Brown v. Egan Consol. School Dist. No. 50-2, No. 16629

• Court: Supreme Court of South Dakota
• Writing for the Court: MORGAN
• Citation: 57 Ed.LawRep. 1017,449 N.W.2d 259
• Docket Number: No. 16629
• Decision Date: 13 December 1989
• Parties: 57 Ed. Law Rep. 1017 Elaine BROWN, Plaintiff and Appellee, v. EGAN CONSOLIDATED SCHOOL DISTRICT # 50-2, Defendant and Appellant.

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449 N.W.2d 259 57 Ed. Law Rep. 1017 Elaine BROWN, Plaintiff and Appellee,
v.
EGAN CONSOLIDATED SCHOOL DISTRICT # 50-2, Defendant and
Appellant. No. 16629. Supreme Court of South Dakota. Argued Oct. 16, 1989.
Decided Dec. 13, 1989.

Gregory A. Eiesland and Jon C. Sogn of Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiff and appellee; N. Dean Nasser of Nasser Law Offices, Sioux Falls, on the brief.

William Fuller of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

MORGAN, Justice.

Egan Consolidated School District # 50-2 (District) takes an intermediate appeal from an order denying its motion for summary judgment against Elaine Brown (Brown). We affirm.

On January 12, 1988, Brown was driving to work at Egan Consolidated School. The weather on this day was blizzard-like: blowing snow, poor visibility and ice-covered roads. Approximately two and one-half miles west of Egan, Brown came upon a school bus owned by District and driven by an employee of District. The bus was parked in the middle of the road without any emergency lights, brake lights, tail lights, or any other warning devices. By the time Brown saw the bus, she was unable to stop. She slammed into the rear of the vehicle, suffering a severed aorta, broken leg, broken hip, and other serious injuries.

At the time of the accident, District had purchased $300,000 primary liability insurance coverage from the General Casualty Company, Madison, Wisconsin, and $100,000 in excess liability coverage from South Dakota Farm Bureau Mutual Insurance Company, Huron, South Dakota. Brown brought suit against District to the extent of its insurance coverage.

District filed a motion for summary judgment, claiming that SDCL 13-29-1 created an independent statutory basis for sovereign immunity that was not waived by SDCL 21-32A-1. The trial court disagreed, holding that it was possible to reconcile the two statutes and read that sovereign immunity still existed under SDCL 13-29-1, but was waived under SDCL 21-32A-1 to the limit of liability insurance.

District raises one issue: "Whether District was entitled to summary judgment as a matter of law because the provisions of SDCL 13-29-1 created a statutory basis for sovereign immunity?"

We first note our standard of review. Since the application and effect of SDCL 21-32A-1 and SDCL 13-29-1 are questions of law, they are reviewed by this court de novo. Beville v. University of S.D. Bd. of Regents, 420 N.W.2d 9 (S.D.1988). "No deference is given to the conclusions of law by the trial court[.]" Id. at 11.

District argues that there are three independent basis for sovereign immunity: (1) common law, (2) the South Dakota Constitution article III, Sec. 27, and (3) particular statutes. While District concedes that SDCL 21-32A-1 waived common law and constitutional immunity, it claims that the statute did not waive the independent statutory

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immunity for operation of school buses contained in SDCL 13-29-1. Brown argues that SDCL 13-29-1 only creates immunity in instances where District grants use of a bus to a third-party nonprofit organization and therefore is not applicable to these facts. With this overview of the parties' arguments, we examine each of the statutes.

SDCL 13-29-1 provides, in pertinent part:

The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board. If the use of a school bus is granted by the school board pursuant to subdivision (1) or (8) of Sec. 49-28-2, the school district is not liable for suit or damages which may arise as the result of the use.

The problem arises in the interpretation of the statute in light of the provisions of SDCL 49-28-2, therein referred to. We approach the reading of these statutes with the guidance on statutory construction found in Karlen v....