United States District Court, D. South Dakota, Western Division
LAVONNE REYNOLDS WHITE, Individually and as Special Administratrix for the Estate of INEZ TWO ELK WHITE, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
JEFFREY L. VIKEN, Chief District Judge.
Pending before the court is the government's motion for dismissal or for summary judgment. (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 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 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.
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 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 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. See Docket 48 at p. 3. At most, all 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 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 ...