United States District Court, D. 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, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
JEFFREY L. VIKEN CHIEF JUDGE
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
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.
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 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
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).
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.
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).
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).
response does not specifically address the discretionary
function exception but instead moves the court for leave to
file a third amended complaint. (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.
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.
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
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,
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.
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.
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