                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 05-1114
                                     ___________

Marques Good Low                        *
                                        *
            Plaintiff - Appellant,      *
                                        * Appeal from the United States
      v.                                * District Court for the District
                                        * of South Dakota.
United States of America                *
                                        *
            Defendant - Appellee.       *
                                   ___________

                           Submitted: September 14, 2005
                               Filed: November 15, 2005
                                   ___________

Before MELLOY, BEAM, and BENTON, Circuit Judges.
                           ___________

MELLOY, Circuit Judge.

       Marques Good Low brought suit under the Federal Tort Claims Act, 28 U.S.C.
§ 1346(b). Good Low sustained damages when a Cheyenne River Sioux Tribe
(“CRST”) police officer accidentally ran over him after Good Low had eluded
officers, driven into an alfalfa field, and vacated his vehicle. Following a bench trial,
the district court1 entered judgment for the government. We affirm.



      1
        The Honorable Andrew W. Bogue, United States District Court Judge for the
District of South Dakota.
I. Background

       On September 11, 1999, Good Low, then 18-years old, went to a party where
he consumed a great deal of alcohol. In the early hours of September 12, 1999, Dan
Iron Road, a CRST police officer, observed Good Low speeding and driving
erratically. A chase ensued, and Good Low left the road and evaded the officer by
driving through a marsh. Good Low then drove into an alfalfa field where he crashed
into a bale of hay. During the course of the chase, Iron Road was joined by other
officers including CRST Sergeant Anthony Aungie. While driving on a road adjacent
to the field and using a spotlight, Aungie located Good Low’s vehicle resting against
the hay bale. The officers located a gate and drove their vehicles into the field.

       Aungie was able to see that the door of Good Low’s vehicle was open, but he
could not see anyone inside. He continued to drive toward the vehicle at fifteen miles
per hour. Aungie used his spotlight and his headlights, although the latter were
obstructed by the alfalfa which was more than two feet high. None of the officers
used their flashing overhead lights or sirens. When Aungie was approximately 100
yards from Good Low’s vehicle, Good Low raised his head above the alfalfa. Good
Low was only a few feet in front of Aungie’s vehicle, and Aungie could not stop
before running over him with both his front and rear right tires. Good Low sustained
serious injuries including a fractured pelvis and a lacerated urethra. He continues to
suffer from complications including incontinence and a loss of sexual function.

      The district court found that Aungie was negligent for driving at an
inappropriate rate of speed in an area where he could not see persons or objects on
the ground. However, South Dakota law does not allow a plaintiff to recover if his
or her own negligence is more than slight when compared to the defendant’s
negligence. Because the district court found that Good Low was negligent and that
his negligence was not slight when compared to Aungie’s, it denied recovery.



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II. Analysis

       Under the Federal Tort Claims Act, the federal government can be held liable
for injury caused by the negligent act “of any employee of the Government while
acting within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
The government employees at issue in this case are the police officers of the CRST.
The events at issue occurred in South Dakota, so we must look to the law of that state
in determining whether Good Law may recover damages. “South Dakota’s
comparative negligence statute bars recovery when a plaintiff’s contributory
negligence is greater than slight compared to the negligence of the defendant . . . .”
Estate of C.M. Largent, III v. United States, 910 F.2d 497, 498 (8th Cir. 1990).

      Good Low raises two arguments on appeal. First, he asserts that any
negligence on his part was slight when compared to Aungie’s negligence. Second,
Good Low contends that even if his negligence is found to be more than slight, he
should not be denied recovery because of the “last clear chance” doctrine. We
address each of these arguments in turn.

A. Good Low’s Contributory Negligence

       After a bench trial, the district court made findings of fact and conclusions
of law. It found “no evidence that [Good Low] was ejected from his vehicle when
the car hit the hay bale” and determined that “the only rational explanation” for his
laying in the alfalfa was that Good Low “voluntarily exited his vehicle and moved
to the place where he was struck by Aungie’s vehicle.” We agree with the district
court that “the inherent risks involved with lying face down in the alfalfa field,
after leading law enforcement on a high speed chase, are obvious and should have
been comprehended by the Plaintiff.” Thus, we also agree with the district court


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that Good Low’s “conduct was clearly a contributing cause . . . in bringing about
the injuries sustained.”

     The district court made several specific findings regarding the degree of
Good Low’s negligence. It stated:

      [T]he Plaintiff aggressively attempted to avoid apprehension by fleeing
      from law enforcement. His reckless conduct continued when he decided
      to further elude his pursuers by hiding in the alfalfa field. His own
      reckless conduct necessitated the presence of law enforcement officers
      in the alfalfa field and he was equally culpable in causing the injuries he
      sustained. The court finds this degree of negligence to be greater than
      slight.

We review for clear error the district court’s finding that Good Low’s negligence was
more than slight when compared to the negligence of the defendants. Largent, 910
F.2d at 499.

       Good Low disputes the district court’s finding that he was “hiding” in the
alfalfa. Although Good Low was too intoxicated to remember the events in the
alfalfa field, his attorney suggests that he may have left the vehicle in a state of shock
or simply passed out due to his intoxication. The district court concluded that another
explanation was more likely. It found that “the evidence suggests [Good Low]
voluntarily left his vehicle, and, in a further attempt to avoid apprehension, hid in the
alfalfa field.” It is undisputed that Good Low had already attempted to elude police
by driving into the field. Furthermore, Good Low did get up off the ground and raise
his head above the alfalfa shortly before being struck by the officer’s vehicle. Thus,
the evidence does not suggest that he was intoxicated or injured to the point that he
was unable to move. Although Good Low contends that the conclusion that he was
hiding was speculative, we cannot reject it as clearly erroneous. Craft v. Metromedia,
Inc., 766 F.2d 1205, 1212 (8th Cir. 1985) (“‘Where there are two permissible views


                                           -4-
of the evidence, the factfinder’s choice between them cannot be clearly erroneous.’”)
(quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985)).

       Good Low also argues that it was improper for the district court to consider the
fact that he fled law enforcement in determining the degree of his negligence. He
claims that because his vehicle was already inoperable at the time officers made the
decision to enter the field, any actions Good Low took prior to crashing his vehicle
were not the proximate cause of his injuries. We need not determine the precise
application of South Dakota law on this point because we find that even if the district
court improperly relied on the fact that Good Low led officers on a chase, it was
harmless error. Other portions of the district court’s opinion indicate that, looking
solely at Good Low’s actions after crashing his vehicle, the district court would still
have found him to be more than slightly negligent:

      [T]he only rational explanation [for how Good Low ended up in the
      alfalfa] is that he voluntarily exited his vehicle and moved to the place
      where he was struck by Aungie’s vehicle. By so doing, he placed
      himself in danger of being struck by the motor vehicles occupied by his
      pursuers. The Plaintiff’s conduct was clearly a contributing cause which
      cooperated with Aungie’s negligence in bringing about the injuries
      sustained.

The fact that the district court later described Good Low and Aungie as being
“equally culpable” for Good Low’s injuries further indicates that, even if the events
that occurred prior to entering the alfalfa field were removed from the equation, the
district court would still find Good Low more than slightly negligent. See Largent,
910 F.2d at 500 (considering the district court’s emphasis of other factors and
deciding that the district court would have reached the same decision even if it had
not improperly considered a factor later deemed to be irrelevant).




                                         -5-
B. Last Clear Chance Doctrine

      Although we can ascertain no clear error in the district court’s finding that
Good Low was more than slightly negligent when his actions are compared to
Aungie’s, Good Low argues that he is still entitled to recovery based on the “last clear
chance” doctrine. This doctrine allows a plaintiff to recover despite his own
negligence in some cases where the defendant’s “negligent act was the final decisive
cause of the accident.” Nielsen v. Richman, 299 N.W. 74, 74 (S.D. 1941) (internal
quotation marks omitted). The district court’s opinion does not discuss the
applicability of this doctrine. Assuming arguendo that the issue was properly raised
below, we find that, under South Dakota law, the last clear chance doctrine does not
apply to the circumstances of this case.

       The district court concluded that Good Low was hiding in the alfalfa, and, as
discussed above, there is no clear error with that finding. Therefore, we must assume
that Good Low retained the ability to remove himself from danger by revealing
himself to the oncoming officers. Despite his intoxication, Good Low was able to
raise his head above the alfalfa and reveal himself to Aungie, albeit too late. As such,
his failure to protect himself from the oncoming police vehicles constitutes
continuing negligence.

       In South Dakota the continuing negligence of a plaintiff is neutralized by the
last clear chance doctrine only “if the evidence will support an inference that the
defendant actually discovered the peril” to the plaintiff and “thereafter failed to act
with reasonable care . . . .” Haase v. Willers Truck Service, Inc., 34 N.W.2d 313, 317
(S.D. 1948) (emphasis added). The South Dakota Supreme Court further explained
that this discovery must be actual, not just imputed:

      The great weight of judicial authority denies the application of the last
      clear chance doctrine in the situation where the defendant, while under

                                          -6-
      a duty to discover the danger to the injured person, did not actually
      discover it and the injured person was physically able to escape from the
      peril at any time up to the moment of impact.

Id. (internal quotations omitted). Although Aungie arguably should have known that
Good Low was somewhere in the alfalfa field, there is no evidence that he actually
discovered that Good Low was in his path prior to Good Low raising his head above
the alfalfa. When Good Low raised his head, Aungie was only a few feet away from
Good Low and could not stop his vehicle before striking him.

       The district court did find that Aungie was traveling faster than he should have
been in light of the low visibility in the alfalfa field. Even if Aungie’s prior
negligence was the reason he could not avoid hitting Good Low, however, the last
clear chance doctrine still does not apply. In Nielsen, the South Dakota Supreme
Court adopted Section 480 of the Restatement of Torts. Nielsen, 299 N.W. at 76.
Comment h in Section 479 of that text, which also deals with the last clear chance
doctrine, states:

      If the defendant, after discovering the plaintiff’s peril, does all that can
      reasonably be expected of him, the fact that his efforts are defeated by
      antecedent lack of preparation or a previous course of negligent conduct
      is not sufficient to make him liable.

Restatement (First) of Torts § 479 cmt. h (1934). The comment goes on to provide
an example that is especially relevant to this case:

      [I]f a railroad train is exceeding the statutory speed limit in approaching
      a level crossing, but the engineer does not see the plaintiff’s helpless
      peril on the crossing in time to stop the train, the fact that the train could
      have been stopped in the distance between the two points if it had been
      going at the lawful speed is not enough to make the defendant liable to
      the negligent plaintiff.


                                           -7-
Id. For the foregoing reasons, we find that the last clear chance doctrine does not
allow Good Low to recover.

III. Conclusion

       We find no clear error in the district court’s determination that Good Low’s
negligence was more than slight when compared to Aungie’s. We also conclude that
the last clear chance doctrine is not applicable to this case and thus does not allow
Good Low to recover damages despite his own negligence. Accordingly, we affirm
the judgment of the district court.
                       ______________________________




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