Hohm v. City of Rapid City

• Decision Date: 16 July 2008
• Docket Number: No. 24105.,24105.
• Citation: 753 N.W.2d 895,2008 SD 65
• Parties: Dean HOHM and Jean Hohm, as Guardians ad Litem and Conservators for Adam Hohm, Plaintiffs and Appellees, v. CITY OF RAPID CITY, a Municipal Corporation, Defendant, Third Party Plaintiff and Appellant, v. Charissa J. Hitchcock, Third Party Defendant.
• Court: South Dakota Supreme Court

753 N.W.2d 895

2008 SD 65

Dean HOHM and Jean Hohm, as Guardians ad Litem and Conservators for Adam Hohm, Plaintiffs and Appellees, v. CITY OF RAPID CITY, a Municipal Corporation, Defendant, Third Party Plaintiff and Appellant, v. Charissa J. Hitchcock, Third Party Defendant.

No. 24105.

Supreme Court of South Dakota.

Argued May 22, 2007.

Decided July 16, 2008.

Steven J. Oberg, Thomas G. Fritz, Catherine M. Sabers, Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for plaintiffs and appellees.

John K. Nooney, Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, for defendant, third party plaintiff and appellant.

ZINTER, Justice.

[¶ 1.] This case arises out of a one-car accident in a city park in Rapid City, South Dakota (the City). Adam Hohm (Adam) was severely injured when the car in which he was a passenger skidded off a street in the park and landed upside down in a nearby canal. Adam's parents, Dean and Jean Hohm (Hohms), acting as Adam's guardians and conservators, brought suit against the City alleging breach of various duties relating to streets. The City filed a series of motions to dismiss on the basis that it owed no duty to Adam. All of the City's motions were denied and a jury entered a verdict for Hohms. The City appeals. Although we conclude that cities no longer owe the common-law duty applied by the circuit court, we apply our ruling prospectively and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Between nine and ten p.m. on December 27, 2000, sixteen-year-old Charissa Hitchcock (Charissa) was driving her car on a slippery, snow-covered street through Canyon Lake Park in Rapid City. Adam, also age sixteen, was riding as a passenger in the car along with another teenage passenger. As Charissa drove through the park, she came to a sharp curve in the road and lost control of her vehicle. The car skidded off the street and landed upside down in a nearby canal. Charissa and the other passenger were quickly rescued from the vehicle, but Adam was trapped underwater in the car and was deprived of oxygen for a period of time. Adam suffered severe brain damage as a result of the accident.

[¶ 3.] Hohms sued the City claiming violation of duties regarding the construction and maintenance of streets, the erection of guards, and the posting of signs warning of known dangers. The City moved for summary judgment, directed verdict, JNOV, and a new trial, all on the basis that it owed no duty to Adam. The City's motions were denied and, after a jury trial, a verdict was entered in favor of Hohms. The City appeals claiming that the trial court erred in denying its motions because it owed no duty to Adam. The existence of a duty in a negligence action is a question of law subject to de novo review by this Court. State Auto Ins. Companies v. B.N.C., 2005 SD 89, ¶ 20, 702 N.W.2d 379, 386.

DECISION

[¶ 4.] One of the elements of a negligence claim is a duty on the part of the defendant. Id. The trial court concluded that the City owed Adam common-law duties to construct and maintain its streets in a reasonably safe manner and to erect guards or other barriers against dangerous conditions. The trial court further concluded that the City had a statutory duty under SDCL 31-28-6¹ to erect signs warning of known dangers. The City first argues that any common-law duties it may have owed were extinguished in 1915 and 1939 by the enactment of statutes regulating the duty of cities, towns, counties, and townships regarding the construction and maintenance of streets and highways. This argument requires analysis of the development of the law of county, township, and municipal liability for negligence relating to streets and highways.

[¶ 5.] The duties of counties and municipalities as to highways² were first addressed by this Court in Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219 (1894), a case involving damages caused by a defective bridge constructed by a county. The Court held in Bailey that, while municipalities were liable at common law for injuries resulting from defects in highways, counties were not liable in such cases in the absence of legislation making them liable. In explaining this difference, the Court drew the following distinction between counties and municipalities:

The ground upon which it is held that counties are not liable for damages in actions of this character is that they are involuntary political divisions of the state, created for governmental purposes, and are organized without regard to the consent or dissent of the inhabitants; and the theory upon which municipal corporations, proper, are held liable in such cases, is that they are voluntary associations created and organized at the solicitation of, and with the free consent of, the inhabitants, under the laws of the state, and that the benefits accruing to the people by such incorporation compensate them for the liability.

Id. at 399, 59 N.W. at 221 (emphasis added).

[¶ 6.] The Court based this distinction on principles of sovereign immunity that, in the common law, protected counties and townships, as political divisions of the State, from liability for neglect of duties regarding highways unless an action was expressly authorized by statute. See id. (citing Barnett v. Contra Costa Co., 67 Cal 77, 7 P. 177 (1885)). The Court continued to utilize principles of sovereign immunity as a basis for distinguishing between common-law municipal liability and county and township liability in a number of subsequent cases. See Norberg v. Hagna, 46 S.D. 568, 572-73, 195 N.W. 438, 440 (1923)(municipal corporations are liable for damages caused by negligence when their duties are ministerial and are liable for negligence in permitting obstructions or defects in streets and highways); Jensen v. Juul, 66 S.D. 1, 5, 278 N.W. 6, 8 (1938)(counties, townships and school districts classified as quasi public corporations are instrumentalities of the State for the purpose of carrying into effect the functions of government and are not liable for damages caused by negligent performance of such duties unless a cause of action is expressly given by statute); Williams v. Wessington Tp., 70 S.D. 75, 77, 14 N.W.2d 493, 494 (1944)(counties and townships are political subdivisions of the State or quasi corporations exercising part of the State's sovereign power and are not liable in the absence of a statute imposing liability for injuries caused by defective highways, while municipalities are liable for failure to use due care to keep streets in reasonably safe condition for public travel); Conway v. Humbert, 82 S.D. 317, 319, 145 N.W.2d 524, 526 (1966)(a municipal corporation has both governmental and corporate, private or proprietary powers and, when using governmental powers, it is not liable for tort because it is an agent of the State partaking of its sovereignty, yet it is liable for negligence when exercising its corporate or private powers); Bucholz v. City of Sioux Falls, 77 S.D. 322, 328, 91 N.W.2d 606, 610 (1958)(a municipality engaged in construction, repair or maintenance of streets and sidewalks acts in a corporate or proprietary capacity and is liable for injuries resulting from the negligence of its officers and agents).³

[¶ 7.] Consistent with the holdings distinguishing county and municipal liability, this Court handed down a long line of decisions recognizing a common-law duty on the part of municipalities to keep, repair or maintain streets and sidewalks in a reasonably safe condition for public travel. See Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315 (1902); Jones v. City of Sioux Falls, 18 S.D. 477, 101 N.W. 43 (1904); Fritz v. City of Watertown, 21 S.D. 280, 111 N.W. 630 (1907); Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848 (1909); Connell v. City of Canton, 24 S.D. 572, 124 N.W. 839 (1910); Rowe v. Richards, 32 S.D. 66, 142 N.W. 664 (1913), overruled on other grounds, Ulvig v. McKennan Hospital, 56 S.D. 509, 229 N.W. 383 (1930); Keen v. City of Mitchell, 37 S.D. 247, 157 N.W. 1049 (1916); Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631 (1918); Ellwein v. Town of Roscoe, 42 S.D. 298, 174 N.W. 748 (1919); Stewart v. City of Watertown, 43 S.D. 489, 180 N.W. 945 (1921); Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281 (1921); Norberg, supra; Doolin v. City of Winner, 48 S.D. 400, 204 N.W. 899 (1925); Usletten v. City of Brookings, 59 S.D. 477, 240 N.W. 851 (1932); Drake v. City of Mobridge, 60 S.D 79, 243 N.W. 429 (1932); Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525 (1932); Fenton v. Ackerman, 66 S.D. 465, 285 N.W. 516 (1939); Williams, supra; Kimball v. City of Sioux Falls, 71 S.D. 35, 20 N.W.2d 873 (1945); McCleod v. Tri-State Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946); Gurney v. Rapid City, 74 S.D. 194, 50 N.W.2d 360 (1951); Poppen v. City of Watertown, 74 S.D. 402, 53 N.W.2d 616 (1952); Bucholz, supra; Rapid City v. First Nat'l Bank of Black Hills, 79 S.D. 38, 107 N.W.2d 693 (1961).⁴

[¶ 8.] In contrast with the common-law duty of municipalities, the Court held that county and township duties as to highway maintenance were statutory. For example, in the early case of Hanigan v. Minnehaha County, 47 S.D. 606, 609, 201 N.W. 522, 523 (1924), this Court observed as to county liability that:

Prior to the adoption of chapter 210, Laws 1915, which chapter was the original source of said sections 8589 and 8590, it was the settled law of this jurisdiction, following the rule of the common law, that a county was not liable for damages caused by the neglect of its officers to keep in repair a bridge upon a public highway because there was no express statute creating such a liability. That doctrine was enunciated in [Bailey, supra.]

See also Williams, supra (stating, before 1915, there was no statute imposing liability on townships-which are generally treated the same as counties-but, by chapter 210, Laws 1915, townships (and counties) were made liable under certain...