Filed: February 12, 1996

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 95-1149

(CA-93-147)

Kelly L. Dunk, etc., et al,

Plaintiffs - Appellants,

versus

United States of America,

Defendant - Appellee.

ORDER

The Court amends its opinion filed January 30, 1996, as

follows:

On page 2, first paragraph, line 2 -- the word "Corp" is

corrected to read "Corps."

For the Court - By Direction

/s/ Bert M. Montague

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

KELLY L. DUNK, Estate of the

foregoing; TED BLADY,

Administrator for the estate of Kelly

L. Dunk; LUCINDA BLADY,

Administrator for the estate of Kelly

No. 95-1149

L. Dunk,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Chief District Judge.

(CA-93-147)

Argued: September 29, 1995

Decided: January 30, 1996

Before RUSSELL and WIDENER, Circuit Judges, and

CHAPMAN, Senior Circuit Judge.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: Ernest J. Wright, MOORE & WRIGHT, Jacksonville,

North Carolina, for Appellants. Fenita Talore Morris, Assistant
United States Attorney, UNITED STATES ATTORNEY'S OFFICE,

Raleigh, North Carolina, for Appellee. ON BRIEF: Janice McKenzie

Cole, United States Attorney, Stephen A. West, Assistant United

States Attorney, Raleigh, North Carolina, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

On July 17, 1990, Robert Z. Dunk, a corporal in the United States

Marine Corps, fatally shot his wife, Kelly L. Dunk, and then took his

own life. After this tragedy, the estate of Kelly L. Dunk sued the government under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq,

for wrongful death. The district court granted summary judgment in

favor of the government. We agree with the district court that the government is not responsible for Cpl. Dunk's actions and therefore

affirm the decision of the district court.

I.

Corporal Robert Dunk and Kelly Dunk were married on August 15,

1985. On November 26, 1985, Cpl. Dunk enlisted in the United States

Marine Corps and was stationed in Quantico, Virginia. Cpl. Dunk was

an abusive husband, and he received routine counseling regarding his

acts of domestic violence. While stationed at Quantico, the Dunks had

two children. On December 22, 1988, the Dunks transferred to Camp

Lejeune, North Carolina and were assigned family quarters in Jacksonville, North Carolina. Dunk's acts of domestic violence continued

after their move, and the military police had to intervene in numerous

domestic disturbances.

In June 1990, Kelly Dunk decided to leave her husband but did not

tell him of her decision, fearing that he would kill her. Mrs. Dunk

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retained an attorney and filed for divorce on June 27. She also

received a protective order that prevented Cpl. Dunk from communicating with her, going to her residence, or harassing her. After the

hearing on the protective order, Cpt. Swingler, Cpl. Dunk's commanding officer, ordered Dunk to stay away from his wife. He moved

Cpl. Dunk into the barracks with another marine.

On July 2, 1990, Cpl. Dunk told Cpl. Jim Dabney that he intended

to kill his wife. That same day, Cpl. Dunk picked up his wife after

work, threatened to kill her, and drove off the military base with her.

Mrs. Dunk was able to convince her husband that she would go back

with him, and they returned to Camp Lejeune. Upon their arrival, Cpl.

Dunk was arrested at the main gate.

Cpt. Swingler took Cpl. Dunk to the emergency room for an evaluation of his mental status. Cpl. Dunk discussed his depression and

marital problems with Dr. Seneca T. Ferry, a psychologist, and Frank

Lovato, Jr., a physician's assistant. Neither Ferry nor Lovato was a

psychiatrist. Based on their evaluation, they released Cpl. Dunk to

return to full duty. They also referred him to a psychiatrist, Dr.

Boone, but Cpl. Dunk never went to his appointment with Dr. Boone.

The kidnapping prompted Mrs. Dunk to file a complaint against

her husband for threatening to kill her. On July 6, 1990, a state magistrate signed a warrant for Cpl. Dunk's arrest. On July 17, 1990, Mrs.

Dunk withdrew her complaint against Cpl. Dunk, and the warrant and

charges were dropped. That same evening, Cpl. Dunk purchased a .44

caliber Smith & Wesson magnum pistol from Major Frank Ray King.

According to Major King, Cpl. Dunk was polite and cordial when he

purchased the handgun; Cpl. Dunk explained that "he and his wife

shoot a lot and that they had two other pistols." After purchasing the

weapon, he went to the family residence where Mrs. Dunk was doing

laundry. Mrs. Dunk allowed Cpl. Dunk to enter the house.

That night, Cpl. Dunk fatally shot Mrs. Dunk twice in the head. He

then shot himself, committing suicide. The killings occurred in front

of the two children, Robert Z. Dunk and Theodore Z. Dunk.

In the aftermath of this tragedy, Ted and Lucinda Blady became the

co-guardians of the children. On July 9, 1991, the estate filed a claim

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with the Navy Legal Services Office for the wrongful death of Kelly

Dunk. The Department of the Navy denied the administrative claim

on May 6, 1993. Subsequently, the Bladys became the administrators

of the estate.

On November 5, 1993, the Bladys, as administrators of the estate,

filed this action under the Federal Tort Claims Act, 28 U.S.C. § 2671,

et seq., in the United States District Court for the Eastern District of

North Carolina. On September 16, 1994, the government filed a

motion for summary judgment. Upon receipt of the estate's brief in

opposition, the district court held a telephone conference with the parties. The district court granted summary judgment in favor of the government on November 8, 1994. The estate appeals.

II.

This Court reviews de novo the district court's granting or denying

of summary judgment. Lone Star Steakhouse & Saloon, Inc. v. Alpha

of Virginia, Inc., 43 F.3d 922, 928 (4th Cir. 1995). Summary judgment is appropriate where the record shows that "there is no genuine

issue as to any material fact and that the moving party is entitled to

a judgment as a matter of law." Fed. R. Civ. P. 56(c).

In an action against the government under the Federal Tort Claims

Act, federal courts apply "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b). Thus, North Carolina law

applies in this case. In order to recover in a negligence action under

North Carolina law, a plaintiff must show "an actionable duty, a

breach of the duty, actual and proximate causation, and damages."

Cantrell v. United States, 735 F. Supp. 670, 672 (E.D.N.C. 1988) (citing Southerland v. Kapp, 295 S.E.2d 602, 603 (N.C. Ct. App. 1982)).

After reviewing the record of evidence, we conclude that the plaintiff cannot show the government or any member of the Marine Corps

had an affirmative duty to take any action that would have prevented

the tragedy that befell Mrs. Dunk. First, the Marine Corps medical

personnel who examined Cpl. Dunk before the murder did not have

a duty either to confine him or to commit him involuntarily to hospitalization. This Court has held that, under North Carolina law, psychiatrists and other mental health professionals do not have a duty to

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involuntarily commit patients they believe to be dangerous. Currie v.

United States, 836 F.2d 209, 212-14 (4th Cir. 1987) (holding that Veterans Administration Hospital psychiatrists had no duty to seek the

involuntary commitment of a patient they believed to be dangerous,

and that the psychiatrists were not negligent in failing to commit

when the patient subsequently killed the plaintiff's decedent). If a

trained psychiatrist, believing a patient to be dangerous, has no duty

to seek the involuntary commitment of that patient, then it follows

that a non-psychiatrist who is unaware of a patient's impending dangerousness should have no duty to seek the involuntary commitment

of that patient. In the instant case, neither Dr. Ferry nor Mr. Lovato,

both of whom examined Cpl. Dunk on July 2, 1990 when he returned

to Camp Lejeune after kidnapping his wife, was a psychiatrist. Neither suspected that Cpl. Dunk harbored suicidal or homicidal intentions. Because we find that Ferry and Lovato had no duty to seek the

involuntary commitment of Cpl. Dunk, we conclude that Kelly

Dunk's estate cannot hold the government liable for their failure to

commit Cpl. Dunk to hospitalization.

Second, we find that no member of the Marine Corps had a duty

to warn Mrs. Dunk of Cpl. Dunk's potential for violence. Although

neither this court nor any North Carolina court has yet to decide

whether North Carolina law imposes a duty on mental health professionals to warn potential and identifiable victims of possible violence by mentally ill patients, see Cantrell, 735 F. Supp. at 674, we

maintain that, should such a duty exist, there is no duty to warn a

potential victim of another's violent behavior when the victim is

already aware of the danger, id.; Moye v. United States, 735 F. Supp.

179, 181 (E.D.N.C. 1990). Cpl. Dunk had undergone several psychiatric evaluations by Marine Corps psychiatrists during his military

service. The Marine Corps knew about his history of violence towards

his wife. As the victim of Cpl. Dunk's violence, however, Mrs. Dunk

also knew about her husband's violent tendencies. When she filed for

divorce on June 27, 1990, she already feared that her husband would

attempt to kill her. On July 2, Cpl. Dunk kidnapped Mrs. Dunk and

threatened to kill her. Mrs. Dunk already knew of her husband's

potential for violence. The Marine Corps, therefore, did not have a

duty to warn her about a danger of which she was already well aware.

Third, the Marine Corps police did not have a duty to provide continual police protection to Mrs. Dunk. Under the general common law

 5
rule, known as the public duty doctrine, "a municipality and its agents

act for the benefit of the public, and therefore, there is no liability for

the failure to furnish police protection to specific individuals."

Braswell v. Braswell, 410 S.E.2d 897, 901 (N.C. 1991). However,

there are two generally recognized exceptions to the public duty doctrine. A government entity has an affirmative duty to provide police

protection to a particular individual where (1) a special relationship

between the police and that individual exists, or (2) the police have

expressly promised to protect the individual. Id. at 902.

Kelly Dunk did not fall under either exception to the public duty

doctrine. She did not have a special relationship with the military

police. She was merely the wife of a Marine Corps servicemember

and a resident on a military base, a status no different from that of any

other citizen living in military housing. The "special relationship"

exception covers persons with a closer relationship to the military

police, such as "state's witness[es] or informant[s] who ha[ve] aided

law enforcement officers . . . ." Id. Furthermore, the military police

did not expressly promise Mrs. Dunk that they would protect her from

her husband. Although Mrs. Dunk had a restraining order against her

husband, that order did not constitute an express promise by the military police to protect Mrs. Dunk from her husband. The restraining

order simply authorized the military police to arrest Cpl. Dunk if he

violated the restraining order. We therefore conclude that the military

police had no duty to guard Mrs. Dunk continually to ensure that Cpl.

Dunk did not harm his wife.

Fourth, the Marine Corps was not negligent merely because one of

its officers, Major King, sold Cpl. Dunk the weapon he used to murder his wife and to take his own life. Assuming that the Marine Corps

would be liable for Major King's negligence,* Major King did not act

_________________________________________________________________

* If Major King were negligent in selling a firearm to Cpl. Dunk, it is

not clear that the Marine Corps would be liable for Major King's action.

Major King's assigned duties with the Marine Corps did not include the

selling of firearms, and Cpl. Dunk was not required to have a handgun

to perform his duties as a marine. The sale of the gun was simply a private transaction between Major King and Cpl. Dunk. For these reasons,

the Marine Corps may not be liable for Major King's action in selling a

firearm to Cpl. Dunk. We need not decide this issue, however, because

we conclude that Major King did not act negligently in selling a firearm

to Cpl. Dunk.

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negligently in selling a gun to Cpl. Dunk. Although we have found

no North Carolina case on the issue, courts in other states have held

that sellers of firearms have a general common law duty not to sell

firearms to persons who display signs of mental incompetence. Peek

v. Oshman's Sporting Goods, Inc., 768 S.W.2d 841, 847 (Tex. Ct.

App. 1989) (holding that sellers of firearms can be liable to third parties "where the prospective purchaser's manifest behavior or comportment have put the seller on notice that the purchaser, if possessed of

a firearm, would forseeably pose a danger to third persons"); Phillips

v. Roy, 431 So.2d 849, 853 (La. Ct. App. 1983) (holding that, at a

minimum, "the salesperson should spend a reasonable time in observing the customer, watching carefully for any signs of mental disturbance or instability which would tend to alert the average individual

to the possibility of problems in this area which would require some

further inquiry"); see also Bernethy v. Walt Failor's, Inc., 653 P.2d

280, 283 (Wash. 1982); Angell v. F. Avanzini Lumber Co., 363 So.2d

571, 572 (Fl. Dist. Ct. App. 1978). Major King, however, did not

notice any erratic behavior in Cpl. Dunk when he sold him the gun.

Cpl. Dunk was polite and cordial, and he explained that he and his

wife liked to shoot and owned two other pistols. Because Cpl. Dunk

did not exhibit any erratic behavior that would have caused a reasonable person to suspect that he was mentally disturbed, Major King

was not negligent in selling Cpl. Dunk a firearm.

Finally, the Marine Corps was not negligent for inadequately

supervising Cpl. Dunk or for retaining Cpl. Dunk as a marine even

though it knew of his history of domestic violence. Under the doctrine

of respondeat superior, an employer may be liable for the wrongful

acts of its employee if the employer authorized or ratified the act, or

if the employee committed the act within the scope of his employment. O'Connor v. Corbett Lumber Corp., 352 S.E.2d 267, 270 (N.C.

Ct. App. 1987). For wrongful acts that the employer did not authorize

or ratify and that the employee did not commit within the scope of

employment, "employers have been held independently liable under

the doctrine of negligent hiring or retention of incompetent or unfit

employees." Id.

In Braswell v. Braswell, 410 S.E.2d 897 (N.C. 1991), the North

Carolina Supreme Court held that a sheriff was not liable for negligent supervision and retention of a deputy who killed his estranged

 7
wife before taking his own life. In that case, the sheriff knew that the

deputy had physically abused his wife in the past and that he had

threatened her with a gun. However, the deputy's domestic problems

did not affect his job performance as a law enforcement officer; on

the job, he remained stable and even-tempered. Id. at 903-04. The

court concluded that the sheriff's actions or inactions were not the

proximate cause of wife's death. Id. at 904-05. According to the

court, the evidence showed that the deputy "had firmly made up his

mind to kill [his wife] and was willing to, and in fact intended to, give

up his own life in the process. That being so clearly the case, there

simply was little [that the sheriff] could have done, acting within the

constraints placed upon him by law, to prevent the killing in this

case." Id. at 905.

Similarly, in the instant case, the Marine Corps is not liable for

Cpl. Dunk's murder of his estranged wife. Although the Marine Corps

knew of Cpl. Dunk's history of violence toward his wife, his domestic

problems did not affect his job performance. He performed his duties

as a marine competently, and he was not otherwise violent or unstable. Furthermore, Cpt. Swingler, his superior officer, took appropriate

steps to ensure that Cpl. Dunk comply with the restraining order

against him. He ordered Cpl. Dunk to obey the order, and he moved

Cpl. Dunk out of the family residence and into the barracks. By July

17, 1990, Cpl. Dunk had decided to murder his wife and to take his

own life in the process. There was nothing that Cpt. Swingler or any

other superior officer could have done to prevent the murder.

III.

We recognize that Kelly Dunk was the unfortunate victim of a terrible tragedy. But we emphasize that Cpl. Dunk was the wrongdoer,

not the Marine Corps. The Marine Corps cannot be held liable for

failing to prevent Cpl. Dunk from murdering his wife, an action it

probably could not have prevented had it intervened further in the

Dunks' affairs. For the foregoing reasons, we affirm the district

court's granting of summary judgment in favor of the government.

AFFIRMED

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