Hansen v. South Dakota Dept. of Transp.

• Citation: 584 N.W.2d 881,1998 SD 109
• Decision Date: 02 June 1998
• Docket Number: No. 20326,20326
• Parties: Lisa HANSEN, Plaintiff and Appellant, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, a State Agency; Richard L. Howard, in his individual capacity and in his capacity as Secretary of Department of Transportation; Richard L. Howard, in his individual capacity and in his capacity as Director of Highways; Dr. V.B. Sibley, in his individual capacity and in his capacity as a member of the Transportation Commission, A South Dakota State Commission; E.D. Baer, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Jim Mahowald, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Jim Long, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Louis Wudel, in his individual capacity and his capacity as a member of the Transportation Commission, a South Dakota State Commission; Wayne Peters, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; William Hustead, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission, Defendants and Appellees. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 881

584 N.W.2d 881

1998 SD 109

Lisa HANSEN, Plaintiff and Appellant, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, a State Agency;

Richard L. Howard, in his individual capacity and in his

capacity as Secretary of Department of Transportation;

Richard L. Howard, in his individual capacity and in his

capacity as Director of Highways; Dr. V.B. Sibley, in his

individual capacity and in his capacity as a member of the

Transportation Commission, A South Dakota State Commission;

E.D. Baer, in his individual capacity and in his capacity as

a member of the Transportation Commission, a South Dakota

State Commission; Jim Mahowald, in his individual capacity

and in his capacity as a member of the Transportation

Commission, a South Dakota State Commission; Jim Long, in

his individual capacity and in his capacity as a member of

the Transportation Commission, a South Dakota State

Commission; Louis Wudel, in his individual capacity and his

capacity as a member of the Transportation Commission, a

South Dakota State Commission; Wayne Peters, in his

individual capacity and in his capacity as a member of the

Transportation Commission, a South Dakota State Commission;

William Hustead, in his individual capacity and in his

capacity as a member of the Transportation Commission, a

South Dakota State Commission, Defendants and Appellees.

No. 20326.

Supreme Court of South Dakota.

Considered on Briefs June 2, 1998.

Reassigned Aug. 18, 1998.

Decided Sept. 30, 1998.

Michael D. Stevens of Blackburn, Stevens & Fox, Yankton, for plaintiff and appellant.

Craig A. Kennedy of Doyle & Kennedy, Yankton, for defendants and appellees.

GILBERTSON, Justice (on reassignment).

¶1 Lisa Hansen (Hansen) was injured after driving her car into an unmarked construction hole on an Interstate 29 bridge. She sued the South Dakota Department of Transportation (DOT), DOT Secretary Richard Howard (Howard), and members of the Transportation Commission (Commission) for negligence in leaving the hole unmarked and unguarded. The trial court granted the defendants' motion to dismiss on the basis that sovereign immunity barred the action. We affirm.

FACTS

¶2 At approximately 7:20 a.m. on October 15, 1993, Hansen was traveling in the southbound lane on Interstate 29 enroute to her teaching job in Jefferson. As she crossed a bridge just south of Exit 18, near Elk Point, her right front wheel suddenly dropped into a hole in the bridge. The impact threw her into the steering wheel, causing serious injuries to her neck, shoulders, and back.

¶3 According to Hansen, a construction crew created the hole by cutting completely through the bridge to remove concrete and rebar. Only the rebar was replaced and the hole was left unmarked and unguarded.

¶4 Hansen sued DOT, Howard, and Commission. She also sued Howard in his official capacity as Director of Highways. ¹ In her complaint, Hansen alleged the defendants breached a statutory duty to protect motorists from accident and injury by failing to erect signs and guards to warn of the defect in the road. She also alleged a cause of action based on theories of negligence, negligence per se, and res ipsa loquitur.

¶5 Defendants moved to dismiss on the basis that Hansen failed to state a claim upon which relief could be granted and that sovereign immunity barred her claims. The trial court granted DOT's motion to dismiss on the basis that "sovereign immunity is waived only to the extent of coverage afforded by the Public Entity Pool for Liability (PEPL) and that PEPL does not cover public entities, but only their employees." This ruling was not appealed. The court granted Howard and Commission's motion to dismiss on the basis that all of their duties are discretionary and therefore protected by sovereign immunity. Hansen appeals. We affirm.

STANDARD OF REVIEW

¶6 This case was dismissed pursuant to SDCL 15-6-12(b)(5) [hereinafter Rule 12(b)(5) ]:

Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

...

(5) Failure to state a claim upon which relief can be granted[.]

"A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiff's claim, not the facts which support it." Thompson v. Summers, 1997 SD 103, p 5, 567 N.W.2d 387, 390 (citing Stumes v. Bloomberg, 1996 SD 93, p 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993)). Schlosser directs the trial court to consider

the complaint's allegations and any exhibits which are attached. The court accepts the pleader's description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it.... In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and examine the complaint to determine if the allegations provide for relief on any possible theory.

506 N.W.2d at 418 (citations & internal quotations omitted).

¶7 Whether the defendants are protected by sovereign immunity is a question of law, reviewed de novo, with no deference given to the trial court's legal conclusions. Wilson v. Hogan, 473 N.W.2d 492, 493 (S.D.1991) (citations omitted).

¶8. Whether The Doctrine Of Sovereign Immunity Bars Hansen's Claims.

¶9 Generally, the doctrine of sovereign immunity as found in the common law and in the South Dakota Constitution provides that the governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state's consent. Wilson, 473 N.W.2d at 494 (citing S.D.Const. art. III, § 27; Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917 (S.D.1988)).

¶10 In 1986, the Legislature enacted SDCL 21-32A-1, -2, and -3, establishing the procedure for bringing claims against public entities and their employees, other than the state, and waiving sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance.

¶11 Also in 1986, the Legislature enacted SDCL ch. 3-22, which established PEPL:

There is hereby established the South Dakota public entity pool for liability effective March 1, 1987. The purpose of this program is to provide a fund as the sole source for payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee's scope of employment.... Nothing in this chapter shall be determined to be an abrogation, change or modification of the doctrine of governmental or sovereign immunity created by any statute, judicial opinion, ordinance, resolution or tort claims act nor shall this chapter create any cause of action in federal court or under federal law. (emphasis added).

SDCL 3-22-1.

¶12 In 1991, SDCL 21-32A-2 was amended to include the state, and its "employees, officers, or agents," in this waiver of sovereign immunity:

Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee, officer or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. The immunity recognized herein may be raised by way of affirmative defense.

See also SDCL 21-32-16:

To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.

¶13 Before the state waived sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance via SDCL ch. 21-32A, suit could only be brought against a state employee if a three-step test was met:

(1) The state could not be the real party in interest;

(2) the employee could not be sued in an official capacity; and

(3) the plaintiff had to allege personal negligence on the part of an employee exercising a ministerial function.

Reiman v. Solem, 337 N.W.2d 804, 805 (S.D.1983); see also Gasper v. Freidel, 450 N.W.2d 226, 230 (S.D.1990); Bego v. Gordon, 407 N.W.2d 801, 806 (S.D.1987); National Bank of South Dakota v. Leir, 325 N.W.2d 845, 847-48 (S.D.1982); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 737 (S.D.1980).

¶14 Prior to the state's waiver of immunity, a state employee could not be sued in an official capacity because, in that capacity, he or she necessarily shared whatever immunities were retained by the state:

Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent. As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the...