Young Bear et al v. United States of America

Filing 52

ORDER granting in part and denying in part 24 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 24 Motion to Dismiss for Lack of Jurisdiction; granting in part and denying in part 24 Motion for Summary Judgment. Signed by Chief Judge Jeffrey L. Viken on 3/22/17. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHERYL YOUNG BEAR, as Legal
Guardian of J.E., and J.E., a Minor
Child, and SAMUEL FARMER, as Legal
Guardian of C.B.S., and C.B.S., a Minor
Child,

CIV. 14-5071-JLV
ORDER

Plaintiffs,
vs.
UNITED STATES OF AMERICA,
Defendant.
INTRODUCTION
Defendant United States of America filed a motion to dismiss pursuant to
Fed. R. Civ. P. 12(b)(1) and (6), or in the alternative for summary judgment
pursuant to Fed. R. Civ. P. 56(c). (Docket 24). The motion is accompanied by a
legal memorandum, a declaration, a portion of a deposition and two exhibits, and
a statement of undisputed facts. (Dockets 25, 26, 28-1, 29-1, 30-1 & 31).
Plaintiffs oppose defendant’s motion. (Docket 34). Plaintiffs’ response is
supported by a response to defendant’s statement of undisputed facts, a
statement of undisputed material facts and a number of affidavits, exhibits,
photographs and depositions. (Dockets 35, 41, 45 & 45-1 through 130). For
the reasons stated below, defendant’s motion to dismiss is granted in part and
denied in part and the motion for summary judgment is denied.

ANALYSIS
This action is filed pursuant to the Federal Tort Claims Act, 28 U.S.C.
§ 2671, et. seq., and centers on a single motor vehicle accident on April 5, 2012,
in rural Bennett County, South Dakota. (Docket 16 ¶¶ 1 & 4). A van owned by
the St. Francis Indian School and driven by its employee Brian Brown went
through a stop sign at a T-intersection at the junction of BIA Highway 4 and
Buffalo Road. (Docket 26-1). The two minor plaintiffs were allegedly injured
when the van hit an embankment and came to a stop in a field. (Docket
16 ¶¶ 4 & 7). Among other claims, plaintiffs allege Mr. Brown was negligent by
failing to keep a proper lookout, speeding and failing to obey the stop sign
controlling the T-intersection. Id. at ¶¶ 4-6. The government admits plaintiffs’
administrative claims under the FTCA were properly submitted and denied.
(Docket 17 ¶¶ 9-10). The government admits that Mr. Brown is deemed a
federal employee under the FTCA. Id. ¶ 2.
RULE 12(b)(1) MOTION
Rule 12 provides in part that “a party may assert the following defenses by
motion: . . . lack of subject-matter jurisdiction . . . .” Fed. R. Civ. P. 12(b)(1).
“In order to properly dismiss for lack of subject matter jurisdiction under Rule
12(b)(1), the complaint must be successfully challenged on its face or on the
factual truthfulness of its averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th
Cir. 1993) (internal citation omitted). “In a facial challenge to jurisdiction, all of
the factual allegations concerning jurisdiction are presumed to be true and the
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motion [to dismiss] is successful if the plaintiff fails to allege an element
necessary for subject matter jurisdiction.” Id. (internal citation omitted).
While considering a Rule 12(b)(1) motion to dismiss for lack of subject matter
jurisdiction the court must “accept all factual allegations in the pleadings as true
and view them in the light most favorable to the nonmoving party.” Great Rivers
Habitat Alliance v. Federal Emergency Management Agency, 615 F.3d 985, 988
(8th Cir. 2010). “The burden of proving federal jurisdiction, however, is on the
party seeking to establish it, and this burden may not be shifted to the other
party.” Id. (internal quotation marks and brackets omitted).
The government moves to dismiss counts II, III and IV of the complaint
under the discretionary function exception of the FTCA. (Docket 25 at pp. 6-11)
(referencing 28 U.S.C. § 2680(a)). Count II alleges the St. Francis Indian School
negligently trained Mr. Brown in proper driving techniques, count III alleges the
school negligently failed to supervise Mr. Brown in his relationship with the
students traveling with him in the van, and count IV alleges the school
negligently hired Mr. Brown. (Docket 16 ¶¶ 13-17).
The discretionary function exception provides:
The provisions of this chapter and section 1346(b) of this title shall
not apply to . . . [a]ny claim based upon an act or omission of an
employee of the Government, exercising due care, in the execution of
a statute or regulation, whether or not such statute or regulation be
valid, or based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a
federal agency or an employee of the Government, whether or not
the discretion involved be abused.
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28 U.S.C. § 2680(a). “The purpose of the exception is to prevent judicial
‘second-guessing’ of legislative and administrative decisions grounded in social,
economic, and political policy through the medium of an action in tort, . . . when
properly construed, the exception protects only governmental actions and
decisions based on considerations of public policy.” United States v. Gaubert,
499 U.S. 315, 323 (1991) (internal citations and some quotation marks omitted).
The Supreme Court established a two-part test “in determining when the
acts of a Government employee are protected from liability by § 2680(a).” United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.
797, 813 (1984). “First, it is the nature of the conduct, rather than the status of
the actor, that governs whether the discretionary function exception applies in a
given case.” Id. “Second, whatever else the discretionary function exception
may include, it plainly was intended to encompass the discretionary acts of the
Government acting in its role as a regulator of the conduct of private
individuals.” Id. at 813-14. See also Hart v. United States, 630 F.3d 1085,
1088 (8th Cir. 2011) (“First, the conduct at issue must be discretionary, involving
an element of judgment or choice. The second requirement is that the judgment
at issue be of the kind that the discretionary function exception was designed to
shield.”) (internal citation omitted).
Plaintiffs’ response does not specifically address the discretionary function
exception but instead moves the court for leave to file a third amended

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complaint.1 (Docket 34 at pp. 3-5). The proposed third amended complaint
does not have any impact on the issues presently before the court and will not be
considered at this juncture.
The United States Court of Appeals for the Eighth Circuit does “not
recognize a separate cause of action for the alleged negligent hiring . . . by the
government as plaintiff urges, because of the ‘discretionary function’ exception to
the FTCA, 28 U.S.C. § 2680(a).” Red Elk on Behalf of Red Elk v. United States,
62 F.3d 1102, 1107 (8th Cir. 1995). “The hiring and selection of an employee is
a discretionary function of the government-employer. It is a matter based on its
own judgment.” Id. at 1107 n.4. The court grants the government’s Rule
12(b)(1) motion as to plaintiffs’ negligent hiring claim in count IV.
“Issues of employee supervision and retention generally involve the
permissible exercise of policy judgment and fall within the discretionary function
exception.” Tonelli v. United States, 60 F.3d 492, 496 (8th Cir. 1995).
However, “[f]ailure to act after notice of illegal action does not represent a choice
based on plausible policy considerations.” Id.
In this case, plaintiffs allege the school administration violated a duty of
reasonable supervision and training of Mr. Brown. (Docket 16 ¶¶ 5, 11, 13-17).
Other than general allegations, plaintiffs do not identify any specific statute,
The proposed amended complaint seeks to add as defendants the St.
Francis Indian School and Brian Brown. (Docket 48-1 at p. 1). Counts II, III
and IV are not changed, but plaintiffs seek to add Count V, a claim of res ipsa
loquitur against Mr. Brown. Id. at pp. 7-8.
1

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regulation or policy which mandated a particular form of supervision or training
and how that statute, regulation or policy was violated. Tonelli, 60 F.3d at 496.
Nor do plaintiffs specifically identify conduct of Mr. Brown which would mandate
that the school supervise or train him before the accident. Id.
As pled, the claims of negligent supervision and negligent training fall
within the discretionary function exception. The court grants the government’s
Rule 12(b)(1) motion as to plaintiffs’ negligent supervision and training claims in
counts II and III.
The government also moves the court to dismiss plaintiffs’ “breach of
trust” claim in count I. (Docket 25 at pp. 11-12). Plaintiffs allege the “St.
Francis Indian School and its officials[] have failed to exercise its federal trust
responsibility to the Rosebud Sioux Tribe and its individual members, including
[the minor plaintiffs] . . . .” (Docket 16 ¶ 10). A “breach of trust claim is clearly
not a claim arising under the FTCA.” Moran v. United States, No. CIV 07-3006,
2007 WL 4570813, at *2 (D.S.D. Dec. 26, 2007). To the extent plaintiffs attempt
to incorporate a breach of trust claim within the negligence claim of count I, the
government’s motion to dismiss pursuant to Rule 12(b)(1) is granted.
SUMMARY JUDGMENT MOTION
Under Fed. R. Civ. P. 56(a), a movant is entitled to summary judgment if
the movant can “show[] that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
Once the moving party has met its burden, the nonmoving party may not rest on
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the allegations or denials in the pleadings, but rather must produce affirmative
evidence setting forth specific facts showing that a genuine issue of material fact
exists. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Fed. R. Civ. P.
56(e) (each party must properly support its own assertions of fact and properly
address the opposing party’s assertions of fact, as required by Rule 56(c)). Only
disputes over facts that might affect the outcome of the case under the governing
substantive law will properly preclude summary judgment. Anderson, 477 U.S.
at 248. Accordingly, “the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of
material fact.” Id. (emphasis in original).
If a dispute about a material fact is genuine, that is, if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party, then
summary judgment is not appropriate. Id. However, the moving party is
entitled to judgment as a matter of law if the nonmoving party fails to “make a
sufficient showing on an essential element of her case with respect to which she
has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
In such a case, “there can be ‘no genuine issue as to any material fact,’ since a
complete failure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.” Id. at 323.
In determining whether summary judgment should issue, the facts and
inferences from those facts must be viewed in the light most favorable to the
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nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587-88 (1986). The key inquiry is “whether the evidence presents a
sufficient disagreement to require submission to [the factfinder] or whether it is
so one-sided that one party must prevail as a matter of law.” Anderson, 477
U.S. at 251-52.
The government moves to dismiss plaintiffs’ negligence claim in count I
under Rule 56. (Docket 25 at p. 17). Viewed in the light most favorable to
plaintiffs as the non-moving party, the facts are as follows.
On April 5, 2012, Brian Brown and seven boys of the St. Francis Indian
School drum group were returning from a performance at Kyle, South Dakota.
(Docket 31 ¶ 2).2 At about 7:20 p.m. the sun was going down and it was getting
darker.3 Id. ¶¶ 6 and 17. According to the boys in the van, Mr. Brown was
singing, talking with them and not paying any attention to the road. (Docket 41
¶ 9). C.B.S., a boy in the van, testified Mr. Brown had on a CD playing powwow
music. (Docket 45-5 at p. 17:17-21). C.B.S. said “the music was really loud”
and they “were trying to talk over the music.” Id. at p. 19:2-3. Another boy in
the van, J.E., testified Mr. Brown was teaching them a new song. (Docket 45-4
at p. 22:25-23:1).
If a statement of undisputed fact submitted by the government is
unopposed, the court will cite only to that statement. If a statement is
challenged, the court will cite to both the government’s statement and the
plaintiffs’ response.
2

Mr. Brown was traveling in an easterly direction from Kyle headed toward
St. Francis.
3

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Mr. Brown testified he drove around a “soft curve” in the road and at the
last minute noticed the road had ended. (Docket 31 ¶ 6). He did not see the
stop sign located at the end of BIA Highway 4 [a T-intersection with Buffalo
Road], ran the stop sign, went into the ditch and crashed in a field on the other
side of the ditch. Id. ¶¶ 5-6; see also Docket 41 ¶ 3.
J.E. testified the van swerved and Mr. Brown “stepped on the gas pedal
more.” (Docket 45-4 at p. 24:2-3). J.E. said “it felt like he went faster.” Id. at
p. 24:10-14. Mr. Brown does not know if he put his foot on the gas pedal after
applying the brakes. (Docket 45-6 at p. 62:1-14). Mr. Brown does not recall if
he had the headlights on prior to the accident. Id. at p. 55:6-7.
Mr. Brown had never driven this road before. (Docket 31 ¶ 8). After the
accident, Mr. Brown went back to look at the intersection and noticed the stop
sign was riddled with bullet holes and “the only thing that was on the pole was
the outer edge of a third of that stop sign.” Id. ¶ 9. Mr. Brown described the
stop sign as being “half blown off” or “two-thirds blown off.” (Docket 45-6 at pp.
33:15-16 and 59:1-2).
Oglala Sioux Tribal Law Enforcement Officer Juergen Kevin Rascher
responded to the accident. (Docket 31 ¶ 12). Officer Rascher observed that the
“stop sign located at the end of BIA 4 was very hard to see due to graffiti and
bullet holes.” Id. ¶ 13. It was the officer’s opinion that a road directional sign
approximately 50 feet to the west obstructed Mr. Brown’s ability to see “the stop
sign in a timely manner.” Id. The officer reported pot holes in the highway had
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been “fixed by pouring a large amount of gravel over them,” so there was “a lot of
loose gravel on the asphalt road minimizing traction” at the intersection. Id.
The posted speed limit on BIA Highway 4 was 55 miles per hour. Id. ¶ 14.
Officer Rascher concluded Mr. Brown had not been speeding and he was not
under the influence of drugs or alcohol. (Docket 31 ¶¶ 14-15). J.E. and C.B.S.
testified Mr. Brown had an odor of marijuana about him and bloodshot eyes.
(Dockets 45-4 at p. 46:19-20 and 45-5 at p. 62:7-10).
When resolving claims under the Federal Tort Claims Act (FTCA), federal
courts look to the law of the state where the tort occurred, here, South Dakota.4
Washington v. Drug Enforcement Admin., 183 F.3d 868, 873 (8th Cir. 1999)
(Under the FTCA, “[t]he United States is liable to the same extent that a private
person under like circumstances would be liable to the claimant in accordance
with the law of the place where the act or omission occurred. The ‘law of the
place’ refers to the substantive law of the state where the wrongful conduct took
place.”) (additional citations omitted); Celestine v. United States, 841 F.2d 851,
853 (8th Cir. 1988) (per curiam) (“Government liability under the FTCA is
determined by the law of the place where the tort occurred . . . .”) (additional
citations omitted).
4Section

1346(b)(1) of Title 28 confers exclusive jurisdiction to the district
courts over “civil actions on claims against the United States, for money damages
. . . for personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if 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).
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“[Ordinarily] questions of negligence and contributory negligence are for
the [fact finder] in all but the rarest cases.” Robbins v. Buntrock, 550 N.W.2d
422, 427 (S.D. 1996) (citing Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 903
(S.D.1994)). However, under South Dakota law, “[t]he violation of a statute
enacted to promote safety constitutes negligence per se.” Engel v. Stock, 225
N.W.2d 872, 873 (S.D. 1975) (emphasis added). The South Dakota Supreme
Court has a long history of finding negligence per se after a person has violated a
traffic law. See Engel, 225 N.W.2d at 873; Albers v. Ottenbacher, 116 N.W.2d
529, 530-32 (S.D. 1962) (defendant who operated his car in violation of a South
Dakota statute regulating the brakes of motor vehicles (SDC § 44.0346) was
guilty of negligence as a matter of law); Grob v. Hahn, 122 N.W.2d 460, 462 (S.D.
1963) (plaintiff was negligent in attempting to pass the defendant’s vehicle); Treib
v. Kern, 513 N.W.2d 908, 912-13 (S.D. 1994) (a violation of SDCL § 32-26-14)
(entry of highway from alley, building, or private road) and § 32-30-20 (unsafe
backing prohibited) constituted negligence per se).
Stopping at a stop sign is mandatory in South Dakota. “[E]very driver of a
vehicle approaching a stop intersection indicated by a stop sign shall come to a
full stop at a clearly marked stop line . . . .” SDCL § 32-29-2.1. South Dakota
recognizes four situations where violation of a statute is excusable. Those
circumstances are:
(1)

Anything that would make compliance with the statute
impossible;
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(2)

Anything over which the driver has no control which
places his car in a position violative of the statute;

(3)

An emergency not of the driver’s own making by reason
of which he fails to observe the statute; and

(4)

An excuse specifically provided by statute.

Engel v. Stock, 225 N.W.2d 872, 873 (S.D. 1975). “If the ‘legal excuse’ [for
violation of a statute] is an emergency, then the party must prove (1) that an
emergency existed, (2) that he was not engaged in prior conduct which caused or
contributed to the emergency, and (3) that he was unable to comply with the
statute because of the emergency.” Meyer v. Johnson, 254 N.W.2d 107, 111
(S.D. 1977).
The government claims, even viewing the evidence most favorably for
plaintiffs, that “[Mr.] Brown exercised due care in driving the vehicle within the
speed limit. The end of the road was not foreseeable nor reasonably made
known to Brown, who had never driven on that road before, and his attempt to
stop was hampered by loose gravel preventing traction. Even then, he was able
to keep the Suburban from rolling. . . . Brown’s actions were not the legal or
proximate cause of the accident. The accident was unavoidable and the case
should be dismissed.” (Docket 25 at pp. 17-18). Plaintiffs argue “[t]he STOP
sign was damaged by bullet holes, but it was still clearly recognized as an
octagon shaped sign with most of the lettering present, within several feet on the
right hand side, just in front of the intersection.” (Docket 34 at p. 5).

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The court finds there exists a genuine dispute over material facts which
must be resolved at trial. Anderson, 477 U.S. at 248. Those disputed facts
include:
1.

Whether the road directional sign 50 feet to the west
obstructed Mr. Brown’s view;

2.

Whether the sign at the T-intersection was still visibly
recognizable as a stop sign, because of the red nature of the
sign or its octagonal shape;

3.

Whether Mr. Brown was distracted or inattentive;

4.

Whether Mr. Brown accelerated as opposed to completing a
stop; and

5.

Whether Mr. Brown was confronted by a sudden emergency
not of his own making.

Anderson, 477 U.S. at 248. The issues discussed in this portion of the analysis
are properly resolved by trial. The court finds that summary judgment is
inappropriate based on the record presented by the parties at this time.
RULE 12(b)(6) MOTION
The government moves to dismiss count I for failing to state a claim upon
which relief can be granted. (Docket 25 at pp. 3-5) (referencing Fed. R. Civ. P.
12(b)(6)). “In analyzing a 12(b)(6) motion, this court assumes all factual
allegations in the complaint are true, but the complaint must contain sufficient
facts, as opposed to mere conclusions, to satisfy the legal requirements of the
claim to avoid dismissal.” Taxi Connection v. Dakota, Minnesota & E. R.R.
Corp., 513 F.3d 823, 826 (8th Cir. 2008) (internal quotation marks omitted).

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“A motion to dismiss should be granted if it appears beyond doubt that the
plaintiff can prove no set of facts which would entitle him to relief.” Id.
For the reasons stated above, the court finds plaintiffs have stated
sufficient facts which, if proven, would sustain a claim of negligence. Id.
ORDER
Based on the above analysis, it is
ORDERED that the government’s motion to dismiss (Docket 24) is
granted in part and denied in part.
IT IS FURTHER ORDERED that the government’s Rule 12(b)(1) motion
(Docket 24) is granted in part and denied in part.
IT IS FURTHER ORDERED that the government’s motion for summary
judgment (Docket 24) as to count I is denied.
IT IS FURTHER ORDERED that the government’s Rule 12(b)(6) motion
(Docket 24) as to count I is denied.
IT IS FURTHER ORDERED that counts II, III and IV of plaintiffs’
amended complaint (Docket 16) are dismissed with prejudice.
IT IS FURTHER ORDERED that the portion of count I of plaintiffs’
amended complaint which alleges a “breach of trust” claim (Docket 16 ¶ 10) is
dismissed with prejudice.
Dated March 22, 2017.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
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