Anderson v. Keller

• Decision Date: 15 August 2007
• Docket Number: No. 24399.,24399.
• Parties: Robert ANDERSON, Plaintiff and Appellant, v. Steven KELLER, Defendant and Appellee.
• Court: South Dakota Supreme Court

739 N.W.2d 35

2007 SD 89

Robert ANDERSON, Plaintiff and Appellant, v. Steven KELLER, Defendant and Appellee.

No. 24399.

Supreme Court of South Dakota.

Considered on Briefs on May 21, 2007.

Decided August 15, 2007.

Steven C. Beardsley, Brad J. Lee of Beardsley, Jensen and VonWald, L.L.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Gene R. Bushnell of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, L.L.P., Rapid City, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] On November 21, 2006, the circuit court of the South Dakota Seventh Judicial Circuit issued a decision granting Steve Keller's (Keller) motion for summary judgment in connection with a personal injury claim filed against him by Robert Anderson (Anderson). An alternative motion for continuance, filed by Anderson, was denied. The circuit court entered its corresponding order on December 8, 2006. We affirm.

FACTS AND PROCEDURE

[¶ 2.] There is no dispute that on July 22, 2003, a vehicle owned by the Angostura Irrigation District (Angostura) and operated by Keller collided with one driven by Anderson. Anderson was proceeding in a southeasterly direction and had just emerged onto Fall River County Road 416C from a private drive on his property. Keller, who was employed by Angostura and at the time was carrying out his duties as a "ditch runner," was west bound on the county road when the incident occurred. Keller allegedly collided with the driver's rear quarter of Anderson's vehicle.¹

[¶ 3.] In a sworn affidavit, Anderson alleges that following the collision, Keller called Angostura's manager and secretary Mick Jenniges to inform him of the incident.²,³ According to Anderson, Jenniges arrived at the scene about 10-20 minutes after the collision. Anderson avers that Jenniges spoke to him and Keller at the scene and then also to a Fall River County sheriff's deputy who arrived at the scene about 45-60 minutes after the collision.

[¶ 4.] Anderson did not file his personal injury complaint against Keller until March 17, 2006. On September 14, 2006, Keller filed a motion for summary judgment alleging that Anderson had failed to comply with the statutory notice provisions of SDCL 3-21-2, which is relevant to personal injury claims against a public entity or its employees. On October 23, 2006, Anderson filed a memorandum in opposition to the motion for summary judgment and an alternative motion for continuance to conduct discovery. On November 21, 2006, the circuit court issued its decision, granting Keller's motion for summary judgment and denying Anderson's alternative motion for continuance. The order of the circuit court was entered on December 8, 2006.

[¶ 5.] Anderson raises two issues on appeal:

1. Whether the notice requirements of SDCL 3-21-2 were satisfied.

2. Whether the circuit court abused its discretion in not granting Anderson's motion for continuance to conduct discovery as to the scope of notice provided to Angostura.

STANDARD OF REVIEW

In reviewing a trial court's order granting a motion for summary judgment, "[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided." "We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party."

Gakin v. City of Rapid City, 2005 SD 68, ¶ 7, 698 N.W.2d 493, 497 (internal citations omitted). Questions of law, such as statutory interpretation, are reviewed de novo. Id. "We review the trial court's rulings on discovery matters under an abuse of discretion standard." Maynard v. Heeren, 1997 SD 60, ¶ 5, 563 N.W.2d 830, 833 (citing Weisbeck v. Hess, 524 N.W.2d 363 364 (S.D.1994) (citing Aberle v. Ringhausen, 494 N.W.2d 179, 182-83 (S.D.1992))).

ANALYSIS AND DECISION

[¶ 6.] 1. Whether the notice requirements of SDCL 3-21-2 were satisfied.

[¶ 7.] Keller's employer, Angostura, is a political subdivision formed under SDCL 46A-4-19.⁴ Our legislature has set out the terms under which tort claims can be filed against public entities, and their employees, including irrigation districts, such as Angostura.⁵ SDCL 3-21-2 provides in pertinent part:

No action for the recovery of damages for personal injury, property damage, error, or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

(Emphasis added). The irrigation district's secretary is a person designated to receive notice on its behalf. SDCL 3-21-3(5).

[¶ 8.] This Court has stated that notice in accord with SDCL 3-21-2, sufficient to satisfy the statute, is notice of a claim. Gakin, 2005 SD 68, ¶ 17, 698 N.W.2d at 499. We have also commented that where a plaintiff's right to bring a cause of action against a public entity exists only by virtue of statute, the cause of action is subject to such conditions and limitations as public policy may require or deem desirable. Griffis v. State, 68 S.D. 360, 2 N.W.2d 666, 668 (1942) (citing Barnsdall Refining Corp. v. Welsh, 64 S.D. 647, 269 N.W. 853 (1936); Goodhope v. State, 50 S.D. 643, 211 N.W. 451 (1926)) (holding that there was no jurisdiction to render a judgment for claims in absence of an appropriation for their payment where a cause of action against the state was premised by statute on an available appropriation); see also Rowe v. Richards, 32 S.D. 66, 142 N.W. 664, 665 (1913) (acknowledging that in a case alleging negligence of a municipality resulting in personal injury and death, where the right to bring a cause of action can be maintained only by virtue of statute, it must be prosecuted in the manner and under the conditions specified), overruled in part on other grounds by Ulvig v. McKennan Hosp., 56 S.D. 509, 229 N.W. 383 (1930).

[¶ 9.] Anderson did not file his complaint against Keller until March 17, 2006, almost two years and eight months after the date of alleged injury that triggered the 180-day notification period under SDCL 3-21-2. See Gakin, 2005 SD 68, ¶ 15, 698 N.W.2d at 498 (citing Purdy v. Fleming, 2002 SD 156, ¶ 14, 655 N.W.2d 424, 430) (reaffirming that the triggering event for the 180-day notice period under SDCL 3-21-2 is the date of the injury, not the date that the injury is discovered). No other notice of claim is contained in the record nor alleged by Anderson.

[¶ 10.] Nevertheless, Anderson argues that the statutory notice provisions were satisfied, alleging substantial compliance through Keller's insurance form. Alternatively, Anderson argues that Angostura's secretary, Jenniges, had actual knowledge of his claim through the telephone call from Keller, informing him of the incident; through his visit to the collision scene, where Anderson alleges he spoke with the parties and a sheriff's deputy; and through Keller's insurance form.

[¶ 11.] While this Court has never recognized actual knowledge of a person designated to receive notice for a public entity as a substitute for a plaintiff's adequate notice of claim,⁶ we have set out two exceptions to the express notice requirements of SDCL 3-21-2. In Smith v. Neville, 539 N.W.2d 679, 681-82 (S.D.1995), we held that when the acts of a public entity or its agents would affirmatively mislead an objectively reasonable person to believe that the proper authority of the public entity received notice of the plaintiff's injury claim, the public entity and its employees are estopped from using the plaintiff's failure to strictly comply with the statutory notice provisions as a shield to defeat his claim.⁷ There is nothing in the record of the instant case to suggest that Angostura in any way affirmatively misled Anderson; therefore estoppel does not apply.

[¶ 12.] In Myears v. Charles Mix County, 1997 SD 89, ¶¶ 3, 13, 566 N.W.2d 470, 474, we recognized substantial compliance as a stand alone basis for meeting the requirements of SDCL 3-21-2. In establishing this precedent, we reviewed our prior holding in Mount, recounting the affirmative acts of the plaintiff in that case to provide notice of claim. Id. ¶ 10, 556 N.W.2d at 473; see also supra note 6 (reciting material facts of Mount). We noted that prior to SDCL 3-21-2 this Court had recognized substantial compliance in Inlagen v. Town of Gary, 34 S.D. 198, 147 N.W. 965 (1914) and Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881 (1915) and implicitly in Budahl v. Gordon David Assoc., 287 N.W.2d 489 (S.D.1980) following the adoption of SDCL 9-24-2, the predecessor to SDCL 3-21-2. Myears, 1997 SD 89, ¶ 11, 566 N.W.2d at 473. We then concluded that substantial compliance with SDCL 3-21-2 was sufficient since that statute is materially comparable to its predecessor and that the legislature did not take the opportunity when drafting the new statute to include language requiring strict construction. Id. ¶ 10, 556 N.W.2d at 473.

[¶ 13.] In order to reacquaint those tasked with detecting its existence we restated our prior definition of substantial compliance:

"Substantial compliance" with a statute means actual compliance in respect to the substance essential to every reasonable objective of the statute. It means that a court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. Substantial compliance with a statute is not shown unless it is made to appear that the purpose of the statute is shown to have been served. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

Id. ¶ 13, 556 N.W.2d at 474 (emphasis added) (citations omitted). Determining the purpose of SDCL 3-21-2 to be consistent with that of its predecessor, we then confirmed the following seven objectives of SDCL 9-24-2 as still applicable:

(1) To investigate...