King v. Landguth, 24110.

• Decision Date: 03 January 2007
• Docket Number: No. 24129.,No. 24110.,24110.,24129.
• Citation: 2007 SD 2,726 N.W.2d 603
• Parties: Brenda M. KING, as Personal Representative of the Estate of Ashley Marie King, A Deceased Minor Child, for the Benefit of the Surviving Parents, Brenda King and Roger King, and Barbara V. King, Plaintiffs and Appellants, v. Dennis LANDGUTH, Secretary of the South Dakota Department of Transportation, in his individual and official capacities, Tom Week, Mitchell Region Engineer for the South Dakota Department of Transportation, in his individual and official capacities, Ron S. Peterson, Area Engineer for the South Dakota Department of Transportation, in his individual and official capacities; and Joel Gengler, Chief Road Design Engineer with the Division of Planning and Engineering for the South Dakota Department of Transportation, Defendants, Third Party Plaintiffs and Appellees, v. Joshua Engel, Third Party Defendant.
• Court: South Dakota Supreme Court

Page 603

726 N.W.2d 603

2007 SD 2

Brenda M. KING, as Personal Representative of the Estate of Ashley Marie King, A Deceased Minor Child, for the Benefit of the Surviving Parents, Brenda King and Roger King, and Barbara V. King, Plaintiffs and Appellants, v. Dennis LANDGUTH, Secretary of the South Dakota Department of Transportation, in his individual and official capacities, Tom Week, Mitchell Region Engineer for the South Dakota Department of Transportation, in his individual and official capacities, Ron S. Peterson, Area Engineer for the South Dakota Department of Transportation, in his individual and official capacities; and Joel Gengler, Chief Road Design Engineer with the Division of Planning and Engineering for the South Dakota Department of Transportation, Defendants, Third Party Plaintiffs and Appellees, v. Joshua Engel, Third Party Defendant.

No. 24110.

No. 24129.

Supreme Court of South Dakota.

Argued November 30, 2006.

Decided January 3, 2007.

COPYRIGHT MATERIAL OMITTED

Douglas E. Hoffman of Myers & Billion, L.L.P. Sioux Falls, South Dakota and Kenneth W. Cotton of Wipf & Cotton, L.L.C., Wagner, South Dakota, Attorneys for appellants.

Gary P. Thimsen, Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, P.C., Sioux Falls, South Dakota, Attorneys for appellees.

SABERS, Justice.

[¶ 1.] This action arose from a one car accident in rural Turner County, where Ashley Marie King suffered fatal injuries and Barbara V. King (Barbara) suffered serious but non-fatal injuries, after the driver hit a box culvert in the ditch. Brenda M. King (Brenda), on behalf of Ashley, and Barbara sued the State of South Dakota, the South Dakota Department of Transportation (DOT), and DOT employees. The circuit court dismissed two of King's¹ claims. A jury trial was held regarding the third claim of DOT employees' negligence in failing to maintain the signs. The jury returned a verdict in favor of the DOT employees and King appealed. The DOT employees also submitted two issues for review. We affirm.

FACTS

[¶ 2.] On October 19, 2002, Joshua Engel (Josh), his mother, Debra Engel (Debra), his cousin Ashley, and his grandmother, Barbara, were traveling west from Sioux Falls to Platte on Highway 44. At approximately 6:00 p.m., the car left the west bound lane, crossed the center line, entered the east bound lane and proceeded into the southern ditch. The car was traveling between 65 and 70 mph before leaving the road. According to Josh, he awoke when the car was three-fourths of the way into the oncoming traffic lane, when his mother yelled at him to wake up. He then swerved into the southern ditch (the ditch adjacent to the oncoming traffic lane), to avoid an oncoming vehicle approximately 800 feet ahead.

[¶ 3.] Josh stated he tried, but was unable, to maneuver the car back onto the road. He then tried to bring the vehicle to a stop in the ditch. Before coming to a stop, the car hit a cement box culvert, approximately 320 feet from where the car entered the ditch. He said he did not see the culvert prior to the accident. According to Josh, had he seen the culvert, he felt he could have avoided it. Barbara suffered severe injuries and was flown to a Sioux Falls hospital. Ashley's injuries were fatal.

[¶ 4.] King sued the State of South Dakota, the DOT and several DOT individuals.² The DOT employees sued the driver of the car, Josh, as a Third Party Defendant. King alleged the DOT employees were negligent in marking the culvert and maintaining the signs.

[¶ 5.] The court dismissed the claims against the State of South Dakota and the DOT due to sovereign immunity. Likewise, the claims that the DOT employees were negligent in marking the box culvert were dismissed based on sovereign immunity. The DOT's motion to dismiss the claim of negligence in maintaining the markers was denied and a jury trial was held. The jury found for the DOT employees.

[¶ 6.] King appeals and raises one issue:

1. Whether the circuit court erred in deciding sovereign immunity bars King's claim of negligence in marking the box culvert on the basis that these actions are discretionary functions.³

The DOT employees filed a notice of review raising two issues:

2. Whether, as a matter of law, the proximate cause of the accident was the negligence of Josh Engel.

3. Whether the jury should have been advised that the Kings settled their claims against the driver of the vehicle.

STANDARD OF REVIEW

[¶ 7.] The issue presented arises from summary judgment. "Summary judgment is authorized `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.'" Krier v. Dell Rapids Township, 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-45 (citing SDCL 15-6-56(c)). We view the evidence "in the light most favorable to the non-moving party." Heib v. Lehrkamp, 2005 SD 98, ¶ 45, 704 N.W.2d 875, 890 (Sabers, J., dissenting) (citing Colonial Ins. Co. of California v. Lundquist, 539 N.W.2d 871, 873). The moving party has the burden of showing there are no genuine issues of material fact. Casillas v. Schubauer, 2006 SD 42, ¶ 12, 714 N.W.2d 84, 88 (citing In re Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586).

[¶ 8.] "[S]ummary judgment will only be affirmed if there are no genuine issues of material fact and the legal questions have been decided correctly." Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.1987)). Whether sovereign immunity precludes a plaintiff from pursuing a claim is question of law which is reviewed de novo. Id. No deference is afforded the circuit court's conclusions of law. Id. (citing Hansen v. South Dakota Dept. of Transp., 1998 SD 109, ¶ 7, 584 N.W.2d 881).

[¶ 9.] Whether the circuit court erred in deciding sovereign immunity bars King's claim of negligence in marking the box culvert on the basis that these actions are discretionary functions.

[¶ 10.] "The doctrine of sovereign immunity . . . prevents the governing acts of the state, its agencies, other public entities, and their employees from attack in court without the state's consent." Id. ¶ 20 (citing Casazza v. State, 2000 SD 120, ¶ 11, 616 N.W.2d 872, 875). State employees are not always protected by sovereign immunity, but it does apply when state employees perform discretionary functions. Id. (citing Kruger v. Wilson, 325 N.W.2d 851, 854 (S.D.1982)). It is inapplicable when state employees perform ministerial functions. Id.

[¶ 11.] "State employees are cloaked in sovereign immunity when performing discretionary acts because `such discretionary acts participate in the state's sovereign policy-making power.'" Kyllo v. Panzer, 535 N.W.2d 896, 902 (S.D.1995) (quoting Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D.1991)). In contrast, "a ministerial act is the simple carrying out of a policy already established . . . so that permitting state employees to be held liable for negligence in the performance of merely ministerial duties within the scope of their authority does not compromise the sovereignty of the state." Wulf, 2003 SD 105, ¶ 20, 669 N.W.2d at 143 (citing Ritter, 465 N.W.2d at 198). This Court uses several factors when determining if a state employee's actions are a discretionary rather than ministerial function. They are:

(1) The nature and importance of the function the officer is performing;

(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government;

(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer;

(4) The extent to which the ultimate financial responsibility will fall on the officer;

(5) The likelihood that harm will result to members of the public if the action is taken;

(6) The nature and seriousness of the type of harm that may be produced;

(7) The availability to the injured party of other remedies and other forms of relief.

Id., ¶ 20, 669 N.W.2d at 142-43 (citing National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (S.D.1982)).

[¶ 12.] In essence, in order for an action to be ministerial the act must be "absolute, certain, and imperative[.]" Casazza, 2000 SD 120, ¶ 13, 616 N.W.2d at 875 (quoting Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886). An employee must be "direct[ly] adher[ing] to a governing rule or standard with a compulsory result." Id. ¶ 13, 616 N.W.2d at 876. "If there is a readily ascertainable standard by which the action . . . may be measured . . . it is not within the discretionary function exception" and therefore, is a ministerial act. Id.

[¶ 13.] The determination of what acts constitute discretionary or ministerial functions requires an individualized inquiry. Wulf, 2003 SD 105, ¶ 21, 669 N.W.2d at 143. There is no fixed rule to determine whether the employee's action fits into the discretionary rather than ministerial category. Id. Instead, we must weigh the consequence immunity has on effective government with the potential harm to individuals. Id. To aid in this inquiry, we look at different aspects such as, "the nature of the official's duties, the extent to which the acts involve policy making or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity." Id. (citing Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886) (additional citations omitted)).

[¶ 14.] Whether sovereign immunity applies to the DOT employees' actions (or inaction) depends on whether the placement of more than two markers at the culvert was a discretionary or ministerial function. King alleges the failure to place four markers on the culvert was negligence and sovereign immunity should not bar their claim because the action was a ministerial function. DOT employees claim...