attorney Michael E. Douglas Attorney at Law
  Personal Injury Attorney
  St. Paul Workers Compensation Lawyer work comp attorney
 > About Me
   :: My Commitment
   :: Our Community
 > Legal Practice Areas
  twin cities comsumer lawPersonal Injury
   :: Traffic Accidents
   :: Medical Malpractice
   :: Social Security Disability
   :: Premises Liability
   :: Wrongful Death
   :: Dog Bite
   :: Back/Spinal/Neck Injuries
   :: Whiplash
   :: Defective Medical Devices
   :: Defective Drugs
  Minnesota Personal InjuryWorkers Compensation
  St. Paul personal injuryConsumer Law
   :: Debt Collection
   :: Repossessions
   :: Foreclosures
   :: Loan, Credit, Banking
   :: Arbitration Agreements
   :: Deception and Fraud
   :: Auto Fraud / Lemon Law
   :: Warranties
   :: Predatory Lending
 > Contact Us
   :: Contact Us

Law Offices of Michael E. Douglas
P.O. Box 251551
Woodbury, Minnesota 55125-6551

 Saint Paul Lawyer


Rau v. Roberts: US District Court : 1983 - motion to dismiss claims of Assault and Battery denied; fact Questions regarding City's liability for officer's actions

Randy Philip Rau,
Civ. No. 08-2451 (RHK/JJK)
Michael David Roberts and
City of Minneapolis,
Scott W. Swanson, Swanson Law Firm, PLLC, St. Paul, Minnesota, Paul Applebaum,
Applebaum Law Firm, St. Paul, Minnesota, for Plaintiff.
Sara J. Lathrop, C. Lynne Fundingsland, Minneapolis City Attorneys Office,
Minneapolis, Minnesota, for Defendant City of Minneapolis.
This action arises out of an alleged assault perpetrated by Defendant Michael
David Roberts, a police officer employed by Defendant City of Minneapolis (the City),
against Plaintiff Randy Phillip Rau. Presently before the Court is the Citys Motion to
Dismiss. For the reasons set forth below, the Court will deny the Motion.
Rau owns a car wash and gas station called The Perfect Carwash in Brooklyn
Center, Minnesota. (Compl. 9.) On July 11, 2006, Roberts traveled to The Perfect
Carwash with his wife, in his personal car, to obtain gas. (Id. 11.) He was wearing his
police-issued uniform, badge, utility belt, and firearm at the time. (Id.)
Roberts purchased worth of gas but mistakenly believed that the fuel was not
pumped into his car. (Id. 12-13.) He went inside the building to complain to a clerk,
who advised Rau of the problem. (Id. 14.) Rau spoke with the clerk and then with
Roberts, informing him that the gas had, in fact, been pumped into his car. (Id.) Roberts,
however, continued to dispute that he had actually received any gas. (Id.) He then went
back to his car, and Rau followed behind, intending to show Roberts that he had
received his gas by getting Robertss vehicle started. (Id. 15.) When Rau moved
toward the ignition of Robertss car, however, Roberts threatened to break Raus neck if
Rau touched the car. (Id.)
Because Roberts continued protesting that he had not received any gas, Rau
decided to remove the gas-pump nozzle from Robertss car. (Id.) As he moved to do so,
Roberts struck him with both fists, knocking him into the gas pump. (Id. 16.) Rau then
went back into the building and called 911. (Id.) Roberts followed him and yelled what
the fuck are you calling the police for? The police are already here! (Id. 17.)
Following a further exchange of words, Roberts stormed back out to his car. (Id. 17-
Rau, fearing that Roberts might leave the scene, went outside and wrote down
Robertss license-plate number, and then went back to the pump to ensure that the nozzle
had been removed from Robertss car. (Id. 18.) Seeing Rau, Roberts grabbed him by
the shirt collar, spun him around, and slammed him into the car. (Id. 19.) Roberts then
threw Rau against his car a second time and punched Rau in the face, cutting his lip and
chipping one of his teeth. (Id.) Rau went back into the building and called 911 again.
Rau later commenced the instant action, asserting three claims: excessive force
under 42 U.S.C. 1983 against Roberts (Count 1), and battery (Count 2) and assault
(Count 3) against both Roberts and the City. The City now moves to dismiss Counts 2
and 3, arguing that it cannot be held vicariously liable for Robertss actions as a matter of
The recent Supreme Court case of Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
127 S. Ct. 1955 (2007), sets forth the standard to be applied when evaluating a motion to
dismiss under Rule 12(b)(6). To avoid dismissal, a complaint must include enough facts
to state a claim to relief that is plausible on its face. Id. at 1974. Stated differently, a
plaintiff must plead sufficient facts to provide the grounds of his entitle[ment] to
relief, [which] requires more than labels and conclusions, and [for which] a formulaic
recitation of the elements of a cause of action will not do. Id. at 1964-65 (citation
omitted). Thus, a complaint cannot simply le[ave] open the possibility that a plaintiff
might later establish some set of [undisclosed] facts to support recovery. Id. at 1968
(citation omitted). Rather, the facts set forth in the complaint must be sufficient to
nudge[] the[] claims across the line from conceivable to plausible. Id. at 1974.
When reviewing a motion to dismiss, the complaint must be liberally construed,
assuming the facts alleged therein as true and drawing all reasonable inferences from
those facts in the plaintiffs favor. Id. at 1964-65. A complaint should not be dismissed
simply because a court is doubtful that the plaintiff will be able to prove all of the factual
allegations contained therein. Id. Accordingly, a well-pleaded complaint will survive a
motion to dismiss even if it appears that a recovery is very remote and unlikely. Id. at
1965 (citation omitted).
The City argues that it cannot be liable here because the alleged assault and battery
did not occur within the scope of Robertss employment. Under Minnesota law, the City
may be held responsible for Robertss alleged torts under a respondeat superior theory, if
they occurred within the scope of his employment. E.g., Frieler v. Carlson Mktg. Group,
Inc., 751 N.W.2d 558, 583 (Minn. 2008); Schneider v. Buckman, 433 N.W.2d 98, 101
(Minn. 1988). This is true even for intentional torts like assault and battery, as long as
Robertss conduct was foreseeable, related to and connected with acts otherwise within
the scope of employment. Frieler, 751 N.W.2d at 583 (quoting Fahrendorff ex rel.
Fahrendorff v. N. Homes, Inc., 597 N.W.2d 905, 910 (Minn. 1999)).
In support of its Motion, the City asserts that Roberts was off duty at the time of
the altercation, pointing to the Brooklyn Center Police Departments Incident Report,
which states that Roberts informed the responding officers that he was off duty. (See
Def. Mem. at 2, 5-6.)1 The City also notes that Roberts was in his own vehicle and was
1 Rau objects to the Incident Report, arguing that it is beyond the pleadings and, in any event, is
unauthenticated and inadmissible hearsay. (Mem. in Oppn at 5-8.) The Court need not address
these arguments, because it concludes that the claims against the City should not be dismissed
even if the Incident Report is considered.
outside City limits when the alleged assault and battery occurred. (See id. at 5.)
Accordingly, the City argues that the facts indisputably show that Roberts was not acting
in the scope of his employment at the time of the incident.
But the City has overlooked the procedural posture of this case. The Court may
not resolve fact disputes on a motion to dismiss, e.g., Fla. State Bd. of Admin. v. Green
Tree Fin. Corp., 270 F.3d 645, 663 (8th Cir. 2001), and whether an employee acted
within the scope of his employment is ordinarily a question of fact for the jury, Hentges
v. Thomford, 569 N.W.2d 424, 427 (Minn. Ct. App. 1997) (citations omitted). Indeed,
none of the cases cited by the City was decided on a motion-to-dismiss under Rule
12(b)(6). (See infra note 3.) At this juncture, the only question the Court must answer is
whether Rau has pleaded sufficient facts to state . . . claim[s] to relief that [are] plausible
on [the] face of the Complaint. Twombly, 127 S. Ct. at 1974. While the facts the City
has alluded to, if true, tend to cast doubt that Roberts was acting in the scope of his
employment when the alleged assault/battery occurred, there are sufficient facts pleaded
in the Complaint to support the opposite conclusion.
Specifically, Rau has alleged that Roberts was in his police-issued uniform,
wearing his badge and utility belt, and carrying his firearm when the incident took place.
(Compl. 11.) More importantly, when Rau retreated into The Perfect Carwash to call
911, Roberts chased after him and yelled, what the fuck are you calling the police for?
The police are already here! (Id. 17.) In the Courts view, this exclamation
necessarily conveyed the impression that Roberts was acting as an on-duty police officer
that is, he enjoyed the same power and authority to act as any police officer who might
be dispatched in response to Raus 911 call. The Court concludes that these facts, which
it must accept as true at this juncture, are sufficient to support the conclusion that Roberts
was acting in the scope of his employment as a Minneapolis police officer when the
incident occurred.2
The City argues that it cannot be liable because it was not foreseeable that Roberts
would commit an assault while off duty. (Reply Mem. at 14-22.) As noted above,
foreseeability is a key element in the scope-of-employment analysis. E.g., Frieler, 751
N.W.2d at 583 (vicarious liability exists for employees intentional tort if conduct was
foreseeable, related to and connected with acts otherwise within the scope of
employment). The Citys argument, however, is unconvincing for three reasons.
First, the City incorrectly assumes that Roberts was off duty at the time of the
incident, when the facts pleaded in the Complaint suggest otherwise. Second, Minnesota
cases intimate that the risk of assault by police officers is foreseeable. See, e.g., Dawley
v. Tuchek, Nos. A05-2143, A05-2174, 2006 WL 2053377, at *3 (Minn. Ct. App. July 25,
2006) ([W]e recognize that as a matter of public policy, the power and authority granted
to police officers may support broad imposition of respondeat superior liability for police
misconduct.). In the Courts view, it is foreseeable that police officers, who work in a
high-paced and high-stress job, are armed, and are frequently involved in tense, face-toface
confrontations with criminals (and others), might commit assaults in the course of
2 In addition, the Court notes that the Incident Report does not indisputably establish that
Roberts was off duty at the time of the alleged assault. The Report states only that Roberts told
the responding officers that he was off duty; there is no independent verification of that fact
contained in the Report.
their employment. Indeed, there exist legions of cases in which police officers used
excessive force and/or committed assaults and batteries on innocent victims. Third, it is
long-standing precedent that for purposes of respondeat superior, the foreseeability of an
employees conduct is a question of fact to be analyzed based on the evidence presented
in the particular case. Frieler, 751 N.W.2d at 583-84; accord Fahrendorff, 597 N.W.2d
at 911 ([I]t is a question of fact whether the employees acts were foreseeable.).
Accordingly, the foreseeability issue is not amenable to resolution at this juncture.3
At oral argument, the City asserted that, as a matter of public policy, it should not
be responsible for Robertss conduct because he was not performing duties for the City at
the time of the assault. Frieler rejected a similar argument, noting that it is well
established that an employees actions need not be committed in furtherance of his
employers business to fall within the scope of his employment for purposes of
respondeat superior. 751 N.W.2d at 575 (quoting Fahrendorff, 597 N.W.2d at 910).
The City also argued that it should not be held liable because Roberts was not authorized
to commit assaults. Under that logic, however, an employer could inform its employees
3 Nearly all the cases on which the City relies specifically, M.Y. ex rel. J.Y. v. Special School
District No. 1, 519 F. Supp. 2d 995 (D. Minn. 2007) (Doty, J.); Hudson v. City of Minneapolis,
Civ. No. 04-3313, 2006 WL 752935 (D. Minn. Mar. 23, 2006) (Ericksen, J.); Murray ex rel.
Murray v. United States, 258 F. Supp. 2d 1006 (D. Minn. 2003) (Montgomery, J.); Longen v.
Federal Express Corp., 113 F. Supp. 2d 1367 (D. Minn. 2000) (Tunheim, J.); and Western
National Mutual Insurance Co. v. United States, 964 F. Supp. 295 (D. Minn. 1997) (Doty, J.)
are distinguishable, as each was decided at summary judgment. Similarly, Primeaux v. United
States, 181 F.3d 876 (8th Cir. 1999), was decided after a bench trial. Only Johnson v. United
States, 534 F.3d 958 (8th Cir. 2008), addressed a motion to dismiss, but Johnson dealt with a
motion to dismiss for lack of subject-matter jurisdiction, an issue for which a district court may
consider facts beyond the pleadings. See id. at 962 (noting issue was decided based on
undisputed facts). Yet, even Johnson recognized that generally, whether an employees actions
are within the scope of [his] employment is a question of fact. Id. at 963.
that they are not authorized to commit tortious acts, and then fall back on that warning as
a shield to prevent vicarious liability in all circumstances. Such a rule would severely
undermine the purpose behind the vicarious-liability doctrine, which is premised not on
the fault of the employer, but from notions of public policy that an employer should
have to bear liability for acts committed by its employees within the scope of their
employment as a cost of doing business. Frieler, 751 N.W.2d at 574-75. Indeed, for
this reason Minnesota courts have repeatedly rejected the notion that an employer cannot
be held responsible for an employees conduct even when such conduct was illegal or
expressly prohibited by the employer. Id. at 575 (emphasis added) (citing Fahrendorff,
597 N.W.2d at 912, and Marston v. Minneapolis Clinic of Psychiatry & Neurology, Ltd.,
329 N.W.2d 306, 311 (Minn. 1982)).
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
ORDERED that Defendant City of Minneapoliss Motion to Dismiss (Doc. No. 4) is
Date: January 21, 2009
s/Richard H. Kyle
United States District Judge


  What day were you injured?

  / /

  What caused your injuries?
Traffic/Bicycle Accident
Work-Related Injury
Wrongful Death
Dog Bite
Slip and Fall

  How have your injuries affected

  your life?


  What kinds of medical care
  professionals have you seen?


  What has your treatment cost?


  Is Insurance Involved?
My insurance may cover

Someone else's insurance
        may cover this.

I already filed a claim.
I rejected a settlement

I accepted a settlement

  Were there any witnesses?
Bystanders Witnessed This.
Police Responded and Filed
        a Police Report

Police Responded but Did
        Not File a Police Report



          By visiting this page or clicking the
  "submit" button above, you agree
  that you have read and accept this   "disclaimer".
Copyright © Michael E. Douglas, Attorney at Law, Saint Paul MN. All Rights Reserved.
Minnesota Law Firm representing Personal Injury, Car / Auto Accident, Workers Compensation, Medical Malpractice, Social Security Disability claims.
Dedicated to Injured Workers, Victims of Negligence, Car Accidents, Victims of Fraud, and those in need of legal assistance.