904 N.W.2d 502 (S.D. 2017), 27368-a-JMK, Long v. State

Docket Nº:27368-a-JMK
Citation:904 N.W.2d 502, 2017 SD 79
Opinion Judge:KERN, Justice
Party Name:Mark and Marilyn LONG, Arnie and Shirley Van Voorst, Tim and Sara Doyle, Timothy and Jane Griffith and Michael and Karen Taylor, Plaintiffs and Appellees, v. STATE of South Dakota, Defendant and Appellant.
Attorney:MARK V. MEIERHENRY, CHRISTOPHER HEALY, CLINT SARGENT of Meierhenry Sargent, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees. GARY P. THIMSEN, JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
Judge Panel:SEVERSON, Justice, concurs. GILBERTSON, Chief Justice, and BARNETT, Circuit Judge, dissent. BARNETT, Circuit Judge, sitting for WILBUR, Retired Justice, disqualified. JENSEN, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate. ZI...
Case Date:November 21, 2017
Court:Supreme Court of South Dakota

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904 N.W.2d 502 (S.D. 2017)

2017 SD 79

Mark and Marilyn LONG, Arnie and Shirley Van Voorst, Tim and Sara Doyle, Timothy and Jane Griffith and Michael and Karen Taylor, Plaintiffs and Appellees,


STATE of South Dakota, Defendant and Appellant.


Supreme Court of South Dakota

November 21, 2017



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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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MARK V. MEIERHENRY, CHRISTOPHER HEALY, CLINT SARGENT of Meierhenry Sargent, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.

GARY P. THIMSEN, JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.


KERN, Justice

[¶1] Landowners filed an inverse condemnation claim against the State of South Dakota (State) and the City of Sioux Falls (City) seeking damages and a permanent injunction due to flooding on Landowners' properties. The circuit court bifurcated the issue of whether a constitutional damaging of property had occurred from the question of damages. Prior to the court trial on liability, Landowners and the City settled. The court granted the State's request to file a cross-claim against the City seeking indemnification and contribution. At the conclusion of the court trial, the court issued a judgment for Landowners. The court dismissed the cross-claim finding the State failed to prove that the City was liable. The question of damages was presented to a jury. After a four-day trial, the jury found the flood permanently damaged Landowners' properties and awarded individual damages to each of the Landowners. The State appeals. We affirm.


[¶2] Minnehaha and Lincoln Counties are drained by a natural watercourse referred to as the Spring Creek Tributary Drainage Basin. In 1949, the South Dakota Department of Transportation (DOT) built Highway 11. The Highway runs north and south through Lincoln and Minnehaha Counties and across the natural waterway known as Spring Creek. The State maintains sole control over Highway 11. At the time of construction, the DOT installed various culverts, including two 48-inch culverts and one 24-inch culvert, to permit the Spring Creek Tributary, which flows in a southeastern direction, to flow under Highway 11 into Spring Creek.

[¶3] All of the Landowners' properties are located on the west side of Highway 11, north of the intersection of Highway 11 and 85th Street, in an area referred to as the Village of Shindler or Elmen Acres. The homes lie in a sub-basin within the Spring Creek Tributary Basin. They are separated from the greater basin by the

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natural lay of the land and a ditch block (driveway) south of the twin 48-inch culverts. The single 24-inch culvert drains surface water from the sub-basin. The 24-inch culvert is too small to drain water entering the sub-basin from outside sources.

[¶4] In 2009, the DOT began planning a project to resurface a portion of Highway 11 near Landowners' properties. Due to area residents' complaints that the culverts were inadequate to effectively drain the Spring Creek Tributary, State engineers conducted a study of the twin 48-inch culverts. The engineers released their findings in the fall of 2009 in a Hydraulic Data Sheet. In making their determinations regarding the capacity of the culverts, the engineers utilized data contained within the 2008 Federal Emergency Management Agency (FEMA) Report Flood Plain Map. The FEMA Report included run-off data from the City. Based on their calculations, the engineers concluded that when water reached the flow rate of 275 cubic feet per second (cfs) or greater, water would pond behind the culverts to such an extent that it would pour over the ditch block to the south and into the sub-basin.

[¶5] The engineers determined that statistically a flow of 275 cfs would occur in an eight-year-rain event. In other words, it was likely to occur once every eight years with a 12.5% chance of occurrence in any given year. The Hydraulic Data Sheet provided that a 100-year-rain event would involve water flowing towards the culverts at 803 cfs. A 100-year-rain event would have a 1% likelihood of occurring each year. The hydraulic standard is to keep the 100-year-flood elevation below the top of Highway 11. The Hydraulic Data Sheet concluded that if water flowed over the ditch block, it would flood into the sub-basin containing Landowners' properties. Once water entered the sub-basin, it could drain only through the 24-inch culvert designed to handle a flow of 40 cfs.

[¶6] Upon completion of the study, the State proceeded in 2010 with its resurfacing project on a portion of Highway 11 near Landowners' properties. During the resurfacing, leaking joints in the two original 48-inch culverts were repaired. The original culverts were then reset in the same general location, but slightly lower. No other alterations were made.

[¶7] On July 29 and 30, 2010, just a few months after the project's completion, a significant amount of rain fell in the Spring Creek Tributary Basin causing flooding, which damaged Landowners' real and personal properties. An official rainfall measurement for the basin is unavailable. The National Weather Service (NWS) at the Sioux Falls airport, however, measured a total of 0.72 inches received on July 29. On July 30, a total of 2.23 inches of rain fell, which is considered a ten-year-rain event. The heaviest rainfall occurred during the early morning of July 30, when 1.9 inches fell over a two-hour period, which is considered a five-year-rain event. Prior to these events, Landowners had not experienced surface flooding.1

[¶8] In November 2010, Landowners filed a complaint and later an amended complaint for damages and a permanent injunction. They asserted claims of negligence, trespass, and inverse condemnation against the State and the City. The State responded by filing an answer and a motion to dismiss. The State also filed a motion for summary judgment arguing the doctrine of sovereign immunity barred the Landowners' claims. The State alleged it

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was immune because Landowners' claims arose out of the design and engineering of a South Dakota public roadway. The circuit court denied both of the State's motions.

[¶9] Prior to trial and upon consideration of this Court's decision in Rupert v. City of Rapid City, Landowners filed a second amended complaint dismissing their tort claims of negligence and trespass. 2013 SD 13, 827 N.W.2d 55. Instead, Landowners elected to proceed only on their inverse condemnation claim directly under Article VI, § 13 of the South Dakota Constitution for damage to their property. Thereafter, Landowners and the City reached a confidential settlement. The State sought permission to bring a cross-claim against the City seeking contribution and indemnity based upon a determination of relative degrees of fault. The circuit court permitted the filing of the cross-claim over Landowners' objection.

[¶10] The issue of liability was tried before the circuit court on February 18-20, 2014. During trial, Landowners testified and presented expert testimony from Arthur Umland, former lead forecaster for the NWS; Kevin Goeden, program manager for the office of bridge design for the DOT; Jon Peters, floodplain administrator and Geographic Information System administrator for Lincoln County; Mark Mainelli, civil engineer; and Kevin Goff, licensed professional engineer at Clark Engineering & Consulting. The State presented expert testimony from Bruce Crumb, lead highway maintenance worker for the DOT; Chad Hanisch, professional engineer at Infrastructure Design Group; Donald Harmon, former chief meteorologist in charge of the NWS; and Dr. Dennis Todey, associate professor at South Dakota State University and State Climatologist.

[¶11] At the conclusion of the trial, the circuit court entered findings of fact, conclusions of law, and a judgment of liability; finding the State responsible for the flooding of Landowners' properties. The court's judgment provided, " The State acquires no estate or property interest in the land of [Landowners]."

[¶12] On the question of liability, the circuit court found that the culverts were " of insufficient size to handle the drainage needs of Spring Creek Tributary." And but for the construction of Highway 11 on a berm, the " natural drainage of the Spring Creek Tributary [B]asin ... would not have caused any damage to" Landowners' properties. Specifically, the court found that the two 48-inch culverts were equipped to handle an eight-year-rain event. An eight-year-rain event would cause " water [to] back up...

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