Gakin v. City of Rapid City, 23348.

• Decision Date: 01 June 2005
• Docket Number: No. 23348.,23348.
• Citation: 698 N.W.2d 493,2005 SD 68
• Parties: Maria GAKIN and Frederick Eagle Tail, Jr., Plaintiffs and Appellants, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, Mt. View Cemetery, a Municipal Entity, and Tom Vallette, employee, and Jerry Zimmerman, employee, and John Does Three Through Five, Jointly, Severally and in their Individual Capacities, Defendants and Appellees.
• Court: South Dakota Supreme Court

698 N.W.2d 493

2005 SD 68

Maria GAKIN and Frederick Eagle Tail, Jr., Plaintiffs and Appellants, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, Mt. View Cemetery, a Municipal Entity, and Tom Vallette, employee, and Jerry Zimmerman, employee, and John Does Three Through Five, Jointly, Severally and in their Individual Capacities, Defendants and Appellees.

No. 23348.

Supreme Court of South Dakota.

Argued March 22, 2005.

Decided June 1, 2005.

Robin L. Zephier of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.

Michael S. Booher, Assistant City Attorney and Jason E. Green, City Attorney, Rapid City, South Dakota, Attorneys for defendants and appellees.

SABERS, Justice.

[¶ 1.] Maria Gakin and Frederick Eagle Tail, Jr. filed suit alleging that cemetery employees moved the grave of their deceased infant son without their consent. The city of Rapid City (City), which owns and operates the cemetery, denies these accusations. The trial court granted the City's motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal and we affirm Issues 1 and 3A and reverse Issues 2 and 3B.

Facts

[¶ 2.] Maria Gakin (Gakin) and Frederick Eagle Tail, Jr. are the natural parents of a deceased infant, Ty Eagle Tail (Ty). Ty was born on July 27, 1999 with a severe genetic and physical impairment known as Anencephalus. Due to his medical condition, Ty passed away approximately two and one-half months after birth. Ty's parents hired Kirk Funeral Home to provide the funeral arrangements. This included a traditional Christian/Lakota funeral at St. Matthew's Episcopal Church in Rapid City, followed by a burial service at Mountain View Cemetery. The funeral and burial took place on October 15, 1999.

[¶ 3.] Within days after the funeral, the parents suspected that the grave site had been moved several feet from its original position. A month or two later, Gakin telephoned Thomas Vallette (Vallette), the cemetery supervisor, to discuss the matter. During the phone call, Gakin accused the cemetery of moving the gravesite without her permission. Vallette denied those accusations.

[¶ 4.] In September, 2001, almost two years after Ty's funeral, the parent's attorney contacted the cemetery in an effort to determine if the infant's grave site had been moved after the funeral and burial. The city attorney responded to the inquiry and explained that while preparing the gravesite the day before the funeral, cemetery employee Jerry Zimmerman (Zimmerman) mistakenly dug the grave in the wrong spot. The error was discovered by Vallette and the next morning he and Zimmerman filled-in the grave and dug a grave in the correct location prior to the funeral service later that afternoon.

[¶ 5.] Nonetheless, the parents remained suspicious and on May 9, 2002, they had Ty's remains disinterred. The disinterment confirmed that Ty's remains were in fact buried in his marked grave, but that the casket faced east rather than west, the traditional manner.¹ The parents maintain that pictures taken at the funeral and at the disinterment, along with the positioning of the casket, show that it had been moved sometime after the funeral and burial.

[¶ 6.] The parents filed a Complaint against the city of Rapid City and certain unnamed defendants alleging negligence, reckless and intentional conduct, violation of contract, intentional and negligent infliction of emotional distress, trespass, failure to train and supervise cemetery employees, and punitive damages. On November 19, 2003, they amended the Complaint to include the specific named defendants, Vallette and Zimmerman, and added the claims of fraud, deceit and concealment. The trial court granted the City's motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal raising three issues, which we rewrite as four issues:

1. Whether the trial court erred in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2.

2. Whether the trial court erred in granting summary judgment on all state contract claims.

3. Whether the trial court erred in granting summary judgment on all federal civil rights claims under 42 USC § 1983 and § 1985.

A. Claims against the City

B. Claims against individuals

Standard of Review

[¶ 7.] In reviewing a trial court's order granting a motion for summary judgment, "[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided." Flugge v. Flugge, 2004 SD 76, ¶ 5, 681 N.W.2d 837, 839-40 (citing Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343). "We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party." Id. "Questions of law are reviewed de novo." In re Estate of Martin, 2001 SD 123, ¶ 15, 635 N.W.2d 473, 476.

[¶ 8.] 1. Whether the trial court erred in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2.

[¶ 9.] SDCL 3-21-2 provides:

No action for the recovery of damages for personal injury, property damage, error, or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

(emphasis added).

[¶ 10.] The parents argue that the trial court erred in granting summary judgment on all state tort claims based on lack of notice to the City within 180 days of the injury. Specifically, they assert three arguments. 1. That they did not know that the cemetery was owned and operated by the City and they were not aware of the 180-day notice rule. 2. That the date of the injury was the date that Ty's body was disinterred. 3. That the 180-day notice rule should have been tolled indefinitely due to fraudulent concealment on the part of the City.

1. Awareness of City Ownership and 180-day Notice Rule

[¶ 11.] The parents contend that they did not know that the City owned and operated Mountain View Cemetery and that they did not become aware of the 180-day rule until they acquired legal counsel approximately ten months after the funeral.

[¶ 12.] We find these arguments unpersuasive. The record indicates that a copy of the Certificate of Purchase for Ty's cemetery plot was provided to Fred Eagle Tail, Jr. by Kirk Funeral Home. This document clearly indicates that it was issued by the city of Rapid City.²

[¶ 13.] As to the 180-day notice rule, ignorance of the law is no excuse. "Mere ignorance of the law can never be considered a mistake upon which relief from the operation or effect of the law may be predicated." Sherin v. Eastwood, 32 S.D. 95, 101, 142 N.W. 176, 179 (1913).

2. Date of Injury

[¶ 14.] The parents argue that the accrual date of the 180-day notice rule should be May 9, 2002, the day they disinterred Ty's remains. They contend that up until that time, they could only speculate as to whether their son's grave was moved. It is their position that only after Ty's remains were disinterred did they actually know that his grave had been moved.

[¶ 15.] This Court has held that the statutory mandate in SDCL 3-21-2 is unambiguous:

When the time requirement of this statute has been in dispute, we have continuously held that the date of the injury is the triggering event for the 180-day period. The statute clearly says, "after the injury," not "after the discovery of the injury."

Purdy v. Fleming, 2002 SD 156, ¶ 14, 655 N.W.2d 424, 430 (emphasis added). See also Peterson ex rel Peterson v. Burns, 2001 SD 126, ¶ 39, 635 N.W.2d 556, 570

(stating that SDCL 3-21-2 is an example of a notice statute in which a plaintiff must give 180 days notice after the time of the injury); In re Kindle, 509 N.W.2d 278, 280 (S.D.1993) (stating that "[u]nder South Dakota law, no action for damages may be maintained against a public entity or official unless written notice of the injury is given to that entity within 180 days of the injury"); Finck v. City of Tea, 443 N.W.2d 632, 635 (S.D.1989) (holding that notice of tort claim to mayor or city finance officer is mandatory).

[¶ 16.] The date of Ty's funeral was October 15, 1999. Gakin testified that she started to suspect that the grave site had been moved within days after the funeral. Although the exact date of the conversation is unknown, the evidence shows that Gakin confronted Vallette about the situation a month or two after the funeral. She accused Vallette of moving Ty's grave and she did not believe him when he denied her accusations. Despite their ongoing suspicions, the parents waited approximately ten months before seeking legal advice. On September 27, 2001, almost two years from the date of the funeral, the parents' attorney sent a letter to the cemetery reiterating the parents' accusations and asking for an explanation. The City responded to the letter on October 9, 2001, denying any wrongdoing in the matter. On October 16, 2001, the parents filed their initial Complaint against the City. The following Spring, on May 9, 2002, the parents had Ty's remains disinterred.

[¶ 17.] By Gakin's own testimony and as stated by the parents' attorney in the letter to the City on September 27, 2001, the alleged misconduct was discovered by the parents within days after Ty's funeral.³ Therefore, both the alleged injury and the discovery of the alleged injury occurred sometime during the time frame of October 15-17, 1999. It is undisputed that the parents failed to provide the City with written notice within 180 days from that time. In fact, at oral argument, the parents'...