Kyllo v. Panzer

Decision Date16 August 1995
Docket Number18739,Nos. 18713,s. 18713
PartiesPhyllis KYLLO, Special Administrator of the Estate of Ervin Peterson, Plaintiff and Appellee, v. Joyce PANZER, Defendant and Appellant. Wilma Jean TRELOAR and Michael Treloar, Plaintiffs and Appellees, v. James BLAND, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Rick Johnson and Stephanie Pochop of Johnson, Eklund, Nicholson, Dougherty and Abourezk, Gregory, for appellee Kyllo.

Edward C. Carpenter of Costello, Porter, Hill, Heisterkamp and Bushnell, Rapid City, and Gerald M. Baldwin, Custer, for appellees Treloar.

Richard J. Helsper and Eric N. Rasmussen of Erickson, Helsper and Rasmussen, Brookings, for appellants.

AMUNDSON, Justice.

State employees appeal the trial courts' denial of summary judgment based on claims of sovereign immunity under SDCL 21-32-17 and 21-32A-2. We affirm.

FACTS

Two cases, with facts strikingly similar, have been consolidated for this appeal. On April 7, 1992, Ervin Peterson (Peterson), age 78, was driving in Pierre, South Dakota. While driving through an intersection, Peterson's car was hit broadside by Joyce Panzer (Panzer), a licensed social worker for the South Dakota Department of Social Services. Eyewitness testimony indicated that Panzer drove through a stop sign before colliding with the Peterson vehicle. As a result of the accident, Peterson suffered serious injuries to his neck, arm and knee. From the time of his accident until his death in June 1993, Peterson never fully recovered from his injuries. After Peterson's death, Phyllis Kyllo (Kyllo), special administrator of Peterson's estate, was substituted as plaintiff.

Wilma Jean Treloar (Treloar) left work at the South Dakota Developmental Center outside of Custer on March 21, 1992. It was snowing. As she proceeded home on Highway 385, she noticed a state snowplow coming towards her in her lane of travel. To avoid a head-on collision, Treloar pulled to the extreme right portion of her lane. The wheels of her vehicle caught the shoulder drop-off, causing Treloar to lose control of the car. Consequently, Treloar collided with another oncoming vehicle. Among other injuries as a result of the accident, Treloar suffered a broken neck. It has been alleged that the snowplow was traveling at an unsafe rate of speed and was being operated contrary to State Department of Transportation policy.

Plaintiffs in both cases sought to recover damages against the state employees Panzer and Bland (Employees) in their individual capacities. The State was not a party in either lawsuit. Kyllo sought damages exclusively for pain and suffering, since Panzer admitted liability for property damage and medical expenses. Treloar and her husband sought damages for physical injury, pain and suffering and loss of spousal consortium.

Employees asserted affirmative defenses of sovereign immunity under SDCL 21-32-17 and SDCL 21-32A-2 arguing those statutes prevented bringing the actions. 1 Employees moved for summary judgment, contending the only damages available, if any, were for physical injuries through the Public Entity Pool for Liability (PEPL) Fund. This fund, however, excludes coverage for pain and suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, and hedonic damages.

During pretrial motion hearings, the trial courts in both cases determined SDCL 21-32-17 and 21-32A-2 unconstitutional in granting immunity for the negligence of state employees conducting ministerial functions within the scope of their employment. Partial summary judgment was granted in favor of Kyllo and Treloar, which denied Employees' claim to immunity. Employees appeal.

ISSUES

I. WHETHER THE TRIAL COURTS IMPROPERLY DETERMINED THAT SDCL 21-32-17 AND 21-32A-2 ARE UNCONSTITUTIONAL TO THE EXTENT THEY PURPORT TO LIMIT DAMAGES FOR A STATE EMPLOYEE'S NEGLIGENCE WHEN PERFORMING "MINISTERIAL" ACTS?

II. WHETHER THE TRIAL COURTS IMPROPERLY DENIED EMPLOYEES THE BENEFIT OF SOVEREIGN IMMUNITY?

III. WHETHER THE TRIAL COURTS IMPROPERLY DETERMINED THAT EMPLOYEES' OPERATION OF STATE VEHICLES AS A MATTER OF LAW WAS A MINISTERIAL FUNCTION?

STANDARD OF REVIEW

The proper construction to be given a constitutional provision is a question of law. Poppen v. Walker, 520 N.W.2d 238, 241 (S.D.1994); Dahl v. Sittner, 474 N.W.2d 897, 899 (S.D.1991). The standard of reviewing the constitutionality of a statute is de novo. Brown v. Egan Consol. School D. 50-2, 449 N.W.2d 259, 260 (S.D.1989).

We have held that "a strong presumption as to the constitutionality of [a] statute and that the burden is upon [Kyllo and Treloar] to prove that the statute--or to satisfy the court [that] the statute is unconstitutional." Specht v. City of Sioux Falls, 526 N.W.2d 727, 729 (S.D.1995). The party challenging constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision. Id.

We must also be reminded of basic constitutional law reiterated in State ex rel. Wagner v. Summers, 33 S.D. 40, 49, 144 N.W. 730, 732 (1913):

It is elementary that the legislative power of the Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.

It is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the state Constitution is not a grant of power, but is a limitation upon the powers of the Legislature.

Oien v. City of Sioux Falls, 393 N.W.2d 286, 290 (S.D.1986) (citations omitted).

DECISION

Employees argue SDCL 21-32-17 and 21-32A-2 are constitutionally valid as appropriate measures to curtail state employees' liability. They claim the legislature is free to limit remedies if it deems such action necessary for the public good. They also reason that, since the ministerial/discretionary dichotomy of governmental functions did not exist at the time the South Dakota Constitution was adopted, state employees who commit torts while in the scope of employment are protected by the state's sovereign immunity. Under this rationale, SDCL 21-32-17 and 21-32A-2 do not conflict with the "open courts" provision of the South Dakota Constitution.

I. History of Personal Liability under Sovereign Immunity

Although it is sometimes said that sovereign immunity was "created" by Article III, § 27, of the South Dakota Constitution, it is in fact a concept of the common law. High-Grade Oil Co. v. Sommer, 295 N.W.2d 736, 739 (S.D.1980). Sovereign immunity from tort liability can be traced back to England. Stuart M. Speiser, Charles F. Frause, & Alfred W. Gans, The American Law of Torts § 6.31 (1985). With the burgeoning of the parliamentary system in England, the notion developed that, while "the king himself could not be charged with wrongdoing, his ministers were personally responsible when they acted illegally." Id. Causes of action were allowed against public officials. 2 Although actions against high officials were few, cases against inferior officers were numerous. 3

Personal liability of government employees continued in the development of American common law. The United States Supreme Court, in Osborn v. The Bank, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824), held state officers liable by holding a state treasurer personally accountable to return tax moneys which were improperly levied on a bank. The treasurer was personally accountable for ignoring an injunction which prohibited collection against the bank. Id. at 847; see Louis L. Jaffe, Suits against Governments and Officers: Sovereign Immunity, 77 Harv.L.Rev. 1, 21 (1963). The Colorado Supreme Court, in Kristensen v. Jones, 195 Colo. 122, 575 P.2d 854 (1978), recognized that:

An injured person's right to sue the negligent employee of an immune public entity derives from the common law, and we will not lightly infer a legislative abrogation of that right absent a clear expression of intent.

Id. at 855 (citing Collard v. Hohnstein, 64 Colo. 478, 174 P. 596 (1918)). The Kristensen court held negligent operators of public vehicles fell within the common law scope of personal liability. Id.; see generally Prosser, Torts § 132 (4th Ed.1971). "Public employees generally have been personally liable for injuries caused by their negligent actions within the scope of employment even when the defense of sovereign immunity was available to their employers." Kristensen 575 P.2d at 855 (citations omitted).

The right to sue and recover for others' negligence existed at the time of the adoption of the South Dakota Constitution. Oien, 393 N.W.2d at 290. South Dakota's first negligence statute, codified at SDCL 20-9-1, was enacted in 1877, twelve years prior to the birth of our state constitution in 1889. This statute provides in part: "Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill[.]" SDCL 20-9-1.

South Dakota's common law right to action for damages, codified at SDCL 21-1-1, was enacted the same year as the negligence statute. It provides: "Every person who suffers detriment from the unlawful act or omission of another may recover from the person in fault a compensation therefor in money, which is called damages. Detriment is a loss or harm suffered in person or property."

This rule of law that a public employee is liable for negligently performed ministerial acts was first recognized by this court in State v. Ruth, 9 S.D. 84, 90, 68 N.W. 189, 190 (1896), seven years after the adoption of the South Dakota Constitution. Moreover, this court has long recognized a right to recover damages for pain and suffering resulting from negligent acts. See, e.g., Small v. McKennan Hospital, 437 N.W.2d 194 (S.D.1989); Pollman v. Ahrens, 88 S.D. 249, 218 N.W.2d 475 (1974); Egan v. Sheffer, 86 S.D. 684, 201 N.W.2d 174 (1972); Koenig v. Weber, 84 S.D. 558, 174 N.W.2d 218 (1970); ...

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