Sorace v. United States

• Decision Date: 27 May 2015
• Docket Number: No. 14–2683.,14–2683.
• Citation: 788 F.3d 758
• Parties: Norma SORACE, Administratix of the Estate of Melanie Sorace, deceased; Jahneva Cannaday, deceased; Guardian for Dominique Harris and Tamara Sorace, Plaintiff–Appellant v. UNITED STATES of America, Defendant–Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

788 F.3d 758

Norma SORACE, Administratix of the Estate of Melanie Sorace, deceased; Jahneva Cannaday, deceased; Guardian for Dominique Harris and Tamara Sorace, Plaintiff–Appellant

v.UNITED STATES of America, Defendant–Appellee.

No. 14–2683.

United States Court of Appeals, Eighth Circuit.

Submitted: March 12, 2015.

Filed: May 27, 2015.

Terry L. Pechota, Pechota Law Office, Rapid City, SD, argued, for appellant.

Kevin Koliner, Asst. U.S. Atty., Sioux Falls, SD, argued (Brendan V. Johnson, U.S. Atty., Sioux Falls, SD, Cheryl Schrempp DuPris, Asst. U.S. Atty., Pierre, SD, on the brief), for appellee.

Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,¹ District Judge.

Opinion

WHITE, District Judge.

Norma Sorace (“Sorace”), Administratix of the Estates of Melanie Sorace and Jahneva Cannaday, a minor, filed suit against the United States of America alleging a claim under the Federal Tort Claims Act (“FTCA”) based upon a drunk-driving accident on the Rosebud Sioux Indian Reservation in South Dakota. Melanie Sorace and Jahneva Cannaday were killed when an intoxicated Shad Dillon (“Dillon”) crashed his pickup into a vehicle driven by Melanie Sorace. Sorace alleges that the Rosebud Sioux Tribe's Police Department (“RST PD”) was negligent in failing to locate and arrest Dillon prior to the accident. The United States of America (“United States”) filed a motion to dismiss, which the district court² granted. Sorace appeals, and we affirm.

I.

On June 30, 2011, Dillon was driving on a highway running through Antelope, South Dakota. Dillon was intoxicated and speeding. Dillon's pick up truck struck Melanie Sorace's car as she proceeded through an intersection with the highway. Melanie Sorace and her daughter, Jahneva Cannaday, were killed, and two of Melanie Sorace's other children were injured. Dillon pleaded guilty to Involuntary Manslaughter in violation of 18 U.S.C. §§ 1153 and 1112 and was sentenced to 40 months in prison.

Sorace, as Administratix of Melanie Sorace and Jahneva Cannaday's estates and guardian of the injured children, filed a negligence claim under the FTCA against the United States. Sorace alleged that the RST PD was operating pursuant to a contract entered into under 25 U.S.C. § 450f, et seq.

Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), the United States filed a motion to dismiss Sorace's complaint. First, the United States argued that, under South Dakota law, no legally actionable duty of care was owed to Melanie Sorace and her children to control the misconduct of Dillon. The United States further argued that even if South Dakota's “special duty” exception to the public duty doctrine applied, Sorace failed to allege sufficient facts to state a claim upon which relief could be granted. In response, Sorace filed a memorandum with factual affidavits, but did not file a motion to amend the complaint or to convert the motion to one for summary judgment. The district court, assuming that the RST PD had actual knowledge of Dillon's dangerous driving, held that Sorace failed to allege sufficient facts suggesting a special relationship between the parties and dismissed Sorace's complaint for failure to state a claim.

II.

We review de novo the district court's dismissal of an action for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). O'Neil v. Simplicity, Inc., 574 F.3d 501, 503 (8th Cir.2009) (citing Briehl v. General Motors Corp., 172 F.3d 623, 627 (8th Cir.1999) ). We accept the factual allegations of the complaint as true, but the allegations must supply sufficient “facts to state a claim to relief that is plausible on its face.”Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

The FTCA waives the government's immunity in certain tort suits by providing that the “United States shall be liable [for torts] ... in the same manner and to the same extent as a private individual under like circumstances[.]” 28 U.S.C. § 2674. This provision is sometimes called the “private analogue” requirement. Barnes v. United States, 448 F.3d 1065, 1066 (8th Cir.2006). The determination of whether a private analogue exists is made in accordance with the law of the place where the relevant act or omission occurred. Id. (citing 28 U.S.C. § 1346(b)(1) ). Section 1346(b)'s reference to “law of the place” means the law of the State, not any tribal reservation, provides the source of substantive liability under the FTCA. LaFromboise v. Leavitt, 439 F.3d 792, 795 (8th Cir.2006). Therefore, we hold that the district court correctly determined Sorace had to demonstrate the existence of an actionable claim under South Dakota law to state a claim under the FTCA.

The district court outlined two choices under South Dakota law for the private analogue under the FTCA.³ The district court noted that where the alleged negligent act involves conduct peculiar to law enforcement, identifying the appropriate private analogue can be difficult. Under either the negligence standard for a private citizen or the public duty rule, Sorace failed to allege facts sufficient to state a claim for which relief should be granted.

For a private citizen, the analogue for an FTCA claim under South Dakota state law is a negligence claim, which requires proof of duty, breach of that duty, proximate and factual causation, and actual injury. Hewitt v. Felderman, 2013 S.D. 91, ¶ 16, 841 N.W.2d 258, 263. The existence of a duty in a negligence claim is a question of law. Kirlin v. Halverson, 2008 S.D. 107, ¶ 28, 758 N.W.2d 436, 448 (quoting State Auto Ins. v. B.N.C., 2005 S.D. 89, ¶ 20, 702 N.W.2d 379, 386 ).

Generally, South Dakota law imposes no affirmative duty to prevent the misconduct of third parties. Kirlin, 2008 S.D. 107, ¶ 30, 758 N.W.2d at 448 ; Walther v. KPKA Meadowlands Ltd. P'ship, 1998 S.D. 78, ¶ 17, 581 N.W.2d 527, 531. South Dakota, however, may find that a duty exists to prevent the misconduct of a third party, if the plaintiff shows (1) the existence of a special relationship between the parties, and (2) the third party's injurious act was foreseeable. Kirlin, 2008 S.D. 107, ¶ 31, 758 N.W.2d at 448–49. In the complaint, Sorace alleged that the RST PD was negligent for failing to stop Dillon's vehicle. Sorace failed to allege a special relationship as required for a negligence claim under South Dakota law. The district court properly dismissed Sorace's complaint for failure to state a claim for negligence.

Even if the Court does not apply the negligence standard for a private citizen, Sorace's complaint also failed to state a claim under the public duty rule. Under South Dakota law, the public duty rule “provides that the police owe a duty to the public at large and not to an individual or smaller class of individuals.” Walther, 1998 S.D. 78, ¶ 17, 581 N.W.2d at 531. South Dakota also has a “special duty” exception to the public-duty rule, which “recognizes that there may be some situations where it is found a duty is owed to a particular class of persons separate from that owed to the general public.”Walther, 1998 S.D. 78, ¶ 18, 581 N.W.2d at 532. The South Dakota Supreme Court adopted the following four-part test to determine whether a special duty exists: (1) actual knowledge of the dangerous condition; (2) reasonable reliance by persons on the state's representations and conduct; (3) an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole; and (4) failure by the state to use due care to avoid increasing the risk of harm. Tipton v. Town of Tabor (Tipton I), 538 N.W.2d 783, 787 (S.D.1995) (applying the test from Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806–07 (Minn.1979) ). Actual knowledge of a dangerous situation alone is insufficient to establish a special duty. Tipton v. Town of Tabor (Tipton II), 1997 S.D. 96, ¶ 28, 567 N.W.2d 351, 364.

The district court applied the four part test from Tipton I to determine whether the RST PD owed a “special duty” to Melanie Sorace and her children. The district court assumed for purposes of the motion to dismiss that the RST PD had actual knowledge of Dillon's drunk driving, but held that none of the other Tipton factors were present. We agree with the district court that Sorace did not allege and cannot allege any of the other Tipton factors.

First, Sorace has not alleged any reasonable reliance by Melanie Sorace. For reasonable reliance to have occurred, Sorace must have alleged that Melanie Sorace “depended on specific actions or representations” which caused her to “forgo other alternatives of protecting” herself. Tipton II, 1997 S.D. 96, ¶ 31, 567 N.W.2d at 364–65 (citations omitted). The complaint contains no allegation that Melanie Sorace relied on any statement from the RST PD, knew that Dillon was driving while intoxicated, or contacted the police prior to the accident. Instead, Sorace relies on allegations that third parties contacted the RST PD to report Dillon's behavior. Sorace maintains that the statements made to third parties constitutes reasonable reliance when the victims were damaged by the danger that was promised to be remedied. However, Sorace's reliance on statements made to third parties is misplaced. All of the assurances in the cited cases were made to the persons injured or to the minor victims' parents, not to third persons. See Champagne v. Spokane Humane Society, 47 Wash.App. 887, 737 P.2d 1279, 1284 (1987) (on the day before the attack, the Society assured the parent of the child later injured that the area would be patrolled); De Long v. Erie Cnty., 60 N.Y.2d 296, 469 N.Y.S.2d 611, 457 N.E.2d 717, 721 (1983) (emergency dispatcher told victim reporting burglary that police would come “right away”); Sorichetti by Sorichetti v. City of New York, 65 N.Y.2d 461, 492 N.Y.S.2d 591, 482 N.E.2d 70, 76 (1985) (police...