Bordeaux v. Shannon County Schools, 23563.

• Decision Date: 30 November 2005
• Docket Number: No. 23563.,23563.
• Citation: 2005 SD 117,707 N.W.2d 123
• Parties: Monica BORDEAUX, Guardian, Ad Litem of G.B.F., Minor Child, Plaintiff and Appellant, v. SHANNON COUNTY SCHOOLS, Defendant and Appellee.
• Court: South Dakota Supreme Court

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.

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 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 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 proper in negligence cases if no duty exists as a matter of law." Pierce v. City of Belle Fourche, 2001 SD 41, ¶ 8, 624 N.W.2d 353, 355 (citing Peterson v. Spink Elec. Co-op., Inc., 1998 SD 60, ¶ 8, 578 N.W.2d 589, 590-91). Determining whether a duty exists and "defining its limitations remain a function of the courts" under de novo review. Fisher v. Kahler, 2002 SD 30, ¶ 6, 641 N.W.2d 122, 125 (citing Tipton v. Town of Tabor, 1997 SD 96, ¶ 12, 567 N.W.2d 351, 357 (Tipton II)).

Analysis and Decision

[¶ 12.] The circuit court found that there were no genuine issues of material fact to preclude summary judgment. "On review, we apply the same test as the trial court: we probe the record for material facts, resolve disputed facts in favor of the nonmoving party, and decide whether the moving party is entitled to a judgment as a matter of law." Fisher, 2002 SD 30, ¶ 5, 641 N.W.2d at 125 (citing Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 5, 601 N.W.2d 606, 608).

[¶ 13.] Although the circuit court recognized that granting summary judgment in a negligence case is "extremely rare," it concluded that a duty did not exist between the School District and G.B.F. at the Hand Game tournament because "the tournament was not sanction[ed], approved, or part of the extracurricular activities of the School District," and Red Cloud was there as a private citizen. Even after accepting the fact that Red Cloud gave permission to G.B.F. to leave the Hall for Big Bat's, the court held that this fact "certainly does not arise to an allegation of supervision, control, and/or negligence."

[¶ 14.] Nevertheless, Bordeaux claims that Red Cloud was acting as an agent of the School District when she gave G.B.F. permission and that this act was within the scope of her employment. We require "those resisting summary judgment [to] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof." Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)). In fact, "SDCL 15-6-56(e) requires the opposing party to be diligent in resisting a motion for summary judgment, and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment." Hughes-Johnson Co. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972). See also Casazza v. State, 2000 SD 120, ¶ 16, 616 N.W.2d 872, 876. Accordingly, Bordeaux must present more than "[u]nsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact." Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994) (citing Home Fed. Sav. & Loan...