Lesa M. Primeaux, Formerly Known as Lesa M. Lamont, Formerly Known as Lisa M. Bad Wound v. United States

LAY, Judges, Circuit Before LOKEN remand, expressly court On PRATT,1 Judge. District apparent authority, but the law of considered there was an insufficient again once found LAY, Judge. Circuit the assault and the nexus between against arises out of suit This matter apparent author- either actual or the officer’s Tort the Federal Claims United States under States, No. 94- ity. Primeaux v. United (FTCA) damages for sexual as seeking Act 1997). (D. 5048, slip op. S.D. June at (BIA) of Indian Affairs sault a-Bureau again appealed. She now Primeaux once time the police officer. This is the second findings of the district court argues that the' this court. See Pri case has been before that questions of fact and law and are mixed (8th States, 102 F.3d 1458 meaux v. United review the district court’s this court must Cir.1996) (Wollman J., dissenting). government on de novo. The second decision apply court to urges other hand in November the time of the assault At victim, clearly standard. We find was a 21- erroneous Lesa the doc- although the district court discussed whose car had year-old Native American apparent authority, it nevertheless a rural trine of in a snowbank on South become stuck Pratt, points Supreme Court out States 3.The South Dakota Robert W. 1. The Honorable analogous Iowa, "[a]pparent to ‘osten- Judge the Southern District of District defined in SDCL 59-3-3 sible’ which is designation. sitting by intentionally, ‘such as a care, ordinary causes or allows or want of are forth in detailed facts of this case set to believe allows Primeaux., opinion, F.3d at previous our ” Family Leafgreen Mut. possess.’ v. American (S.D.1986). 277 n. 4 393 N.W.2d top Furthermore, properly apply this doctrine as set of his vehicle. Id. at 3. failed so, doing appeared law.4 In victim it forth under South Dakota stated to her that the wearing police jacket officer that the trial court erred as a matter we find when he approached App. p. her. 28. The victim’s law. display reliance on Officer Scott’s Authority Apparent I. i.e., badge authority, flashing the red lights, rejected part by is in the district court (Second) Agency Restatement stopped because the officer that testified he (“Restatement”) adopted- by as the South to offer a ride as an individual and not as an that, Supreme requires ap in Court p. officer. Id. at 134. The district court plying apparent authority, the rule of a court specifically found “that the officer was not agent’s through must view the conduct purporting to act on govern- behalf of the eyes of the victim rather than from the by stopping, detaining ment or arresting agent’s point Leafgreen, of view. See plaintiff any violation of law.” (“Under at 280 section 261 and the 94-5048, slip op. No. at 8. however, theory apparent authority, agent’s through eyes difficulty seen analysis conduct is The we have with this party.”); ignores objective, the third undisputed see also American Soc. that it fact Engineers, Hydrolevel police lights Mechanical Inc. v. that the were turned on when Corp., approached 72 the officer the victim. The dis- S.Ct. (1982) erroneously trict accepted, contrary court (quoting L.Ed.2d 330 Restatement (Second) law, a, South Dakota Agency p. the officer’s stated inten- comment 571); Int'l, tions without consideration of the Monkey Montoya, Inc. v. victim’s Grease (Colo.1995) reliance on the fact (same); the officer had 904 P.2d Free Entertainment, Inc., flashing lights police turned on the red of the Royal man v. Shield (“One Viewing through car. this eyes evidence (La.Ct.App.1982) 411 So.2d victim, we it any deem obvious that viewpoint per must look from the of a third ordinary citizen would believe under similar apparent if agency son to determine has been that an created.”). circumstances officer of the law had Therefore, case, inqui this stopped to render assistance. ry whether, should have been Pri- from viewpoint, being approached by meaux’s an arrested, The fact that the victim was not police lights flashing officer whose ear are involuntarily stopped barely or detained is person a would make reasonable believe that An relevant under these circumstances. offi- the officer was within the duty solely cer’s is not limited to the arrest police as a officer. apprehension and An law violators. offi- displays cer of the law often his or The district court concluded that the offi- to offer assistance to citi- apparent authority cer had not exercised zens, especially Any those distress. citi- partly because the court was convinced zen, “dark, especially night on a cold in the “police anything vehicle had to do with nowhere” middle of would take more assur- place.” the assault which later takes Pri- place greater ance in and reliance on assis- meaux, 94-5048, slip op. No. at 10. The tance offered an officer of the than analysis point slights district court’s complete stranger. a requires the South Dakota law that ostensi- through eyes ble to be viewed court Pri- also discounted person. undisputed facts meaux’s stated reliance on Scott’s that, show stopped police after the officer his it because found her reliance victim, car in the lane across from the he “credibility.” lacked The district court did flashing police light believability,5 turned on the red bar on not fault Primeaux’s but rather noteworthy parted 4. We upon deem it a relevant curred or with value factual circumstances of this case that S.D. Codi- faith thereof.” (Michie 1993) fied Laws principal 59-6-3 "A reads: fact, case, is bound acts of his In in the first the district court found persons only ostensible to those who that Primeaux was more credible than Officer faith, good negligence, App. p. have in and without in- Scott. voluntarily accepted night a [O]n [the] the ride cold winter middle of she found that practically near the Indian But nowhere reser again, once escape “to the elements.” vation, person appeared and a who to be fails to view the conduct of this discussion officer, strong personal a an eyes of the victim through the officer observed, ity picking up such as the Court police lights his red when turned on he strange type personali and submissive her that he a BIA specifically told ty roadway, from the is- authoritative officer. her,. figure presented have been must also that the court concluded The district (sic) leaves the Court to no other conclu the assault were -not rele- leading to events sion he faced a situation —she faced reasoned, because, it existence vant force, coercion, through situation the use of apparent authority need be determined threats with —with voluntarily the at time Primeaux entered the accompanied presence by an overriding The district court concluded officer’s car. apparent power execution. got police that into Scott’s after Primeaux App. p. (emphasis-added). at Based on car, little or no could “there was action she the foregoing, the conclude that district we entered have once she the taken vehicle.” properly apply principles failed the court to 94-5048, slip op. No. at 8. The or ostensible accor- analysis therefore focused its district court law. dance South'Dakota plaintiff front point “at the entered the Foreseeability II. seat Id. We find this to be of the vehicle.” that court found because district an of the law as erroneous view well. scope acting within the Scott question In evaluating the of ostensible or the assault was authority, the court must review district the not foreseeable. As the South Dakota Su the offi totality the events from time the acknowledged, the preme Court has issue of lights time police cer on his car to the turned liability foreseeability to vicarious dis McKinney v. Pioneer the assault. See foreseeability in negli from tinct the issue of 192, 195 (S.D.1991) Co., 465 N.W.2d Here, gence question is cases.6 the whether Life (whether an acted the agent’s put position him in a employment the apparent authority is to be determined from trust conduct to where harmful transaction); all of the startling the circumstances or party would not be so unusual (S.D. Sittner, Dahl v. 429 N.W.2d it unfair to include the loss would be 1988) (same). by costs injury among caused the of the The district court concluded the employer’s Leafgreen, 393 N.W.2d to the assault be business. Primeaux submitted 280-81. our statement in Red at We find overpowering physical pres cause of Scott’s controlling Elk here: However, ignores ence. Primeaux’s stopped police public given Scott and di servant statement that when A officer is a car, get public authority. out of the believed trust and rected her to she considerable “cop.” considering totality jurisprudence he In was a the Our review of the indicates that, circumstances, ignore uniformly, where excesses are one cannot the find almost officers, employ- their ing by that: committed such of the district court startling it Leafgreen, duct is or that would court observed: not so unusual In resulting seem to include the loss from unfair way to determine whether is inher- One a-risk in, employer’s by, among enterprise it busi created an is to ask other costs ent words, generally whether the actual occurrence was other [citations omitted] ness. In where consequence activity. How- foreseeable question liability, is one of vicarious ever, "foreseeability” in this be context must inquiry the risk whether was one should be distinguished “foreseeability” for from as a test typical may fairly regarded as "that be of or negligence. the later sense In "foreseeable" enterprise broadly undertak incidental” probability means a level of which would lead Leafgreen, employer.- 393 N.W.2d at en precautions prudent to take effective Kemper (quoting Rodgers Const. "foreseeability" responde- as a whereas test for Cal.Rptr. Cal.App.3d superior merely means that in the context of (1975)). enterprise particular employee’s con- an responsible are to be employer subject ers held their “is not though the torts of actions even those actions be his servants outside the of their ... from their unless somewhat removed usual duties. purported servant speak to act or on be- unquestionably This is the case because of half of the and there was reliance position society. of such officers in our authority, or he was aided Red Elk v. accomplishing the tort the existence of (8th Cir.1995) (quoting Applewhite City agency relation.” Rouge, Baton (La.App.1 380 So.2d — at -, U.S. 118 S.Ct. 2275. Cir.1979)).7 present case, In the there is little involving scope employ In cases purported doubt the officer speak on be ment, although the factual issues must be (who half of the BIA journey): authorized his resolved, holding the ultimate turns on state (1) Scott lights atop turned on his red Here, respondeat superior agency law. (2) car, Scott told Primeaux he awas longer dispute. the factual issues are no (3) officer, BIA Primeaux testified she fol only remaining question is whether un get lowed Scott’s command to out of the car court, der facts found (4) because he “cop,” was a the trial BIA will be liable as a matter of law for court found that accomplished the tort analogue Scott’s assault. We find as a useful by agency the existence of his relationship.9 analysis in Justice Souter’s the recent sexual We therefore judgment vacate the of the case, Faragher City v. Boca harassment district court with directions judg to enter of — Raton, (1998).8 U.S. -, 118 S.Ct. 2275 liability ment as to plaintiff; for the The Court on the Restatement relied cause is remanded to the district court for a 219(d) stating: § in damages.10 determination of (Wollman J., emphasized dissenting) (emphasis This court a similar observation in add- ed). appeal: the first uncommon, [W]hile it is unfortunate and sexu- by al misconduct an officer is some circum- pause only briefly response in 10.We need reasonably stances foreseeable.... It is no government dissent. It should be noted that the authority less that such an abuse has never asserted before the trial court or this foreseeable of technically could occur presented while is not court the new theories in the dissent. officer duty, First, possesses on thority but rather au- the dissent overlooks that South Dakota (the rely place to cause a wrong) to on or law of the defines stan sufficient authority by and "scope employment" succumb to sexual ad- dards which of is to be fear vances. holding employers Judge Cases liable for measured. As Loken earlier observed in by sexual writing opinion assaults or excessive use of force this court’s in Brown v. Arm police FTCA, strong: officers reason that such conduct place is fore- "Under the the law of the of unique position alleged governs seeable because of the of trust scope employment tort of Primeaux, 1007, (8th held question.” such officers. 102 F.3d at 1012 n. 7 Cir. (citations omitted) added). 1991). States, (emphasis See Williams United (1955); 76 S.Ct. 100 L.Ed. 761 see also Supreme Faragher: 8. The Court also observed in (1996) ("The 28 U.S.C. United States genuine "In the instances in which there is a liable, respecting provisions shall be of this question employer’s responsibility about the for claims, relating title to tort in the same manner authorize, harmful conduct he did not in fact private and to the same extent as a individual holding scope that the conduct falls of circumstances,....”). under like employment ultimately expresses a conclusion - adopted South Dakota cases have the Restate at -, not of fact but of law.” U.S. scope ment which defines of to in S.Ct. 141 L.Ed.2d 662. apparent authority. clude both actual and See forth, 219(2)(d) 265(1); §§ 9. As set the district court observed "his Restatement and see also 277; overriding presence accompanied by Leafgreen, McKinney 393 N.W.2d at v. Pio Co., power carry allowed him out execution” to his neer 465 N.W.2d at 194. It has Life. finding, Judge early universally recognized assault. On the basis Woll- been and that al original though apparent authority man observed in his dissent that Ms. and Primeaux to submitted Scott’s demands out of exist as two different theories vicarious liabili arising "ap- ty, they scope fear and intimidation from Scott’s both serve to define em Prosser, parent position ployment. as a See L. William Handbook of officer (3rd Ed.1964); appeared power carry as one who to have the to the Law of Torts 473 see also U.S. at -, Faragher, out his commands.” 102 F.3d at - 118 S.Ct. Meyer, 510 U.S. scope employment. LOKEN, dissenting. Oftheir Judge, Circuit 475, 114 S.Ct. independent for two respectfully I dissent reasons. decision, “for prior we remanded In our factu (FTCA) court’s] of [the reconsideration Act Federal Tort Claims

1. The findings application of South al allows claims: money ment caused omission cumstances ^[1] property, office against ^[5] damages, while or where the United or any employee the United employment, negligent or personal injury or death acting within the ... ^[3] States, wrongful act or of the Govern ^[6] injury under cir scope ^[2] or loss if ^[4] Agency green v. American meaux v. United and we (8th ent Cir.1996). relating quoted Restatement 219(2)(d), (S.D.1986), to Our States, it relates to Family Mut. Ins. which opinion noted that had discussed relates more authority.” Pri agent (Second) of frauds, appar Leaf gen wrongdoing: erally be liable to the private person, would with the law of the claimant accordance (2) subject liability for A is not master occurred. the act or omission place where acting of his servants outside the torts 471, 477, 114 Meyer, 510 S.Ct. U.S. FDIC employment, unless: their (1994) (emphasis add 127 L.Ed.2d 308 (d) purported to act or to the servant ed). government The Act does not make there speak on behalf employ private to the full extent of liable upon apparent or was reliance state law. Rath vicarious er’s accomplishing the tort he was aided er, if its the United States is liable agency relation. the existence employee was “within added). (emphasis In other 102 F.3d at 1462 employment.” 28 U.S.C. office words, portion of South Da- we invoked 1346(b)(1), 2672; Piper v. United §§ see of imposition authorizes the Cir.1989). kota law which (8th 861, States, 863 As 887 F.2d “ liability private employers vicarious said, ‘Scope of em Supreme has the Court agents that are their acts of their within de Mar ployment’ sets the line.” Gutierrez scope of apparent authority but outside the 417, 423, 115 Lamagno, v. tinez Now, has re- (1995).11 employment. the case their 2227, 375 S.Ct. 132 L.Ed.2d turned, again a district court find- once govern waiver of the FTCA is limited acting Scott was out- jur ing that Tribal Officer sovereign immunity. have no ment’s We employment. The court scope the impose liability for the side isdiction to FTCA reverses, declaring that the United employees again government acts of outside thority degree than Seavey, Speculations lesser of effectiveness (citing as to is of no L.Ed.2d 662 authority.” operation Agency of real See Harold "Respondeat Superior,” is the in Studies in 129, Gregory, (1949) (“The A. Handbook Gill Reuschlein & William of a master to a 155 (1979). Partnership Agency and 58 on the Law of person a servant has been third for the torts of exists, authority person apparent widely by phrase Where the elastic extended aid of princi- rights with reference to the may has the same 'scope employment’ be used to which authority pal exists. See Restate- put as where actual include all which the court wishes to into § it.”)). 8 cmt. a. ment ac- that a enforcement officer's The idea law The dissent also overlooks that South thereby outside the tions were intentional and recognized between has that the distinction previously reject- scope employment of has been authority simply authority apparent and court, Elk, by 62 F.3d 1102 see Red agent ed pertains obtains to the manner in which an FTCA), (applying Dakota law under the South authority. See Federal Land Bank Omaha of See, City e.g., Mary Sullivan, (S.D.1988). M. v. Los and other courts. "Ac- 430 N.W.2d of 216-221, Cal.Rptr. Angeles, 54 Cal.3d authority from tual is created manifestations (Cal.1991). 99, 814 P.2d agent, ... while ostensible prin- apparent] authority [or is created when claims did not assert cipal 11. Because Primeaux allows a third to believe the Attorney personally, General against authority principal’s behalf.” has to act on the (citations omitted). 28 U.S.C. determination made no Id. effects, 2679(d)(1) scope employment regarding § of of its "[I]n measurement apparent operation au- issue. is and the because, per- scope government employment); from Primeaux’s is liable States Leaf acting spective, green, Scott was within his (judgment 393 N.W.2d at 281 for em authority as defined the Restatement. ployer affirmed because “there such ruling goes beyond government’s This agent’s] a connection between employ [the immunity. sovereign waiver burglary actually ment ... and the which caused the harm ... as to make harm Scope employment author foreseeable”). ity are two different theories of vicarious Olson, liability. Commerford, v. 794 F.2d See apply “[a]ny The FTCA does not (8th Cir.1986). 1319, 1321 Leafgreen Neither assault, arising claim out of battery,” and McKinney nor v. Pioneer Life other enumerated intentional torts. (S.D.1991), supports 2680(h). § Rape U.S.C. and other sexual ap court’s assertion that all acts done with assaults are within the classes of intentional parent authority employee’s an are within 2680(h). excepted § torts from the FTCA scope employment under South Dakota States, See Garcia foreseeability employee’s law. The (5th Cir.1985); Doe v. United employer’s perspective from the misconduct (7th Cir.1988) J., (Manion, dis- scope is critical to the issue cited). senting, Thus, and cases the inten- law, under South Dakota whereas tional tort committed Tribal Officer Scott employee’s focuses on the miscon customary parameters is not within the perspective. from the victim’s As duct the FTCA. 219(2)(d) expressly of the Restatement rec ognizes, apparent authority is a doctrine un 2680(h) exception subject to a employer may an become liable for der which proviso: by employees outside torts committed Provided, That, regard "with to acts or scope employment. of their investigative omissions of or law enforce- private State law of course extend a ment officers of the United States Govern- liability to employer’s vicarious include acts ment, provisions chapter of this employee’s apparent authority but 1346(b) apply section of this title shall employment. But not within the assault, any ... arising claim out of bat- liability requires proof that FTCA Scott’s arrest, tery, imprisonment, false false employ actions were within the prosecution. process, abuse of or malicious ment as a tribal officer. Under South Dako subsection, purpose For the of this “inves- law, scope is an ta issue tigative or enforcement officer” means Ranch, Inc., fact. See Deuchar v. Foland any officer of the United States who is (S.D.1987). 177, 181-82 410 The dis searches, empowered by law to execute trict court found that was not Scott evidence, or to make arrests for vio- seize employment. within the That lations of Federal law. finding clearly is not erroneous. Though Tribal Officer Scott is no doubt a law uniform, duty, off not in and outside his purposes enforcement officer car, jurisdiction. out of Primeaux was her 2680(h), proviso only applies § inten Martin,” “walking toward the nearest town of by such officers “while tional torts committed “stopped if when Scott to ask her she wanted search, evidence, seizing or mak executing a a ride.” 102 F.3d at 1460. He States, ing an v. 787 arrest.” Pooler United ride, any offered her the kind of assistance (3d denied, 868, Cir.1986), 872 cert. 479 might citizen offer late on a cold November 849, 175, 111 U.S. 107 S.Ct. 93 L.Ed.2d night. accepted Primeaux the offer because States, (1986); 874 accord Cole v. United subsequent she wanted ride. Scott’s sexual (D.Neb.1995); 1011, 1046 F.Supp. Employers imagination assault was no stretch of the States, 255, F.Supp. Ins. v. 815 258 United a foreseeable event within States, States, (N.D.Ill.1993); Beran v. United 759 employment. See Bates v. United (8th Cir.1983) (D.D.C.1991); v. (military F.Supp. 892 Rourke 701 F.2d 742 (E.D.Pa. States, F.Supp. policeman’s on-duty rape four murder and United (3d Cir.1990). 1988), aff'd, following purported stop civilians not States, F.Supp. v. United Harris Contra (W.D.N.C.1988); v. Crow United (D.Kan.1987). States, F.Supp. in those kinds of engaged

Scott was question, so the time

activities 2680(h) inapplicable. §

proviso to 2680(h) in § have construing

Most cases the United question whether

volved negligent acts that liable for be

States to inten facilitated contributed

somehow wrongdoing that otherwise

tionally tortious See, exception. e.g., Sheri

falls within States, 108 S.Ct. dan v. United (1988). ease, In this

2449, 101 L.Ed.2d 352 Ac tort claims are asserted. intentional are barred

cordingly, those claims 2680(h).

§ Red Elk (8th Cir.1995), precedent for is not

F.3d 1102 government’s waiv

ignoring limit on the sovereign immunity set forth

er of 2680(h). opinion in Bed Elk never Our 2680(h), no because the mentions doubt &wkey;54(5) 1. Aliens raped the victim officers Bed Elk tribal violation, arresting for a curfew after her 2680(h) likely proviso §to

which made the Indeed, it is not clear from that

applicable.

opinion government was held whether torts or the agents’ intentional

hable its failure to train and

government’s negligent agents.

supervise those reasons, I foregoing would

For both of the

affirm. Petitioner, KAMARA,

Zainabu AND

UNITED STATES IMMIGRATION SERVICE,

NATURALIZATION

Respondent.

No. 97-3673. Appeals, States Court of

Eighth Circuit. April 1998.

Submitted July

Decided

Rehearing Denied Oct.

Case Details

Case Name: Lesa M. Primeaux, Formerly Known as Lesa M. Lamont, Formerly Known as Lisa M. Bad Wound v. United States

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jul 27, 1998

Citation: 149 F.3d 897

Docket Number: 97-2691

Court Abbreviation: 8th Cir.