Buus v. Stelzer et al

Filing 43

ORDER granting 32 Motion Petition for Certification of Scope of Employment Pursuant to 28 USC 2679(d)(3); denying 37 Motion to Dismiss for Lack of Jurisdiction. Signed by U.S. District Judge Lawrence L. Piersol on 3/30/2015. (JLS)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION

FILED
MAR 3 0 2015

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JESSICA BUUS and BRIAN IVERSON,
Plaintiffs,
vs.
RICHARD JACOB STELZER;
THE UNITED STATES OF AMERICA;
and THE UNITED STATES
DEPARTMENT OF THE ARMY,
Defendants.

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CIV 12-4173
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* MEMORANDUM OPINION
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AND ORDER
* GRANTING MOTION TO CERTIFY
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SCOPE OF EMPLOYMENT

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Defendant Richard Jacob Stelzer moves the Court, pursuant to 28 U.S.C. § 2679(d)(3), to
find and certify that he was acting within the scope ofhis employment at the time of a collision with
a motorcycle driven by Plaintiff Brian Iverson on which Plaintiff Jessica BullS was a passenger. For
the following reasons, the motion will be granted.

BACKGROUND
The facts are not in dispute. Stelzer is a resident ofPueblo, Colorado. He was a Departnlent
ofDefense Contractor and a member ofthe Army Reserve. He was in Sioux Falls, South Dakota for
truck driver training. Stelzer's orders stated that he was to report for active duty for a period of30
days beginning July 9, 2010. During his training, Stelzer stayed at an Army Regional Training
Institute (RTI) administered by the South Dakota National Guard located in Sioux Falls. The Army
provided three meals a day on site at the RTI. No extra, after-hours meals were provided. Stelzer
did not receive a stipend or per diem to eat at civilian establishments. Once training was finished each

day, students were released. TheRTIhadgovernment-ownedGeneraIServiceAdministration(GSA)
vehicles available for students' limited use. I

On Saturday, July 10, 2010, Stelzer participated in training during the day, after which he
received an evening meal at the R TI at approximately 4:00 p.rn. During the evening, Stelzer attended
a football game with some of the other students and then returned to the RTI. 2 Later that night,
another student in the course, Naomi Logan, asked Stelzer ifhe wanted to get something to eat and
he agreed. Logan signed out a GSA vehicle. They agreed to go to McDonald's and left around
10:00 or 10: 15 p.rn.

Stelzer drove because Logan was nervous about the inclement weather

conditions. At approximately 10:44 p.m. as Stelzer was leaving the McDonald's drive-through and
turning left onto Cliff Avenue on his way back to the RTI, they collided with the motorcycle driven
by Iverson. Plaintiffs allege that they suffered injuries and damages as a result ofthe collision. The
Department ofthe Army determined that Stelzer was not acting within the scope ofhis employment
at the time of the collision and denied Plaintiffs' administrative claims.

Plaintiffs filed this lawsuit against Stelzer and the United States, asserting jurisdiction for the
claims against the United States under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b),
2671, et seq., based on their assertion that Stelzer was acting in the scope of his employment with

the government at the time of the collision. Stelzer requested certification by the Attorney General
that he was acting within the scope of his employment, and the Attorney General declined
certification. (Doc. 38-4.) Stelzer now petitions this Court to certity, pursuant to 28 U.S.C.

§ 2679(d)(3), that he was acting within the scope ofhis employment at the time ofthe accident, and
to dismiss him from this case. The government asks the Court to decline certification and to dismiss

The "Official Use Policy" regarding use of GSA vehicles stated that the vehicles are "limited to
official purposes, which include transportation ... between places oftemporary lodging and between
suitable eating places ... and such similar places necessary for the sustenance, comfort, or health of
the employee to foster the efficient performance of government business." Kerkvliet Affidavit,
Exhtbit 3.
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2At his deposition Stelzer did not remember if he went to the football game that evening or a
different evening, but his sergeant testified that, on the night ofthe accident, Stelzer told him he went
to the game that evening. Stelzer depo. at 13, 15, 16; Bull depo. at 7-9, 15.

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the claims against the United States for lack ofsubject matter jurisdiction pursuant to Rule 12(b)( I)
of the Federal Rules of Civil Procedure.

Both Stelzer and his sergeant at the RTI testified in depositions that Stelzer was authorized
to use the GSA vehicle to drive to McDonald's, and that they believed the accident occurred during
Stelzer's "scope of duty" because Stelzer was in Sioux Falls to attend military training. Bull depo.
at 24-25; Stelzer depo. at 26, 30. Stelzer also testified that, once training was finished each day,
students were released. Stelzer depo. at 14. "That's your time then afterwards." ld.

DISCUSSION
Under the FTCA, the government is liable for the negligent conduct of an employee "while
acting within the scope ofhis office or employment" under circumstances where the United States,
"ifa private person, would be liable to the claimant in accordance with the law ofthe place where the
act or omission occurred." 28 U.S.C. § 1346(b)(l). Scope of employment issues are governed by
the law of the state where the accident occurred, which in this case is South Dakota. See St. John
v. United States, 240 F.3d 671,676 (8th Cir. 2001).

Under South Dakota law, "Generally, it is a question offact for the jury whether an intentional
tort is within the scope ofemployment. Bernie v. Catholic Diocese o/Sioux Falls, 821 N. W.2d 232,
239 (20 12) (diocese not liable under respondeat superior for intentional acts ofsexual abuse outside
scope of employment). Most respondeat superior cases from the South Dakota Supreme Court
involve attempts by third parties to impose liability upon an employer for injuries caused by an
employee's intentional torts. Although this case involves negligent conduct, the intentional tort cases
are instructive on the test for determining when an employee's acts are within the scope of
employment. See, e.g., Hass v. Wentzlaft, 816 N.W.2d 96 (S.D. 2012) (insurance agent's theft of
annuitant's funds); Kirlin v. Halverson, 758 N.W.2d 436,456 (S.D. 2008) (assault by contractor's
employee).

For example, in Hass v. Wentzlaft, 816 N.W.2d 96, 103 (S.D. 2012), the South Dakota
Supreme Court stated: "We apply a two-part test when analyzing vicarious liability claims. The fuct

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finder must first detennine whether the [act] was wholly motivated by the agent's personal interests
or whether the act had a dual purpose, that is, to serve the master and to further personal interests."
Although Hass involved an intentional tort, that distinction was not noted for the test used in Hass.

In the present case, the Court finds that Stelzer was acting at least partially out of intent to
serve his employer's purpose at the time ofthe accident, and thus he was acting with a dual purpose.
Going to get food in the evening under the facts of this case had a dual purpose because those on
duty were last fed at 4:00 P.M. and Stelzer was authorized to use a government vehicle in the manner
in which he used it, for his comfort (getting food) after what could be considered short rations. The
government did not provide fuod after 4:00 P.M. and eating was considered to be sufficiently
beneficial to the government that it provided Stelzer with a GSA vehicle to use in connection with
the activity.

If it is detennined that the employee had a dual purpose, the South Dakota Supreme Court
instructs that the second requirement for employer liability is foreseeability of the employee's
conduct. See, e.g., Deuchar v. Foland Ranch, Inc., 410 N.W.2d 177, 180 (S.D. 1987) (court holds
that fureseeability test applies to case involving non-intentional tort where employee had a dual
purpose). The Hass court stated, "If the act was for a dual purpose, the fact finder must then
consider the case presented and the factors relevant to the act's foreseeability in order to determine
whether a nexus of foreseeability existed between the agent's employment and the activity which
caused the injury." Hass, 816 N.W.2d at 103 (quoting Kirlin, 758 N.W.2d at 444). TheHass court
specifically recognized that Kirlin was an intentional use offorce case, and stated "but we find the
standard equally applicable to other acts by an agent," id. at 103 n.2, and went on to state ''we find
that the two-part test established by this Court inKirlin embodies both the employer's intent element
from the Restatement (Third) 0 f Agency § 7.07 and the foreseeability element from the Restatement
(Second) ofAgency §§ 228 and 229 and our vicarious liability precedent." Id. at 103 n.3.

Kirlin provides first for a detennination of whether the act was "wholly motivated by the
agent's personal interests or whether the act had a dual purpose.... " 758 N.W.2d at 447. Second:
"[i]fthe act was for a dual purpose, the fact finder must then consider the case presented and the

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factors relevant to the act's foreseeability in order to determine whether a nexus of foreseeability
existed between the agent's employment and the activity which actually caused the injury." Id. The
nexus offoreseeability does exist in this case because it is foreseeable that a car-motorcycle accident
could occur ifthose in training at the Army RTI are using government-owned vehicles to drive off
base to get meals and groceries.

As a part ofthat second test, the Kirlin court went on to state: "If such a nexus exists, the
fact finder must, finally, consider whether the conduct is so unusual or startling that it would be unfair
to include the loss caused by the injury among the costs ofthe employer's business." Id. The conduct
in the present case was not "so unusual or startling that it would be unfair to include the loss caused
by the injury among the costs ofthe employer's business." To the contrary, in the present case, the
employer could reasonably anticipate that Stelzer and other National Guard personnel similarly
situated would want to get some more food in the evening following a 4:00 P.M. feeding. The use
of the government vehicle was authorized for such a use. If the situation were not so clear, there
would be a question of fact, i~ for example a serviceman while authorized to use the vehicle
committed an intentional tort. 3 But the risk ofa traffic accident during Stelzer's trip to McDonald's
was a risk incidental to his employment with the government such that it would be fair to hold the
government liable under the foreseeability test for scope of employment.

Under South Dakota law, the inquiry in this case ends here and Stelzer was within the scope
of his employment for the United States and must be dismissed from this lawsuit over a negligence
claim arising from a motor vehicle accident. 4 Accordingly,

3Bernie, 821 N.W.2d 232, relies on Hass and Kirlin and does not alter the tests used in this
opinion. Each ofthose three cases demonstrate that there will usually be questions offact presented
in intentional tort cases. The present case is a negligence claim, not an intentional tort case. Some
negligence claims will also present factual issues for scope ofemployment, but the present case is not
one ofthose cases.
4The Court cautions that this holding does not mean that everyone on active military duty is within
the scope oftheir employment at all times for all acts. Cases such as this are fact specific.

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IT IS ORDERED:
1.

That the Defendant Richard Stelzer's Motion to CertifY Scope of
Employment, Doc. 32, is granted and Stelzer is dismissed from this
lawsuit.

2.

That the Motion of Defendants the United States Department of the
Army and the United States of America to Dismiss for Lack of
Jurisdiction, Doc. 37, is denied.

3.

That the parties will confer and file by April 10, 2015, ajoint status
report and proposed order reflecting a schedule for proceeding with
the case now that the scope of employment issue has been resolved.

Dated this 30th day of March, 2015.
BY THE COURT:

g(bU»l~ l~~
r; wrence L. Piersol
United States District Judge
ATTEST:
JOSEPH HAAS, CLERK

BY:~~~
(SE) .
DEPUTY

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