No. 99-841
In the Supreme Court of the United States
LESA M. PRIMEAUX,
FKA LESA M. LAMONT,
FKA LISA M. BAD WOUND, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
SETH P. WAXMAN
Solicitor General
Counsel of Record
DAVID W. OGDEN
Acting Assistant Attorney General
ROBERT S. GREENSPAN
WILLIAM G. COLE
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether, under the Federal Tort Claims Act, 28 U.S.C. 1346(b)(1) (1994 &
Supp. III 1997), which waives the United States' sovereign immunity and
subjects it to liability for government employees' actions within the scope
of their employment, the United States can be held liable for the acts of
an employee that were outside the scope of his employment as a matter of
the pertinent state law.
In the Supreme Court of the United States
No. 99-841
LESA M. PRIMEAUX,
FKA LESA M. LAMONT,
FKA LISA M. BAD WOUND, PETITIONER
v.
UNITED STATES OF AMERICA
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
BRIEF FOR THE UNITED STATES IN OPPOSITION
OPINIONS BELOW
The en banc opinion of the court of appeals (Pet. App. A1- A35) is reported
at 181 F.3d 876. The first panel decision of the court of appeals (Pet.
App. B36-B51) is reported at 102 F.3d 1458. The second panel decision of
the court of appeals (Pet. App. C52-C73) is reported at 149 F.3d 897. The
January 19, 1996 bench ruling of the district court (Pet. App. D74-D89)
and the June 4, 1997 opinion of the district court are unreported.1
JURISDICTION
The judgment of the court of appeals was entered on June 17, 1999. The petitions
for rehearing were denied on August 17, 1999 (Pet. App. I127). The petition
for a writ of certiorari was filed on November 15, 1999. The jurisdiction
of this Court is invoked under 28 U.S.C. 1254(1).
STATEMENT
1. On November 9, 1991, petitioner was walking toward the town of Martin,
South Dakota, after her car became stuck in a snowbank. Pet. App. D74-D76.
Kenneth Michael Scott, a Bureau of Indian Affairs officer from the nearby
Rosebud Indian Reservation, was returning home from an out-of-state physical
training seminar when he saw the car stuck in the snow. Scott was in a government
vehicle with official license plates and a police light bar on the roof.
Id. at D76. Scott stopped to offer petitioner a ride and she accepted. Id.
at D76-D77. On the ride, Scott told petitioner he was a police officer from
the Rosebud Reservation. He then pulled off the highway. Id. at D77. After
ordering petitioner out of the vehicle, Scott sexually assaulted her. Id.
at D79.
2. Petitioner sued the United States under the Federal Tort Claims Act (FTCA),
28 U.S.C. 1346(b), 2671 et seq., in the United States District Court for
the District of South Dakota, seeking damages for the assault. After a trial,
the district court entered judgment in favor of the United States on the
ground that Scott was not acting within the scope of his employment at the
time of the assault because he was not on duty, not within his jurisdiction
when he picked up petitioner, and not acting to enforce any law during his
assault of petitioner. Pet. App. D75, D83-D89.
3. A divided panel of the court of appeals reversed stating, "[o]ur
review of South Dakota respondeat superior law convinces us that the district
court did not apply the South Dakota test in its entirety." Pet. App.
B44. The panel decided that the district court failed "to take into
account the doctrine of apparent authority inherent in respondeat superior
law." Id. at B45. It explained that in South Dakota, "a principal
may be held liable for fraud and deceit committed by an agent within his
apparent authority, even though the agent acts solely to benefit it [sic]
himself." Id. at B46 (quoting Leafgreen v. American Family Mut. Ins.
Co., 393 N.W.2d 275, 277 (S.D. 1986)). The Eighth Circuit remanded the case
to the district court for it to determine whether Scott had used his apparent
authority as a police officer to accomplish the assault. Pet. App. B49-B50.
4. On remand, the district court decided in the government's favor, ruling
that Scott's conduct did not fall within the doctrine of apparent authority
because Scott's "significant physical advantage" rather than "any
reliance on [Scott's] actual or apparent authority" as a BIA policeman
caused petitioner to submit to Scott "out of fear and physical intimidation."
App., infra, 11a. The district court added that petitioner "failed
to show by a preponderance of the evidence that she relied on the cloak
of Scott's apparent authority as an officer to enter into the front seat
of his vehicle" and the court was "not convinced that the police
vehicle had anything to do with the assault which later took place."
Id. at 13a.
5. On appeal of that decision, the Eighth Circuit again vacated the judgment
of the district court. Pet. App. C52-C73. The court determined that Scott's
status as a law enforcement official, his red lights atop the police car,
and his command to petitioner to get out of the car gave him apparent authority
to accomplish his tort and thus to subject his employer to liability under
South Dakota law. See id. at C64. A dissent, however, argued that the majority
was in error because, even if the United States would be liable under South
Dakota's apparent authority law, it was still immune from suit under 28
U.S.C. 1346(b)(1). Pet. App. C67. The dissent reasoned that the statute
requires claimants to demonstrate that an employee has acted "within
the scope of his office or employment," ibid., and "[s]cope of
employment and apparent authority are two different theories of vicarious
liability," id. at C69.
6. The court of appeals vacated the second panel opinion, reviewed the case
en banc, and affirmed the district court's judgment. Pet. App. A1-A35. It
concluded that under South Dakota law, vicarious liability for conduct within
the scope of employment is distinct from vicarious liability for conduct
within an agent's apparent authority. See id. at A12. Because the FTCA requires
that an employee's actions be within the scope of employment as a condition
of the waiver of the United States' sovereign immunity, the previous panels
erred in applying the doctrine of apparent authority to Scott's actions.
See ibid.
7. Petitioner (Pet. App. F94-F105) and Judge Lay (id. at G106-G111) each
sought reconsideration of the decision by the en banc court; the court denied
reconsideration on August 17, 1999. Id. at I127.
ARGUMENT
Petitioner contends (Pet. 8-12) that the court of appeals failed to apply
South Dakota's law of respondeat superior as required under the Federal
Tort Claims Act (FTCA). However, the en banc court of appeals correctly
applied South Dakota law and concluded that the apparent authority doctrine
does not define the scope of employment, but is instead a separate theory
of liability under the law of respondeat superior. Because the FTCA waives
the United States' sovereign immunity for only those tortious acts within
a government employee's scope of employment, and the district court found
that Scott's actions were outside the scope of his employment, petitioner's
action was accordingly barred. The court of appeals' decision turns on an
interpretation of state law and does not conflict with the decisions of
this Court or of any other court of appeals. The case does not merit further
review.
1. The FTCA provides in relevant part:
[T]he district courts * * * shall have exclusive jurisdiction of civil actions
on claims against the United States, for money damages * * * for injury
or loss of property, or personal injury or death 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, under circumstances where
the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred.
28 U.S.C. 1346(b)(1) (1994 & Supp. III 1997) (emphasis added). See FDIC
v. Meyer, 510 U.S. 471, 477 (1994). Though the respondeat superior law of
the State where a tortious act occurs determines the liability of the United
States for acts of its employees, that liability is additionally subject
to the statutory requirement that the employee was "acting within the
scope of his office or employment." 28 U.S.C. 1346(b)(1). As this Court
noted in Faragher v. City of Boca Raton, 524 U.S. 775, 801 (1998), scope
of employment is an "entirely separate category of agency law"
from actual or apparent authority. See also Burlington Indus., Inc. v. Ellerth,
524 U.S. 742, 755-761 (1998). Thus, even if a private employer would be
liable for the tortious conduct of one of its employees under a respondeat
superior theory (including the doctrine of apparent authority), the United
States can be held liable only when, in addition, its employee has acted
within the scope of his employment.
2. Petitioner argues (Pet. 8-9) that the court of appeals' decision "directly
contradicts" this Court's decision in Williams v. United States, 350
U.S. 857 (1955). In Williams, a two-sentence per curiam opinion, this Court
remanded the Ninth Circuit's decision in an FTCA case for reconsideration
under the governing principle of "the California doctrine of respondeat
superior." Ibid. Williams, however, is not instructive here because
the Court did not address the extent to which the statutory "scope
of employment" requirement may limit the application of a State's respondeat
superior doctrine. In the original panel decision in Williams, the Ninth
Circuit had crafted a special rule in FTCA cases involving tortious acts
of a member of the armed forces, asking whether the soldier was acting in
the line of duty. See Williams v. United States, 215 F.2d 800, 806-810 (9th
Cir. 1954). In rejecting this special rule, this Court vacated and remanded
the case, instructing the Ninth Circuit simply to apply the state rule.
Williams thus established that scope of employment under the FTCA is a question
of state, not federal, law. See O'Toole v. United States, 284 F.2d 792,
795 (2d Cir. 1960), cert. denied, 366 U.S. 927 (1961). However, Williams
did not obviate the statutory requirement that a government employee must
have been acting within the scope of his employment according to that State's
law in order to impose liability on the United States.
On remand, the Ninth Circuit applied California law which "does not
impose a respondeat superior liability unless at the time of the accident
the employee of the Government was actively engaged in furthering his employer's
business rather than his own personal ends." Williams v. United States,
248 F.2d 492, 502 (9th Cir. 1957), cert. denied, 355 U.S. 953 (1958). Under
California law then, imposition of vicarious liability on an employer required
a finding that the employee was acting within the scope of his employment.
See id. at 505. Williams in no way suggests that in this case the Eighth
Circuit was incorrect in holding that, in a State that imposes respondeat
superior liability for actions outside the scope of employment, 28 U.S.C.
1346(b)(1) requires an additional finding that the government employee acted
within the scope of his employment.
The court of appeals correctly acknowledged that state law determines the
scope of employment within the meaning of the FTCA (Pet. App. A4), the principle
recognized in Williams. The court was equally correct in rejecting the argument
that a State's respondeat superior law, including the law of apparent authority,
could substitute for the statutory "scope of employment" requirement
in 28 U.S.C. 1346(b)(1), which determines the extent of the United States'
waiver of sovereign immunity.
3. Petitioner next argues (Pet. 9-12) that decisions of other courts of
appeals which have cited Williams are in conflict with the ruling here.
This is incorrect. Each of the cases cited holds only that the scope of
employment inquiry is governed by state law, a conclusion with which the
government and the Eighth Circuit agreed. None of the cases cited (Pet.
9-11), discusses the distinction between scope of employment doctrine and
apparent authority doctrine within the law of respondeat superior. Most
of these are FTCA or Westfall Act certification cases discussing the determination
of scope of employment under state law. See, e.g., Rodriguez v. Sarabyn,
129 F.3d 760, 766-767 (5th Cir. 1997); Richman v. Straley, 48 F.3d 1139,
1144-1146 (10th Cir. 1995); Johnson v. Carter, 983 F.2d 1316, 1322-1324
(4th Cir.), cert. denied, 510 U.S. 812 (1993), overruled on other grounds,
Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995); Brown v. Armstrong,
949 F.2d 1007, 1011-1012 & n.7 (8th Cir. 1991); Kelly v. United States,
924 F.2d 355, 356-357 (1st Cir. 1991); James v. United States, 467 F.2d
832, 833 (4th Cir. 1972); United States v. Farmer, 400 F.2d 107, 109-111
(8th Cir. 1968); O'Toole, 284 F.2d at 795-796.
In support of her claim of a circuit conflict, petitioner cites one case
(Pet. 11) that mentions "apparent authority"-Tonelli v. United
States, 60 F.3d 492 (8th Cir. 1995). Tonelli does not, however, demonstrate
a circuit conflict. First, any conflict with the instant case would at most
demonstrate an intra-circuit conflict because both cases were decided by
the court of appeals for the Eighth Circuit.2 Second, there is in fact no
conflict. In Tonelli, the Eighth Circuit found that a postal employee, while
performing an illegal act, could still have been acting within the scope
of his employment if his superiors, who were aware of his behavior, allowed
him to act illegally. The court addressed "apparent authority"
in determining whether "the post office tacitly authorized [the employee's]
actions by failing to stop the [mail] interference after [the plaintiffs]
provided notice of it." 60 F.3d at 495. "Apparent authority"
as used in Tonelli concerned an employee who was "tacitly" acting
within the scope of his employment as authorized by his employer. By contrast,
"apparent authority" as petitioner attempts to apply it here concerns
the employee's apparent identity as an agent for his employer when viewed
by the plaintiff, without any knowledge of the employee's actions by the
employer. Hence Tonelli is simply irrelevant to this case.
The Eighth Circuit properly applied South Dakota's law of respondeat superior
to conclude that Scott's actions, while possibly actionable on an alternative
theory against a private employer, were nonetheless outside the scope of
his employment, and thus that under 28 U.S.C. 1346(b)(1), petitioner's claim
against the United States was barred.
CONCLUSION
The petition for a writ of certiorari should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
DAVID W. OGDEN
Acting Assistant Attorney General
ROBERT S. GREENSPAN
WILLIAM G. COLE
Attorneys
JANUARY 2000
1 The June 4, 1997 district court opinion is reproduced in this brief at
App., infra, 1a-16a.
2 A conflict between decisions rendered by different panels of the same
court of appeals is not a sufficient basis for granting a writ of certiorari.
See Davis v. United States, 417 U.S. 333, 340 (1974); Wisniewski v. United
States, 353 U.S. 901, 902 (1957) (per curiam).
APPENDIX
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
Civ. No. 94-5048
LESA M. PRIMEAUX, F/K/A LESA M. LAMONT,
F/K/A LISA M. BAD WOUND, PLAINTIFF
vs.
UNITED STATES OF AMERICA, DEFENDANT
[Filed: Jun. 4, 1997]
JUDGMENT
Consistent with the memorandum opinion issued this 4th day of June, 1997,
it is hereby
ORDERED that defendant shall have judgment against plaintiff without costs.
Dated this 4th day of June, 1997.
BY THE COURT:
/s/ RICHARD H. BATTEY
RICHARD H. BATTEY
CHIEF JUDGE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
Civ. No. 94-5048
1997 DSD 15
LESA M. PRIMEAUX, F/K/A LESA M. LAMONT,
F/K/A LISA M. BAD WOUND, PLAINTIFF
vs.
UNITED STATES OF AMERICA, DEFENDANT
[Filed: Jun. 4, 1997]
MEMORANDUM OPINION AND ORDER
NATURE AND PROCEDURAL HISTORY
[¶1] On July 11, 1994, plaintiff commenced this action under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(a), 2671 et seq. (FTCA). She
seeks damages arising from a sexual assault by Bureau of Indian Affairs
(BIA) police officer Kenneth Michael Scott (Scott). At the conclusion of
a three-day trial, the court entered its findings of fact and conclusions
of law whereby the Court found that while there was a sexual assault, it
was committed while Scott was on a frolic of his own and not acting in the
course or scope of his employment. (T.T. 259). Thereafter, judgment was
entered in favor of the government.
[¶2] Upon appeal to the Eighth Circuit Court of Appeals, the majority
opinion determined that this Court's "finding that Scott's assault
was not foreseeable because he was not acting within the scope of his actual
authority-that is, exercising law enforcement duties-was too narrow."
Primeaux v. United States, 102 F.3d 1458, 1463 (8th Cir. 1996). On February
24, 1997, the Eighth Circuit issued its mandate remanding the case for reconsideration
of the factual findings with application of South Dakota law relating to
apparent authority. Id. The Court issued a revised briefing schedule which
required the parties to complete their submissions on or before April 15,
1997. the parties have submitted briefs in support of their positions in
regard to Scott's apparent authority and the matter is ripe for adjudication.
Based on the following discussion, the court finds that the unique facts
and circumstances present in this case do not support a finding that Scott's
conduct falls within the doctrine of apparent authority.
FACTS
[¶3] On November 9, 1991, at approximately 1 a.m., plaintiff was driving
on South Dakota Highway 18 (T.T. 243). When she turn [sic] her car around,
it became stuck in a snowbank (T.T. 26, 245). After several futile attempts
to free her vehicle, she began walking toward the nearest town of Martin,
South Dakota, a distance of approximately two to three miles (T.T. 245).1
It was dark and cold, but was not snowing (T.T. 26, 38, 120, 245). Scott,
a police officer on the Rosebud Indian Reservation who was outside his jurisdiction
while returning from a physical fitness training seminar in Artesia, New
Mexico, came upon plaintiff's car (T.T. 118). He stopped to offer assistance;
however, no one was there. Id. Scott was driving a white government vehicle
with government license plates, a police light bar on the roof, and a radio,
but no decals on the side or cage inside (T.T. 71, 120, 139, 246). The government
paid for the training and travel expenses (T.T. 142, 259). In addition,
Scott did not use leave time to attend the session but was on "travel
status," continuing to draw his BIA salary (T.T. 140-41, 150-51). Although
Scott was not dressed in official uniform,2 he was wearing clothing that
a civilian could reasonably mistake for a police uniform (T.T. 28, 133,
252).
[¶4] After he determined that the car was abandoned, Scott continued
to proceed toward Martin (T.T. 119-20). Approximately 300 to 400 yards down
the road, Scott came upon plaintiff walking on the shoulder of the road
(T.T. 120). Scott stopped, turned on the red lights on the roof, and offered
her a ride (T.T. 27). At trial, Scott testified that he stopped to offer
a ride as an individual, not as a police officer (T.T. 134, 145). Plaintiff
accepted and got in the front seat of the car (T.T. 30). Plaintiff testified
on direct examination that when she was sitting in the car she was fearful
Scott would arrest her for drinking and driving or turn her over to the
Martin authorities, although she acknowledged that he did not ask her if
she had been drinking or threaten to arrest her (T.T. 30-31, 134). On cross
examination she testified that she voluntarily got into the vehicle because
she wanted a ride (T.T. 72).
[¶5] While en route to Martin, Scott informed plaintiff that he was
police officer from Rosebud Indian Reservation (T.T. 88, 121). Soon thereafter,
Scott pulled off the highway onto a side road, ostensibly to stretch his
legs and to relieve himself (T.T. 32-33, 122-23, 248). After driving a short
distance on the side road, Scott stopped the vehicle and ordered plaintiff
to step out of the vehicle (T.T. 33, 123, 248-49). Plaintiff testified that
one of the reasons she got out of the vehicle was because of his status
as a police officer (T.T. 33). He then grabbed her, unzipped and pulled
down her jeans, pulled her by the hair, and committed an act of sexual penetration
(T.T. 249).3 Thereafter, he attempted oral intercourse with her. Id.
DISCUSSION
[¶6] A. GOVERNING PRINCIPLES
[¶7] The applicable South Dakota law governing the scope of employment
issued presented by this case is set forth in Primeaux v. United States,
102 F.3d 1458 (8th Cir. 1996). The three primary authorities relied on by
the Eighth Circuit for determining the scope of employment test to be used
in this case consist of Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177 (S.D.
1987),4 Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275 (S.D.
1986), and Red Elk v. United States, 62 F.3d 1102 (8th Cir. 1995). These
cases, in addition to other cases applying South Dakota law, establish that
foreseeability is the linchpin of the South Dakota scope of employment test.
Primeaux, 102 F.3d at 1461.
[¶8] In Leafgreen, the South Dakota Supreme Court stated that "a
principal is liable for tortious harm caused by an agent where a nexus sufficient
to make the harm foreseeable exists between the agent's employment and the
activity which actually caused the injury." Leafgreen, 393 N.W.2d at
280. The Leafgreen court further recognized that foreseeability is governed
by the following standard: "[T]he employee's conduct must not be so
unusual or startling that it would be unfair to include the loss caused
by the injury among the costs of the employer's business." Id. at 280-81.
The South Dakota court applied Restatement (Second) of Agency § 261,
which discusses apparent authority as it relates to fraud. Id. at 277. As
stated by the Eighth Circuit in Primeaux, the analogous section of the Restatement
relating to tortious wrongdoing reads as follows:
(2) A master is not subject to liability for the torts of his servants acting
outside the scope of their employment, unless:
. . . .
(d) the servant purported to act or to speak on behalf of the principal
and there was reliance upon apparent authority, or he was aided in accomplishing
the tort by the existence of the agency relation.
Primeaux, 102 F.3d at 1462 (quoting Restatement (Second) of Agency §
219(2)(d)).
[¶9] The Primeaux court further noted that section 265(1) of the Restatement
gives the general rule for apparent authority, which is that "'[a]
master or other principal is subject to liability for torts which result
from reliance upon, or belief in, statements or other conduct within an
agent's apparent authority.'" Id. (quoting Restatement (Second) of
Agency § 265(1)).5 Based on the foregoing, the Eighth Circuit reads
South Dakota law to hold the employer vicariously liable not only for foreseeable
tortious wrongs committed pursuant to the employee's actual authority, but
also for those committed when apparent authority of the employee "puts
him in a position where his harmful conduct would not be 'so unusual or
startling that it would be unfair to include the loss by the injury among
the costs of the employer's business.'" Primeaux, 102 F.3d at 1462-63
(quoting Olson v. Tri-County State Bank, 456 N.W.2d 132, 135 (S.D. 1990)
(quoting Leafgreen, 393 N.W.2d at 280-81)). Hence, "[f]oreseeability
necessarily includes not only instances of use or abuse of actual authority,
but also of use or abuse of apparent authority." Id. at 1463.
[¶10] In Red Elk v. United States, 62 F.3d 1102 (8th Cir. 1995), the
Eighth Circuit determined that under the facts and circumstances presented
by that case that it was foreseeable that an on-duty tribal police officer
would violated the position of trust his employment provided and sexually
assault a victim. Id. at 1107.6 In Primeaux, the Eighth Circuit expounded
on this notion by stating that,
It is no less foreseeable that such an abuse of authority could occur while
the officer is not technically on duty, but rather possesses the apparent
authority sufficient to cause a person to rely on or fear that authority
and succumb to sexual advances.
Primeaux, 102 F.3d at 1463.7 As to the present case, the Eighth Circuit
recognized that it is possible that Scott was aided in his assault of plaintiff
by the existence of the agency relation. Id. (citing Restatement (Second)
of Agency § 219(2)(d)). Accordingly, "[i]f Scott accomplished
his objective by using this status as a police officer, and if Primeaux
relied on his position in succumbing to his advances, then his conduct may
fall within the doctrine of apparent authority." Id. (citing Restatement
(Second) of Agency § 265) (emphasis added).
[¶11] B. APPARENT AUTHORITY
[¶12] While it is clear from the Court's oral findings of fact and
conclusions of law that Scott's sexual act was not preceded by an assertion
of actual authority, the issue remains whether it was preceded by an assertion
of apparent authority. It is also manifest that under the unique facts and
circumstances of this case, once plaintiff entered the front seat of the
vehicle, plaintiff did not succumb to Scott's actions based on any reliance
on actual or apparent authority. Rather, she submitted out of fear and physical
intimidation to Scott who maintained a significant physical advantage (T.T.
247, 252, 254). The scene of the rape occurred of a side road located several
miles from the town of Martin late at night. there was little or no action
she cold have taken once she entered the vehicle.8 Therefore, the Court's
analysis focuses on the facts and circumstances present at the point plaintiff
entered the front seat of the vehicle.
[¶13] The significance of Scott's status or appearance as an officer
of the law is minimized under the unique circumstances present in this case.
Unlike the vast body of case law holding the employer liable for sexual
assaults committed by officers who were aided in accomplishing a sexual
assault by utilizing their position of authority to detain or stop their
victims, Scott did not arrest, detain, or even stop plaintiff through use
of actual or apparent authority. See generally Red Elk, 62 F.3d at 1104
(officer ordered victim into back of car for curfew violation); Bates v.
United States, 701 F.2d 737, 739 (8th Cir. 1983) (holding military policeman's
conduct in stopping automobile and raping young women did not arise out
of scope of employment under Missouri law); Mary M. v. City of Los Angeles,
54 Cal. 3d 202, 285 Cal. Rptr. 99, 814 P.2d 1341 (1991) (officer detained
the victim by activating his red lights and threatened to take her to jail
for driving while intoxicated); White v. County of Orange, 166 Cal. App.
3d 566, 212 Cal. Rptr. 493 (Cal. Ct. App. 1985) (officer stopped victim's
car); Applewhite v. City of Baton Rouge, 380 So.2d 119 (La. Ct. App. 1979)
(officer used authority to place victim into police custody for vagrancy).
To the contrary, plaintiff was stranded "[o]n a cold winter night in
[the] middle of practically nowhere near the Indian reservation." (T.T.
252). See also (T.T. 26, 38, 120, 245). Although plaintiff testified that
before entering the vehicle she noticed that the red lights on the roof
were turned on, she acknowledged that she voluntarily got into the vehicle
because she wanted a ride (T.T. 27, 72).9
[¶14] Plaintiff testified on direct examination that when she was sitting
in the car she was fearful Scott would arrest her for drinking and driving
or turn her over to the Martin authorities; however, she acknowledged that
he did not ask her if she had been drinking or threaten to arrest her (T.T.
30-31, 134). In addition, Scott never requested her driver's license nor
did he ask her to perform a breathalyzer or field sobriety test. Plaintiff
has failed to show by a preponderance of the evidence that she relied on
the cloak of Scott's apparent authority as an officer to enter into the
front seat of his vehicle. See generally Leafgreen, 383 N.W.2d at 280 (foreseeability
of an agent's criminal or tortious conduct when operating with apparent
authority is seen through the eyes of the third party who was harmed by
the agent's conduct rather than from the principal's or the agent's point
of view). Plaintiff attempts to convince the Court that she relied upon
Scott's authority as a police officer in submitting to his demands. This
she must do to bring her case under the umbrella of the Red Elk and Deuchar.
The Court finds her attempt lacking credibility. On the dark, cold night
in practically the middle of nowhere, plaintiff accepted the ride in order
to escape the elements. Based upon the facts, the Court is not convinced
that the police vehicle had anything to do with the assault which later
took place. In any event, she has not met her burden in this regard.
[¶15] It is this significant point that distinguishes this case from
the decisions of Red Elk,10 Deuchar,11 and Leafgreen.12 In Red Elk, the
two officers were clearly aided by their status as police officers and the
victim had relied on said status. Red Elk, 62 F.3d at 1107. When the officers
picked up the victim ostensibly to return her safely home as a curfew violator,
they were on duty, in uniform, armed, and patrolling in a marked police
car. Id. The victim clearly relied on their authority when she entered the
rear seat of the patrol car from which she had no way to exit without the
officers' help. Id. To the contrary, officer Scott was not purporting to
act on behalf of the government by stopping, detaining, or arresting plaintiff
or any violation of the law. Moreover, plaintiff has not shown that she
relied on Scott's apparent authority when entering the front seat of the
vehicle.
[¶16] In Deuchar, the South Dakota Supreme Court held that a genuine
issue of material fact existed as to whether a ranch hand without the required
specific authority of the ranch owner to hunt on a particular occasion was
acting within the scope of his employment, as measured by the foreseeability
test, when he shot a hunter he was guiding. Deuchar, 410 N.W.2d at 182.
The ranch owner had testified that hunters could not hunt on the ranch unless
accompanied by corporate employees. Id. at 179. Thus, under this unique
factual scenario, it could be foreseeable that a hunter could rely on the
ranch hand's apparent authority to guide a hunt which was in furtherance
of the ranch business. The present case is distinguishable in that Scott
was not purporting to act on behalf of the government when he offered plaintiff
a ride. Furthermore, plaintiff did not rely on any apparent authority of
an agent, as the hunter presumably did under the circumstances present in
Deuchar.
[¶17] In Leafgreen, insureds brought suit against their insurer for
damages stemming from the wrongful acts of the insurer's agent. Leafgreen,
393 N.W.3d at 276. The agent had gained access into the insureds' home for
the ostensible purpose of writing liability insurance for them. Id. However,
the agent was really gaining the information to assist two professional
burglars, who latter burglarized the residence. Id. In affirming the trial
court's grant of summary judgment in favor of the insurer, the South Dakota
Supreme Court held that there was an insufficient nexus between the agent's
employment as an insurance agent and the burglary as to make the ham foreseeable
and impute liability to insurer. Id. at 281. The South Dakota court based
its decision in part on the fact that the agent had learned that the insureds
would be out of town the day of the burglary through his friendship with
the insureds, and not because of this status as an insurance agent. Id.
Similarly, plaintiff entered the front seat of the vehicle because she needed
a ride that cold, dark night, not because of Scott's status as a law enforcement
officer. Leafgreen is authority for the rule that there must be a sufficient
nexus between the agent's employment and the agent's acts to impute liability
upon the principal. Plaintiff fails to establish such nexus between Scott's
employment and his assaultive conduct.
CONCLUSION
[¶18] Plaintiff has failed to meet her burden of proving that Scott
accomplished his objective by using his status as a police officer or that
she relied upon Scott's apparent authority when she entered the front seat
of his vehicle. Hence, Scott's assault was not foreseeable because he was
not acting within the scope of his actual or apparent authority. However
reprehensible Scott's actions, to hold otherwise under the unique facts
and circumstances presented by this case would blur the settled law of South
Dakota as determined by the Red Elk, Deuchar, and Leafgreen trilogy. In
short, plaintiff's case is not a Red Elk and Deuchar case. Accordingly,
judgment of the government shall be issued forthwith.
Dated this 4th day of June, 1997.
BY THE COURT:
/s/ RICHARD H. BATTEY
RICHARD H. BATTEY
CHIEF JUDGE
1 At trial plaintiff testified that after she unsuccessfully attempted to
free her vehicle, she remained in her car until officer Scott came upon
the scene (T.T. 27). However, officer Scott testified that he came upon
plaintiff while she was walking down the highway toward Martin (T.T. 120).
Based on express evidence and inferences naturally flowing from that evidence,
the Court made its finding that plaintiff was walking toward Martin (T.T.
245).
2 Scott was unarmed without a night stick and was not wearing a badge (T.T.
82, 217, 190-91).
3 In the end, plaintiff, having a very submissive and passive personality,
submitted out of fear and intimidation to Scott who maintained a significant
physical advantage (T.T. 247, 252, 254).
4 In Deuchar, the South Dakota Supreme Court relied on the factors listed
in Restatement (Second) of Agency § 229 in determining whether a ranch
hand was acting within the scope of his employment when he accidentally
shot a hunter. Deuchar, 410 N.W.2d at 180 n.2. The Deuchar court quoted
from § 229 in relevant part:
(1) To be within the scope of the employment, conduct must be of the same
general nature as that authorized, or incidental to the conduct authorized.
(2) In determining whether or not the conduct, although not authorized,
is nevertheless so similar to or incidental to the conduct authorized as
to be within the scope of employment, the following matters of fact are
to be considered:
(a) whether or not the act is one commonly done by such servants;
(b) the time, place and purpose of the act;
(c) the previous relations between the master and the servant;
(d) the extent to which the business of the master is apportioned between
different servants;
(e) whether or not the act is outside the enterprise of the master or, if
within the enterprise, has not been entrusted to any servant;
(f) whether or not the master has reason to expect that such an act will
be done;
(g) the similarity in quality of the act done to the act authorized;
(h) whether or not the instrumentality by which the harm is done has been
furnished by the master to the servant;
(i) the extent of departure from the normal method of accomplishing an authorized
result; and
(j) whether or not the act is seriously criminal.
Id. at 180 n.2 (quoting Restatement (Second) of Agency § 229).
5 The Eighth Circuit further noted that South Dakota cases consistently
articulate respondeat superior law as including principles of apparent authority.
Id. (citing Leafgreen, 393 N.W.2d at 277 ("Under general rules of agency
law, a principal may be held liable for fraud and deceit committed by an
agency within his apparent authority, even though the agent acts solely
to benefit himself."); McKinney v. Pioneer Life Ins. Co., 465 N.W.2d
192, 194 (S.D. 1991) ("Generally, a principal may be held liable for
the fraud and deceit of his agent acting within the scope of his actual
or apparent authority, even though the principal was unaware of or received
no benefit from his agent's conduct.") (citing Dahl v. Sittner, 429
N.W.2d 458, 462 (S.D. 1988)); State v. Hy Vee Food Stores, Inc., 533 N.W.2d
147, 149 (S.D. 1995) (discussing vicarious criminal liability and noting,
"Well settled is the basic principle that criminal liability for certain
offenses may be imputed to corporate defendants for the unlawful acts of
its employees, provided that the conduct is within the scope of the employee's
authority whether actual or apparent"); Siemonsma v. David Mfg. Co.,
434 N.W.2d 70, 73 (S.D. 1988) (relying on Restatement (Second) of Agency
§ 265(1))).
6 This Court in its oral findings and conclusions of law distinguished the
present case from Red Elk by noting that under the facts presented here,
Scott was not on duty for enforcement purposes, was not armed, was outside
of his jurisdiction, and was not picking up plaintiff for any violation
of law (T.T. 259).
7 The Primeaux court further recognized numerous cases holding employers
liable for sexual assaults or excessive use of force by police officers
for the reason that such conduct is foreseeable because of the unique position
of trust held by such officers. Primeaux, 102 F.3d at 1463 (citing Mary
M. v. City of Los Angeles, 54 Cal. 3d 202, 285 Cal. Rptr. 99, 814 P.2d 1341,
1352 (1991) (holding a police officer liable for a sexual assault because
he took "advantage of his authority and control as a law enforcement
officer"))' White v. County of Orange, 166 Cal. App. 3d 566, 571, 212
Cal. Rptr. 493 (Cal. Ct. App. 1985) (holding that a police officer could
have acted within the scope of his employment when he stopped a motorist
and sexually assaulted her, and noting that "the police officer carries
the authority of law with him into the community . . . [and] the officer's
method of dealing with this authority is certainly incidental to his duties");
Applewhite v. City of Baton Rouge, 380 So.2d 119, 122 (La. Ct. App. 1979)
(finding employer liability for a police officer's sexual abuse of a woman
in his custody, and noting "where it is found that a law enforcement
officer has abused the 'apparent authority' given such persons to act in
the public interest, their employers have been required to respond in damages")).
The Primeaux court went on to state that "[i]t is equally likely that
this trust is relied upon when officers appear to be exercising their authority,
especially because of the 'on-call' nature of their employment." Id.
(citing Osborne v. Lyles, 63 Ohio St. 3d 236, 587 N.E.2d 825, 831 (1992)
(reversing summary judgment for the city in a case of excessive force used
by an off-duty police officer at an accident scene in part because the officer
was to "be considered on duty at all times, for purposes of discipline");
Daigle v. City of Portsmouth, 129 N.H. 561, 534 A.2d 689, 699 (1987) (holding
the city liable for an off-duty police officer's assault because the employment-related
activities of employees who have an "obligation, or at least the option,
to perform official duties whenever the need may arise" are considered
within the scope of their employment)).
8 Although plaintiff testified that one of the reasons she got out of the
vehicle was because of his status as a police officer (T.T. 33), it is clear
that at that point in time there was little or on action she could take
under the circumstances.
9 At trial, Scott testified that he stopped to offer a ride as an individual,
not as a police officer (T.T. 134, 145). There is no evidence that Scott
turned on his red lights to stop or detain plaintiff.
10 Red Elk v. United States, 62 F.3d 1102 (8th Cir. 1995).
11 Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177 (S.D. 1987).
12 Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275 (S.D. 1986).