Two Elk White et al v. United States of America
Filing
49
ORDER adopting in part and modifying in part 43 Report and Recommendation; granting in part and denying in part 47 Objection to Report and Recommendation; overruling 48 Objection to Report and Recommendation; denying and reserving 23 Motion. Signed by Chief Judge Jeffrey L. Viken on 9/24/14. (SB)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
LAVONNE REYNOLDS WHITE,
Individually and as Special
Administratrix for the Estate of
INEZ TWO ELK WHITE,
Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
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CIV. 11-5058-JLV
ORDER
Pending before the court is the government’s motion for dismissal or for
summary judgment.1 (Docket 23). The court referred the motions to
Magistrate Judge Veronica L. Duffy for a report and recommendation. (Docket
38). On April 25, 2014, Magistrate Judge Duffy filed a report recommending
the court deny the government’s motion to dismiss based on a lack of subject
matter jurisdiction but grant the government’s motion for summary judgment
based on plaintiffs’ failure to show any evidence of damages. (Docket 43). This
court granted the parties additional time to submit objections to the magistrate
judge’s report and recommendation. (Docket 46). The parties timely filed
objections. (Dockets 47, 48). The court reviews de novo those portions of the
report and recommendation which are the subject of objections. 28 U.S.C.
§ 636(b)(1); Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990). The court
1Except
when referencing depositions, the court cites to the electronicfiling page number when referring to the record.
may then “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
For the reasons stated below, the government’s objections are overruled
and plaintiffs’ objections are sustained in part and overruled in part. The court
adopts the report and recommendation of the magistrate judge as modified
herein, and grants plaintiffs ninety (90) days to demonstrate their injuries were
increased by the tribal officers’ seven-hour delay in discovering them.
A.
MAGISTRATE JUDGE’S FINDINGS OF FACT
The government seeks to clarify that the Oglala Sioux Tribe Public Safety
Commission (“OSTPSC”) was first notified of Melissa Pattersen’s accident at
1:29 a.m. Mountain Standard Time (“MST”) (Docket 25-3 at p. 7) rather than
sometime “[b]etween 12:30 a.m. and 1:30 a.m. on July 5, 2008,” as the
magistrate judge found. (Docket 43 at p. 3). Although the exact time that the
Pattersen accident was reported to the OSTPSC tribal dispatch was within the
time range provided by the magistrate judge, the court modifies the magistrate
judge’s report and recommendation to reflect that OSTPSC tribal dispatch first
received notification of the Pattersen car accident at 1:29 a.m. MST.
The government’s further objections to the magistrate judge’s factual
findings center on providing additional testimony attesting to the difficulty that
one might have in viewing plaintiffs’ (“Whites’ ”) car from the highway. The
2
government’s clarification that Officer Romero’s second visit to the scene was to
take photographs documenting the Pattersen accident is in agreement with the
magistrate judge’s factual findings. See Docket 43 at p. 3.
B.
MAGISTRATE JUDGE’S CONCLUSIONS OF LAW
The government asserts the magistrate judge erred in finding:
1.
The Whites’ administrative claim fairly apprised the OSTPSC of
their injury in satisfaction of the presentment requirement for
claims brought under the Federal Tort Claims Act (“FTCA”).
2.
The tribal officers would be liable under South Dakota state law in
accordance with the private person analogue; and
3.
That South Dakota’s public duty doctrine is inapplicable to the
Whites’ claim.
(Docket 48).
Plaintiffs assert the magistrate judge erred in finding:
1.
The plaintiffs have adduced no evidence that they suffered
damages as a result of the tribal officers’ delay in discovering them.
(Docket 47 at pp. 1-2).
C.
DEFENDANT’S OBJECTIONS
1.
Compliance with the Presentment Requirement of the Federal
Tort Claims Act
The government objects to the magistrate judge’s determination that the
Whites have satisfied the presentment requirement of the FTCA on largely the
same grounds it argued in support of its motion to dismiss. Compare Docket
3
42 at pp. 1-5, with Docket 48 at pp. 2-5. Notably, the government does not
object to the magistrate judge’s analysis of the law—only that it reaches a
different conclusion from the facts of this case.
To the extent the government’s objections mirror the arguments made in
support of its Fed. R. Civ. P. (“Rule”) 12(b)(1) motion to dismiss for lack of
subject matter jurisdiction, the court is not persuaded and adopts the law as
applied by the magistrate judge. See Docket 43 at pp. 6-15. A plaintiff’s
administrative claim need only “fairly apprise[] the government of the facts
leading to the claimant’s injury . . . new theories of why those facts constitute
tortious conduct can be included in a federal court complaint.” FGS
Constructors, Inc. v. Carlow, 823 F. Supp. 1508, 1513 (D.S.D. 1993), aff’d in
part, rev’d on other grounds, 64 F.3d 1230 (8th Cir. 1995) (The United States
Court of Appeals for the Eighth Circuit affirmed the district court’s ruling
regarding the plaintiff’s FTCA suit against the United States.); see also Mader v.
United States, 654 F.3d 794, 801 (8th Cir. 2011) (The FTCA’s presentment
requirement “provides federal agencies a fair opportunity to meaningfully
consider, ascertain, adjust, determine, compromise, deny, or settle FTCA
claims prior to suit.”). Moreover, district courts are to “ ‘liberally construe an
administrative charge for exhaustion of remedies purposes.’ ” Allen v. United
4
States, 590 F.3d 541, 544 (8th Cir. 2009) (quoting Parisi v. Boeing Co., 400
F.3d 583, 585 (8th Cir. 2005)) (further citations omitted).
Here, it is clear that the Whites’ administrative claim fairly apprised the
United States Department of the Interior (“Department”) of the facts leading to
the Whites’ injury, namely that the tribal police were present at the scene of the
Whites’ accident and nonetheless failed to discover them as they lay
unconscious in their nearby car. Moreover, the Whites’ administrative claim
provided sufficient information to allow the Department to meaningfully
investigate, consider, and determine the status of the Whites’ claim. Each of
the government’s specific objections to this finding is addressed in turn.
a.
The Temporal Proximity of the Pattersen Accident
The government first disputes the Whites’ administrative claim fairly
apprised the Department that the Whites’ accident was so “close in time” to the
Pattersen accident that the Department would have known to consider it in its
examination of the Whites’ claim. The court finds the language used in the
Whites’ administrative claim not to be the “lengthy and indefinite window of
time” the government characterizes it as, whereby an adequate investigation of
the Whites’ claim would be impossible.2 See Docket 48 at p. 3. At most, all
“In the late evening hours of 7/4/08 or early morning hours of 7/05/08”
and between “11 p.m. to 1 a.m.” (Dockets 25-1 at p. 1, 25-2 at p. 1).
2
5
that was required of the Department was to investigate the OSTPSC’s tribal
dispatch records for the night of July 4, 2008, and the morning of July 5,
2008—dispatch records that the OSTPSC possessed. (Docket 43 at p. 15).
Even a cursory review of those dispatch records reveals there was
another car accident also involving cattle along the same stretch of highway at
approximately 1:30 a.m. on July 5, 2008—only thirty minutes beyond the time
frame the Whites alleged their own accident occurred. Compare Dockets 25-1,
25-2, with Docket 25-3 at p. 7. Moreover, the Department had the benefit of
hindsight and all of the OSTPSC’s tribal dispatch records available to it when
investigating the Whites’ administrative claim. See Docket 48 at p. 3. The
court finds the Whites’ administrative claim presented sufficient facts to fairly
apprise the Department of the facts leading to the Whites’ alleged injuries. The
government’s objection that the Whites’ administrative claim failed to fairly
apprise the Department of the facts leading to the Whites’ alleged injuries is
overruled.
b.
The Naming of Tribal Officers in the Administrative
Claim
The court disagrees with the government’s objection that the Whites
naming of Officer Romero in their claim adds nothing to apprise the
Department of the Pattersen accident. The Whites did not provide an extensive
“laundry list” of tribal officers who responded to the accident scene. (Docket 48
6
at p. 3). Rather, the Whites’ administrative claim named only four officers,
including Officer Romero, who in fact responded twice to the Pattersen/White
accident scene. See Dockets 25-1 at p. 1, 25-2 at p. 1, 43 at p. 15. The
Whites’ claim fairly apprised the Department that those four officers should be
consulted in investigating and examining the merits of the Whites’
administrative claim. Again, the OSTPSC possessed the incident reports
indicating Officer Romero had investigated a similar accident, on the same
stretch of highway, on the same date, at approximately the same time. The
court finds that the Whites’ identification of specific officers provides further
support that the Department was fairly apprised of the facts leading to the
Whites’ alleged injuries.
c.
The Current State of the Whites’ Claim
The government alleges the Whites’ claim currently before the court on
its motion for summary judgment is not the claim that was contained in either
the Whites’ administrative claim or their federal complaint, and the court is
without jurisdiction to adjudicate the complaint. (Docket 48 at pp. 4-5). The
government contends the Whites are attempting to retool their original claim in
an effort to avoid summary judgment. Id. at 4. The government argues it was
not fairly apprised of the facts surrounding the Whites’ new claim that the
7
tribal officers were negligent in investigating the scene of the Pattersen
accident. Id. at 5. The government’s objection misses the mark.
The court agrees with the magistrate judge’s finding that the main thrust
of the Whites’ administrative claim is “tribal police were present at the scene of
their accident and, through their [the tribal police’s] negligence, failed to
discover the Whites as they lay unconscious in their vehicle nearby.” (Docket
43 at p. 14). The court also agrees with the magistrate judge that for purposes
of apprising the Department of the facts leading to their injury, the Whites need
not specify whether the tribal officers were present at the scene of the accident
due to a report of the Whites’ accident or due to a report of the Pattersen
accident. (Docket 43 at p. 14). Under either circumstance, the tribal officers
were present at the scene and they failed to discover the Whites, which is
alleged in both the administrative claim and the federal complaint.
When investigating and analyzing the Whites’ administrative claim, the
Department had sufficient information indicating tribal officers were present at
the scene of the Whites’ accident and those officers nonetheless failed to
discover them. This information in conjunction with the close temporal and
geographic proximity of the White and Pattersen accidents, the cattle-related
nature of the accidents, and the named investigating officers “provide[d] the
federal agenc[y] a fair opportunity to meaningfully consider, ascertain, adjust,
8
determine, compromise, deny, or settle” the Whites’ claim. Mader, 654 F.3d at
801. The Whites’ subsequent clarification of the facts supporting their theory
of negligence after further discovery does not indicate the Department was
unaware or hamstrung in its ability to investigate the facts leading to the
Whites’ alleged injury. See FGS Constructors, Inc., 823 F. Supp. at 1513. The
court finds the Whites’ administrative claim fairly apprised the Department of
the facts leading to their alleged injury. The government’s objection that the
Whites failed to satisfy the FTCA’s presentment requirement is overruled.
Contrary to the assertions of the government, the Whites have not
amended nor attempted to amend their original federal complaint in their brief
resisting summary judgment. (Docket 48 at p. 4). The court concludes the
magistrate judge’s quote, “the Whites’ claim now rests on the allegation that
the OSTPSC officers were negligent in responding to the Pattersen accident”
was made in reference to whether any facts were in dispute for purposes of
deciding the government’s Rule 12(b)(1) motion to dismiss. (Docket 43 at p. 9)
(emphasis added) see also Docket 48 at p. 4. As the magistrate judge noted, a
Rule 12(b)(1) motion to dismiss “can be decided in three ways: at the pleading
stage, like a Rule 12(b)(6) motion; on undisputed facts, like a summary
judgment motion; and on disputed facts.” Jessie v. Potter, 516 F.3d 709, 712
(8th Cir. 2008) (citing Osborn v. United States, 918 F.2d 724, 728-30 (8th Cir.
9
1990)). By determining the operative facts were no longer in dispute, the
magistrate judge was able to analyze the government’s Rule 12(b)(1) motion as
a motion for summary judgment without the need to hold an evidentiary
hearing.
Refining the factual issues in dispute for trial is often a primary purpose
in briefing a motion for summary judgment. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-52 (1986). Clarifying factual issues is distinguishable from
a party attempting to “unilaterally dismiss or withdraw his federal claims in a
memorandum in opposition to a motion for summary judgment so as to strip
the court of its jurisdiction” as alleged by the government. Thomas v. United
Steelworkers Local 1938, 743 F.3d 1134, 1140 (8th Cir. 2014); see also Docket
48 at p. 4 n.2.
The genesis of the Whites’ claim has been and continues to be that tribal
officers were present at the scene of their accident—whether due to a report of
their own accident or the Pattersen accident—and nonetheless negligently
failed to discover them as they lay unconscious in their nearby vehicle. The
government’s objection that the Whites are attempting to amend their
complaint is overruled. The court finds the magistrate judge properly denied
the government’s Rule 12(b)(1) motion to dismiss.
10
2.
Private Person Analogue Duty of Care
The government objects to the magistrate judge’s finding that the
plaintiffs have established the tribal officers would be liable under South
Dakota state law. These objections are overruled. For the reasons set forth
below, the court adopts the magistrate judge’s determination that Officer
Romero owed the Whites a duty of care under the private person analogue, and
the court agrees a reasonable jury might conclude that Officer Romero
breached that duty by failing to discover the Whites’ car.
Under the FTCA, the government “shall be liable . . . in the same manner
and to the same extent as a private individual under like circumstances.”
28 U.S.C. § 2674. In United States v. Olson, the Supreme Court held the
private person analogue requires courts to “look to the state-law liability of
private entities, not to that of public entities, when assessing the Government’s
liability under the FTCA ‘in the performance of activities which private persons
do not perform.’ ” United States v. Olson, 546 U.S. 43, 46 (2005) (quoting
Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955)). As the magistrate
judge noted, “ ‘like circumstances’ do not mean identical circumstances and
. . . courts must ‘look further afield’ in determining whether state law would
hold a private person liable under like circumstances.” (Docket 43 at p. 28)
(quoting Olson, 546 U.S. at 46). The appropriate inquiry under the private
11
person analogue is not whether a private person is actually able to perform a
given act, but rather, if that person was allowed to but breached his duty of
care in so doing, would he be liable under local law. See Docket 43 at p. 26
(citing Indian Towing Co. v. United States, 350 U.S. 61, 66-67 (1955).
As the magistrate judge indicated, the government is liable “under
circumstances where . . . a private person[] would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.”
28 U.S.C. § 1346(b)(1). In this case, where the alleged negligent act occurred
on an Indian reservation, the Eighth Circuit held “where an act or omission
occurs within the territorial boundaries of both a tribal reservation and a State,
‘the law of the place’ for purposes of the FTCA is the law of the State.”
LaFromboise v. Leavitt, 439 F.3d 792, 796 (8th Cir. 2006). Therefore,
“[b]ecause the facts alleged by Ms. White in support of her claim took place in
South Dakota, it is the law of the state of South Dakota that applies to
determine whether the government may be held liable.” (Docket 43 at pp. 1718) (citing Owen v. United States, 645 F. Supp. 2d 806, 826 (D.S.D. 2009)
(citing LaFromboise, 439 F.3d at 794)).
Under South Dakota law, “ ‘[i]n order to prevail in a suit based on
negligence, a plaintiff must prove duty, breach of that duty, proximate and
factual causation, and actual injury.’ ” Hendrix v. Schulte, 736 N.W.2d 845,
12
847 (S.D. 2007) (quoting Fisher Sand & Gravel Co. v. S.D. Dep’t of Transp., 558
N.W.2d 864, 867 (S.D. 1997)). The existence of a duty is usually a question of
law to be determined by the court. Id. at ¶ 8 (citing Erickson v. Lavielle, 368
N.W.2d 624 (S.D. 1985)). “A duty can be created by either statue or common
law.” Id. (citing Kuehl v. Horner Lumber Co., 678 N.W.2d 809 (S.D. 2004).
The South Dakota legislature passed a “Good Samaritan” statute
shielding a potential rescuer from civil liability stemming from a rescue
attempt.
No peace officer, conservation officer, member of any fire
department, police department and their first aid, rescue or
emergency squad, or any citizen acting as such as a volunteer, or
any other person is liable for any civil damages as a result of their
acts of commission or omission arising out of and in the course of
their rendering in good faith, any emergency care and services
during an emergency which is in their judgment indicated and
necessary at the time. Such relief from liability for civil damages
extends to the operation of any motor vehicle in connection with
any such care or services.
Nothing in this section grants any relief to any person causing any
damage by his willful, wanton or reckless act of commission or
omission.
SDCL § 20-9-4.1 (2014); see also In re Certification of Question of Law, 779
N.W.2d 158, 163 (S.D. 2010) (interpreting the meaning of rendering emergency
care or services to include those actions taken by a rescuer prior to actually
taking affirmative life-saving action and extending a rescuer’s civil suit
immunity to include claims made by third-party bystanders).
13
With respect to this case, Officer Romero is clearly within South Dakota’s
Good Samaritan statute for his actions taken during his 1:30 a.m. visit to the
accident scene on July 5, 2008. Officer Romero was responding to an
emergency situation (Ms. Pattersen’s accident) and is shielded from civil
liability from all third-party bystanders, including the Whites. SDCL § 20-94.1; see also In re Certification of Question of Law, 779 N.W.2d at 163; (Docket
43 at p. 28). However, whether Officer Romero owed the Whites a duty of care
during his 4:30 a.m. return visit to the accident scene to further investigate
and document the scene of the Pattersen accident requires separate analysis.
a.
General Duty of Care
“In negligence law, ‘duty’ is simply ‘an expression of the sum total of
those considerations of policy which lead the law to say that the particular
plaintiff is entitled to protection.’ ” Sullivan v. City of Sacramento, 235 Cal.
Rptr. 844, 846 (Cal. Ct. App. 1987) (quoting Prosser & Keeton on Torts § 53, p.
358 (5th ed. 1984)); see also Tipton v. Town of Tabor, 567 N.W.2d 351, 357
(S.D. 1997) (“A duty, in negligence cases, may be defined as an obligation, to
which the law will give recognition and effect, to conform to a particular
standard of conduct to another.”). As a general rule, courts should look to the
following factors to determine if a duty of care exists:
Foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connections
14
between the defendant’s conduct and the injury suffered, the moral
blame attached to the defendant’s conduct, the policy of preventing
future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise
care with resulting liability for breach and the availability, cost,
and prevalence of insurance for the risk involved.
Sullivan, 235 Cal. Rptr. At 846 (quoting Davidson v. City of Westminster,
649 P.2d 894, 897 (Cal. 1982)). Furthermore, as Chief Justice Cardozo
held in the tort law hornbook staple of Palsgraf v. Long Island R.R. Co.,
“[t]he risk . . . to be perceived defines the duty to be obeyed, and risk
imports relation; it is risk to another or to others within the range of
apprehension.” 162 N.E. 99, 100 (N.Y. 1928).
Under South Dakota law, “[a] noncontractual duty may be imposed by
common law, statute, implication or operation of law, public policy, or from a
failure to exercise that care which a reasonable person would exercise under
like circumstances.” F & M Agency v. Dornbush, 402 N.W.2d 353, 356–57
(S.D. 1987) (citing 65 C.J.S. Negligence § 4(7) (1966); Restatement (Second) of
Torts § 285 (1965); Albers v. Ottenbacher, 116 N.W.2d 529, 531 (S.D. 1962)).
The South Dakota Supreme Court has instructed its “trial courts to use the
legal concept of foreseeability to determine whether a duty exists.” Mid-W.
Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (1993).
In the context of the duty of care owed by a professional, the Mid-Western
Electric Court noted that “ ‘the extent of [defendant’s] duty may best be defined
15
by reference to the foreseeability [sic] of injury consequent upon breach of that
duty.’ ” Id. (quoting A.R. Moyer, Inc. v. Graham, 285 So.2d 397, 400 (Fla.
1973)) (further citations omitted).
As the magistrate judge noted, the Supreme Court’s decision in Olson
reiterated its holding in Indian Towing that courts must look “further afield” in
determining whether a private person would be held liable under local law for
purposes of the FTCA and in reaching this determination, “like circumstances”
do not mean “identical circumstances.” (Docket 43 at p. 28); see also Olson,
546 U.S. at 46; Indian Towing Co., 350 U.S. at 64. Although the court must
look to South Dakota law to determine liability under the private person
analogue, the Eighth Circuit and this district have previously approved the
consideration of other reliable materials and standards to help the court reach
“the most just and reasoned analysis.” Hurst v. United States, 739 F. Supp.
1377, 1381 (D.S.D. 1990) (quoting Passwaters v. Gen. Motors Corp., 454 F.2d
1270, 1278 (8th Cir. 1972)) (“[W]hen a federal court is faced with the problem
of determining state law without decisions of the state directly controlling, the
court may be guided by the law which in its opinion provided the most just and
reasoned analysis.”).
In any car accident, it is foreseeable that multiple parties may be injured
by the same, ongoing dangerous condition on a public thoroughfare. It is also
16
foreseeable that a cursory or insufficient investigation and inspection of an
accident scene would fail to discover all persons injured as a result of the
dangerous condition. Here, where a fence was broken, multiple cows or cow
carcasses were present on the highway, and there were visible skid marks on
the highway and the Zimiga approach, the foreseeability of an undiscovered
accident victim increases significantly. See infra Part C.2.b. While it is clear
that Officer Romero was under no obligation to return to the scene of the
Pattersen/White accident to continue his investigation and documentation,
once he did so he was under an obligation “to exercise that care which a
reasonable person would exercise under like circumstances.” F & M Agency,
402 N.W.2d at 356–57.
b.
Duty of Care Owed to a Third Party
In addition to imposing a general duty to exercise reasonable care, the
South Dakota Supreme Court observed that “ ‘one who assumes to act, even
though gratuitously, may thereby become subject to the duty of acting
carefully, if he acts at all.’ ” McGuire v. Curry, 766 N.W.2d 501, 506 (S.D.
2009) (quoting Hoekman v. Nelson, 614 N.W.2d 821, 825 (S.D. 2000)). The
South Dakota Supreme Court also adopted section 324A of the Restatement
(Second) of Torts which imposes liability on:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for the
17
protection of a third person or his things, is subject to liability to
the third person for physical harm resulting from his failure to
exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such
harm, or
(b) he has undertaken to perform a duty owed by the other to the
third person, or
(c) the harm is suffered because of reliance of the other or the third
person upon the undertaking.
Schoenwald v. Farmers Co-op. Ass'n of Marion, 474 N.W.2d 519, 521 (S.D.
1991) (citing Restatement (Second) of Torts § 324A (1965); see also Cuppy v.
Bunch, 214 N.W.2d 786 (1974) (adopting section 324A of the Restatement
(Second) of Torts).
The circumstances existing at the time of Officer Romero’s 4:30 a.m.
daylight visit included a broken fence, at least two dead cows in distinct
locations, and substantial skid marks on the highway and Zimiga approach.
(Docket 25-7). Moreover, Officer Romero testified that Ms. Pattersen’s car came
to rest on or near the Zimiga approach approximately eighty feet from the point
of impact on the highway. (Dockets 25-8 at p. 12, 48 at p. 2). Herbert Zimiga
testified there were marks on the highway and the approach where Ms. White
applied her brakes before her car ultimately settled further downhill in the
ravine. See Docket 25-7 at pp. 21-22). The Whites’ car ultimately traveled 100
yards from the point of impact on the highway. (Docket 25-3 at p. 2). The
18
distance between the Whites’ car and Ms. Pattersen’s car would be
approximately seventy-five yards.
Herbert Zimiga also testified his brother, Robert Zimiga, informed him
there was a new, unidentified car in the ravine that he (Robert) was able to view
from the highway because he did not “get out and go down and look” into the
Whites’ car.3 (Docket 25-7 at pp. 19-20). Finally, Officer Romero’s testimony
implies the presence of a not-insignificant number of plastic shards present at
the accident scene that did not match the coloring of Ms. Pattersen’s car. See
Docket 25-8 at p. 21.4
Although the court can find no South Dakota case law directly
controlling and factually similar to this case, the court, in looking further
afield to determine whether a private person would be liable under like
circumstances, concludes that Officer Romero undertook to render services to
Ms. Pattersen when he returned to the accident scene to continue his
3Herbert
Zimiga may have been informed of the location of the Whites’
car by Robert prior to his morning walk and used this knowledge to help locate
the car. See Docket 25-7 at pp. 19-20). At the very least, Herbert Zimiga’s
testimony introduces evidence that at least one passerby (Robert) without
knowledge of the car was able to view the Whites’ car from the highway, despite
not having investigated and photographed the accident scene as did Officer
Romero.
After initially testifying that “pretty much all” of the plastic shards at the
accident scene matched the “goldish or tannish color” of Ms. Pattersen’s car,
Officer Romero reconsidered and stated that only a “majority” of the plastic
shards he saw matched that color.
4
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investigation of the site. Officer Romero failed to recognize physical evidence
indicating that his investigation of the accident scene also was necessary for
the protection of undiscovered accident victims. Officer Romero’s failure to
exercise reasonable care while performing his investigation and documentation
of the accident scene increased the risk that the Whites would remain
undiscovered and suffer further injury as a result of their delayed access to
medical care, triggering a duty of reasonable care under the first prong of
section 324A.
The risk of injury to the Whites was increased by their immobilized and
incapacitated state. “Immobilized accident victims are in precarious positions
and are completely dependent on the skill and care of investigating officers and
rescue personnel for their lives and safety.” Drake v. Drake, 618 N.W.2d 650,
658–59 (Neb. 2000).5 The Nebraska Supreme Court held that “[a] seriously
injured and undiscovered victim of an automobile accident is foreseeably
endangered by an unreasonable accident investigation.” Id. at 659.
In Drake, a husband and wife were in a car accident and although the
husband was discovered and transported via ambulance to a hospital, the
5Although
Drake represents only persuasive authority, the analysis
applied by the Nebraska Supreme Court in determining whether defendants
owed the plaintiff a duty of care is applicable here where there is no South
Dakota case law directly on point to help the court reach the “most just and
reasoned analysis.”
20
immobilized wife was not found despite lying only twenty feet away. Id. at 655.
Emergency personnel eventually found Mrs. Drake approximately thirty
minutes later, but the second ambulance had already been sent away. Id. The
ambulance returned to the scene and picked up Mrs. Drake approximately one
hour later. Id. Mrs. Drake suffered an “anoxic/hypoxic brain injury with
associated complications.” Id. (quotation marks omitted). The Nebraska
Supreme Court held that certain rescue personnel owed Mrs. Drake a duty of
care “in conducting the accident investigation,” and were required “to conform
to the legal standard of reasonable conduct in light of the apparent risk.” Id. at
659.
Here, the Whites also were incapacitated, immobilized and unable to
signal emergency personnel. They were wholly dependent on the level of care
exercised by Officer Romero in investigating the Pattersen accident scene. The
site of the Whites’ accident was virtually coextensive with the scene of Ms.
Pattersen’s accident. Perhaps only seventy-five yards separated the two cars.
Physical evidence indicated the presence of additional car accident victims
through on- and off-highway skid marks, a broken fence, the presence of nonmatching plastic shards not the color of Ms. Pattersen’s car. Officer Romero
could see all these things during daylight hours. Based on the facts and
circumstances existing at the time of Officer Romero’s 4:30 a.m. investigation,
21
it is apparent that the presence of additional car accident victims was
foreseeable. Officer Romero should have recognized through his investigation
and documentation of the Pattersen accident that undiscovered accident
victims also were present at the scene. Furthermore, the Whites bore a high
risk of increased injury stemming from Officer Romero’s failure to exercise
reasonable care during his investigation and documentation of the accident
scene.
The court finds Officer Romero owed the Whites a duty of reasonable
care when investigating the Pattersen/White accident scene. The government’s
objections with regard to whether a duty of care arose under the private person
analogue are overruled.
3.
Inapplicability of South Dakota’s Public Duty Doctrine
The government objects to the magistrate judge’s finding that South
Dakota’s public duty doctrine is inapplicable to the facts of this case. For the
reasons set forth below, the court adopts the magistrate judge’s determination
that South Dakota’s public duty doctrine is inapplicable to the facts of this
case.
The government argues that the facts of this case are not akin to Walther
v. KPKA Meadowlands Ltd. P’ship, 581 N.W.2d 527 (S.D. 1998), because
Officer Romero was not responding to the Whites’ accident but rather to
22
Ms. Pattersen’s accident and because he claims to have had no knowledge of
the Whites’ accident. (Docket 48 at p. 8). The government alleges the Whites
must establish that the OSTPSC owed them a special duty of care—a burden
the government asserts they failed to satisfy. Id.
Plaintiff Walther was assaulted by her boyfriend. Walther, 581 N.W.2d at
530. The responding law enforcement officer saw Walther lying in a pool of
blood, and, believing Walther to be dead, shut the apartment door, called for
assistance and specifically refused an offer of medical assistance for Walther.
Id. As a result, Walther was forced to wait eighteen minutes after the officer
first arrived before receiving medical care. Id.
The South Dakota Supreme Court held that the public duty doctrine did
not apply because Walther was not claiming the government “fail[ed] to enforce
a law to protect her from the acts of a third party.” Id. at 538 (citing Tipton v.
Town of Tabor, 567 N.W.2d 351, 357 (S.D. 1997)). Rather, Walther claimed
she was harmed by the officer’s “failure to seek medical help once he came
upon the scene.” Id. The Court concluded the officer did more than fail to aid
Walther: “[the officer’s] actions may have delayed [Walther’s] receipt of much
needed medical treatment.” Id.
As the magistrate judge noted, “[t]he heart of the Whites’ claim[] is that
there were facts from which Officer Romero should have discerned that a
23
second vehicle had been in an accident with the cows that [same] night.”
(Docket 43 at p. 33). The Whites are not claiming Officer Romero failed to
protect them from the acts of a third party. See, e.g., Sorace v. United States,
CIV. 13-3021-RAL, Docket 18 (D.S.D. May 16, 2014) (FTCA suit alleging the
Rosebud Sioux Tribal Police Department acted negligently by failing to stop a
car driven by an intoxicated driver. The court dismissed the suit for failure to
state a claim). The Whites claim Officer Romero’s negligent actions at the
accident scene harmed them, and, like Walther, caused a delay in timely
access to medical care. The public duty doctrine is inapplicable to this case
and the government’s objection is overruled.
D.
PLAINTIFFS’ OBJECTIONS
1.
Existence of Damages
The magistrate judge recommended granting the government’s motion for
summary judgment because the plaintiffs failed to show the existence of any
damages. (Docket 43 at p. 36). Ms. White, relying on common sense and the
doctrine of res ipsa loquitor, objects to the magistrate judge’s finding and
asserts she sufficiently alleged damages of pain and suffering stemming from
being left undiscovered in a wrecked car for eleven hours. (Docket 47). Ms.
White also requests that “[t]he [c]ourt . . . give[] plaintiffs leave of Court to
submit medical records showing the extent of their injuries, an issue that was
24
not adequately explored, considered, or given any priority in the briefing by the
parties below.” Id. at 2.
The South Dakota Supreme Court made clear in Walther that plaintiffs
alleging a cause of action due to an officer’s negligence “bear the burden of
proving that [the officer’s] actions somehow caused, contributed, or increased
[their] injuries.” Walther, 581 N.W.2d at 538.
For the reasons set forth in the magistrate judge’s report and
recommendation, the court is not persuaded the Whites sufficiently proved
damages for pain and suffering stemming from the time of their accident until
they were discovered. (Docket 43 at pp. 33-36). Inez Two Elk White’s
testimony was not preserved prior to her passing. (Docket 25 at p. 2). Lavonne
Reynolds White testified she only remembers hitting a cow, waking up in a
hospital, and nothing in between. (Docket 25-6 at p. 16). Based on this record
and Ms. White’s own testimony, no evidence exists indicating that the Whites
suffered emotional distress or pain and suffering. Plaintiffs’ objection that they
sufficiently demonstrated the existence of damages is overruled.
With respect to Ms. White’s request for leave to submit medical records
or other medical evidence documenting the extent of the Whites’ injuries, the
court finds this request meritorious. The government first asserted the
OSTPSC initially received notice of the Whites’ accident on July 5, 2008, at
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11:23 a.m., and law enforcement responded immediately thereafter. (Docket
24 at pp. 13-14). The government argued the Whites could not demonstrate
any injury because the OSTPSC did not delay in rendering emergency services.
Id. As discussed above and in the magistrate judge’s report and
recommendation, this argument is specious in that it fails to address the
Whites’ primary claim that Officer Romero should have discovered the Whites
during his investigation of the Pattersen accident scene. To the extent the
issue of damages was not the subject of careful analysis previously, the court
finds that plaintiffs’ alleged damages are in issue. The plaintiffs bear the
burden of demonstrating that damages do in fact exist as a result of Officer
Romero’s negligence. Walther, 581 N.W.2d at 538.
Under Rule 56(e), “[i]f a party fails to properly support an assertion of
fact or fails to properly address another party’s assertion of fact as required by
Rule 56(c), the court may . . . give an opportunity to properly support or
address the fact.” Fed. R. Civ. P. 56(e). In this case, where neither party fully
addressed the issue of whether the Whites’ injuries were increased by the delay
in receiving medical care and, if so, to what extent, the court finds that
additional discovery and briefing on this limited issue is appropriate.
Because Officer Romero was shielded from liability stemming from his
July 5, 2008, 1:30 a.m. visit to the accident scene under South Dakota’s Good
26
Samaritan statute, he cannot be found liable for any increase to the Whites’
injuries until his 4:30 a.m. visit to the accident scene. Therefore, the court
finds as a matter of law that, for purposes of proving and calculating damages,
the period of delay the Whites were forced to endure is approximately seven
hours.6 Furthermore, the Whites bear the burden of demonstrating the delay
in medical care incrementally increased or exacerbated their injuries. See
Walther, 581 N.W.2d at 538. Simply submitting medical records and asserting
that the seven-hour delay increased their injuries is insufficient at the
summary judgment stage. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556
U.S. 662, 677-687 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63
(2007).
The court will re-open discovery for ninety days following the date of this
order for the limited purpose of ascertaining the extent to which the Whites’
injuries were increased or exacerbated as a result of their seven–hour delay in
receiving medical care, if any.
ORDER
Based on the above analysis, it is hereby
6Seven
hours represents the approximate time difference between Officer
Romero’s second visit to the accident scene on July 5, 2008, at 4:30 a.m. and
when the OSTPSC was notified of the Whites’ accident scene on July 5, 2008,
at 11:23 a.m.
27
ORDERED that the defendant’s objections (Docket 48) to the report and
recommendation are overruled.
IT IS FURTHER ORDERED that the plaintiffs’ objection (Docket 47) is
granted in part and denied in part.
IT IS FURTHER ORDERED that discovery limited to the issue of whether
the plaintiffs’ injuries were increased or exacerbated as a result of a seven-hour
delay in receiving medical care is opened for a period of ninety (90) days.
IT IS FURTHER ORDERED that the report and recommendation
(Docket 43) is adopted in part and modified in part.
IT IS FURTHER ORDERED that defendant’s motion (Docket 23) is denied
with respect to the motion for dismissal and judgment is reserved with respect
to the motion for summary judgment.
Dated September 24, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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