Norma Sorace, Administratix of the Estate of Melanie Sorace, deceased v. United States of America

United States Court of Appeals
For the Eighth Circuit
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No. 14-2683
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Norma Sorace, Administratix of the Estate of Melanie Sorace, deceased; Jahneva
Cannaday, deceased; Guardian for Dominique Harris and Tamara Sorace
lllllllllllllllllllll Plaintiff - Appellant
v.
United States of America
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the District of South Dakota - Pierre
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Submitted: March 12, 2015
Filed: May 27, 2015
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Before WOLLMAN and COLLOTON, Circuit Judges, and WHITE,1 District
Judge.
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WHITE, District Judge.
1The Honorable Ronnie L. White, United States District Judge for the Eastern
District of Missouri, sitting by designation.

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Norma Sorace (“Sorace”), Administratix of the Estates of Melanie Sorace and
Jahneva Cannaday, a minor, filed suit against the United States of America alleging
a claim under the Federal Tort Claims Act (“FTCA”) based upon a drunk-driving
accident on the Rosebud Sioux Indian Reservation in South Dakota. Melanie Sorace
and Jahneva Cannaday were killed when an intoxicated Shad Dillon (“Dillon”)
crashed his pickup into a vehicle driven by Melanie Sorace. Sorace alleges that the
Rosebud Sioux Tribe’s Police Department (“RST PD”) was negligent in failing to
locate and arrest Dillon prior to the accident. The United States of America (“United
States”) filed a motion to dismiss, which the district court1 granted. Sorace appeals,
and we affirm.
I.
On June 30, 2011, Dillon was driving on a highway running through Antelope,
South Dakota. Dillon was intoxicated and speeding. Dillon’s pick up truck struck
Melanie Sorace’s car as she proceeded through an intersection with the highway.
Melanie Sorace and her daughter, Jahneva Cannaday, were killed, and two of Melanie
Sorace’s other children were injured. Dillon pleaded guilty to Involuntary
Manslaughter in violation of 18 U.S.C. §§1153 and 1112 and was sentenced to 40
months in prison.
Sorace, as Administratix of Melanie Sorace and Jahneva Cannaday’s estates and
guardian of the injured children, filed a negligence claim under the FTCA against the
United States. Sorace alleged that the RST PD was operating pursuant to a contract
entered into under 25 U.S.C. §450f, et seq.
Pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), the United
States filed a motion to dismiss Sorace’s complaint. First, the United States argued
1The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
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that, under South Dakota law, no legally actionable duty of care was owed to Melanie
Sorace and her children to control the misconduct of Dillon. The United States further
argued that even if South Dakota’s “special duty” exception to the public duty
doctrine applied, Sorace failed to allege sufficient facts to state a claim upon which
relief could be granted. In response, Sorace filed a memorandum with factual
affidavits, but did not file a motion to amend the complaint or to convert the motion
to one for summary judgment. The district court, assuming that the RST PD had actual
knowledge of Dillon’s dangerous driving, held that Sorace failed to allege sufficient
facts suggesting a special relationship between the parties and dismissed Sorace’s
complaint for failure to state a claim.
II.
We review de novo the district court's dismissal of an action for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6). O'Neil v. Simplicity, Inc., 574
F.3d 501, 503 (8th Cir. 2009) (citing Briehl v. General Motors Corp., 172 F.3d 623,
627 (8th Cir. 1999)). We accept the factual allegations of the complaint as true, but
the allegations must supply sufficient “facts to state a claim to relief that is plausible
on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The FTCA waives the government's immunity in certain tort suits by providing
that the “United States shall be liable [for torts] . . . in the same manner and to the
same extent as a private individual under like circumstances[.]” 28 U.S.C. § 2674.
This provision is sometimes called the “private analogue” requirement. Barnes v.
United States, 448 F.3d 1065, 1066 (8th Cir. 2006). The determination of whether a
private analogue exists is made in accordance with the law of the place where the
relevant act or omission occurred. Id. (citing 28 U.S.C. § 1346(b)(1)). Section
1346(b)'s reference to “law of the place” means the law of the State, not any tribal
reservation, provides the source of substantive liability under the FTCA.
LaFromboise v. Leavitt, 439 F.3d 792, 795 (8th Cir. 2006). Therefore, we hold that
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the district court correctly determined Sorace had to demonstrate the existence of an
actionable claim under South Dakota law to state a claim under the FTCA.
The district court outlined two choices under South Dakota law for the private
analogue under the FTCA.2 The district court noted that where the alleged negligent
act involves conduct peculiar to law enforcement, identifying the appropriate private
analogue can be difficult. Under either the negligence standard for a private citizen
or the public duty rule, Sorace failed to allege facts sufficient to state a claim for
which relief should be granted.
For a private citizen, the analogue for an FTCA claim under South Dakota state
law is a negligence claim, which requires proof of duty, breach of that duty, proximate
and factual causation, and actual injury. Hewitt v. Felderman, 2013 S.D. 91, ¶16, 841
2 Several courts of appeals have applied a state’s public-duty rule when considering
claims under the FTCA. See Stratmeyer v. United States, 67 F.3d 1340, 1347-48 (7th
Cir. 1995) (USDA veterinarian did not owe special duty to cattle lessees to quarantine
all of the cattle at supplier’s farm because there was no evidence of any relationship
between them); Crider v. United States, 885 F.2d 294, 298 (5th Cir. 1989) (United
States Park Service rangers owed no duty to arrest a drunk driver who later injured
plaintiff in a car accident); Gelley v. Astra Pharm. Products, Inc., 610 F.2d 558, 561
(8th Cir. 1979) (no special duty created when the government allowed a company to
market an allegedly misbranded drug). In United States v. Olsen, the Supreme Court
reaffirmed that a court must “look to the state-law liability of private entities, not to
that of public entities, when assessing the Government's liability under the FTCA ‘in
the performance of activities which private persons do not perform.’” 546 U.S. 43, 46
(2005) (quoting Indian Towing Co. v. United States, 350 U.S. 61, 64 (1955)). Since
Olsen, at least one district court has held that “[t]he ‘public duty’ doctrine has no
application to an FTCA action, however. Whether or not state or local law
enforcement officers would be liable under state law on the same or analogous facts
is irrelevant under the [FTCA].” Lumsden v. United States, 555 F. Supp. 2d 580, 595
(E.D. N.C. 2008); see also Durden v. United States, 736 F.3d 296, 301 (4th Cir. 2013)
(Army did not breach its duty as landlord to protect resident from rape by Army
servicemen). We need not determine whether the public duty rule applies to a FTCA
claim, however, because Sorace’s complaint fails to allege sufficient facts under either
the negligence standard for a private citizen or the public duty rule.
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N.W.2d 258, 263. The existence of a duty in a negligence claim is a question of law.
Kirlin v. Halverson, 2008 SD 107, ¶28, 758 N.W.2d 436, 448 (quoting State Auto Ins.
v. B.N.C., 2005 SD 89, ¶20, 702 N.W. 2d 379, 386).
Generally, South Dakota law imposes no affirmative duty to prevent the
misconduct of third parties. Kirlin, 2008 SD 107, ¶30, 758 N.W.2d at 448; Walther
v. KPKA Meadowlands Ltd. P'ship, 1998 SD 78, ¶17, 581 N.W.2d 527, 531. South
Dakota, however, may find that a duty exists to prevent the misconduct of a third
party, if the plaintiff shows (1) the existence of a special relationship between the
parties, and (2) the third party's injurious act was foreseeable. Kirlin, 2008 SD 107,
¶31, 758 N.W.2d at 448-49. In the complaint, Sorace alleged that the RST PD was
negligent for failing to stop Dillon’s vehicle. Sorace failed to allege a special
relationship as required for a negligence claim under South Dakota law. The district
court properly dismissed Sorace’s complaint for failure to state a claim for negligence.
Even if the Court does not apply the negligence standard for a private citizen,
Sorace’s complaint also failed to state a claim under the public duty rule. Under
South Dakota law, the public duty rule “provides that the police owe a duty to the
public at large and not to an individual or smaller class of individuals.” Walther, 1998
SD 78, ¶17, 581 N.W.2d at 531. South Dakota also has a “special duty” exception to
the public-duty rule, which “recognizes that there may be some situations where it is
found a duty is owed to a particular class of persons separate from that owed to the
general public.” Walther, 1998 SD 78, ¶18, 581 N.W.2d at 532. The South Dakota
Supreme Court adopted the following four-part test to determine whether a special
duty exists: (1) actual knowledge of the dangerous condition; (2) reasonable reliance
by persons on the state's representations and conduct; (3) an ordinance or statute that
sets forth mandatory acts clearly for the protection of a particular class of persons
rather than the public as a whole; and (4) failure by the state to use due care to avoid
increasing the risk of harm. Tipton v. Town of Tabor (Tipton I), 538 N.W. 2d 783,
787 (S.D. 1995) (applying the test from Cracraft v. City of St. Louis Park, 279 N.W.
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2d 801, 806-07 (Minn. 1979)). Actual knowledge of a dangerous situation alone is
insufficient to establish a special duty. Tipton v. Town of Tabor (Tipton II), 1997 SD
96, ¶28, 567 N.W.2d 351, 364.
The district court applied the four part test from Tipton I to determine whether
the RST PD owed a “special duty” to Melanie Sorace and her children. The district
court assumed for purposes of the motion to dismiss that the RST PD had actual
knowledge of Dillon’s drunk driving, but held that none of the other Tipton factors
were present. We agree with the district court that Sorace did not allege and cannot
allege any of the other Tipton factors.
First, Sorace has not alleged any reasonable reliance by Melanie Sorace. For
reasonable reliance to have occurred, Sorace must have alleged that Melanie Sorace
“depended on specific actions or representations” which caused her to “forgo other
alternatives of protecting” herself. Tipton II, 1997 SD 96, ¶31, 567 N.W.2d at 364-65
(citations omitted). The complaint contains no allegation that Melanie Sorace relied
on any statement from the RST PD, knew that Dillon was driving while intoxicated,
or contacted the police prior to the accident. Instead, Sorace relies on allegations that
third parties contacted the RST PD to report Dillon’s behavior. Sorace maintains that
the statements made to third parties constitutes reasonable reliance when the victims
were damaged by the danger that was promised to be remedied. However, Sorace’s
reliance on statements made to third parties is misplaced. All of the assurances in the
cited cases were made to the persons injured or to the minor victims’ parents, not to
third persons. See Champagne v. Spokane Humane Society, 737 P.2d 1279, 1284
(Wash. Ct. App. 1987) (on the day before the attack, the Society assured the parent
of the child later injured that the area would be patrolled); De Long v. Erie Cnty., 457
N.E.2d 717, 721 (N.Y. 1983) (emergency dispatcher told victim reporting burglary
that police would come “right away”); Sorichetti by Sorichetti v. City of New York,
482 N.E.2d 70, 76 (N.Y. 1985) (police department created the “clear impression” that
“some action would be taken” to enforce the order of protection).
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In an attempt to demonstrate reasonable reliance, Sorace refers to the affidavit
of Elizabeth Bordeaux, Dillon’s ex-girlfriend. Bordeaux attested that she contacted
the RST PD on the day of the accident to report that Dillon was driving intoxicated,
and the dispatcher told her that “action would be taken.” While this information may
assist in a finding that the RST PD had actual knowledge of the dangerous condition,
it does not provide any evidence of reasonable reliance on the part of Melanie Sorace.
Under South Dakota law, promises to third parties are insufficient to demonstrate
reasonable reliance. Tipton II, 1997 SD 96, ¶32, 567 N.W.2d at 365 (“Reliance must
be based on personal assurances.”); Walther, 1998 SD 78, ¶28, 581 N.W.2d at 533
(“no personal assurances” to a domestic violence victim from the police that she
would be protected); Pray v. City of Flandreau, 2011 SD 43, ¶13, 801 N.W.2d 451,
455 (woman who fell when a dog broke loose from its owner provided “no evidence
that she relied on specific actions or representations of the city, which caused her to
forego other alternatives of protecting herself”). Likewise, a general belief by others
that a proposed danger would be remedied is also not sufficient. Tipton II, 1997 SD
96, ¶33, 567 N.W.2d at 365 (“Trusting upon some feeling they would be safe
wherever they went in Tabor is perhaps comprehensible; however, it does not rise to
the level of reliance causing them to forgo self-precaution.”); Walther, 1998 SD 78,
¶28, 581 N.W.2d at 533 (victim’s “general statement that she somehow relied on the
system is not enough”). Bordeaux’s alleged contact with the RST PD is not enough
to show reasonable reliance by Melanie Sorace.
The third factor of South Dakota’s special-duty test “‘permits recovery against
a government entity for negligent failure to enforce its laws only when there is
language in a statute or ordinance which shows an intent to protect a particular and
circumscribed class of persons.’” Tipton II, 1997 SD 96, ¶35, 567 N.W.2d at 365-66
(quoting Tipton I, 538 N.W.2d at 786). The district court held that the Code of
Federal Regulations, the Bureau of Indian Affairs (BIA) Manual, the BIA Law
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Enforcement Handbook, Rosebud Sioux Tribal Code sections 6-1, 6-2, 6-3, a Rosebud
Sioux Tribe Rule of Criminal Procedure, and South Dakota Codified Laws §§23A-3-
2, 32-23-1, 32-23-1.1, and 32-23-1.3 did not demonstrate an intent to protect a
particular class of persons, as required under the third Tipton factor.
Sorace claims that the district court erred in finding that federal and tribal
regulations, handbooks, and laws were not applicable because they were not the
substantive laws of South Dakota. However, we find that only the law of the State is
relevant under our analysis of FTCA claims. See Klett v. Pim, 965 F.2d 587, 589 (8th
Cir. 1992) (quoting Gelley, 610 F.2d at 562) (“‘[F]ederally imposed obligations,
whether general or specific, are irrelevant to our inquiry under the FTCA, unless state
law imposes a similar obligation upon private persons.’”). Moreover, even if we
considered all of the manuals, laws and regulations cited by Sorace, they fail to create
a private cause of action under the FTCA.
First, Sorace’s citation to the code of federal regulations is misplaced. 25
C.F.R. §§12.12, 12.13 and 12.14 provide the standards and potential penalties for the
law enforcement programs managed by the BIA, as set forth in the BIA Manual and
the BIA Law Enforcement Handbook. 25 C.F.R. §11.301(b)(3) gives law
enforcement the right to arrest a person if the officer has probable cause to believe that
the person committed an offense. None of these provisions identifies a particular class
protected and cannot be the basis of a special duty.
Similarly, the handbooks and tribal codes cited by Sorace do not enure to the
benefit of a specific group. The BIA Law Enforcement Handbook sections cited by
Sorace simply indicate that law enforcement has authority to arrest drivers where there
is probable cause to believe the driver is impaired or under the influence of alcohol
or drugs. The Rosebud Sioux Tribal Code sections cited by Sorace criminalize
driving under the influence of alcohol and reckless driving, provide that an officer
may arrest a person for a crime without the crime being committed in the presence of
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the officer, and allow for damages when a person has suffered a detriment from the
unlawful act or omission of another. These citations provide no indication that they
are intended to protect any particular class.
Furthermore, the South Dakota statutes cited do not create a private duty to any
specific group. South Dakota Codified Laws §§32-23-1, 32-23-1.1, and 32-23-1.3
allow law enforcement to arrest, without a warrant, and later criminally charge a
driver for suspicion of driving under the influence of alcohol. These are general laws
and a circumscribed class of people to be protected is not identified. Likewise, South
Dakota Codified Laws §21-10-1 simply creates a cause of action for nuisance. The
South Dakota Supreme Court has already held that the nuisance statute does not
“create a special class or mandatory duty, either.” Tipton II, 1997 SD 96, ¶36, 567
N.W. 2d at 366.
In sum, Sorace’s complaint failed to allege a specific South Dakota statute or
regulation that imposes a mandatory duty on the police to protect a particular person
or class of persons. Therefore, Sorace’s complaint also failed to establish this prong
of the special duty test. See Pray, 2011 SD 43, ¶9, 801 N.W.2d 451, 454 (“she must
show some duty owed to her as an individual or as a member of a class, rather than to
the public as a whole”).
Finally, we find that the RST PD did not increase the risk of harm to Melanie
Sorace and her children by failing to arrest Dillon. See Tipton II, 1997 SD 96, ¶38,
567 N.W.2d 351, 366 (“Under this factor official action must either cause harm itself
or expose plaintiffs to new or greater risks, leaving them in a worse position than they
were before official action.”); Pray, 2011 SD 43, ¶14, 801 N.W.2d at 456 (“The city's
actions must either cause the harm itself or have exposed Pray to new or greater risks,
leaving Pray in a worse position than she would have been before the city's actions.”).
In her complaint, Sorace alleges that the RST PD did not arrest Dillon after receiving
complaints that he was driving erratically. She does not allege that the police
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increased Dillon’s threat or exposed Melanie Sorace to additional harm that was not
otherwise present. As a result, Sorace failed to allege that Melanie Sorace and her
children were in a worse position than before Dillon’s erratic driving was reported to
the RST PD because of an official action.
We conclude that the district court properly granted the United States’ motion
to dismiss.
III.
Sorace also argues that the motion to dismiss should have been converted into
a motion for summary judgment because the United States relied on an affidavit3 in
support of its motion.
“If, on a motion under Rule 12(b)(6) ..., matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.” Fed. R. Civ. P. 12(d). “‘Rule 12(b)(6) motions
are not automatically converted into motions for summary judgment simply because
one party submits additional matters in support of or [in] opposition to the motion.’”
Casazza v. Kiser, 313 F.3d 414, 417 (8th Cir. 2002) (alteration in original) (quoting
Missouri ex rel. Nixon v. Coeur D'Alene Tribe, 164 F.3d 1102, 1107 (8th Cir. 1999)).
“A district court does not convert a motion to dismiss into a motion for summary
judgment when, for example, it does not rely upon matters outside the pleadings in
granting the motion.” Gorog v. Best Buy Co., 760 F.3d 787, 791 (8th Cir. 2014) (citing
BJC Health Sys. v. Columbia Cas. Co., 348 F.3d 685, 688 (8th Cir. 2003)).
3Specifically, Sorace claims that the district court improperly relied on the
affidavit of Edwin Young, the acting Chief of Police of the Rosebud Sioux Tribe Law
Enforcement Services. Young attested that the Rosebud Sioux Tribe Law Enforcement
Services did not receive any telephone calls regarding Dillon’s erratic driving prior
to Dillon’s motor vehicle accident with Melanie Sorace.
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The district court clearly stated that it was dismissing Sorace’s complaint under
Fed. R. Civ. P. 12(b)(6) and that it was “in no position to delve into the competing
affidavits” regarding whether the police received reports about Dillon. The district
court instead stated that it accepted the facts alleged in Sorace’s complaint as true,
including that the RST PD received multiple reports that a pickup truck was driving
erratically through Mission, South Dakota and, therefore, that the RST PD had actual
knowledge of Dillon’s dangerous driving. Nothing in the record indicates that the
district court considered any of the affidavits that were provided by the parties.
We hold the district court did not err as a matter of law in not converting the
motion to dismiss into a motion for summary judgment.
IV.
Finally, Sorace appeals from the district court’s dismissal of her complaint
because she contends that the district court should have granted her request for leave
to file an amended complaint rather than dismissing her action. We review for abuse
of discretion the district court's decision to deny leave to amend a complaint. O'Neil,
574 F.3d at 505; United States v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir.
2005). “Although leave to amend shall be freely given when justice so requires, see
Fed. R. Civ. P. 15(a), plaintiffs do not have an absolute or automatic right to amend.”
Fairview Health Sys., 413 F.3d at 749 (citing Meehan v. United Consumers Club
Franchising Corp., 312 F.3d 909, 913 (8th Cir. 2002)) (internal quotations omitted).
Sorace argues that the district court abused its discretion by not allowing her
leave to amend her complaint to allege that the Tipton factors were satisfied. Sorace
did not submit a proposed amended pleading to the district court, however. Instead,
she noted in her response to the United States’ motion to dismiss that “if the court
grants the motion, plaintiff requests leave to amend the complaint to cure any defect.”
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The District of South Dakota's Local Rule 15.1 requires a plaintiff to submit a
proposed amended pleading with a motion to amend the complaint. A district court
does not abuse its discretion in denying leave to amend where a plaintiff has not
followed applicable procedural rules. O'Neil, 574 F.3d at 505 (citing Drobnak v.
Andersen Corp., 561 F.3d 778, 787 (8th Cir. 2009)); see also Meehan, 312 F.3d at 914
(“[T]he district court was not required to engage in a guessing game.”).
Further, the district court did not abuse its discretion because amendment of
Sorace’s complaint would have been futile. “Futility is a valid basis for denying leave
to amend.” Fairview Health Sys., 413 F.3d at 749 (citing Moses.com Sec., Inc. v.
Comprehensive Software Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005)). Although
Sorace maintains she could have easily alleged that the Tipton factors were satisfied,
the record does not support that proposition. In response to United States’ motion to
dismiss, Sorace offered the affidavits of Elizabeth Bordeaux and Luke Black Bear
stating that the RST PD received reports about Dillon prior to his motor vehicle
accident with Melanie Sorace. The district court already assumed for purposes of the
motion to dismiss that Sorace could have satisfied the first prong of the Tipton test
such that those affidavits added nothing to the district court’s analysis. Sorace’s
counsel also provided copies of the BIA Manual, the BIA Law Enforcement
Handbook, and the Rosebud Sioux Trial Code. We previously held that these tribal
handbooks and laws do not protect a particular class of people and do not satisfy the
third factor of the Tipton test. It is apparent to us that Sorace attempted to satisfy the
Tipton factors before the district court through these submissions but was unable to
do so. Thus, we have before us no evidence that Sorace would have been able to
satisfy the Tipton factors if she were given an additional opportunity.
Accordingly, we find the district court did not abuse its discretion in refusing
to grant Sorace leave to amend her complaint.
The Judgment is affirmed.
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