Nielson v. AT & T CORP.

• Decision Date: 28 July 1999
• Docket Number: No. 20613.,20613.
• Citation: 1999 SD 99,597 N.W.2d 434
• Parties: Gregg R. NIELSON, personal representative of the estate of Karyn L. Nielson; and Judith L. Nielson, Plaintiffs and Appellants, v. AT & T CORP.; AT & T Corp., d/b/a AT & T Federal Systems; Lucent Technologies, Inc.; and Charles E. Davis, individually and d/b/a Midwestern Ditching, Defendants and Appellees.
• Court: South Dakota Supreme Court

597 N.W.2d 434

1999 SD 99

Gregg R. NIELSON, personal representative of the estate of Karyn L. Nielson; and Judith L. Nielson, Plaintiffs and Appellants, v. AT & T CORP.; AT & T Corp., d/b/a AT & T Federal Systems; Lucent Technologies, Inc.; and Charles E. Davis, individually and d/b/a Midwestern Ditching, Defendants and Appellees.

No. 20613.

Supreme Court of South Dakota.

Argued March 24, 1999.

Decided July 28, 1999.

Veronica L. Bowen of Bangs, McCullen, Butler, Foye & Simmons, L.L.P., Rapid City, South Dakota, Attorneys for plaintiffs and appellants.

Thomas G. Fritz of Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, South Dakota, Attorney for defendants and appellees, AT & T Lucent.

Alan Epstein and Thomas R. Dolven of Hall & Evans, LLP, Denver, Colorado, Attorneys for defendants and appellees AT & T.

Frank A. Bettmann of Finch Bettmann & Maks, P.C., Rapid City, South Dakota, Attorneys for defendants and appellee Davis.

SABERS, Justice

[¶ 1.] Gregg Nielson, father, personal representative of the Estate of Karyn Nielson, and Judith Nielson, mother, (Nielson) sued defendants alleging: 1) a claim for the wrongful death of their daughter, Karyn; 2) a survival claim on behalf of Karyn for the emotional fright and distress that she suffered in the moments before her death; and 3) a claim for negligent infliction of emotional distress on behalf of Judith for witnessing Karyn's death. The trial court granted summary judgment that Nielson's claims were barred by South Dakota's Equine Activities Act (SDCL Ch 42-11). We reverse and remand.

FACTS

[¶ 2.] On August 13, 1993, Karyn Nielson, age 19, and her mother, Judith Nielson, rode their horses across a riding pasture leased by the Ellsworth Air Force Base Riding Club. During a controlled gallop, Karyn's horse tripped and somersaulted landing on Karyn. Judith was riding approximately 50 feet behind Karyn. Judith attempted to give Karyn CPR and later accompanied her to the hospital. Karyn died as a result of her injuries. At the time, Judith did not know what had caused Karyn's horse to trip.

[¶ 3.] On September 3, 1996, Nielson filed a complaint claiming that Karyn's horse tripped because it stepped into a cable trench dug by AT & T Corporation, Lucent Technologies, Inc., with the assistance of a subcontractor, Charles Davis (collectively referred to as defendants or AT & T). Nielson claims that AT & T failed to properly fill and compact the trench and failed to warn riders of the trench. As indicated, Nielson alleges: 1) a wrongful death claim; 2) a survival action on behalf of Karyn for the emotional fright and distress that she suffered in the moments before her death; and 3) a claim for negligent infliction of emotional distress on behalf of Judith. As a result of witnessing Karyn's death, Judith claims to have suffered severe emotional distress with physical manifestations. She claims that Karyn's death is partially responsible for her quitting her nursing career.

[¶ 4.] The trial court granted summary judgment for AT & T finding that all of Nielson's claims are barred by South Dakota's equine activities statutes (SDCL Ch 42-11). It found that the statutes were constitutional as applied. In addition, the trial court held that Judith's claim for negligent infliction of emotional distress in witnessing Karyn's death is not recognized under South Dakota law.

[¶ 5.] Nielson appeals raising the following issues:

1. Whether the trial court erred in interpreting the South Dakota Equine Activities Act to grant defendants immunity under the facts of Karyn's death.

2. Whether the South Dakota Equine Activities Act is constitutional as applied to the facts of this case.

3. Whether the trial court erred in holding that Judith's claim for negligent infliction of emotional distress is inactionable as a matter of law.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for summary judgment is well-established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Weiss v. Van Norman, 1997 SD 40, ¶ 9, 562 N.W.2d 113, 115 (quoting Lamp v. First Nat'l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993) (citation omitted)). "The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law." Weiss, 1997 SD 40 at ¶ 9, 562 N.W.2d at 115 (quoting State Dep't of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citation omitted)). If there are no genuine issues of material fact, then summary judgment will be affirmed if the trial court correctly decided the legal issues before it. Weiss, 1997 SD 40 at ¶ 9, 562 N.W.2d at 115 (citing Farmland Ins. Cos. v. Heitmann, 498 N.W.2d 620, 622 (S.D.1993) (citing Stroh v. Town of Java, 463 N.W.2d 923 (S.D.1990); Bego v. Gordon, 407 N.W.2d 801 (S.D.1987); Trapp v. Madera Pacific, Inc., 390 N.W.2d 558 (S.D.1986))).

[¶ 7.] 1. WHETHER THE TRIAL COURT ERRED IN INTERPRETING THE SOUTH DAKOTA EQUINE ACTIVITIES ACT TO GRANT AT & T IMMUNITY UNDER THE FACTS OF KARYN'S DEATH.

[¶ 8.] The trial court granted summary judgment for AT & T finding that the South Dakota Equine Activities Act (SDCL Ch 42-11) provided AT & T immunity against Nielson's claims. It found that AT & T, as "any other person" under SDCL 42-11-2, qualified for immunity from claims resulting from the "inherent risks" of equine activities under SDCL 42-11-1(6).

[¶ 9.] The South Dakota Equine Activities Act (SDCL Ch 42-11) became effective July 1, 1993, approximately six weeks before Karyn's death. SDCL 42-11-2 provides:

No equine activity sponsor, equine professional, doctor of veterinary medicine, or any other person, is liable for an injury to or the death of a participant resulting from the inherent risks of equine activities.

(Emphasis added).

[¶ 10.] "Equine activity sponsor" is defined as:

any individual, group, club, partnership, or corporation, whether or not the sponsor is operating for profit or nonprofit, which sponsors, organizes, or provides the facilities for an equine activity, including pony clubs, 4-H clubs, hunt clubs, riding clubs, school and college-sponsored classes, programs and activities, therapeutic riding programs, and operators, instructors, and promoters of equine facilities, including stables, clubhouses, ponyride strings, fairs, and arenas at which the activity is held[.]

SDCL 42-11-1(4). "Equine professional" is defined as "any person engaged for compensation in instructing a participant or renting to a participant an equine for the purpose of riding, driving, racing or being a passenger upon the equine or engaged in renting equipment or tack to a participant[.]" SDCL 42-11-1(5).

[¶ 11.] SDCL 42-11-1(6) defines "inherent risks of equine activities" as:

[T]hose dangers or conditions which are an integral part of equine activities, including:

(a) The propensity of the animal to behave in ways that may result in injury, harm, or death to persons on or around them;

(b) The unpredictability of the animal's reaction to such things as sounds, sudden movement, and unfamiliar objects, persons, or other animals;

(c) Certain hazards such as surface and subsurface conditions;

(d) Collisions with other animals or objects;

(e) The potential of a participant to act in a negligent manner that may contribute to injury to the participant or others, such as failing to maintain control over the animal or not acting within the participant's ability[.]

[¶ 12.] SDCL 42-11-5 provides:

Each equine professional shall post and maintain the following sign:

WARNING

Under South Dakota law, an equine professional is not liable for an injury to or the death of a participant in equine activities resulting from the inherent risks of equine activities, pursuant to § 42-11-2.

Such signs shall be placed in a clearly visible location on or near stables, corrals, race tracks or arenas where the equine professional conducts equine activities. The warning notice shall appear on the sign in black letters, with each letter being a minimum of one inch in height. Each written contract entered into by an equine professional for the providing of professional services, instruction, or the rental of equipment or tack or an equine to a participant, whether or not the contract involves equine activities on or off the location or site of the equine professional's business, shall contain in clearly readable print the warning notice provided in this chapter.

[¶ 13.] Nielson claims that AT & T was not involved in the sponsorship of equine activities and was not within the protection provided by these statutes. Nielson claims that the trial court's interpretation of "any other person" in SDCL 42-11-2 "renders surplusage the itemization of persons protected by the statute[.]" Nielson further claims that a man-made trench is not an "inherent risk of equine activities" and AT & T is not entitled to immunity because a warning sign was not posted as required by SDCL 42-11-5.

[¶ 14.] "Questions of law such as statutory interpretation are reviewed by the Court de novo[.]" Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17 (quoting U.S. West Communications, Inc. v. Public Utilities Comm'n, 505 N.W.2d 115, 122-23 (S.D.1993) (citations omitted)). "The purpose of statutory construction is to discover the true intention of the law...