405 (concurring opin-
ion). The plaintiff’s claim fails not because the injury
“arose from” the battery but because the VA did not
breach a duty of care.
   The government cites a line of cases, represented in
this court by Doe v. United States, supra, which holds
that the Tort Claims Act’s denial of respondeat superior
liability for excluded torts by federal personnel extends
to suits for negligent supervision by the tortfeasor’s
supervisors. The other courts of appeals agree—all but
the Ninth Circuit. Compare, e.g., Perkins v. United States,
55 F.3d 910, 916 (4th Cir. 1995); Guccione v. United States,
847 F.2d 1031, 1034 (2d Cir. 1988), and Satterfield v. United
States, 788 F.2d 395, 399 (6th Cir. 1986), with Senger v.
United States, 103 F.3d 1437, 1442 (9th Cir. 1996), and Brock
No. 12-1138                                               11

v. United States, 64 F.3d 1421, 1425 (9th Cir. 1995). (The
Supreme Court left the question open in Sheridan v.
United States, supra, 487 U.S. at 403 n. 8.) The courts in
the majority express concern that respondeat superior
liability might be “disguised” as negligent supervision,
although the analytical distinction, at least, is clear. See,
e.g., West v. Waymire, supra, 114 F.3d at 649; Keeton et al.,
supra, § 70, pp. 501-02. In any event, though the plaintiff
in this case advanced a negligent-supervision claim in
the district court, he has abandoned it on appeal.
  The judgment of dismissal is
                                                  A FFIRMED.




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