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Bear v. United States

United States District Court, D. South Dakota, Western Division

March 22, 2017

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,




         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.


         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 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.

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 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, 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 ...

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