Jane Doe v. United States, No. 22-1703 (8th Cir. 2023)
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Plaintiff sued the government pursuant to the Federal Tort Claims Act (FTCA), asserting multiple negligent and intentional tort causes of action 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 court granted the government’s motion. Plaintiff appealed the district court’s determination that the assault occurred outside the scope of the employee’s employment.
The Eighth Circuit affirmed. The court explained that the FTCA makes clear that the scope-of-employment test is defined by state law, not the employer. Plaintiff argued that the district court erred in concluding that the provider’s duties were restricted to providing battlefield acupuncture therapy (BFA). The court explained that initially, the provider denied sexually assaulting or massaging Plaintiff. 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 court explained that in light of the pleadings and undisputed evidence, the district court did not err, determining that the provider acted outside the scope of his employment.
Court Description: [Smith, Author, with Kelly and Grasz, Circuit Judges] Civil case - Federal Tort Claims Act. Doe was sexually assaulted by a Veteran's Administration employee while undergoing acupuncture treatment for a hip injury; the district court dismissed the action for lack of subject matter jurisdiction and Doe appeals. Held: the district court did not err in determining the assault occurred outside the scope of the VA employee's employment, and the dismissal is affirmed.
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