Bego v. Gordon, No. 15295

CourtSupreme Court of South Dakota
Writing for the CourtSABERS; WUEST, C.J., and MORGAN; HENDERSON, J., and FOSHEIM; MILLER; HENDERSON; FOSHEIM
Citation40 Ed.LawRep. 420,407 N.W.2d 801
Parties40 Ed. Law Rep. 420 Robert R. BEGO, Plaintiff and Appellant, v. Tom GORDON, Hobart G. Peterson, Lenhardt Aman and the Montrose Public School District # 42-2, Defendants and Appellees. . Considered on Briefs
Decision Date17 November 1986
Docket NumberNo. 15295

Page 801

407 N.W.2d 801
40 Ed. Law Rep. 420
Robert R. BEGO, Plaintiff and Appellant,
v.
Tom GORDON, Hobart G. Peterson, Lenhardt Aman and the
Montrose Public School District # 42-2, Defendants
and Appellees.
No. 15295.
Supreme Court of South Dakota.
Considered on Briefs Nov. 17, 1986.
Decided June 10, 1987.

Patrick W. Kiner, Mitchell, for plaintiff and appellant.

David R. Gienapp of Arneson, Issenhuth and Gienapp, Madison, for defendant and appellee (Tom Gordon).

Rodney R. Freeman, Jr. of Churchill, Manolis, Freeman & Volesky, Huron, for defendants and appellees (Peterson, Aman and Montrose Public School # 42-2).

SABERS, Justice.

Robert R. Bego (Bego), appeals an order granting summary judgment to the school district and its administrators based on sovereign

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immunity, and the ruling that any ultimate recovery against Gordon must be reduced by the full amount of settlement. We affirm in part and reverse in part and remand.

Facts

Bego was a tenured music teacher employed by Montrose Public School District # 42-2 (District), for the 1980/81 school year. Tom Gordon (Gordon), was a parent of a child within the District during the 1980/81 school year. Hobart G. Peterson (Peterson) was the Montrose High School Principal and Lenhardt Aman (Aman) was the District Superintendent at all times pertinent to this action.

On September 5, 1980, Bego and Gordon met in the principal's office at the high school to try to resolve a problem. During this meeting, a disagreement occurred between them. According to Bego, Gordon assaulted him and Peterson intentionally prevented him from leaving the office and in doing so, subjected Bego to a threatening environment. Gordon and Peterson deny these allegations. This first incident (# 1) gave rise to the present litigation as it relates to Gordon, Peterson, and the District.

On February 27, 1981, a second incident occurred, this time in the superintendent's office. According to Bego, Aman threatened him and physically detained him during a meeting they had concerning Bego's evaluation. Bego further alleges that in April of 1981, a third incident occurred when Aman made defamatory remarks about him in the presence of his students. Aman denies both claims. These incidents (# 2 and # 3), gave rise to another portion of this lawsuit which pertains to Aman and the District.

Bego was advised in early 1981 that his teaching contract with the District would not be renewed for the 1981/82 school year pursuant to SDCL 13-43-9.1. This action generated a lawsuit which Bego commenced against the District and its Board of Education. The parties entered into a Settlement Agreement and Stipulation dated October 27 and 29, 1981. Bego agreed to accept the sum of $12,890 in full satisfaction of all "physical, mental and emotional disturbances and injuries" which he had incurred as a result of the termination, and he further agreed to release the District from "any and all claims, causes of action, and claims for money damages or any other type of relief which [Bego] now may have, or had in the past, arising out of or connected with his termination from Respondent School District."

Bego filed this action on September 18, 1982, against Gordon, Peterson, Aman, and the District. Thereafter, the defendants moved to dismiss or in the alternative, for summary judgment. On January 13, 1986, the trial court entered an order granting summary judgment to Peterson, Aman, and the District based on the doctrine of sovereign immunity. The order denied Gordon's motion for summary judgment but held that any ultimate judgment recovered by Bego against Gordon must be reduced in the amount of $12,890, pursuant to SDCL 15-8-17. Bego appeals.

Bego's Claims

Bego claims that the trial court erred in granting summary judgment on the basis of sovereign immunity when there were genuine issues of material fact in dispute. He further claims that Gordon does not share joint tort-feasor status with the District, making a reduction of any ultimate recovery unwarranted.

1. SUMMARY JUDGMENT

Summary judgment is authorized only when the movant is entitled to judgment as a matter of law because there are no genuine issues of material fact. SDCL 15-6-56(c); Trapp v. Madera Pacific, Inc., 390 N.W.2d 558, 564 (S.D.1986) citing Nemec v. Deering, 350 N.W.2d 53, 55 (S.D.1984); Caneva v. Miners and Merchants Bank, 335 N.W.2d 339, 341 (S.D.1983). The burden is

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on the moving party to clearly show that there is no genuine issue of material fact, and the evidence must be viewed most favorably to the nonmoving party; thus, reasonable doubts should be resolved against the moving party. The remedy is extreme and it is not intended as a substitute for a trial. Trapp, 390 N.W.2d at 562; Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). When no genuine issue of material fact exists in a case, the legal questions may be properly decided by summary judgment. Hamaker v. Kenwel-Jackson Mach., Inc., 387 N.W.2d 515 (S.D.1986). See also SDCL 15-6-56(c). Therefore, we affirm only if there are no genuine issues of material fact and the legal questions have been correctly decided. Trapp, supra. Here, the trial court was confronted with mixed questions of fact and law. Therefore, summary judgment was improper except as to the District.

2. LIABILITY OF THE SCHOOL DISTRICT

The doctrine of sovereign immunity has its genesis in the English common law; thus the sovereign, like the king of old, can do no wrong and there being no wrong, there is nothing to be addressed. See Conway v. Humbert, 82 S.D. 317, 324, 145 N.W.2d 524, 528 (1966). Despite substantial criticism, 1 the doctrine has become firmly imbedded in the common law of this state. The doctrine predates the federal and state constitutions. High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980).

The South Dakota Constitution recognized the doctrine when it provided in Article III, Sec. 27 that "[t]he Legislature shall direct by law in what manner and in what courts suits may be brought against the state." The legislature, within constitutional limitations, has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort. Conway, 82 S.D. at 322, 145 N.W.2d at 527. "The people express their sovereign will in the formulation of public policy and law through the medium of the legislature and that branch of government in this field should be permitted to function freely without judicial interference." Id., 82 S.D. at 324, 145 N.W.2d at 529; High-Grade Oil, 295 N.W.2d at 738. Therefore, in the absence of legislative enactment the state is immune from liability in tort.

In Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), a student who was injured in a required physical education class brought suit against the school district and two supervising teachers to recover for his injuries. The trial court granted summary judgment to the district and teachers. 2 In affirming this decision, we wrote:

It is settled law in this State that: 'School districts are state agencies exercising and wielding a distributive portion of the sovereign power of the state, and the officers of school districts are the living agencies through whom the sovereign state act is carried into effect. A school district officer in the performance of his duties acts in a political capacity, as much so as the Governor of a state, and is not liable for negligent acts of omission occurring in the performance of such political or public duties, unless the sovereign power of the state has authorized and consented to a suit for such negligence.'

Id., quoting Plumbing Supply Co. v. Board of Education, Etc., 32 S.D. 270, 272-273, 142 N.W. 1131, 1132 (1913).

The appellant in Merrill argued that by purchasing liability insurance as authorized

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by statute, 3 the school district waived immunity. 310 N.W.2d at 523. We stated:

The problem we have with appellant's contention is that school districts ... are not a governmental unit below the state level whose traditional immunity had been statutorily waived at the time of this injury. No permission to sue the defendants in tort on this type of action had then been granted by the legislature.... [citations omitted] Authority to purchase, and the purchase of liability insurance does not provide that permission.

Id.

In summary, school districts, as state agencies, enjoy sovereign immunity from tort liability absent an express consent from the legislature. S.D. Const. art. III, Sec. 27; High-Grade Oil, 295 N.W.2d at 738. No express legislative consent has been given to expose the District to tort liability. "We have consistently held that if there is to be a departure from the immunity rule, the policy must be declared and the extent of liability fixed by the legislature." Merrill, 310 N.W.2d at 524. Accordingly, we affirm summary judgment for the District.

3. LIABILITY OF SCHOOL DISTRICT EMPLOYEES

In High-Grade Oil, supra, we characterized Article III, Sec. 27, as recognition of the doctrine of sovereign immunity. In Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986), we considered the doctrine in conjunction with Article VI, Sec. 20, the "open courts" provision of the South Dakota Constitution. 4 Id. at 290. In Oien, we interpreted the "open courts" provision as " 'a guarantee that "for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy." ' " Id., quoting Simons v. Kidd, 73 S.D. 41, 46, 38 N.W.2d 883, 886 (1949). We wrote:

That is to say, where a cause of action is implied or exists at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy.

Id.

The common law recognizes that merely being an agent or employee does not alter the duties otherwise owed to third parties. See, e.g., Kelly v. State, 265 Ark. 337, 578 S.W.2d 566 (1979); Montanick v. McMillin, 225...

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104 practice notes
  • Swedlund v. Foster, No. 21870.
    • United States
    • Supreme Court of South Dakota
    • January 15, 2003
    ...is not a defense to a claim under 42 U.S.C. § 1983 because civil rights violations claim an intentional tort. See Bego v. Gordon, 407 N.W.2d 801, 809 n. 10 (S.D.1987); Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir.1998); Webb v. Lawrence County, 950 F.Supp. 960, 967 (D.S.D.1996). Ho......
  • Setliff v. Akins, No. 21023
    • United States
    • Supreme Court of South Dakota
    • September 6, 2000
    ...the communication or publication. Id. (quoting SDCL 20-11-5). There are two types of privileges under SDCL 20-11-5. See Bego v. Gordon, 407 N.W.2d 801, 811 (S.D.1987); Hackworth v. Larson, 83 S.D. 674, 683, 165 N.W.2d 705, 709 (1969). Subsections (1) and (2) are considered absolute, uncondi......
  • Truman v. Griese, No. 24707.
    • United States
    • Supreme Court of South Dakota
    • February 11, 2009
    ...v. Landguth, 2007 SD 2, ¶ 8, 726 N.W.2d 603, 607 (citing Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.1987))). Additionally, the predicate question, whether the governmental duties under SDCL 31-28-6 are ministerial or discretionary, is a......
  • Horne v. Crozier, No. 19536
    • United States
    • Supreme Court of South Dakota
    • June 4, 1997
    ...have been correctly decided, we will affirm. City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330, 332 (S.D.1994); Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be construed in favor of the nonmoving party, Rehm v. Lenz, 1996 SD 51, ......
  • Request a trial to view additional results
104 cases
  • Swedlund v. Foster, No. 21870.
    • United States
    • Supreme Court of South Dakota
    • January 15, 2003
    ...is not a defense to a claim under 42 U.S.C. § 1983 because civil rights violations claim an intentional tort. See Bego v. Gordon, 407 N.W.2d 801, 809 n. 10 (S.D.1987); Webb v. Lawrence County, 144 F.3d 1131, 1135 (8th Cir.1998); Webb v. Lawrence County, 950 F.Supp. 960, 967 (D.S.D.1996). Ho......
  • Setliff v. Akins, No. 21023
    • United States
    • Supreme Court of South Dakota
    • September 6, 2000
    ...the communication or publication. Id. (quoting SDCL 20-11-5). There are two types of privileges under SDCL 20-11-5. See Bego v. Gordon, 407 N.W.2d 801, 811 (S.D.1987); Hackworth v. Larson, 83 S.D. 674, 683, 165 N.W.2d 705, 709 (1969). Subsections (1) and (2) are considered absolute, uncondi......
  • Truman v. Griese, No. 24707.
    • United States
    • Supreme Court of South Dakota
    • February 11, 2009
    ...v. Landguth, 2007 SD 2, ¶ 8, 726 N.W.2d 603, 607 (citing Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.1987))). Additionally, the predicate question, whether the governmental duties under SDCL 31-28-6 are ministerial or discretionary, is a......
  • Horne v. Crozier, No. 19536
    • United States
    • Supreme Court of South Dakota
    • June 4, 1997
    ...have been correctly decided, we will affirm. City of Lennox v. Mitek Industries, Inc., 519 N.W.2d 330, 332 (S.D.1994); Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be construed in favor of the nonmoving party, Rehm v. Lenz, 1996 SD 51, ......
  • Request a trial to view additional results

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