The Requirement of Scope of Employment Under the Federal Tort Claims Act . . . Where Is the Line? Scrutinizing Primeaux v. United States

• Publication year: 1998
• Citation: Vol. 33

33 Creighton L. Rev. 465. THE REQUIREMENT OF SCOPE OF EMPLOYMENT UNDER THE FEDERAL TORT CLAIMS ACT . . . WHERE IS THE LINE? SCRUTINIZING PRIMEAUX V. UNITED STATES

Creighton Law Review

Vol. 33

INTRODUCTION

The Federal Tort Claims Act ("FTCA"), Title 28 § 1346(b) of the United States Code,(fn1) was originally passed in 1946 to provide a means of compensation to the victims of wrongful acts committed by government employees.(fn2) The United States Court of Appeals for the Eighth Circuit has consistently held that the state doctrine of respondeat superior of the state where the alleged wrong took place applies when determining the government's liability under the FTCA.(fn3) However, recently the Eighth Circuit narrowed this holding and held that the government's liability is not based on the state doctrine of respondeat superior, but rather on the state doctrine of scope of employment.(fn4) The doctrine of respondeat superior, or vicarious liability, is an agency theory utilized to hold principals liable for the torts of their agents, whereas "scope of employment" is a means of imposing liability on a principal employer within the doctrine of respondeat superior.(fn5)

In Primeaux v. United States,(fn6) the United States Court of Appeals for the Eighth Circuit considered the respondeat superior doctrine of apparent authority and held that apparent authority is not within the realm of scope of employment for establishing FTCA liability.(fn7) The Eighth Circuit in Primeaux vacated the decision of an Eighth Circuit panel and affirmed the decision of the United States District Court for the District of South Dakota by a 6-5 en banc majority, denying the government's liability to a woman raped by a federal police officer acting under the apparent authority of the United States.(fn8) The majority found that Officer Michael Scott was not acting within the scope of his employment while returning home from a paid police training exercise.(fn9) The majority further found that apparent authority is not cognizable under the FTCA's scope of employment requirement and, thus, the panel's decision to hold the government liable for Scott's use of apparent authority was error.(fn10)

This Note will first review the holding of the United States Court of Appeals for the Eighth Circuit in Primeaux.(fn11) Next, this Note will analyze various decisions of the South Dakota Supreme Court, the United States Court of Appeals for the Eighth Circuit, and the United States Supreme Court in an effort to illustrate and define the elements of the doctrine of respondeat superior.(fn12) Finally, this Note will criticize the court in Primeaux for: 1) determining that Scott did not act within the scope of his employment; 2) misinterpreting case law and distinguishing between apparent authority and scope of employment under the doctrine of respondeat superior; and 3) narrowly interpreting and misapplying United States Supreme Court precedent in holding that government liability under the FTCA is limited to conduct within the scope of employment under state law, rather than the entire state law doctrine of respondeat superior.(fn13)

FACTS AND HOLDING

On November 9, 1991, Lesa M. Primeaux was driving her car west on United States Highway 18 outside of Martin, South Dakota.(fn14) At approximately 1:00 a.m., while attempting to turn her car around, Primeaux got stuck in a snowbank on the side of the road.(fn15) After Primeaux unsuccessfully tried to free her car from the snowbank, she got out of the car and began to walk back down the highway toward the town of Martin.(fn16)

At the same time Primeaux was walking to Martin, Kenneth Michael Scott, a police officer for the Bureau of Indian Affairs ("BIA") of the Rosebud Sioux Indian Reservation, was returning home from an official training seminar in Artesia, New Mexico.(fn17) Scott was driving down the same highway approaching Martin when he noticed Primeaux's car stuck in the snowbank.(fn18) After finding the car empty, Scott proceeded to drive toward Martin until he saw Primeaux walking along the side of the road.(fn19) Scott was returning from an official training session, receiving money for travel expenses and food, and receiving his usual salary.(fn20) Scott was wearing clothing that could reasonably be mistaken for a police uniform and driving a white, government vehicle equipped with a police light bar on the top.(fn21) He approached Primeaux with his red lights flashing and stopped to offer her a ride into town.(fn22) She accepted Scott's offer and got into the front seat of his police car.(fn23)

Scott drove a short distance toward Martin before he pulled off the highway onto a side road, apparently to go to the bathroom.(fn24) Primeaux had been drinking and was fearful that she might be arrested for drinking and driving, an offense that would send her to prison.(fn25) Scott then ordered Primeaux out of the vehicle and instructed her to follow his directions.(fn26) Primeaux was afraid of being sent to prison and, therefore, submitted to his order because he was a police officer.(fn27) Once out of the car, Scott grabbed her by the hair, unzipped and pulled down her jeans, and raped her.(fn28) Following the rape, Scott drove Primeaux back to her car and left her.(fn29) Subsequently, Primeaux brought an action in the United States District Court for the District of South Dakota against the United States of America.(fn30) Primeaux sought damages under the Federal Tort Claims Act ("FTCA"), alleging that Scott sexually assaulted her while acting within the scope of his employment.(fn31)

PRIMEAUX I

In the district court, the government took the position that the sexual act between Scott and Primeaux was consensual, and Scott testified that Primeaux was, in fact, the aggressor.(fn32) The district court determined that Scott sexually assaulted Primeaux, but that he was not acting within the "scope of his employment" as a BIA police officer and, thus, held that the United States was not liable under the FTCA.(fn33) The government did not appeal the district court's finding that Scott sexually assaulted Primeaux, but Primeaux appealed to the United States Court of Appeals for the Eighth Circuit regarding the government's FTCA liability.(fn34)

Primeaux argued that, despite the fact that Scott was not on official active duty at the time of the assault, Scott was still acting within the scope of his employment.(fn35) Primeaux contended that South Dakota law on scope of employment creates liability when there is a sufficient nexus between the employment and the employee's conduct, making the act foreseeable.(fn36) Primeaux further contended that under South Dakota law, it was foreseeable that Scott could use his position of authority to engage in sexual misconduct.(fn37) Thus, Primeaux asserted that when Scott used his authority as a police officer to lure Primeaux into his car to intimidate and rape her, Scott was acting within the scope of his employment.(fn38)

Judge Donald P. Lay, writing for the majority, stated that the district court failed to fully apply the test for liability under South Dakota respondeat superior law.(fn39) The court stated that by failing to look at the doctrine of "apparent authority," the district court did not fully determine the foreseeability of Scott's actions within his scope of employment.(fn40) The court looked to the Restatement (Second) of Agency section 219(2)(d), which states that a master is liable for the torts of his agent if the agent is purporting to act with apparent authority, or if he is aided in accomplishing the tort through the help of the agency relationship.(fn41) The court reasoned that in a case of first impression such as this, the law of South Dakota is guided in part by the Restatement, and the district court's failure to address the issue of Scott's use of apparent authority was error.(fn42) The Eighth Circuit remanded the case to the district court for further factual determinations regarding the application of the doctrine of apparent authority to the facts of this case.(fn43)

Judge Roger L. Wollman, in dissenting, contended that the district court looked at Scott's actions and found that his use of apparent authority was not within the scope of his employment.(fn44) The dissent reasoned that the district court made a factual determination as to Scott's use of apparent authority when it found that Primeaux yielded to him out of "fear and intimidation" emanating from his authority as a BIA police officer.(fn45) Further, the dissent stated that the district court implicitly found Scott's use of apparent authority to be outside the scope of his employment, and that it was unforeseeable that he would use his authority to commit the alleged acts.(fn46)

On remand, the United States District Court for the District of South Dakota explicitly considered Scott's use of apparent authority, once again ruling in favor of the United States.(fn47) The district court held that there was an insufficient nexus between the scope of Scott's apparent authority and his assault of Primeaux.(fn48) Again, Primeaux appealed the district court's ruling to the United States Court of Appeals for the Eighth Circuit, arguing that the district court erred in holding that Scott was not acting with apparent authority.(fn49)

PRIMEAUX II

Primeaux argued that the district court erroneously concluded that Scott was acting...