                             ___________

                             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
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
                                          1
attempted oral intercourse with Primeaux.

     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.



     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.

                               -2-
     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 cross-
appeal 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



     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).

                               -3-
177 (S.D. 1987).3

     Second, it discussed the foreseeability test set out in


     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).

                               -4-
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


                               -5-
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.


     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).

                               -6-
     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


                               -7-
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




     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.

                               -8-
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


     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.


                               -9-
times, for purposes of discipline"); Daigle v. City of Portsmouth,
534 A.2d 689, 699 (N.H. 1987) (holding the city liable for an off-
duty 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

                               -10-
I would affirm the judgment.


     A true copy.


          Attest:


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




                               -11-
