Bordeaux v. Shannon County Schools, No. 23563.

CourtSupreme Court of South Dakota
Writing for the CourtKonenkamp
Citation2005 SD 117,707 N.W.2d 123
PartiesMonica BORDEAUX, Guardian, Ad Litem of G.B.F., Minor Child, Plaintiff and Appellant, v. SHANNON COUNTY SCHOOLS, Defendant and Appellee.
Docket NumberNo. 23563.
Decision Date30 November 2005
707 N.W.2d 123
2005 SD 117
Monica BORDEAUX, Guardian, Ad Litem of G.B.F., Minor Child, Plaintiff and Appellant,
v.
SHANNON COUNTY SCHOOLS, Defendant and Appellee.
No. 23563.
Supreme Court of South Dakota.
Considered on Briefs October 3, 2005.
Decided November 30, 2005.

Page 124

Terry L. Pechota of Pechota Law Office, Rapid City, South Dakota, Attorney for plaintiff and appellant.

Thomas H. Harmon of Tieszen Law Office, Pierre, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice.


[¶ 1.] In this personal injury action, the circuit court granted summary judgment for the defendant. We affirm.

Background

[¶ 2.] On Saturday, April 26, 2003, Monica Bordeaux brought her eleven-year-old son, G.B.F., to Billy Mills Hall in Pine Ridge, South Dakota, so that he could participate in a Hand Game tournament.1 Later that day, G.B.F. left the tournament to go to a convenience store across the road. He was hit and injured by a drunk driver. Bordeaux, as G.B.F.'s guardian, brought suit against the Shannon County School District for negligence, seeking damages for her son's injuries.

[¶ 3.] The Hand Game tournament was sponsored by Youth Opportunity and Pine Ridge Village. The tournament was open to both youth and adult teams. Will Peters was the tournament coordinator. Peters sought tournament participants by advertising through radio commercials and by distributing flyers. One flyer reached Kathy Red Cloud, a teacher and Hand Game coach at Wolf Creek School in the

Page 125

Shannon County School District. Red Cloud circulated the flyer among her students "the same way [she] would any community event." Some of her students decided to play in the tournament, including G.B.F., and Red Cloud informed them they would have to provide their own transportation.

[¶ 4.] According to Red Cloud, she also decided to attend the tournament, but only as a participant on a team in the adult division. She volunteered to bring pizzas donated by Pizza Hut for all the tournament participants. Because her car was not suitable to carry the pizzas, she was given permission by her school's assistant principal to drive a vehicle owned by the Shannon County School District. However, she did not agree to transport any students to the tournament or agree to supervise any students while at the tournament. Her affidavit indicates that she "was not at all involved with the children's activity." She also said that she "did not transport any children, either to or from the Hand Game Tournament, to their homes or anywhere else." On the other hand, according to Monica Bordeaux's affidavit, when Bordeaux arrived at the tournament with her son, Red Cloud told her that "she would take all the team players home." Bordeaux also said in her affidavit that, after the accident, Red Cloud told her that she "made sure none of the players went outside and that all of the players had rides home before [Red Cloud] released them from her care."

[¶ 5.] In her complaint, brought solely against the School District, Monica Bordeaux alleged that her son was in the "care, custody, and control of the Shannon County Public Schools and its employees," and that the Hand Game tournament was "sanctioned by the Shannon County Public Schools." Her complaint further alleged:

Shannon County Public Schools and its employees were negligent, including but not limited to failing to adequately monitor students, failing to keep students from leaving Billy Mills Hall, failing to adequately inform and warn the students of the danger of leaving Billy Mills Hall and crossing the highway, failing to have adults present with children when they left Billy Mills Hall, failing to ensure that if students left the Hall they would be safe and not in danger, and for such other reasons as will be proven at trial.

[¶ 6.] Bordeaux argues that Red Cloud was the coach for the school's Hand Game team and that she was acting as the team's coach for this tournament. This was a school-sanctioned event, Bordeaux asserts, because Red Cloud passed out "activity attendance permission slips to members of the [School] team" and told Bordeaux that she would drive the students home after the tournament. Bordeaux said that she signed the permission slip, but they were never collected at school. Bordeaux also relies on a comment made by Will Peters, the tournament coordinator, that it was his "assumption that whoever brought the schools' teams was responsible for them."

[¶ 7.] Before G.B.F. left the tournament to go to Big Bat's convenience store with two other boys, they first asked for permission from Red Cloud. She told them that they could go, but to be careful. Bordeaux argues that this request and grant of permission proves that G.B.F. was under the supervision of Red Cloud and hence in the care, custody, and control of the School District.

[¶ 8.] The School District moved to dismiss on the grounds that the tournament "was not sponsored or held in connection with any Shannon County School activity, and that no Shannon County employees were performing the duties for Shannon

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County School at the time and place alleged." In her affidavit, the School District superintendent explained that "Billy Mills Hall in Pine Ridge, South Dakota, is not a property belonging to or under the control of the Shannon County Schools and the Shannon County School District was not involved in any manner in the `Hand Game Tournament' held on April 26, 2003."

[¶ 9.] The circuit court and the parties agreed that the court could consider matters outside the pleadings, and thus the School District's motion to dismiss was to be treated as a motion for summary judgment.2 It was also understood that in lieu of a hearing, the parties would submit their affidavits and responses no later than November 15, 2004. Thereafter, it was further agreed that if the court desired an oral hearing, it would advise counsel. On January 13, 2005, the court notified the parties by letter decision that summary judgment would be granted to the School District. On January 20, 2005, the court signed the summary judgment order of dismissal. It was filed on January 25, 2005.

[¶ 10.] On January 24, 2005, invoking SDCL 15-6-56(f), Bordeaux's attorney hand delivered an affidavit requesting that the court withhold judgment and grant the plaintiff a continuance for further discovery.3 The record does not reflect a ruling by the court on the substance of this request or its timeliness. "If the trial court fails to decide or rule on a motion, nothing is presented for review in the appellate court." Jameson v. Jameson, 1999 SD 129, ¶ 25, 600 N.W.2d 577, 583 (citations omitted). Bordeaux appeals claiming that there are genuine issues of material fact and that "this matter should be set for further discovery and trial."

Standard of Review

[¶ 11.] "Under our familiar standard of review in summary judgment cases, we decide only whether genuine issues of material fact exist and whether the law was correctly applied." Schulte v. Progressive Northern Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438 (citing Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635). "Summary judgment is...

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47 practice notes
  • Burley v. Kytec Innovative Sports Equip., No. 24132.
    • United States
    • Supreme Court of South Dakota
    • August 1, 2007
    ...conclusions and speculative statements, [which] do not raise a genuine issue of fact.'" See Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)) (additional citation omi......
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...the record at trial to support findings on all the elements on which they have the burden of proof.'" Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765) (citation omitted); see also Cel......
  • One Star v. Sisters of St. Francis, No. 24313.
    • United States
    • Supreme Court of South Dakota
    • June 25, 2008
    ...we decide only whether genuine issues of material fact exist and whether the law was correctly applied." Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. This Court views the evidence most favorably to the nonmoving party and the burden of proof is on the moving part......
  • Landman v. Kaemingk, 4:18-CV-04175-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 27, 2019
    ...law allegations. Landman has alleged facts sufficient to state a negligence claim. Docket 1 ¶ 110; see Bordeaux v. Shannon Cty. Schs., 707 N.W.2d 123, 127 (S.D. 2005) (discussing the elements of a negligence claim in South Dakota). But Landman has not alleged facts to state a presumed malic......
  • Request a trial to view additional results
47 cases
  • Burley v. Kytec Innovative Sports Equip., No. 24132.
    • United States
    • Supreme Court of South Dakota
    • August 1, 2007
    ...conclusions and speculative statements, [which] do not raise a genuine issue of fact.'" See Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)) (additional citation omi......
  • Fin-Ag v. Pipestone Livestock Auction, No. 23982.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...the record at trial to support findings on all the elements on which they have the burden of proof.'" Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765) (citation omitted); see also Cel......
  • One Star v. Sisters of St. Francis, No. 24313.
    • United States
    • Supreme Court of South Dakota
    • June 25, 2008
    ...we decide only whether genuine issues of material fact exist and whether the law was correctly applied." Bordeaux v. Shannon County Sch., 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. This Court views the evidence most favorably to the nonmoving party and the burden of proof is on the moving part......
  • Landman v. Kaemingk, 4:18-CV-04175-KES
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • September 27, 2019
    ...law allegations. Landman has alleged facts sufficient to state a negligence claim. Docket 1 ¶ 110; see Bordeaux v. Shannon Cty. Schs., 707 N.W.2d 123, 127 (S.D. 2005) (discussing the elements of a negligence claim in South Dakota). But Landman has not alleged facts to state a presumed malic......
  • Request a trial to view additional results

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