Saudi Arabia v. Nelson, 507 U.S. 349, 27 (1993)

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Cite as: 507 U. S. 349 (1993)

Opinion of Kennedy, J.

exception to the FSIA. It is also worth noting that the Court has not adopted a uniform rule barring the recasting of intentional tort claims as negligence claims under the FTCA; under certain circumstances, we have permitted recovery in that situation. See Sheridan v. United States, 487 U. S. 392 (1988).

As a matter of substantive tort law, it is not a novel proposition or a play on words to describe with precision the conduct upon which various causes of action are based or to recognize that a single injury can arise from multiple causes, each of which constitutes an actionable wrong. See Restatement (Second) of Torts §§ 447-449 (1965); Sheridan, supra, at 405 (Kennedy, J., concurring in judgment); Wilson v. Garcia, 471 U. S. 261, 272 (1985). In Sheridan, for example, this Court permitted an action for negligent supervision to go forward under the FTCA when a suit based upon the intentional tort that was the immediate cause of injury was barred under the statute. See 487 U. S., at 400. As the Court observed, "it is both settled and undisputed that in at least some situations the fact that an injury was directly caused by an assault or battery will not preclude liability against the Government for negligently allowing the assault to occur." Id., at 398.

We need not determine, however, that on remand the Nelsons will succeed on their failure to warn claims. Quite apart from potential problems of state tort law that might bar recovery, the Nelsons appear to face an obstacle based upon the former adjudication of their related lawsuit against Saudi Arabia's recruiting agent, HCA. The District Court dismissed that suit, which raised an identical failure to warn claim, not only as time barred, but also on the merits. See Nelson v. Hospital Corp. of America, No. 88-0484-CIV- Nesbitt (SD Fla., Nov. 1, 1990). That decision was affirmed on appeal, judgment order reported at 946 F. 2d 1546 (CA11 1991), and may be entitled to preclusive effect with respect to the Nelsons' similar claims against the sovereign defend-

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