___________

No. 96-1470

___________

Lesa M. Primeaux, formerly *

known as Lesa M. Lamont, *

formerly known as Lisa M. *

Bad Wound, *

*

Plaintiff-Appellant, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

United States of America, *

*

Defendant-Appellee. *

___________

 Submitted: October 21, 1996

 Filed: December 26, 1996

___________

Before WOLLMAN, LAY, and BRIGHT, Circuit Judges.

___________

LAY, Circuit Judge.

I.

In this appeal, Lesa Primeaux seeks damages under the Federal

Tort Claims Act, 28 U.S.C. §§ 1346(a), 2671 et seq. (FTCA), arising

from a sexual assault by Bureau of Indian Affairs (BIA) police

officer Kenneth Michael Scott. On November 9, 1991, at

approximately 1:00 a.m., Primeaux, then twenty-one years old, was

driving on a South Dakota highway. While she was trying to turn

her car around, it became stuck in a snowbank. After an

unsuccessful attempt to free her vehicle, she began walking toward

the nearest town of Martin, South Dakota. 

Scott, driving a white government vehicle with a police light

bar on top, came upon Primeaux's car and stopped to see if anyone
 1

At trial, it was the government's position that the act was

consensual, while Scott testified Primeaux was the aggressor in

the encounter. The district court made a credibility

determination and found that under South Dakota law, Scott had

sexually assaulted Primeaux. That finding is not appealed.

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needed assistance. Finding no one, he drove toward Martin. He

then saw Primeaux walking along the road, and stopped to ask her

whether she wanted a ride. She accepted and got in the front seat

of the car. After driving a very short distance, Scott pulled off

the highway, ostensibly to go to the bathroom. The district court

made the following factual findings as to the subsequent events:

Scott asked Primeaux to exit the vehicle, and told her to do what

he said. He then grabbed her, unzipped her jeans, pulled her by

the hair, and committed an act of sexual penetration. He also

attempted oral intercourse with Primeaux.1

At the time of the assault, Scott was wearing clothing

Primeaux reasonably could have mistaken for a police uniform.

Scott's government car had no markings on either side, but had a

police light bar on the roof, a police radio inside, and government

license plates. Scott was traveling back from Arizona, where he

had attended a training session that was paid for by the

government, as were his travel expenses. In addition, he did not

use leave time to attend the session but was on "travel status,"

continuing to draw his BIA salary. 

Primeaux testified she was fearful Scott would arrest her for

drinking and driving, though she acknowledged he did not threaten

to arrest her or ask her if she had been drinking. Scott was a

police officer on the Rosebud reservation in South Dakota. Both

Primeaux's car mishap and the assault occurred outside the

reservation. Scott testified he merely "stopped to help an

individual"; he "wasn't in uniform or in duty capacity." Scott was

unarmed.
 2

Neither party disputes that in an action brought under the

FTCA, whether a government employee's act is within the scope of

employment is a determination governed by state law. Forrest

City Mach. Works, Inc. v. United States, 953 F.2d 1086, 1088 n.5

(8th Cir. 1992).

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The district court found that a sexual assault occurred under

South Dakota law, but that Scott was not acting within the scope of

his employment as a BIA officer. It therefore issued judgment in

favor of the United States. Since the government does not crossappeal on the finding of sexual assault, the sole issue before us

is whether, under South Dakota law,2 Scott's actions were within

the scope of his BIA employment.

II.

Primeaux urges us to review the district court's application

of South Dakota scope of employment law de novo. South Dakota law

is clear, however, that an application of this test is a question

of fact. McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 195

(S.D. 1991). This court reviews questions of fact under a clearly

erroneous standard, and questions of law de novo. See Brazzel v.

United States, 788 F.2d 1352, 1355 (8th Cir. 1986) ("Although the

choice of the appropriate rule ... is a matter of law, a district

court's findings on the application of that rule are findings of

fact and will not be disturbed unless clearly erroneous.").

III.

The district court, pursuant to oral findings of fact and

conclusions of law given at trial, relied primarily upon three

distinct points of law in determining the scope of employment test

to be used in this case. First, it recited the factors listed in

Restatement (Second) of Agency § 229 and adopted by the South

Dakota Supreme Court in Deuchar v. Foland Ranch, Inc., 410 N.W.2d
 3

The Deuchar court quoted from § 229 in relevant part:

(1) To be within the scope of the employment,

conduct must be of the same general nature as that

authorized, or incidental to the conduct

authorized.

(2) In determining whether or not the conduct,

although not authorized, is nevertheless so

similar to or incidental to the conduct authorized

as to be within the scope of employment, the

following matters of fact are to be considered:

(a) whether or not the act is one commonly

done by such servants;

(b) the time, place and purpose of the act;

(c) the previous relations between the master and

the servant;

(d) the extent to which the business of the master

is apportioned between different servants;

(e) whether or not the act is outside the

enterprise of the master or, if within the

enterprise, has not been entrusted to any servant;

(f) whether or not the master has reason to expect

that such an act will be done;

(g) the similarity in quality of the act done to

the act authorized;

(h) whether or not the instrumentality by which

the harm is done has been furnished by the master

to the servant;

(i) the extent of departure from the normal method

of accomplishing an authorized result; and 

(j) whether or not the act is seriously criminal.

Deuchar, 410 N.W.2d at 180 n.2 (quoting Restatement (Second) of

Agency § 229).

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177 (S.D. 1987).3 

Second, it discussed the foreseeability test set out in
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Leafgreen v. American Family Mut. Ins. Co., 393 N.W.2d 275 (S.D.

1986). The rule governing scope of employment, as put forth in

Leafgreen, is that "a principal is liable for tortious harm caused

by an agent where a nexus sufficient to make the harm foreseeable

exists between the agent's employment and the activity which

actually caused the injury." Id. at 280. Foreseeability is

governed by the following standard: "[T]he employee's conduct must

not be so unusual or startling that it would be unfair to include

the loss caused by the injury among the costs of the employer's

business." Id. at 280-81. The district court here repeated both

of these principles. Trial Tr. at 254-55.

Third, the district court recognized the importance of Red Elk

v. United States, 62 F.3d 1102 (8th Cir. 1995), as the closest case

factually to the case at bar applying South Dakota law to reach its

decision. In Red Elk, this court affirmed an assessment of

liability against the government for damages resulting from the

rape of a thirteen-year-old girl by an on-duty tribal police

officer. Id. at 1103-04, 1108. After a thorough analysis of South

Dakota scope of employment cases, this court determined first that

"'[f]oreseeability' is central to the analysis under the South

Dakota rule," and second that it was foreseeable this police

officer would violate the position of trust his employment provided

and sexually assault the victim. Id. at 1107. The district court

distinguished Red Elk by noting that under the facts presented

here, Scott "was not on duty for . . . enforcement purposes," was

not armed, was outside of his jurisdiction, and was not picking up

Primeaux for any violation of law. Trial Tr. at 259. The court

thus concluded that Scott was not acting within the scope of his

employment for vicarious liability purposes. Id. at 259. 

Red Elk, Leafgreen, and Deuchar, in addition to other cases

applying South Dakota law, all seem to be in agreement that

foreseeability is the linchpin of the South Dakota scope of
 4

See, e.g., Red Elk, 62 F.3d at 1107 ("'Foreseeability' is

central to the analysis under the South Dakota rule stated in

Leafgreen."); Davis v. Merrill Lynch, Pierce, Fenner & Smith, 906

F.2d 1206, 1222 n.19 (8th Cir. 1990) (quoting South Dakota cases

holding that "liability will be imposed upon the principal when

the nexus is sufficient to make the resulting harm foreseeable"

and then applying this principle); McKinney v. Pioneer Life Ins.

Co., 465 N.W.2d 192, 195 (S.D. 1991) (articulating and applying

the foreseeability test); Olson v. Tri-County State Bank, 456

N.W.2d 132, 135(S.D. 1990) (same); Deuchar, 410 N.W.2d at 181

("[T]his Court has adopted the foreseeability test for

determining when a servant's acts are within the scope of

employment."); Leafgreen, 393 N.W.2d at 280 (adopting the

reasoning of a California Court of Appeals which articulated and

refined the foreseeability test).

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employment test.4 

IV.

Our review of South Dakota respondeat superior law convinces

us that the district court did not apply the South Dakota test in

its entirety. By failing to recognize principles of apparent

authority under South Dakota law as applied in cases such as the

one at bar, the court may have been misled in finding that Scott's

criminal assault was not foreseeable as being within the scope of

his employment. The district court appears to hold that since

Scott was outside of his jurisdiction not serving in a law

enforcement capacity, the government cannot be held liable under

vicarious liability principles. The difficulty we have with the

district court's determination is that it fails to take into

account the doctrine of apparent authority inherent in respondeat

superior law. Here, the officer was on limited duty driving a

police car equipped with a police radio and government plates, and

was wearing clothing lending an appearance of a police officer in

uniform. The victim was concerned she would be arrested. The BIA

has certainly provided the officer with the cloak of authority so

that a third person such as Primeaux could reasonably assume the

officer was carrying out his official duties. 
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In Leafgreen, the South Dakota Supreme Court applied

Restatement (Second) of Agency § 261, which discusses apparent

authority as it relates to fraud. Leafgreen, 393 N.W.2d at 277.

The analogous section of the Restatement relating to tortious

wrongdoing reads as follows:

(2) A master is not subject to liability for the torts of his

servants acting outside the scope of their employment, unless:

. . .

(d) the servant purported to act or to speak on behalf of

the principal and there was reliance upon apparent

authority, or he was aided in accomplishing the tort by

the existence of the agency relation.

Restatement (Second) of Agency § 219(2)(d). Section 265(1) of the

Restatement gives the general rule for apparent authority, which is

that "[a] master or other principal is subject to liability for

torts which result from reliance upon, or belief in, statements or

other conduct within an agent's apparent authority." Restatement

(Second) of Agency § 265(1). South Dakota cases consistently

articulate respondeat superior law as including principles of

apparent authority. See Leafgreen, 393 N.W.2d at 277 ("Under

general rules of agency law, a principal may be held liable for

fraud and deceit committed by an agent within his apparent

authority, even though the agent acts solely to benefit himself.");

McKinney v. Pioneer Life Ins. Co., 465 N.W.2d 192, 194 (S.D. 1991)

("Generally, a principal may be held liable for the fraud and

deceit of his agent acting within the scope of his actual or

apparent authority, even though the principal was unaware of or

received no benefit from his agent's conduct.") (citing Dahl v.

Sittner, 429 N.W.2d 458, 462 (S.D. 1988)); see also State v. Hy-Vee

Food Stores, Inc., 533 N.W.2d 147, 149 (S.D. 1995) (discussing

vicarious criminal liability and noting, "Well settled is the basic

principle that criminal liability for certain offenses may be

imputed to corporate defendants for the unlawful acts of its
 5

As this court pointed out in Davis, "Leafgreen does not

mandate that Restatement of Agency rules be adopted where the

Restatement is at variance with the related South Dakota

precedent." 906 F.2d at 1222 n.18. Where, however, as here, the

Restatement is in accordance with South Dakota law, we believe

its principles guide the South Dakota courts. 

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employees, provided that the conduct is within the scope of the

employee's authority whether actual or apparent"); Siemonsma v.

David Mfg. Co., 434 N.W.2d 70, 73 (S.D. 1988) (relying on

Restatement (Second) of Agency § 265(1)); cf. Baldwin v. National

College, 537 N.W.2d 14, 18 (S.D. 1995) (discussing ostensible

agency generally); Federal Land Bank of Omaha v. Sullivan, 430

N.W.2d 700, 701 (S.D. 1988) (same). We find the Restatement to be

consistent with South Dakota law, and where, as here, a case is one

of first impression, South Dakota is guided in part by the

Restatement. Leafgreen, 393 N.W.2d at 277.5 Therefore, we read

South Dakota law to hold the employer vicariously liable not only

for foreseeable tortious wrongs committed pursuant to the

employee's actual authority, but also for those committed when

apparent authority of the employee "puts him in a position where

his harmful conduct would not be 'so unusual or startling that it

would be unfair to include the loss caused by the injury among the

costs of the employer's business.'" Olson v. Tri-County State Bank,

456 N.W.2d 132, 135 (S.D. 1990) (quoting Leafgreen, 393 N.W.2d at

280-81) (emphasis added). Foreseeability necessarily includes not

only instances of use or abuse of actual authority, but also of use

or abuse of apparent authority. Under these governing principles,

the district court's finding that Scott's assault was not

foreseeable because he was not acting within the scope of his

actual authority--that is, exercising law enforcement duties--was

too narrow. 

In Red Elk, this court noted that while it is unfortunate and

uncommon, sexual misconduct by an officer is in some circumstances
 6

The Red Elk court also noted that "[c]ases like this

stigmatize respected police officers who in rendering vital

public work surely outnumber the errant officers." 62 F.3d at

1107. That sentiment is worth repeating here.

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reasonably foreseeable.6 62 F.3d at 1107. It is no less

foreseeable that such an abuse of authority could occur while the

officer is not technically on duty, but rather possesses the

apparent authority sufficient to cause a person to rely on or fear

that authority and succumb to sexual advances. Cases holding

employers liable for sexual assaults or excessive use of force by

police officers reason that such conduct is foreseeable because of

the unique position of trust held by such officers. See Mary M. v.

City of Los Angeles, 814 P.2d 1341, 1352 (Cal. 1991) (holding a

police officer liable for a sexual assault because he took

"advantage of his authority and control as a law enforcement

officer"); White v. County of Orange, 166 Cal. App.3d 566, 571, 212

Cal. Rptr. 493, 496 (Cal. Ct. App. 1985) (holding that a police

officer could have acted within the scope of his employment when he

stopped a motorist and sexually assaulted her, and noting that "the

police officer carries the authority of law with him into the

community . . . [and] the officer's method of dealing with this

authority is certainly incidental to his duties"); Applewhite v.

City of Baton Rouge, 380 So.2d 119, 122 (La. Ct. App. 1979)

(finding employer liability for a police officer's sexual abuse of

a woman in his custody, and noting "where it is found that a law

enforcement officer has abused the 'apparent authority' given such

persons to act in the public interest, their employers have been

required to respond in damages"). It is equally likely that this

trust is relied upon when officers appear to be exercising their

authority, especially because of the 'on-call' nature of their

employment. See Osborne v. Lyles, 587 N.E.2d 825, 831 (Ohio 1992)

(reversing summary judgment for the city in a case of excessive

force used by an off-duty police officer at an accident scene in

part because the officer was to "be considered on duty at all
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times, for purposes of discipline"); Daigle v. City of Portsmouth,

534 A.2d 689, 699 (N.H. 1987) (holding the city liable for an offduty police officer's assault because the employment-related

activities of employees who have an "obligation, or at least the

option, to perform official duties whenever the need may arise" are

considered within the scope of their employment). 

Here, it is possible that Scott was aided in his assault of

Primeaux by the existence of the agency relation. See Restatement

(Second) of Agency § 219(2)(d). If Scott accomplished his

objective by using his status as a police officer, and if Primeaux

relied on his position in succumbing to his advances, then his

conduct may fall within the doctrine of apparent authority. See

Restatement (Second) of Agency § 265. The district court failed to

make a finding as to this possibility or recognize apparent

authority as a part of South Dakota respondeat superior law.

Accordingly, we remand to the district court for reconsideration of

its factual findings with application of South Dakota law relating

to apparent authority.

WOLLMAN, Circuit Judge, dissenting.

The district court found that Ms. Primeaux submitted to

Scott's demands out of fear and intimidation arising from Scott's

apparent position of authority as a police officer and as one who

appeared to have the power to carry out his commands. The district

court's finding that it was not foreseeable that Scott would use

his status as a police officer to commit the acts that he did at

the time and place that he did includes, in my view at least, the

implicit finding that Scott's exercise of apparent authority in the

circumstances of this case could not have been within the scope of

his employment. What more the district court could and should have

found with respect to Scott's position of apparent authority, I do

not know. However reprehensible Scott's actions, I do not believe

that the district court's findings are clearly erroneous, and thus
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I would affirm the judgment.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.