Primeaux v. U.S.

• Decision Date: 27 July 1998
• Docket Number: No. 97-2691,97-2691
• Citation: 149 F.3d 897
• Parties: Lesa M. PRIMEAUX, formerly known as Lesa M. Lamont, formerly known as Lisa M. Bad Wound, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 897

149 F.3d 897

Lesa M. PRIMEAUX, formerly known as Lesa M. Lamont, formerly known as Lisa M. Bad Wound, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

No. 97-2691.

United States Court of Appeals Eighth Circuit.

Submitted April 15, 1998.

Decided July 27, 1998.

Scott Duncan McGregor, Rapid City, SD, argued, for Plaintiff-Appellant.

Diana J. Ryan, Rapid City, SD, argued (Karen E. Schreier, United States Attorney, on the brief), for Defendant-Appellee.

Before LOKEN and LAY, Circuit Judges, and PRATT, ¹ District Judge.

LAY, Circuit Judge.

This matter arises out of a suit against the United States under the Federal Tort Claims Act (FTCA) seeking damages for sexual assault by a Bureau of Indian Affairs (BIA) police officer. This is the second time the case has been before this court. See Primeaux v. United States, 102 F.3d 1458 (8th Cir.1996) (Wollman J., dissenting).

At the time of the assault in November 1991, Lesa Primeaux, the victim, was a 21-year-old Native American whose car had become stuck in a snowbank on a rural South Dakota highway. ² The district court initially found Primeaux was walking toward the town of Martin on a cold night when Kenneth Scott, a BIA officer from the Rosebud Reservation, approached her in his police car. Scott was driving a white government vehicle with a police light bar on top under BIA authority outside the reservation. He was returning from a police training session in New Mexico. Scott offered to give Primeaux a ride, which she accepted. He subsequently drove off a side road, assaulted and raped her. This suit followed.

The district court originally denied vicarious liability on the ground that the police officer was not acting within the scope of his actual authority since he was outside his jurisdiction. App. at 259. The district court concluded that because the officer was not acting within his actual authority, there was not a sufficient nexus under state law to demonstrate the foreseeability of the assault. On appeal, this court found the district court had failed to consider the government's liability under the doctrine of apparent or ostensible authority. ³ Primeaux, 102 F.3d at 1462. We reversed and remanded to the district court. Id. at 1463.

On remand, the district court expressly considered the law of apparent authority, but once again found there was an insufficient nexus between the assault and the scope of the officer's either actual or apparent authority. Primeaux v. United States, No. 94-5048, slip op. at 9-10 (D. S.D. June 4, 1997). Primeaux once again appealed. She now argues that the findings of the district court are mixed questions of fact and law and that this court must review the district court's second decision de novo. The government on the other hand urges this court to apply the clearly erroneous standard. We find that although the district court discussed the doctrine of apparent authority, it nevertheless failed to properly apply this doctrine as set forth under South Dakota law. ⁴ In doing so, we find that the trial court erred as a matter of law.

I. Apparent Authority

Restatement (Second) of Agency ("Restatement") as adopted by the South Dakota Supreme Court requires that, in applying the rule of apparent authority, a court must view the agent's conduct through the eyes of the victim rather than from the agent's point of view. See Leafgreen, 393 N.W.2d at 280 ("Under section 261 and the theory of apparent authority, however, the agent's conduct is seen through the eyes of the third party."); see also American Soc. of Mechanical Engineers, Inc. v. Hydrolevel Corp., 456 U.S. 556, 566, 102 S.Ct. 1935, 72 L.Ed.2d 330 (1982) (quoting Restatement (Second) of Agency § 261, comment a, p. 571); Grease Monkey Int'l, Inc. v. Montoya, 904 P.2d 468, 475 (Colo.1995) (same); Freeman v. Royal Shield Entertainment, Inc., 411 So.2d 559, 561 (La.Ct.App.1982) ("One must look from the viewpoint of a third person to determine if apparent agency has been created."). Therefore, in this case, the inquiry should have been whether, from Primeaux's viewpoint, being approached by an officer whose police car lights are flashing would make a reasonable person believe that the officer was acting within the scope of his employment as a police officer.

The district court concluded that the officer had not exercised apparent authority partly because the court was not convinced the "police vehicle had anything to do with the assault which later takes place." Primeaux, No. 94-5048, slip op. at 10. The district court's analysis on this point slights the South Dakota law that requires ostensible authority to be viewed through the eyes of the third person. The undisputed facts show that, after the officer stopped his police car in the lane across from the victim, he turned on the red flashing police light bar on the top of his vehicle. Id. at 3. Furthermore, the victim stated it appeared to her that the officer was wearing a police jacket when he approached her. App. at p. 28. The victim's reliance on Officer Scott's display of his badge of authority, i.e., the red flashing lights, is rejected in part by the district court because the officer testified that he stopped to offer a ride as an individual and not as an officer. Id. at p. 134. The district court specifically found "that the officer was not purporting to act on behalf of the government by stopping, detaining or arresting plaintiff for any violation of law." Primeaux, No. 94-5048, slip op. at 8.

The difficulty we have with this analysis is that it ignores the objective, undisputed fact that the police lights were turned on when the officer approached the victim. The district court erroneously accepted, contrary to South Dakota law, the officer's stated intentions without consideration of the victim's reliance on the fact that the officer had turned on the flashing red lights of the police car. Viewing this evidence through the eyes of the victim, we deem it obvious that any ordinary citizen would believe under similar circumstances that an officer of the law had stopped to render assistance.

The fact that the victim was not arrested, involuntarily stopped or detained is barely relevant under these circumstances. An officer's duty is not limited solely to the arrest and apprehension of law violators. An officer of the law often displays his apparent or actual authority to offer assistance to citizens, especially those in distress. Any citizen, especially on a "dark, cold night in the middle of nowhere" would take more assurance in and place greater reliance on assistance offered by an officer of the law than by a complete stranger.

The district court also discounted Primeaux's stated reliance on Scott's apparent authority because it found her reliance lacked "credibility." The district court did not fault Primeaux's believability, ⁵ but rather found that she voluntarily accepted the ride "to escape the elements." But once again, this discussion fails to view the conduct of the officer through the eyes of the victim when he turned on his red police lights and specifically told her that he was a BIA police officer.

The district court also concluded that the events leading to the assault were not relevant because, it reasoned, the existence of apparent authority need be determined only at the time Primeaux voluntarily entered the officer's car. The district court concluded that after Primeaux got into Scott's police car, "there was little or no action she could have taken once she entered the vehicle." Primeaux, No. 94-5048, slip op. at 8. The district court therefore focused its analysis only "at the point plaintiff entered the front seat of the vehicle." Id. We find this to be an erroneous view of the law as well.

In evaluating the question of ostensible authority, the district court must review the totality of the events from the time the officer turned on his police car lights to the time of the assault. See McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 195 (S.D.1991) (whether an agent acted within the scope of apparent authority is to be determined from all the circumstances of the transaction); Dahl v. Sittner, 429 N.W.2d 458, 462 (S.D.1988) (same). The district court concluded that Primeaux submitted to the assault because of Scott's overpowering physical presence. However, this ignores Primeaux's statement that when Scott stopped and directed her to get out of the car, she believed he was a "cop." In considering the totality of circumstances, one cannot ignore the finding of the district court that:

[O]n a cold winter night in [the] middle of practically nowhere near the Indian reservation, and a person who appeared to be an officer, a person with a strong personality such as the Court observed, picking up a strange and submissive type of personality from the roadway, is an authoritative figure as must have been presented to her, leaves (sic) the Court to no other conclusion that he faced a situation--she faced a situation through the use of force, coercion, or threats with the apparent--with his overriding presence accompanied by an apparent power of execution.

App. at p. 252 (emphasis added). Based on the foregoing, we conclude that the district court failed to properly apply the principles of apparent or ostensible authority in accordance with South Dakota law.

II. Foreseeability

The district court found that because Scott was not acting within the scope of his apparent or actual authority, the assault was not foreseeable. As the South Dakota Supreme Court has acknowledged, the issue of foreseeability as to vicarious liability is distinct from the issue of foreseeability in negligence cases. ⁶ Here, the question is whether the agent's employment put him in a position of trust where harmful conduct to a third party would 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....