Godbe v. City of Rapid City
| Decision Date | 05 January 2022 |
| Docket Number | 29251-a-SRJ |
| Citation | 2022 S.D. 1 |
| Court | South Dakota Supreme Court |
| Parties | JULIE GODBE, DAVID GODBE, Plaintiffs and Appellants, v. CITY OF RAPID CITY, SOUTH DAKOTA, Defendant and Appellee, |
ARGUED NOVEMBER 18, 2020
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA, THE HONORABLE MATTHEW M BROWN Judge.
STEVEN C. BEARDSLEY MICHAEL S. BEARDSLEY of Beardsley, Jensen & Lee, Prof. LLC Rapid City, South Dakota Attorneys for plaintiffs and appellants.
ROBERT J. GALBRAITH JOHN K. NOONEY of Nooney & Solay LLP Rapid City, South Dakota Attorneys for defendant and appellee.
[¶1.] Julie Godbe suffered horrific injuries after her bicycle tire caught in a storm drain grate in Rapid City (City). Julie and her husband David (Godbes) sued City for negligence. The circuit court granted City's motion for summary judgment determining Godbes failed to generate a genuine issue of material fact showing that City breached its statutory duty under SDCL 31-32-10. We affirm.
[¶2.] On July 17, 2015, Julie was riding her bicycle with David on East Saint Patrick Street (Street) in Rapid City. The Street is 1.3 miles long and is bisected by Rapid Creek. Julie was traveling near the curb on the west side of Rapid Creek when she rode over a storm drain grate (Grate 4), which had steel bars running parallel to the Street. Julie's front bicycle tire fell through the grate, causing her to catapult over the bicycle handle bars and land on her face. The impact broke her neck and injured her spinal cord, leaving her a quadriplegic.
[¶3.] In October 2015, Godbes' attorney and a representative from City took photographs of Grate 4 and the other storm drain grates on the Street. The photographs showed that twenty-five of the Street's thirty grates, including Grate 4, had bars that ran parallel to the Street. The photographs also showed that cross metal straps had been welded on the parallel bars of some of the grates located to the east of Rapid Creek. Several other grates on the east side of Rapid Creek had indents where it appeared that cross straps had been welded to the grates at one time but were subsequently torn off. There were also two, newer looking grates designed with perpendicular bars. In contrast photographs taken to the west of Rapid Creek, including Grate 4, did not show that cross straps had been welded on their parallel metal bars. Further, none of the grates to the west of Rapid Creek had visible indents that would have suggested welded straps had been torn off. However, photographs showed that at least two of the grates to the west of Rapid Creek had been replaced with grates that had been designed with perpendicular bars or checkered-plated bars.0F[1]
[¶4.] Sometime after the photographs were taken, City received statutory notice of Godbes' intention to bring an action. Godbes' counsel also corresponded with City, requesting that City replace all the parallel designed storm water grates. Subsequently, City ordered Grate 4 and the other grates on the Street to be replaced. There is no evidence that City gave Godbes notice before it replaced the grates or that Godbes' counsel requested that Grate 4 be preserved. City failed to preserve Grate 4 or any of the other grates that were replaced.
[¶5.] In May 2016, Godbes filed a complaint alleging that City was negligent for failing to replace the storm water grates on the Street. They alleged City assumed responsibility to maintain the Street in 2004 and knew for years before the accident that storm water grates with parallel bars were dangerous. Godbes alleged a separate claim for negligent failure to maintain and repair Grate 4. David also brought a claim for loss of consortium.
[¶6.] City filed a pre-answer motion to dismiss the complaint, pursuant to SDCL 15-6-12(b)(5), arguing that Godbes failed to state a claim upon which relief could be granted. City argued it owed no duty of care to Godbes for the design, maintenance, or a dangerous condition of the Street under Hohm v. City of Rapid City, 2008 S.D. 65, 753 N.W.2d 895. Id. ¶ 20, 753 N.W.2d at 905. City claimed that its duty under SDCL 31-32-10 is limited to repair and only arises when a city receives notice that damage to a road creates a safety hazard. City contended that the complaint did not allege Grate 4 was in disrepair, or that City had notice of any damage to Grate 4, as required by SDCL 31-32-10.
[¶7.] Godbes responded that Grate 4 was "out of repair" pursuant to SDCL 31-32-10 because it was dangerous and did not comply with City's infrastructure standards. In resisting the motion to dismiss, Godbes offered a 2007 report (Report) containing City-approved "standard specifications," which set forth that grates with bars running parallel to the streets should be replaced with grates that had perpendicular metal bars. Godbes also presented a 2011 City Master Plan (Master Plan), which recommended City continue to replace or retrofit the unsafe grates.1F[2]The Master Plan recognized the changes would "reduce City's liability exposure." Godbes also argued Hohm did not eliminate a city's common law duties to make its roadways safe, but they have not raised this issue on appeal.
[¶8.] The circuit court issued a memorandum decision granting City's motion to dismiss. It held that Godbes had only alleged a design defect in the grates for which City did not owe a duty, and Godbes failed to state a claim under SDCL 31-32-10 because they did not allege that the Street or its grates were in a damaged condition at the time of the accident. Before the circuit court entered an order dismissing the complaint, Godbes filed a motion to amend their complaint and a motion to reconsider. The circuit court entered an order granting Godbes' motion to file an amended complaint but denied the motion to reconsider and dismissed the original complaint.
[¶9.] In their amended complaint, Godbes realleged many of the same claims from the original complaint, but also alleged that City had modified Grate 4 and other Street grates by welding metal straps across the parallel bars of the grates. Godbes claimed that the modified grates were in a damaged condition at the time of the accident because the welded straps had been torn off. Further, they alleged City breached its duty under SDCL 31-32-10 because it knew or should have known that the straps were damaged and failed to repair them.
[¶10.] After submitting their amended complaint, Godbes deposed four City employees including: Donald Brumbaugh, City Street Superintendent from 2004 to 2016; Dale Tech, Public Works Director and formerly an engineer with City; Trevor Schmelz, former Risk Manager for City; and Dale Pfeifle, current City Street Superintendent and former Assistant Street Superintendent. The employees acknowledged City was aware of its dangerously designed grating system for years and had planned to replace or modify grates that had parallel bars prior to the accident. All four employees testified that some of City's grates had been modified with welded cross straps. They also agreed that if the welded straps on grates were torn off, then the grates needed repair and were dangerous to cyclists.
[¶11.] Three of the employees had worked for the City for years prior to the accident. However, no employee could identify which grates on the Street had been welded with cross straps prior to Julie's accident, or when any of these modifications were made. In his deposition, Brumbaugh testified that cross straps may have been welded onto the grates before City assumed responsibility for the Street in 2004. After reviewing the photographs, he also testified that the welded straps on the grates to the east of Rapid Creek appeared to be old. In an affidavit, Brumbaugh stated he was not aware that City had ever welded straps on the Street's grates between 2004 and Julie's accident in 2015 but stated City had welded cross straps on the Street's grates following Julie's accident. However, the record does not show which grates the affidavit references.
[¶12.] City employees also acknowledged that cross straps welded onto the grates could be damaged and therefore needed to be maintained. Brumbaugh stated that straps were only "temporary fixes." Tech testified that straps required ongoing maintenance to keep streets safe. Brumbaugh and Tech also stated that snowplows or heavy street equipment could tear off the straps. Brumbaugh continued that, "in most cases," the bars of a grate would have visible indents if their straps had been torn off. However, whether a grate shows visible markers of prior welding "[d]epends on how [the straps] were put on."
[¶13.] Despite City's awareness that modified grates required maintenance, Brumbaugh stated that City lacked an official grate repair policy. However, he clarified that "inspection[s of the grates] have and do occur," and City would examine grates as "part of [City's] criteria for inspection." During routine inspections, Brumbaugh claimed that City employees would weld straps onto grates that they observed were dangerous, stating City But .
[¶14.] Godbes also asked City employees about the decision to replace and dispose of Grate 4 and the rest of the grates on the Street after Julie's accident. Brumbaugh could not state...
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