Hagberg v. City of Sioux Falls

• Decision Date: 12 March 1968
• Docket Number: Civ. No. 67-68S.
• Citation: 281 F. Supp. 460
• Parties: Roy HAGBERG, Guardian of the Person and Estate of Glenn F. Hagberg, a Minor, Plaintiff, v. CITY OF SIOUX FALLS, a Municipal Corporation, Defendant.
• Court: U.S. District Court — District of South Dakota

281 F. Supp. 460

Roy HAGBERG, Guardian of the Person and Estate of Glenn F. Hagberg, a Minor, Plaintiff, v. CITY OF SIOUX FALLS, a Municipal Corporation, Defendant.

Civ. No. 67-68S.

United States District Court D. South Dakota, S. D.

March 12, 1968.

COPYRIGHT MATERIAL OMITTED

John E. Burke, R. G. May and Gale Fisher, of May, Boe & Johnson, of Sioux Falls, S. D., for plaintiff.

F. M. Smith and A. D. Sommervold, of Woods, Fuller, Shultz & Smith, Sioux Falls, S. D., for defendant.

MEMORANDUM DECISION

NICHOL, Chief Judge.

This case is now before this court on defendant's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. According to the allegations of the complaint, the defendant, City of Sioux Falls, on or about the 17th day of May, 1965, contracted with one Duane W. Fanebust to construct certain sanitary sewer lines within the City. Further, it is alleged that sometime later Fanebust, pursuant to this contract, was "excavating a trench near the intersection of Russell Street and Garfield Avenue;" that on August 2, 1965, at this place the plaintiff, Glenn F. Hagberg, was employed as a laborer for Fanebust; that Hagberg "was without previous experience or knowledge of trench digging or blasting" and upon direction entered the trench where there remained buried unexploded dynamite from previous blasting operations; and that said Hagberg detonated some buried dynamite with an air hammer which he was using in said trench, whereupon he suffered severe injuries.

The alleged liability of the City of Sioux Falls is predicated on several theories, including (1) allowing Fanebust to carry on blasting operations within the City without previously having procured a blasting permit and bond as required by applicable municipal ordinances; (2) awarding the contract to Fanebust, an "unsafe and dangerous" contractor, and known by the City to be such; (3) entering a contractual agreement which required the use of dynamite without establishing any standards in respect to its use or any procedures for supervision or control designed to safeguard the health and well being of those working in the area; and (4) allowing Fanebust to continue with the work and use of dynamite without supervision and control in violation of a duty owed to Hagberg.

The case has had an interesting but somewhat protracted procedural history. A complaint was originally filed July 19, 1966, against the City of Sioux Falls and Duane Fanebust, doing business as Duane W. Fanebust Construction Company, a citizen of the State of South Dakota, by Roy Hagberg, as guardian ad litem of Glenn Hagberg, the former a citizen of Minnesota and the latter a citizen of the State of South Dakota. Both defendants answered separately, the City cross claiming against Fanebust for any damages attributed to it. In its separate answer the defendant City also moved that the action be dismissed as to it for the reason that at all times pertinent the City of Sioux Falls was acting in a governmental capacity and hence immune from liability. In an opinion by this court dated and filed January 30, 1967, and for the reasons expressed therein, this motion was denied. Subsequently, the defendant City again moved for a dismissal, but this time for the reason that this court did not have jurisdiction in that Glenn F. Hagberg and both defendants were citizens of the State of South Dakota, there thus being no diversity. It was the defendant City's contention that it was Glenn Hagberg's citizenship which was determinative and not that of his guardian ad litem. By an order of this court dated June 16, 1967, this motion was granted.

On June 23, 1967, an action was commenced by Roy Hagberg, as general guardian of the person and estate of Glenn Hagberg, against the City of Sioux Falls alone. The appointment of Roy Hagberg as general guardian thereby satisfied the diversity requirement. See Mexican Central Railway Co. v. Eckman, 187 U.S. 429, 23 S.Ct. 211, 47 L.Ed. 245 (1903); and Fallat v. Gouran, 220 F.2d 325 (3 Cir. 1955). The amount in controversy being over $10,000, the jurisdictional elements were therefore fulfilled. 28 U.S.C.A. Sec. 1332.

Defendant asserts as grounds for its motion for summary judgment the following: (1) that plaintiff is prohibited from maintaining this action for failure to make application for leave of court to give late notice to the city within one year from the date of the accident; (2) that as a matter of law there is no duty owed on the part of an employer of an independent contractor to an employee of the latter; (3) that the award of a contract to Fanebust was a discretionary act and the City is therefore immune from any liability based upon the selection of an incompetent contractor; (4) that as a matter of law there is no duty owed to an employee of an independent contractor to appoint a competent contractor for him; and (5) that the fact that Fanebust did not obtain a blasting permit and the City failed to see that he obtained one, would not render the City liable for the reason that a municipality is not liable for the failure to enforce its ordinances.

Rule 56 provides, in part, as follows:

"The judgment sought shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.Proc. 56(c).

In considering a motion of this nature the court must be mindful of several well recognized principles. The party moving for summary judgment has the burden of demonstrating the absence of any genuine issue as to a material fact. Bryan v. Aetna Casualty & Surety Co., 381 F.2d 872 (8 Cir. 1967). Any doubt as to the existence of such an issue is resolved against him. Union Transfer Co. v. Riss & Co., 218 F.2d 553 (8 Cir. 1955); Parmelee v. Chicago Eye Shield Co., 157 F.2d 582 (8 Cir. 1946). Furthermore, it is to be borne in mind that facts asserted by the party opposing the motion which are supported by evidentiary material must be taken as true. Furton v. City of Menasha, 149 F.2d 945 (7 Cir. 1945).

It should be noted at this juncture, however, that this is not in all respects a true summary judgment motion. In other words, with respect to certain contentions raised by the defendant, (e. g., the duty owed to an employee of an independent contractor), the court is not necessarily concerned with the existence or nonexistence of issues of material fact and whether or not the moving party is entitled to judgment as a matter of law. In a case of this nature those determinations would normally be peculiarly involved with the question of negligence. But here, however, the determination of duty presents itself one step prior to the consideration of negligence. It therefore becomes a question of whether, after assuming certain allegations raised by the plaintiff, the defendant is still entitled to judgment as a matter of law.¹

Inasmuch as the accident occurred in South Dakota, the substantive law of that state is controlling. Billingsley v. Westrac Company, 365 F.2d 619 (8 Cir. 1966); Knapp v. Stryer, 280 F.2d 384 (8 Cir. 1960). The questions presented by this motion are, for the most part, novel in that jurisdiction. It therefore becomes incumbent upon this court to arrive at the decision likely to be reached by the South Dakota Supreme Court if the matters were before that tribunal. American Service Mutual Ins. Co. v. Bottum, III, 371 F.2d 6 (8 Cir. 1967).

The Matter of Statutory Notice to the City

Involved here is SDC 45.1409 (1939), as amended, Laws 1961, c. 251, which provides as follows:

"No action for the recovery of damages for personal injury or death caused by its negligence shall be maintained against any municipality unless written notice of the time, place, and cause of injury is given to the auditor or clerk by the person injured, his agent, or attorney within sixty days after the injury. Where the person injured is a minor, or is mentally or physically incapacitated, the court in its discretion, may grant leave to serve such notice within a reasonable time after the expiration of the period of disability, provided that the application for such leave is made within a year from the happening of the event upon which the claim is based.

"Such notice shall not be deemed invalid or insufficient by reason of any inaccuracy in stating the time, place, or cause of injury, if it is shown that there was no intention to mislead and that the governing body was not misled thereby.

"Any action for such recovery must be commenced within two years from the occurrence of the accident causing the injury or death." (Emphasis added).

The italicized part was added by amendment in 1961 and is the portion of the statute which is of particular import here. No claim has been made that written notice was given to the City within the sixty day period.

On July 28, 1966, after the first action had been commenced and some five days prior to the expiration of the one year period, application was made to this court for leave to serve late notice upon the City. Upon a proper showing, such leave was granted that same day and notice was given pursuant thereto. Because of the jurisdictional defect indicated supra, this transpired at a time when this court was without jurisdiction. When the action was again commenced after the original suit had been dismissed, the one year period contemplated by SDC 45.1409 had since lapsed. Plaintiff was thereby precluded from renewing his application and was forced to rely on the original one. In view of this fact, defendant contends that application was not made within one year from the date of the occurrence on which the claim is based and plaintiff must necessarily be barred from maintaining this action. Relied upon by the defendant as authority for this contention are the principles that "(a) court without...