Biggs, Adams and Max Rosenn, Circuit Judges.
MAX ROSENN, Circuit Judge.
This appeal is from an order dismissing with prejudice an action brought against the United States under the Federal Tort Claims Act, for personal injuries inflicted by the alleged negligence and omissions of Government employees. The district court apparently dismissed the complaint for lack of jurisdiction over the subject matter, believing the cause of action came within the exception provided by 28 U.S.C. § 2680(h).*fn1
The complaint makes the following allegations relevant to our decision: The appellant, Gibson, a college graduate, 26 years of age, was employed by the Federal Electric Co. to train Job Corps enrollees at the Raritan Arsenal in Edison, New Jersey. One Jessie, a juvenile delinquent with a known addiction to narcotics, was a Job Corps enrollee employed and housed by the United States at the arsenal. On November 5, 1966, Jessie, while under the influence of narcotics and engaged in his employment with the United States, plunged a screwdriver through the appellant's temple while the latter was engaged in the performance of his duties as a Job Corps leader and instructor. The United States knew its enrollees were dangerously sick, mentally and morally, and was under a duty to take reasonable precautions and provide reasonable safety measures for the protection of such people as the appellant, who were required, as Job Corps leaders and instructors, to live and work with these enrollees. The United States was negligent in failing to take reasonable measures for appellant's safety, thereby causing him to suffer injuries for which he seeks damages in the sum of $500,000.
Appellant claims to have presented for filing in the district court a "supplemental factual statement" in opposition to the Government's motion to dismiss his complaint. At that time, he was represented by an attorney who subsequently withdrew from the practice of law. His present counsel, substituted by order of the district court on July 27, 1970, has advised this court that the supplemental factual statement attached to the plaintiff's brief in the district court contained a request that it be filed. The docket entries do not reveal that it was filed and there is no indication of district court action concerning this statement.
The supplemental factual statement makes the following allegations: Prior to the attack upon the appellant, there had been incidents at the arsenal of boys hitting other trainees with steel pipes and of "full-blown riots." Employees of the Office of Economic Opportunity had day-to-day authority over the process of selecting, controlling, disciplining and eliminating trainees. They were aware that the Federal Electric Co., the contractor conducting the program, did not have authority or equipment to prevent physical harm to the teachers. Personnel of the Office of Economic Opportunity at the operational level were given reports of serious incidents which preceded appellant's injuries, including the riots, drug addiction of trainees, and the acceptance into the Job Corps program at the arsenal, of trainees who were vicious, brutal juvenile offenders and drug addicts. (Emphasis supplied.)
In addition to a substantial denial of the allegations of the complaint, the appellee pleaded certain affirmative defenses, the most important of which were:
(1) The plaintiff's claim arises out of an assault and battery and is therefore barred by 28 U.S.C. § 2680(h);*fn2 and
(2) The plaintiff's claim is based on a discretionary duty or function and is barred by 28 U.S.C. § 2680(a).*fn3
The district court sustained the motion to dismiss under the provisions of § 2680(h), as a claim arising out of assault and battery. We believe that this was error.
Since this matter comes to us on an appeal from a motion to dismiss we take as true all of the allegations of the complaint. Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 12 L. Ed. 2d 1030 (1964). Although the supplemental statement of facts has not been incorporated into the pleadings, we will, in view of the decision we reach, treat the averments therein as properly pleaded and true. The supplemental factual statement merely elaborates, but does not change the theory on which the complaint was brought. It does not introduce a new cause of action. Under these circumstances, we think the interests of justice would best be served by treating the supplemental factual statement for the purpose of this appeal as if it were part of the record, and specifically granting leave to amend on remand. cf. Jones v. Freeman, 400 F.2d 383, 387 (8th Cir. 1968); Kaufman v. Western Union Telegraph Co., 224 F.2d 723, 725 (5th Cir. 1955); Brooks v. Yawkey, 200 F.2d 663 (1st Cir. 1953).
Except for certain areas of tort law specifically excluded, the Federal Tort Claims Act was enacted to provide a judicial remedy for those who suffer injury or damage as a result of the negligence or misconduct of an employee of the United States. In the case sub judice, liability is asserted against the United States because it affirmatively undertook a training program for dangerous, mentally ill young men who were known to be violent juvenile offenders and drug addicts, placed them under its control and custody on a day-to-day basis, but failed to exercise reasonable care by providing safety measures for the protection of instructors required to live and work with such trainees.
Ordinarily, there is no general duty to act for the protection of others. However, having undertaken a program of instruction, rehabilitation and care for these trainees, was the United States, or its agency in charge of the program under the affirmative duty to prevent those persons, recruited to train and instruct, from sustaining harm at the hands of these dangerous and violence prone trainees? We think it was. "When an agency of the United States voluntarily undertakes a task, it can be ...