Loesch v. City of Huron

• Decision Date: 25 October 2006
• Docket Number: No. 23922.,23922.
• Citation: 2006 SD 93,723 N.W.2d 694
• Parties: Collin LOESCH, Plaintiff and Appellant, v. The CITY OF HURON, A Municipal Corporation, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 694

723 N.W.2d 694

2006 SD 93

Collin LOESCH, Plaintiff and Appellant, v. The CITY OF HURON, A Municipal Corporation, Defendant and Appellee.

No. 23922.

Supreme Court of South Dakota.

Considered on Briefs October 2, 2006.

Decided October 25, 2006.

Beverly J. Katz of Katz Law Office, Huron, South Dakota, Attorney for plaintiff and appellant.

Robert B. Anderson of May, Adam, Gerdes and Thompson, Pierre, South Dakota, Attorneys for defendant and appellee.

MEIERHENRY, Justice.

[¶ 1.] Collin Loesch (Loesch) brought suit against the City of Huron (City) after he was injured on a city street while riding his bicycle. The City brought a motion for judgment on the pleadings claiming that Loesch had failed to file suit within the two year statute of limitations in SDCL 9-24-5. Loesch claimed that SDCL 3-21-2, which requires an injured party to give notice to a city, and SDCL 3-21-6, which allows a city ninety days to respond, tolled the two year statute of limitations. The trial court ruled against Loesch and dismissed the lawsuit. The trial court also dismissed Loesch's claim of nuisance. We affirm dismissal of the nuisance claim, reverse dismissal as to the statute of limitations and remand for trial.

PROCEDURAL BACKGROUND

[¶ 2.] In his pleadings, Loesch claimed that on May 2, 2003, he fell and was injured while riding his bicycle on a City street. He claimed that the City was negligent in not marking the area of the street where it was making repairs and that the City's negligence caused his injuries. On September 2, 2003, Loesch provided written notice to the City, indicating the time, place, and cause of his injury as required by SDCL 3-21-2 and waited for the City to respond. Ninety days passed without reply from the City. Loesch subsequently served a summons and complaint on June 27, 2005. The City filed a motion for judgment on the pleadings based on Loesch's failure to commence his personal injury action against the City within two years of the occurrence as required by SDCL 9-24-5. The trial court granted the City's motion, concluding that neither SDCL 3-21-2 nor 3-21-6 stayed the two-year statute of limitations. Loesch appeals and raises the following issues:

ISSUES

1. Whether the trial court erred by not excluding the ninety day time frame between Loesch's notice to the City and the City's failure to reply, and in so doing erred in dismissing Loesch's lawsuit based upon the two year statute of limitations in SDCL 9-24-5.

2. Whether the trial court erred in dismissing Loesch's nuisance claims against the City.

STANDARD OF REVIEW

[¶ 3.] "Judgment on the pleadings provides an expeditious remedy to test the legal sufficiency, substance, and form of the pleadings." M.S. v. Dinkytown Day Care Center, Inc., 485 N.W.2d 587, 588 (S.D.1992) (internal quotations omitted). It is only an appropriate remedy to resolve issues of law when there are no disputed facts. Id. Loesch's arguments relate solely to whether the trial court erred in finding that his action was time barred by South Dakota law. A question of statutory interpretation is a question of law which we review de novo. State v. $1,010.00 in American Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94.

DECISION

Statute of Limitations

[¶ 4.] Loesch's first issue is that the trial court erred in concluding his negligence action was barred because it was not brought within the two year statute of limitations specified in SDCL 9-24-5. The statute provides as follows:

Any action for recovery of damages for personal injury or death caused by the negligence of a municipality must be commenced within two years from the occurrence of the accident causing the injury or death.

SDCL 9-24-5. The statute sets forth an "occurrence rule" statute of limitations, which means a cause of action accrues at the time the injury occurs. See Burgard v. Benedictine Living Communities, 2004 SD 58, ¶ 17, 680 N.W.2d 296, 301; Green v. Siegel, Barnett, and Schutz, 1996 SD 146, ¶ 10, 557 N.W.2d 396, 399. Since this is an occurrence rule, any argument by Loesch concerning delayed accrual is without merit.

[¶ 5.] In this case, the statute of limitations began to run when Loesch was injured on May 2, 2003. Loesch argues that the notice provisions in SDCL 3-21-6 and 3-21-2 prohibited him from maintaining a lawsuit against the City for a period of time and tolled the two year statute of limitations. The statutory notice provisions first require that before commencing a court action, a claimant must give notice to the public entity within 180 days of the occurrence. SDCL. The statute mandates the following:

No action for the recovery of damages for personal injury, property damage, error, or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

SDCL 3-21-2

[¶ 6.] Additionally after receiving notice, the public entity has ninety days to accept or reject the claim before the claimant can file a lawsuit. SDCL 3-21-6. The statute provides:

claimant or the claimant's legal representative may file a suit if the public entity does not accept or reject the claim within ninety days of receipt of the notice as provided in § 3-21-2.

SDCL 3-21-6. Loesch argues that these statutes toll or suspend the two year statute of limitations in SDCL 9-24-5 for the period of time that (1) the city responds to the claim or (2) ninety days has passed from the date of the notice of the claim.

[¶ 7.] The plain and ordinary language of the statutes supports Loesch's interpretation. Although we have examined the mandatory notice requirements of the statutes, we have not had occasion to address whether the mandatory notice and reply time frames toll the statute of the limitations. See Gakin v. City of Rapid City, 2005 SD 68, ¶ 15, 698 N.W.2d 493, 498; Purdy v. Fleming, 2002 SD 156, ¶ 14, 655 N.W.2d 424, 429-30; Peterson, ex rel. Peterson v. Burns, 2001 SD 126, ¶ 39, 635 N.W.2d 556, 570 (stating that SDCL 3-21-2 is an example of a notice statute in which a plaintiff must give 180 days notice after the time of the injury); In re Kindle, 509 N.W.2d 278, 280 (S.D.1993) (stating that "[u]nder South Dakota law, no action for damages may be maintained against a public entity or official unless written notice of the injury is given to that entity within 180 days of the injury"); Finck v. City of Tea, 443 N.W.2d 632, 635 (S.D.1989) (holding that notice of tort claim to mayor or city finance officer is mandatory). Additionally in the context of analyzing "substantial compliance," we acknowledged the legislative objectives for the notice requirement to public entities as follows:

To investigate evidence while fresh; (2) to prepare a defense in case litigation appears necessary; (3) to evaluate claims, allowing early settlement of meritorious ones; (4) to protect against unreasonable or nuisance claims; (5) to facilitate prompt repairs, avoiding further injuries; (6) to allow the [public entity] to budget for payment of claims; and (7) to insure that officials responsible for the above tasks are aware of their duty to act.

Myears v. Charles Mix County, 1997 SD 89, ¶ 13, 566 N.W.2d 470, 474 (internal quotations omitted).

[¶ 8.] To determine whether the legislature intended the notice provision of SDCL 3-21-2 and the mandatory response time frames in SDCL 3-21-6 to toll the two-year statute of limitations, we first examine the statute as a whole and the plain, ordinary, and popular meaning of its language. State v. Ducheneaux, 2003 SD 131, ¶ 9, 671 N.W.2d 841, 843. We have said, "[s]ince statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject." Dahn v. Trownsell, 1998 SD 36, ¶ 14, 576 N.W.2d 535, 539 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (reversed on other grounds). Both SDCL 3-21-2 and 3-21-6 were enacted in the 1986 Legislative Session as provisions in the same bill. S.D. Laws 1986 ch. 4 § 6. In addition, a previously passed statutory provision codified in SDCL 15-2-25 specifically provided that "[w]hen the commencement of an action is stayed by . . . statutory prohibition, the time of the . . . prohibition is not part of the time limited for the commencement of the action." In determining legislative intent, we also take into consideration prior enacted statutes on the same subject matter and read the statutes in pari materia. We have recognized:

The object of the rule of pari materia is to ascertain and carry into effect the intention of the legislature. It proceeds upon the supposition that the several statutes were governed by one spirit and policy, and were intended to be consistent and harmonious in their several parts and provisions.

For purposes of determining legislative intent, we must assume that the legislature in enacting a provision has in mind previously enacted statutes relating to the same subject matter. As a result, the provision should be read, if possible, in accord with the legislative policy embodied in those prior statutes.

State v. Chaney, 261 N.W.2d 674, 676 (S.D. 1978) (internal quotations omitted) (citations omitted).

[¶ 9.] Here, we must assume that when the legislature adopted SDCL 21-3-2 and 21-3-6, the legislature had in mind the previously enacted SDCL 15-2-25. Therefore, since the legislature set forth prohibitions against commencing an action against a city until a city has notice and time to reply, it necessarily follows that the legislature intended SDCL 15-2-25 also to apply and that the "time of the prohibition" was to be excluded from the two year statute of limitations.

[¶ 10.] Other jurisdictions, which have interpreted statutes similar to SDCL 15-2-25, have reached similar conclusions.¹ For...