Barger for Wares v. Cox, No. 14422

CourtSupreme Court of South Dakota
Writing for the CourtWOLLMAN; FOSHEIM, C.J., and MORGAN; HENDERSON, J., and WUEST; HENDERSON; WUEST
Citation372 N.W.2d 161
PartiesHelen BARGER, As Guardian Ad Litem for and General Guardian of the Person and Estate of Samuel Jay WARES, an Incapacitated Person, Plaintiff and Appellant, v. Raymond COX, Special Administrator of the Estate of Steven Guy Cox, Deceased, and Latchstring Inn, Inc., A South Dakota Corporation, Defendants and Appellees.
Decision Date28 August 1985
Docket NumberNo. 14422

Page 161

372 N.W.2d 161
Helen BARGER, As Guardian Ad Litem for and General Guardian
of the Person and Estate of Samuel Jay WARES, an
Incapacitated Person, Plaintiff and Appellant,
v.
Raymond COX, Special Administrator of the Estate of Steven
Guy Cox, Deceased, and Latchstring Inn, Inc., A
South Dakota Corporation, Defendants and
Appellees.
No. 14422.
Supreme Court of South Dakota.
Argued Oct. 24, 1984.
Decided July 31, 1985.
Rehearing Denied Aug. 28, 1985.

Jerry D. Johnson of Banks & Johnson, Rapid City, for plaintiff and appellant.

Gene R. Bushnell of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Raymond Cox.

Donald R. Shultz of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee Latchstring Inn, Inc.

WOLLMAN, Justice (on reassignment).

This appeal involves a negligence action for personal injuries arising out of an automobile accident that occurred in the early

Page 163

morning hours of June 10, 1978, on U.S. Highway 85 near Lead in Lawrence County. Appellee Raymond Cox is the special administrator of the estate of his son, Steven Cox, deceased. Appellant, Helen Barger (Barger), is the guardian ad litem of her son, Samuel Wares. The trial court granted defense motions for summary judgment in favor of appellee Raymond Cox and appellee Latchstring Inn, Inc. (Latchstring). We affirm.

The pleadings, depositions, and answers to interrogatories established the following facts.

Latchstring is a resort in Spearfish Canyon near the small community of Savoy. Latchstring consists of fourteen cabins, a restaurant, coffee shop, souvenir shop, and a lounge for on-sale liquor. At the time of the accident in question, Judith Woodworth (Woodworth), whose husband and mother-in-law owned all of the shares of the corporation, was the secretary-treasurer and manager of Latchstring. On May 13, 1978, Woodworth hired Samuel Wares (Wares), age sixteen, a Lead High School student, as a dishwasher and yard worker. Wares worked weekends until the end of the school year, at which time he was allowed to stay in a cabin reserved for Latchstring's minor male employees. A separate cabin was reserved for Latchstring's minor female employees.

Woodworth imposed several restrictions on Latchstring's minor employees. The male and female employees were not to "mix" in the cabins. To insure compliance with this rule, Woodworth housed the female employees on one side of the grounds and the males on the other, with Woodworth residing in a cabin between them. Minor employees could have automobiles at Latchstring only if their parents agreed. They were not to drink alcoholic beverages, and if any drugs were found the minor employees would be fired. Their cabins were to be kept clean, and they were not allowed to have their friends from town in their cabins.

Woodworth had not had any problem with the girls mixing with the boys in their cabins. Neither had she had any problem with the minor employees drinking alcoholic beverages either in 1978 or in 1977. Woodworth had imposed no specific curfew in terms of a time when the lights had to be turned out, assuming that because the minor employees worked so hard they would go to bed early. It was her practice to check the cabins once every two weeks or so. In addition, the parents of the minor employees usually checked the cabins for cleanliness when they came to pick up their children on their days off or on payday. Woodworth found no beer or liquor bottles in the cabins either in 1977 or in 1978, nor did she find any evidence of drugs. Woodworth had no knowledge that the male minor employees had had any parties in their cabin or had any boys from town visit them during 1978. The only time that she visited the minor employees' cabins in the evening was when she received complaints from the tourists that the music from the employees' stereos was too loud.

On the evening of June 9, 1978, Woodworth went to her living quarters after getting off work at 8:00 p.m., which was closing time. She went to bed at approximately 9:30 p.m. and heard nothing further until 6:30 the next morning, when someone brought her news of the accident.

On June 9, 1978, Robert Hyde (Hyde) and Troy Lipp (Lipp), two boys from Lead, heard there was a party at Latchstring. They purchased two six-packs of beer, arrived at Latchstring between 8:30 and 9:30 p.m., and went to a cabin occupied by Wares and three other minor employees, Steven Cox (Cox), age seventeen, Brian Sieveke (Sieveke), and Darwin Johnson. Hyde testified that there was already beer at the cabin and that Wares was intoxicated when Hyde and Lipp arrived. During the evening, Wares, Cox, Hyde, and Lipp smoked marijuana. Wares drank whiskey, while the three others drank beer.

The party continued into the early morning hours of June 10, 1978, but came to a halt when Wares tripped, fell, and dislocated his elbow, which protruded as a result of the fall and caused Wares to scream in

Page 164

pain. Cox borrowed Sieveke's Jeep in order to take Wares to a hospital in Lead. Sieveke instructed Cox to drive under fifty miles per hour. Cox drove the vehicle, with Wares in the front passenger seat and Lipp and Hyde in the rear. Hyde testified that Cox was sober at the time they set out for the hospital.

The young men proceeded toward Lead via U.S. Highways 85 and 14A. Cox unintentionally crossed the center line several times in negotiating the many curves in the highway. Cox was driving within safe speed limits, and Hyde and Lipp complimented him on his driving. The vehicle did not swerve nor did the tires squeal on the curves. Lipp told Cox to "watch out for Deadman's Curve," to which Hyde responded by telling Cox not to worry about it. Wares, who was in extreme pain, yelled at Cox to drive faster.

After proceeding some fourteen or fifteen miles towards Lead, the group approached what is known locally as "Deadman's Curve." As the Jeep entered the curve at between 45 to 60 miles per hour (the posted speed limit was either 35 or 40 mph) its rear end began to slide around. Cox straightened the Jeep out long enough to cause Lipp to say they had made it. The vehicle then suddenly flipped over on its side, skidded across the road, and went into a creek. Cox and Lipp were killed in the accident. Wares remembers nothing about the circumstances leading to the accident.

Hyde testified that he had been at Latchstring on some five prior occasions during 1978, on three of which occasions he and the others drank alcoholic beverages and smoked marijuana. On one occasion while Hyde was on the premises in the evening, Woodworth came to the cabin and told the young men to turn down the music. He further testified that on the night in question the music was being played at a level that permitted them to carry on a conversation.

Hyde testified that when he and Lipp arrived at the cabin, Sieveke was already in bed and that Johnson went to bed at approximately 11:00 p.m. There was no door on the opening between bedroom and the living room area. Hyde also testified that he knew of nothing that would indicate that Woodworth had any idea he and Lipp were in the cabin with Cox and the others on the night of June 9-10.

I.

Guardian's Cause of Action for Medical and Hospital Expenses

Barger contends that she has an independent right of recovery for medical and hospital expenses incurred by her on behalf of her injured child that survives a bar to the child's recovery under our former guest statute, SDCL 32-34-1. * In granting a defense motion for summary judgment on the issue, however, the trial court held that Barger's right of recovery is derivative in nature and not a new cause of action and, therefore, SDCL 32-34-1 applied to her claim. We agree.

A number of courts have held that a parent's right of action for consequential damages incurred because of negligent injury to a child, although distinct from the child's right of action, is derivative therefrom inasmuch as it is based upon and arises out of the negligence which caused the injury. See, e.g., Warner v. Pruett, 599 S.W.2d 207 (Mo.App.1980); O'Hearn v. O'Hearn, 55 A.D.2d 766, 389 N.Y.S.2d 651 (1976); Whitehead v. General Telephone Co., 20 Ohio St.2d 108, 254 N.E.2d 10 (1969); 59 Am.Jur.2d Parent and Child § 112 (1971). Consequently, the parent cannot recover unless the child also has a good cause of action. Welter v. Curry, 260 Ark. 287, 539 S.W.2d 264 (1976); Bias v. Ausbury, 369 Mich. 378, 120 N.W.2d 233 (1963); Fekete v. Schipler, 80 N.J.Super. 538, 194 A.2d 361 (1963); Dudley v. Phillips, 218 Tenn. 648, 405 S.W.2d 468 (1966).

Page 165

In Irlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa 1973), a case similar to the instant action, the Iowa Supreme Court held that although the minor was a guest passenger in the vehicle in question, Iowa's guest statute was not a defense to the mother's action for loss of services, companionship and society. The Court stated:

A true derivative action is one which a person may institute to redress a wrong done to another. Our survival statute Code § 611.20 is an example. The cause of action accruing to a fatally injured person survives his death and is maintainable by his estate representative, subject to any defense which could have been raised against the decedent....

The present action is not that kind of derivative action....

" * * * [T]he wrongful or negligent death of a minor gives rise in Iowa to two causes of action, one on behalf of the minor's administrator for those injuries which are personal to the decedent, section 611.20, the other on behalf of the father for loss of services during minority and expenses incurred on account of those injuries, rule 8. Actions brought under rule 8 are not for the injury to the child but for the injury to the father as a consequence of the injury to the child.... Wardlow v. City of Keokuk, [190 N.W.2d 439, 443 (Iowa 1971) ] supra. [Emphasis added by the Iowa court.]"

210 N.W.2d...

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15 practice notes
  • Certification of Questions of Law from U.S. Court of Appeals for Eighth Circuit, Pursuant to Provisions of SDCL 15-24A-1, Matter of, A-1
    • United States
    • Supreme Court of South Dakota
    • January 31, 1996
    ...may bring a cause of action to recover consequential damages incurred because of negligent injury to a child. Barger for Wares v. Cox, 372 N.W.2d 161, 164 (S.D.1985). Furthermore, a parent may bring a cause of action for loss of companionship and society of a child under our wrongful death ......
  • Mahomes-Vinson v. US, Civ. A. No. 88-2357-0.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 4, 1990
    ...1010, 1011, 107 A.D.2d 1042 (1985); Littleton v. Good Samaritan Hosp., 39 Ohio St.3d 86, 92, 529 N.E.2d 449, 455 (1988); Barger v. Cox, 372 N.W.2d 161, 167 (S.D.1985); Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989); Peck v. Counseling Serv., 146 Vt. 61, 64, 499 A.2d 422, 425 (1985); Mar......
  • McCoy v. Colonial Baking Co., Inc., Nos. 07-CA-58766
    • United States
    • United States State Supreme Court of Mississippi
    • November 28, 1990
    ...between the husband and wife.) (citing Page 861 both South Carolina and U.S. Supreme Court case law). SOUTH DAKOTA: Barger v. Cox, 372 N.W.2d 161 (S.D.1985) ("In Titze v. Miller, 337 N.W.2d 176 (S.D.1983), we classified a husband's cause of action for loss of consortium as derivative in nat......
  • Janis v. Nash Finch Co., No. 25261.
    • United States
    • Supreme Court of South Dakota
    • March 17, 2010
    ...court." Small v. McKennan 780 N.W.2d 501 Hosp. (hereinafter Small I), 403 N.W.2d 410, 413 (S.D.1987) (quoting Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D. ¶ 9. This Court has retained the common-law classifications of trespasser, licensee, and invitee in determining the duty a landown......
  • Request a trial to view additional results
15 cases
  • Certification of Questions of Law from U.S. Court of Appeals for Eighth Circuit, Pursuant to Provisions of SDCL 15-24A-1, Matter of, A-1
    • United States
    • Supreme Court of South Dakota
    • January 31, 1996
    ...may bring a cause of action to recover consequential damages incurred because of negligent injury to a child. Barger for Wares v. Cox, 372 N.W.2d 161, 164 (S.D.1985). Furthermore, a parent may bring a cause of action for loss of companionship and society of a child under our wrongful death ......
  • Mahomes-Vinson v. US, Civ. A. No. 88-2357-0.
    • United States
    • United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas
    • October 4, 1990
    ...1010, 1011, 107 A.D.2d 1042 (1985); Littleton v. Good Samaritan Hosp., 39 Ohio St.3d 86, 92, 529 N.E.2d 449, 455 (1988); Barger v. Cox, 372 N.W.2d 161, 167 (S.D.1985); Owens v. Garfield, 784 P.2d 1187, 1189 (Utah 1989); Peck v. Counseling Serv., 146 Vt. 61, 64, 499 A.2d 422, 425 (1985); Mar......
  • McCoy v. Colonial Baking Co., Inc., Nos. 07-CA-58766
    • United States
    • United States State Supreme Court of Mississippi
    • November 28, 1990
    ...between the husband and wife.) (citing Page 861 both South Carolina and U.S. Supreme Court case law). SOUTH DAKOTA: Barger v. Cox, 372 N.W.2d 161 (S.D.1985) ("In Titze v. Miller, 337 N.W.2d 176 (S.D.1983), we classified a husband's cause of action for loss of consortium as derivative in nat......
  • Janis v. Nash Finch Co., No. 25261.
    • United States
    • Supreme Court of South Dakota
    • March 17, 2010
    ...court." Small v. McKennan 780 N.W.2d 501 Hosp. (hereinafter Small I), 403 N.W.2d 410, 413 (S.D.1987) (quoting Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D. ¶ 9. This Court has retained the common-law classifications of trespasser, licensee, and invitee in determining the duty a landown......
  • Request a trial to view additional results

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