Jane Doe v. United States ( 2023 )

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 22-1703
___________________________
Jane Doe
lllllllllllllllllllllPlaintiff - Appellant
v.
United States of America
lllllllllllllllllllllDefendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Missouri - St. Louis
____________
Submitted: September 22, 2022
Filed: January 24, 2023
____________
Before SMITH, Chief Judge, KELLY and GRASZ, Circuit Judges.
____________
SMITH, Chief Judge.
______________________________
Jane Doe sued the government after being sexually assaulted by an employee
of the United States Department of Veterans Affairs (VA). The government moved
to dismiss for lack of subject matter jurisdiction. The district court1 granted the
government’s motion. Doe appeals the district court’s determination that the assault
occurred outside the scope of the employee’s employment. We affirm.
I. Background
A. Factual History
Doe was being treated for a hip injury at the St. Louis VA Medical Center. She
was referred to the battlefield acupuncture (BFA) therapy group. BFA is a form of
therapy that involves placing needles or tacks into five spaces in a patient’s ear.
The incident in question occurred during a private BFA session. William B.
Luchtefeld, a nurse practitioner employed by the VA, was treating Doe. Luchtefeld
performed the BFA therapy and then asked Doe if she wanted the hip pain “massaged
out.” Doe v. United States, No. 4:21-CV-00173-AGF, 2022 WL 898788, at *1 (E.D.
Mo. Mar. 28, 2022). Luchtefeld instructed Doe to lay on her side. He began
massaging Doe’s lower back, hip, and stomach. He then instructed Doe to remove her
pants to expose her injured hip area. Luchtefeld moved his hands between Doe’s legs
and groped and digitally penetrated her vagina. Luchtefeld also placed his hands
under Doe’s shirt and groped her breast. Luchtefeld documented the BFA therapy, not
the massage and subsequent sexual assault.
After the incident, Doe went to the front desk with tears in her eyes. She asked
another VA employee to see Luchtefeld’s supervisor and a VA staff psychiatrist. A
doctor purporting to be Luchtefeld’s supervisor arrived, but Luchtefeld interrupted
the conversation. Luchtefeld offered Doe his business card and prevented her from
fully reporting the assault.
1
The Honorable Audrey G. Fleissig, United States District Judge for the
Eastern District of Missouri.
-2-
In a statement given to a special agent of the VA Office of Inspector General,
Luchtefeld admitted to touching Doe’s vagina because he “got kind of excited.” R.
Doc. 34-5, at. 4. He admitted that it was inappropriate for him to massage a patient.
Doe also gave a statement, in which she stated Luchtefeld was not wearing gloves and
was breathing hard. She noted that he had an erection.
B. Procedural History
Doe filed a complaint, pursuant to the Federal Tort Claims Act (FTCA),
asserting multiple negligent and intentional tort causes of action. The government
moved to dismiss for lack of subject matter jurisdiction. It argued that Luchtefeld’s
job responsibility during his appointment was limited to treating Doe with BFA. It
asserts that Luchtefeld was neither acting within the scope of his employment nor
furnishing medical care or treatment when he ceased performing BFA and began to
massage and sexually assault Doe. Based on Luchtefeld’s unauthorized conduct, the
government argued that Doe failed to establish jurisdiction under the FTCA.
After Doe responded to the government’s dismissal motion, the parties jointly
moved for limited discovery on the issue of subject matter jurisdiction and for
additional time to allow Doe to supplement her response. The district court granted
the joint motion.2
Doe’s supplemental response argued that Luchtefeld had broad authority and
duties, such that he was acting within the scope of his employment when he assaulted
Doe. She further argued that her allegations that Luchtefeld committed intentional
torts while furnishing medical care or treatment suffice to establish jurisdiction. Doe
2
In addition to four affidavits from VA employees filed with its motion to
dismiss, R. Docs. 10-1–10-4, the government filed statements given by Doe and some
of her medical records. R. Docs. 13-1–13-4. It also submitted the bylaws of the
medical staff for the St. Louis VA Medical Center. R. Doc. 39-2. Doe also provided
medical records, as well as depositions from VA employees and a statement given by
Luchtefeld. R. Docs. 34-4–34-11.
-3-
maintained that Luchtefeld was furnishing medical care or treatment when he
assaulted her. She asserted that to hold otherwise would nullify the FTCA because
negligence and intentional torts are never authorized by an employer.
The district court granted the government’s motion. It concluded that
jurisdiction under the FTCA requires a showing that the tortfeasor acted within the
scope of employment as defined by state law. The district court further concluded that
under Missouri law, sexual misconduct is generally never within the scope of
employment because it only serves the interests of the tortfeasor, not the employer.
The district court found that Luchtefeld’s treatment authority was limited to BFA
therapy and that any massage that he performed was not authorized nor intended to
treat her hip pain. The district court concluded that Luchtefeld’s actions were
motivated wholly by his personal desires, such that he was not acting within the scope
of his employment under Missouri law. The court’s rulings eliminated the FTCA’s
sovereign immunity waiver with respect to Doe’s claim.
II. Discussion
Doe brings three arguments on appeal challenging the district court’s order.
First, she argues that the district court relied on an interpretation of 38 U.S.C. § 7316that nullified both the letter and intent of the statute. Second, she argues that the
district court misinterpreted applicable Missouri law on the liability of an employer
for the intentional torts of its employees. Third, she argues that the district court erred
in (1) concluding the VA limited Luchtefeld’s duties to BFA and (2) in determining
that he was not acting within the scope of his employment.
A. Standard of Review
“We review de novo a district court’s decision to dismiss a complaint for lack
of subject matter jurisdiction.” Magee v. United States, 9 F.4th 675, 680 (8th Cir.
2021). “The burden of proving the existence of subject matter jurisdiction rests with
the party invoking federal jurisdiction.” Id.-4-
We review the district court’s interpretation of both federal statutes and state
law de novo. Dowd v. United Steelworkers of Am., Loc. No. 286, 253 F.3d 1093, 1099
(8th Cir. 2001) (federal statutes); Dupps v. Travelers Ins. Co., 80 F.3d 312, 313 (8th
Cir. 1996) (state law). “When the district court makes findings of fact on disputed
issues, we review those findings for clear error.” Magee, 9 F.4th at 680.
B. Interpretation of 38 U.S.C. § 7316Doe’s first argument implicates various provisions of the FTCA and § 7316.
“Generally, sovereign immunity prevents the United States from being sued without
its consent.” Iverson v. United States, 973 F.3d 843, 846 (8th Cir. 2020) (cleaned up).
“When it passed the FTCA, Congress removed the sovereign immunity of the United
States from suits in tort.” Id. (cleaned up). The FTCA waives immunity with respect
to
civil actions on claims against the United States, for . . . personal injury
. . . caused by the negligent or wrongful act or omission 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).
Section 7316(a)(1) applies this waiver to claims against employees of the VA
Veterans Health Administration. It makes § 1346(b)(1) the exclusive remedy “for
damages for personal injury, including death, allegedly arising from malpractice or
negligence of a health care employee of the Administration in furnishing health care
or treatment while in the exercise of that employee’s duties in or for the
Administration.” 38 U.S.C. § 7316(a)(1). “‘[H]ealth care employee of the
Administration’ means a physician, dentist, podiatrist, chiropractor, optometrist,
nurse, physician assistant, expanded-function dental auxiliary, pharmacist, or
-5-
paramedical (such as medical and dental technicians, nursing assistants, and
therapists), or other supporting personnel.” Id. § 7316(a)(2).
However, intentional torts are excepted from the § 1346(b)(1) waiver. Section
2680(h) of the FTCA states that, “[t]he provisions of . . . section 1346(b) of this title
shall not apply to . . . any claim arising out of assault, battery, false imprisonment,
false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation,
deceit, or interference with contract rights.” 28 U.S.C. § 2680(h).
Conversely, § 7316(f) provides an exception to § 2680(h):
The exception provided in section 2680(h) of title 28 shall not apply to
any claim arising out of a negligent or wrongful act or omission of any
person described in subsection (a) in furnishing medical care or
treatment (including medical care or treatment furnished in the course
of a clinical study or investigation) while in the exercise of such
person’s duties in or for the Administration.
38 U.S.C. § 7316(f). “[S]ubsection (a)” refers to § 7316(a), stated above.
Doe contends that the district court erred in its analysis of § 7316(f). She
asserts that it placed too much focus on the language, “while in the exercise of such
person’s duties in or for the Administration,” but ignored the language, “wrongful act
or omission of any person described in subsection (a) in furnishing medical care or
treatment.” She argues that the latter gives the statute practical meaning. Doe
maintains that “the express words of the statute and their plain meaning indicates that,
if an intentional tort is committed by a VA employee who is supposed to be
delivering medical care as part of their duties, and is delivering medical care, then
federal jurisdiction under the FTCA is mandated.” Appellant’s Br. at 16. The district
court’s analysis, according to Doe, nullifies the statute because wrongful acts will
never be defined in a person’s job duties. The government replies that Doe’s
interpretation is inconsistent with the FTCA’s general design that only waives
-6-
sovereign immunity for acts committed by a government employee, “while acting
within the scope of his office or employment.” Appellee’s Br. at 39 (quoting Magee,
9 F.4th at 679–80).
Doe’s argument misinterprets the effect of § 7316(f). As the district court
correctly concluded: “[Section 7316(f)] merely extends FTCA liability to intentional
torts committed by VA health care employees; it does not eliminate the jurisdictional
inquiry under the FTCA. . . . [F]ederal courts determining their jurisdiction under
[§ 7316] still look to the FTCA’s scope-of-employment test and corresponding state
law.” Doe, 2022 WL 898788, at *4.
Section 7316(f), in pertinent part states, “[t]he exception provided in section
2680(h) of title 28 shall not apply to any claim.” 38 U.S.C. § 7316(f). This language
excepts certain claims from § 2680(h). Such claims are identified by the remaining
language of § 7316(f). Thus, certain intentional torts that arise from medical care or
treatment provided by “VA health care employees” in the exercise of their duties are
not subject to § 2680(h)’s jurisdictional bar. See Ingram v. Faruque, 728 F.3d 1239,
1249 (10th Cir. 2013) (“Section 7316(f) . . . insulates the individual government
employee by nullifying § 2680(h) and thereby expanding the injured party’s remedy
against the government under the FTCA.” (cleaned up)).
However, § 7316(f) does not grant jurisdiction to claims. Jurisdiction for
claims against “a health care employee of the Administration” is exclusively granted
by § 1346(b)(1), via § 7316(a)(1). See 38 U.S.C. § 7316(a)(1) (“The remedy . . .
against the United States provided by section[] 1346(b) . . . for damages . . . arising
from malpractice or negligence of a health care employee of the Administration . . .
shall be exclusive of any other civil action or proceeding.” (emphasis added)). In
other words, § 7316 extends the FTCA remedy against the United States to claims
“arising from the provision of medical services by health care employees of the VA.”
Ingram, 728 F.3d at 1245; see also Brown v. Mercadante, 687 F. App’x 220, 223 (3d
Cir. 2017) (unpublished per curiam) (holding a veteran’s intentional tort and
-7-
negligence claims against individual VA healthcare employees were barred because
her exclusive remedy was an FTCA claim against the government).
We have long recognized that the “threshold requirement to establish
jurisdiction under the Federal Tort Claims Act is that the federal employee must have
been acting within the scope of his employment when the tort was committed” as
“governed by the law of the State where the alleged tort was committed.” Magee, 9
F.4th at 680 (cleaned up); see also Johnson v. United States, 534 F.3d 958, 963 (8th
Cir. 2008) (same); Primeaux v. United States, 181 F.3d 876, 878 (8th Cir. 1999) (en
banc) (“In determining the extent of the government’s FTCA liability, scope of
employment sets the line.” (cleaned up)).
Requiring the federal employee to have acted within the scope of his
employment does not “nullify” the statute. The FTCA makes clear that the scope-of-
employment test is defined by state law, not the employer. Magee, 9 F.4th at 680
(stating that scope of employment “is governed by the law of the State where the
alleged tort was committed”). Indeed, Doe relies heavily on Leininger v. United
States, 499 F. Supp. 3d 973, 988–91 (D. Kan. 2020), where a physician assistant was
determined to have been acting within the scope of his employment, as defined by
Kansas law, when he sexually assaulted several patients. Similarly, the Supreme
Court held that a provision “functionally indistinguishable” from § 7316(f) abrogates
§ 2160(h) and permitted a lawsuit “against the United States alleging medical battery
by a Navy doctor acting within the scope of his employment.” Levin v. United States,
568 U.S. 503, 518 (2013).
Accordingly, the district court’s analysis was not in error.
C. Interpretation of Missouri Law
Second, Doe argues that the district court erroneously held that “because sexual
molestation is at issue, . . . the matter cannot entail employer responsibility either in
negligence or intentional tort.” Appellant’s Br. at 43. She further argues that the
-8-
district court ignored several principles of Missouri law that require a more fact
intensive analysis. Doe notes that Missouri courts have held that employer liability
can be found “although the act was unauthorized, if the act was not unexpectable in
view of the duties of the servant.” Id. at 35 (quoting Henderson v. Laclede Radio,
Inc., 506 S.W.2d 434, 436 (Mo. 1974)).
The district court began its analysis with this court’s conclusion in Magee,
which provides:
Under Missouri law, the analysis focuses on whether the act was done
“by virtue of the employment and in furtherance of the business or
interest of the employer.” Cluck v. Union Pac. R.R. Co., 367 S.W.3d 25,
29 (Mo. 2012) (internal quotation omitted). An act is done while
engaged in the employer’s business if it is “fairly and naturally incident
to the employer’s business” and “did not arise wholly from some
external, independent or personal motive.” Higgenbotham v. Pit Stop
Bar & Grill, LLC, 548 S.W.3d 323, 328 (Mo. Ct. App. 2018).
Magee, 9 F.4th at 680.
The district court then acknowledged Wellman v. Pacer Oil Co., 504 S.W.2d
55 (Mo. 1973) (en banc), which relied on the Restatement (Second) of Agency,
§§ 231 and 235 (1958), to hold:
The fact that the servant intends a crime, especially if the crime is of
some magnitude, is considered in determining whether or not the act is
within the employment, since the master is not responsible for acts
which are clearly inappropriate to or unforeseeable in the
accomplishment of the authorized result. The master can reasonably
anticipate that servants may commit minor crimes in the prosecution of
the business, but serious crimes are not only unexpectable but in general
are in nature different from what servants in a lawful occupation are
expected to do.
...
-9-
[In the case of outrageous acts,] the facts may indicate that the servant
is merely using the opportunity afforded by the circumstances to do the
harm.
Wellman, 504 S.W.2d at 58 (internal quotation marks omitted).
In addition, the district court noted three Missouri cases holding that sexual
misconduct was outside the scope of employment,
even where, as here, the employee took advantage of his job position to
commit the misconduct and the misconduct took place during work
hours and at the workplace. . . . [because] such sexual acts generally
arise wholly from the employee’s personal motive rather than to serve
the employer in any part.
Doe, 2022 WL 898788, at *4 (citing Gibson v. Brewer, 952 S.W.2d 239, 246 (Mo.
1997) (en banc) (“[I]ntentional sexual misconduct and intentional infliction of
emotional distress are not within the scope of employment of a priest, and are in fact
forbidden.”); P.S. v. Psychiatric Coverage, Ltd., 887 S.W.2d 622, 625 (Mo. Ct. App.
1994) (“Regardless of whether sexual misconduct takes place during or in connection
with therapy, it is not the general kind of activity a therapist is employed to perform.
The sexual encounters between plaintiff . . . and [the therapist] resulted from purely
private and personal desires.”); Gilley v. Mo. Pub. Entity Risk Mgmt. Fund, 437
S.W.3d 315, 319 (Mo. Ct. App. 2014) (“It is absurd to think that [the tortfeasor]’s
rape of [plaintiff] was undertaken in furtherance of the interests of Cole County.
Clearly, the act arose from [the tortfeasor]’s personal motive.”)).
On this precedential foundation, the district court determined that Luchtefeld
was not acting within the scope of his employment under Missouri law. The district
court concluded that “all evidence and inferences here point to Luchtefeld’s purely
personal desire.” Doe, 2022 WL 898788, at *5. Doe’s cited authorities do not defeat
the district court’s analysis. For instance, Doe relies on Noah v. Ziehl, which involved
-10-
a bar patron who was violently assaulted by a bouncer employed by the bar. 759
S.W.2d 905 (Mo. Ct. App. 1988). The patron sued the bar, and, after a jury trial, the
jury returned a verdict in the patron’s favor. Id. at 909. The Missouri Court of
Appeals reversed. Id. at 913. The court found that the bouncer was not acting within
the scope of his employment. Id. It concluded “that when conduct of an employee
exceeds the scope and course of employment and are done, not in furtherance of the
employer’s business, but to gratify the employee’s feelings or resentment or revenge,
the conduct is outside the scope and course of the employment.” Id. at 911. This is
essentially the same holding in Magee, adopted by Missouri courts, which requires
an act to be “‘fairly and naturally incident to the employer’s business,’ and . . . ‘not
arise wholly from some external, independent or personal motive.’” Magee, 9 F.4th
at 680 (quoting Higgenbotham, 548 S.W.3d at 328).
Doe also relies on a factor-based test in Noah for determining whether a
particular use of physical force is within the scope of employment. But six years later,
as cited by the district court, the Missouri Court of Appeals treated sexual misconduct
by a therapist differently. In P.S., the court examined “whether [a sexual relationship
between a therapist and his patient] was done by virtue of the employment and in
furtherance of the business or interest of the employer.” 887 S.W.2d at 624.
Determining the therapist was not acting within the scope of his employment, the
court found that “[r]egardless of whether sexual misconduct takes place during or in
connection with therapy, it is not the general kind of activity a therapist is employed
to perform,” and that “[t]he sexual encounters between plaintiff . . . and [the therapist]
resulted from purely private and personal desires.” Id. at 625. The P.S. court also
found that “[t]he acts did not occur as part of any therapy program and they were not
intended to further employer’s business,” id., and that the “[p]laintiff . . . testified that
she did not believe this behavior was part of therapy,” id. at 624.
The findings in P.S. resemble this case. See Doe, 2022 WL 898788, at *5
(“Luchtefeld’s treatment authority in this case was limited to BFA therapy and . . .
any massage of [Doe] was not intended in any way to treat [her] hip pain (and thereby
-11-
serve the VA) but rather motivated wholly by Luchtefeld’s personal desires.”); id.(“[A]ll evidence and inferences here point to Luchtefeld’s purely personal desire.
Indeed, [Doe] apparently did not believe that Luchtefeld’s contact with her genitalia
and breasts was part of her treatment, as she stopped [him] from engaging in such
contact and immediately attempted to report the incident. And according to [Doe],
Luchtefeld attempted to interfere with [Doe] reporting [the incident], suggesting that
he did not want his employer to learn of the incident.”).
Doe also relies on Daugherty v. Allee’s Sports Bar & Grill, 260 S.W.3d 869(Mo. Ct. App. 2008). She argues that Daugherty “provides a clear understanding of
the ‘course and scope’ analysis under Missouri law.” Appellant’s Br. at 39. Doe
construes Daugherty’s holding that “an employer is liable for an employee’s torts
even if the employer did not authorize the employee’s conduct as long as the
employee committed such act while engaged in an activity falling within the scope
of the employee’s authority or employment” to be a strong, favorable precedent. Id.(quoting Daugherty, 260 S.W.3d at 873 (internal quotation marks omitted)). But this
holding was quoted from and applied in P.S., which ultimately found that the
tortfeasor’s sexual misconduct was not within his scope of employment. See
Daugherty, 620 S.W.3d at 873 (quoting P.S., 887 S.W.2d at 624). The instant facts
track the facts in P.S. better than the facts in Daughtery, which involved an injury
caused by a bartender placing a toothpick in the plaintiff’s drink.
Doe’s reliance on Henderson, fairs no better. Henderson involved a violent
attempt to collect a debt owed to the tortfeasor’s employer. 506 S.W.2d at 434. Doe
contends this case “demonstrates the Court’s placing ‘primary importance’ on ‘the
nature of the principal’s business,’ and ‘whether or not the employment will bring the
employee into contact with the public,’ as well as looking at motive and
foreseeability.” Appellant’s Br. at 36–37. However, Henderson gave controlling
weight to Wellman, specifically Wellman’s explanation and application of the
Restatement (Second) of Agency, which, as previously noted, was also relied on by
the district court. Henderson, 506 S.W.2d at 436–37.
-12-
Therefore, we find no error in the district court’s analysis of relevant Missouri
law.
D. Whether Luchtefeld was Acting Within the Scope of Employment
Third, Doe argues that the district court erred in concluding that Luchtefeld’s
duties were restricted to providing BFA. She argues that the evidence showed that
Luchtefeld had full authority as her primary care provider. She asserts that Luchtefeld
had authority to use his discretion to provide all non-surgical care for her hip pain.
Doe also challenges the overall finding that Luchtefeld was not acting within the
scope of his employment.
After allowing limited discovery, the district court concluded that Luchtefeld’s
treatment authority was limited to BFA therapy. Further, as explained above, the
district court found that Doe’s injuries arose specifically out of Luchtefeld’s physical
contact with her genitalia and breasts and that such contact was motivated by a purely
personal desire. Based on these findings, the district court determined that Luchtefeld
was not acting within the scope of his employment.
These findings were not clearly erroneous. Viewing the record as a whole, “we
are not left with the definite and firm conviction that a mistake has been committed.”
United States v. Finley, 612 F.3d 998, 1003 (8th Cir. 2010).
Initially, Luchtefeld denied sexually assaulting or massaging Doe. He later
admitted to the sexual assault and admitted that it was inappropriate for him to
massage a patient. He also failed to document anything that occurred after the BFA
therapy, including the massage. This is consistent with the finding that the massage
and subsequent sexual assault exceeded the scope of his treatment authority.
The record also indicated that Luchtefeld was breathing hard while he touched
Doe and that he had an erection after committing the sexual assault. It also indicates
that he attempted to prevent Doe from reporting the incident to his superiors. He even
admitted to touching her vagina because he “got kind of excited.” R. Doc. 34-5, at 4.
-13-
Additionally, he was not wearing gloves when he began massaging her. This supports
the finding that the massage and subsequent sexual assault were motived by
Luchtefeld’s personal desires, not any effort to treat Doe.
Doe also challenges four affidavits provided by the government in support of
its motion to dismiss. She claims that “[s]tripped of legal conclusions and innuendo,
nothing in these affidavits demonstrated that Luchtefeld’s duties were strictly
confined to . . . BFA[].” Appellant’s Br. at 22–23. We disagree.
For example, the affidavit of Dr. Kavitha Reddy, who performed over 1,000
BFA procedures from 2017 to 2020, indicated that BFA appointments are limited to
providing BFA therapy and that no additional therapies are provided. It also noted
that BFA only requires the provider to touch the patient’s ears. R. Doc. 10-4.
Similarly, the affidavit of Licensed Acupuncturist Laura Devaney, who was the
BFA Program Coordinator for the St. Louis VA Medical Center, detailed a seven-step
protocol for completing BFA. None of the steps require giving massages. In fact, after
the procedure the provider “encourages a patient to stand and move the painful body
region.” R. Doc. 10-3, at 3.
The affidavit of Associate Chief Nurse Pamela Becker Weilitz, which Doe
relies on, provides a broad explanation of Luchtefeld’s duties. However, Weilitz’s
affidavit indicated that Luchtefeld did not have chiropractor core privileges and was
not a designated Woman’s Health Provider. This meant that he could not “perform
massages as part of his duties” and that “the VA would not have scheduled him to
provide Well Woman Exams for routine, annual examinations.” R. Doc. 10-2, at 4.
In light of the pleadings and undisputed evidence, the district court did not err
determining that Luchtefeld acted outside the scope of his employment.
Doe reasserts that the district court’s analysis would result in no FTCA claims
moving forward because “negligence (nor intentional tort) is never a stated part of the
-14-
scope and practice of an employee.” Appellant’s Br. at 32. But the opinion in Cluck
is instructive. There, a railroad employee carried a loaded firearm in his luggage,
which accidently discharged and struck another employee’s knee. Cluck, 367 S.W.3d
at 27. The injured employee sued the railroad. Id. The Cluck court, in explaining
Missouri’s respondeat superior principles, relied on Daugherty and Lavender v.
Illinois Central Railroad Co., 219 S.W.2d 353 (Mo. 1949), to hold that the act
causing the injury must be in furtherance of the employer’s business. Id. at 29.
Notably, the plaintiff in Cluck argued that such holding “is unfair, for an
employer will seldom have ordered the employee to perform the negligent act, and,
therefore, the negligent act will almost never be found to be in furtherance of the
employer’s interests.” Cluck, 367 S.W.3d at 29–30. The Cluck court stated:
This argument misconstrues the standard. As Lavender explained:
“In order for the master to be liable, it is, of course, not
necessary that the servant or servants at fault have the
authority of the master to do the particular thing which was
done. Under certain circumstances the master may be liable
if the act of the servant was contrary to the master’s
express orders. But to hold the master liable the act must
always have been done in furtherance of the master’s
business.”
Id. at 30 (quoting Lavender, 219 S.W.2d at 357–58). Under Missouri law, the focus
is on whether the act was done in furtherance of the business, not whether the act was
defined within an employee’s duties. Indeed, Doe quoted a similar holding from
Daugherty, as stated above. The district court’s findings were not clearly erroneous.
III. Conclusion
Accordingly, we affirm the district court’s grant of the government’s motion
to dismiss for lack of jurisdiction due to the unavailability of the FTCA’s waiver of
the United States’ sovereign immunity.
______________________________
-15-