Kringen v. Shea, No. 13831

CourtSupreme Court of South Dakota
Writing for the CourtDUNN; HENDERSON; FOSHEIM; HENDERSON; FOSHEIM
Citation333 N.W.2d 445
Parties10 Ed. Law Rep. 1185 Bradley D. KRINGEN, Plaintiff and Appellant, v. Tom SHEA and State Board of Regents, A Public Corporation, Defendants and Appellees. . Considered on Briefs
Docket NumberNo. 13831
Decision Date21 March 1983

Page 445

333 N.W.2d 445
10 Ed. Law Rep. 1185
Bradley D. KRINGEN, Plaintiff and Appellant,
v.
Tom SHEA and State Board of Regents, A Public Corporation,
Defendants and Appellees.
No. 13831.
Supreme Court of South Dakota.
Considered on Briefs March 21, 1983.
Decided May 4, 1983.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for plaintiff and appellant.

Derald W. Wiehl of May, Johnson, Doyle & Becker, Sioux Falls, for defendants and appellees.

DUNN, Justice.

This is an appeal from an order of the trial court dismissing a complaint which alleged certain injuries were the result of negligent acts of omission on the part of the South Dakota State Board of Regents (Board) and one of its employees, Tom Shea (Shea). We affirm in part, reverse in part, and remand.

In April of 1981, Bradley D. Kringen (appellant) was an enrolled student at Dakota State College in Madison, South Dakota. One of appellant's courses was entitled "Beginning Gymnastics," which was being taught by Shea. On April 30, 1981, appellant was injured while performing on a trampoline during his gymnastics class. Appellant suffered an injury between the fourth and fifth vertebra of his back which rendered him a quadraplegic.

Appellant brought this action against Shea, alleging inter alia failure to supervise, failure to adequately instruct and supervise the utilization of the trampoline, and failure to provide proper safety instructions. Appellant also brought an action against the Board on similar theories. The trial court granted a motion to dismiss, concluding the complaint failed to state a claim upon which relief could be granted and that the complaint was barred under the doctrine of sovereign immunity. The trial court directed that the motion to dismiss be treated as one for summary judgment. Appellant now asks us to review the trial court's action.

Page 446

We first must determine whether the action against the Board is barred by the doctrine of sovereign immunity. Appellant contends that SDCL 13-49-11, 1 by giving the Board the power to "sue and be sued," indicates a legislative intent that the Board not be vested with sovereign immunity. In essence, appellant urges us to recognize the "sue and be sued" statute to be legislative consent to tort liability in actions against the Board. We decline the invitation to so rule.

We need look no further than our recent decision in Guillaume by Guillaume v. Staum, 328 N.W.2d 259 (S.D.1982), to dispose of this issue. There, the appealing party alleged school districts were subject to tort liability as a result of SDCL 13-5-1. 2 That statute, like the one we review in the case at hand, also contains a "may sue and be sued" clause. In Guillaume, we concluded that: "[I]n the absence of a statute waiving sovereign immunity from tort liability, the 'may sue and be sued' provisions of SDCL 13-5-1 do not create a cause of action in tort." 328 N.W.2d at 261. See also Jerauld County v. St. Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571 (1955).

We choose to adhere to the rationale set forth in Guillaume, and accordingly conclude the "sue and be sued" clause contained in SDCL 13-49-11 does not, in the absence of statutory authority expressly waiving sovereign immunity, create a cause of action in tort against the Board. Thus, that portion of the summary judgment exonerating the Board from liability is affirmed.

Finally, we address the trial court's conclusion that the doctrine of sovereign immunity protects state employees from suits as long as the employee does not commit "wrongful acts in excess of their official authority." In granting summary judgment, the trial court primarily relied on High Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980). Subsequent to the trial court's action, this court released several...

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13 practice notes
  • B.K. v. 4–H, No. CIV. 12–4046–KES.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 29, 2012
    ...not a person within the meaning of 42 U.S.C. § 1983 ... and may not be sued under that section.” (citations omitted)); Kringen v. Shea, 333 N.W.2d 445, 446 (S.D.1983) (reasoning that the Board of Regents is entitled to sovereign immunity). The Board of Regents controls SDSU and, thus, SDSU ......
  • Aune v. B-Y Water Dist., B-Y
    • United States
    • Supreme Court of South Dakota
    • February 12, 1990
    ...and may sue and be sued in its corporate name." Although, as argued by B-Y, the "sue and be sued" clause based on Kringen v. Shea, 333 N.W.2d 445 (S.D.1983), does not create a cause of action in tort, it certainly permits a cause of action in tort if one exists. To read the "sue and be sued......
  • L.R. Foy Const. Co., Inc. v. South Dakota State Cement Plant Com'n, No. 15000
    • United States
    • South Dakota Supreme Court
    • January 14, 1987
    ...of an express statutory waiver, we strictly adhere to this constitutionally mandated doctrine. 349 N.W.2d at 410 (citing Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Arms v. Minneh......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...immunity. In the absence of an express statutory waiver, we strictly adhere to this constitutionally mandated doctrine. Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Arms v. Minneha......
  • Request a trial to view additional results
13 cases
  • B.K. v. 4–H, No. CIV. 12–4046–KES.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • August 29, 2012
    ...not a person within the meaning of 42 U.S.C. § 1983 ... and may not be sued under that section.” (citations omitted)); Kringen v. Shea, 333 N.W.2d 445, 446 (S.D.1983) (reasoning that the Board of Regents is entitled to sovereign immunity). The Board of Regents controls SDSU and, thus, SDSU ......
  • Aune v. B-Y Water Dist., B-Y
    • United States
    • Supreme Court of South Dakota
    • February 12, 1990
    ...and may sue and be sued in its corporate name." Although, as argued by B-Y, the "sue and be sued" clause based on Kringen v. Shea, 333 N.W.2d 445 (S.D.1983), does not create a cause of action in tort, it certainly permits a cause of action in tort if one exists. To read the "sue and be sued......
  • L.R. Foy Const. Co., Inc. v. South Dakota State Cement Plant Com'n, No. 15000
    • United States
    • South Dakota Supreme Court
    • January 14, 1987
    ...of an express statutory waiver, we strictly adhere to this constitutionally mandated doctrine. 349 N.W.2d at 410 (citing Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Arms v. Minneh......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...immunity. In the absence of an express statutory waiver, we strictly adhere to this constitutionally mandated doctrine. Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980); Arms v. Minneha......
  • Request a trial to view additional results

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