Long v. State, 27368
Court | Supreme Court of South Dakota |
Writing for the Court | KERN, Justice |
Citation | 904 N.W.2d 502 |
Parties | Mark and Marilyn LONG, Arnie and Shirley Van Voorst, Tim and Sara Doyle, Timothy and Jane Griffith and Michael and Karen Taylor, Plaintiffs and Appellees, v. STATE of South Dakota, Defendant and Appellant. |
Decision Date | 21 November 2017 |
Docket Number | 27368 |
904 N.W.2d 502
Mark and Marilyn LONG, Arnie and Shirley Van Voorst, Tim and Sara Doyle, Timothy and Jane Griffith and Michael and Karen Taylor, Plaintiffs and Appellees,
v.
STATE of South Dakota, Defendant and Appellant.
27368
Supreme Court of South Dakota.
ARGUED ON JANUARY 12, 2016
OPINION FILED November 21, 2017
AS MODIFIED ON DENIAL OF REHEARING December 19, 2017
MARK V. MEIERHENRY, CHRISTOPHER HEALY, CLINT SARGENT of Meierhenry Sargent, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.
GARY P. THIMSEN, JOEL E. ENGEL III of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
KERN, Justice
BACKGROUND
[¶2.] Minnehaha and Lincoln Counties are drained by a natural watercourse referred to as the Spring Creek Tributary Drainage Basin. In 1949, the South Dakota Department of Transportation (DOT) built Highway 11. The Highway runs north and south through Lincoln and Minnehaha Counties and across the natural waterway known as Spring Creek. The State maintains sole control over Highway 11. At the time of construction, the DOT installed various culverts, including two 48–inch culverts and one 24–inch culvert, to permit the Spring Creek Tributary, which flows in a southeastern direction, to flow under Highway 11 into Spring Creek.
[¶3.] All of the Landowners' properties are located on the west side of Highway 11, north of the intersection of Highway 11 and 85th Street, in an area referred to as the Village of Shindler or Elmen Acres. The homes lie in a sub-basin within the Spring Creek Tributary Basin. They are separated from the greater basin by the
[904 N.W.2d 506
natural lay of the land and a ditch block (driveway) south of the twin 48–inch culverts. The single 24–inch culvert drains surface water from the sub-basin. The 24–inch culvert is too small to drain water entering the sub-basin from outside sources.
[¶5.] The engineers determined that statistically a flow of 275 cfs would occur in an eight-year-rain event. In other words, it was likely to occur once every eight years with a 12.5% chance of occurrence in any given year. The Hydraulic Data Sheet provided that a 100-year-rain event would involve water flowing towards the culverts at 803 cfs. A 100-year-rain event would have a 1% likelihood of occurring each year. The hydraulic standard is to keep the 100-year-flood elevation below the top of Highway 11. The Hydraulic Data Sheet concluded that if water flowed over the ditch block, it would flood into the sub-basin containing Landowners' properties. Once water entered the sub-basin, it could drain only through the 24–inch culvert designed to handle a flow of 40 cfs.
[¶6.] Upon completion of the study, the State proceeded in 2010 with its resurfacing project on a portion of Highway 11 near Landowners' properties. During the resurfacing, leaking joints in the two original 48–inch culverts were repaired. The original culverts were then reset in the same general location, but slightly lower. No other alterations were made.
[¶7.] On July 29 and 30, 2010, just a few months after the project's completion, a significant amount of rain fell in the Spring Creek Tributary Basin causing flooding, which damaged Landowners' real and personal properties. An official rainfall measurement for the basin is unavailable. The National Weather Service (NWS) at the Sioux Falls airport, however, measured a total of 0.72 inches received on July 29. On July 30, a total of 2.23 inches of rain fell, which is considered a ten-year-rain event. The heaviest rainfall occurred during the early morning of July 30, when 1.9 inches fell over a two-hour period, which is considered a five-year-rain event. Prior to these events, Landowners had not experienced surface flooding.1
[¶8.] In November 2010, Landowners filed a complaint and later an amended complaint for damages and a permanent injunction. They asserted claims of negligence, trespass, and inverse condemnation against the State and the City. The State responded by filing an answer and a motion to dismiss. The State also filed a motion for summary judgment arguing the doctrine of sovereign immunity barred the Landowners' claims. The State alleged it
[904 N.W.2d 507
was immune because Landowners' claims arose out of the design and engineering of a South Dakota public roadway. The circuit court denied both of the State's motions.
[¶10.] The issue of liability was tried before the circuit court on February 18–20, 2014. During trial, Landowners testified and presented expert testimony from Arthur Umland, former lead forecaster for the NWS; Kevin Goeden, program manager for the office of bridge design for the DOT; Jon Peters, floodplain administrator and Geographic Information System administrator for Lincoln County; Mark Mainelli, civil engineer; and Kevin Goff, licensed professional engineer at Clark Engineering & Consulting. The State presented expert testimony from Bruce Crumb, lead highway maintenance worker for the DOT; Chad Hanisch, professional engineer at Infrastructure Design Group; Donald Harmon, former chief meteorologist in charge of the NWS; and Dr. Dennis Todey, associate professor at South Dakota State University and State Climatologist.
[¶11.] At the conclusion of the trial, the circuit court entered findings of fact, conclusions of law, and a judgment of liability; finding the State responsible for the flooding of Landowners' properties. The court's judgment provided, "The State acquires no estate or property interest in the land of [Landowners]."
[¶12.] On the question of liability, the circuit court found that the culverts were "of insufficient size to handle the drainage needs of Spring Creek Tributary." And but for the construction of Highway 11 on a berm, the "natural drainage of the Spring Creek Tributary [B]asin ... would not have caused any damage to" Landowners' properties. Specifically, the court found that the two 48–inch culverts were equipped to handle an eight-year-rain event. An eight-year-rain event would cause "water [to] back up behind the culverts to such a degree that it would overtop the ditch block" near the culverts and crest over Julie Drive. If Julie Drive was overtopped, water flowed directly into the sub-basin containing Landowners' properties. The sub-basin was drained only by a single 24–inch culvert, which the court found inadequate to drain the closed basin caused by the construction of Highway 11. Based upon the evidence presented, the circuit court found that the "State knew or should have known that an eight-year event and above would cause flooding to [Landowners' properties] as a result of the Highway 11 blockage of the natural drainage." The court further found that the design pushed water into the closed sub-basin to avoid overtopping and damaging Highway 11. Based on the available data, the State decided to pool water behind Highway 11 to slow the flow of water to downstream locations.
[¶13.] At the...
To continue reading
Request your trial-
Hamen v. Hamlin Cnty., #28671
...public entities are "free from liability for tort claims unless waived by legislative enactment." Long v. State , 2017 S.D. 79, ¶ 17, 904 N.W.2d 502, 508 (quoting Truman v. Griese , 2009 S.D. 8, ¶ 9, 762 N.W.2d 75, 78 ). This Court may not waive sovereign immunity against the State in the a......
-
Long v. State, 27381
...Karen Taylor.2 The State appealed the circuit court's determination of liability and the jury's verdict. See Long v. State, 2017 S.D. 79, 904 N.W.2d 502.3 SDCL 21–35–23 provides:If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter ......
-
Krsnak v. Brant Lake Sanitary Dist., 28352
...of the source of the contamination, merely raises unsupported conclusions and speculation. See Long v. State , 2017 S.D. 79, ¶ 23, 904 N.W.2d 502, 511 ("[T]he duty to show both actual and proximate causation is implicit in inverse condemnation.") The circuit court did not err in dismissing ......
-
Hamen v. Hamlin Cnty., #28671
...public entities are "free from liability for tort claims unless waived by legislative enactment." Long v. State , 2017 S.D. 79, ¶ 17, 904 N.W.2d 502, 508 (quoting Truman v. Griese , 2009 S.D. 8, ¶ 9, 762 N.W.2d 75, 78 ). This Court may not waive sovereign immunity against the State in the a......
-
Long v. State, 27381
...Karen Taylor.2 The State appealed the circuit court's determination of liability and the jury's verdict. See Long v. State, 2017 S.D. 79, 904 N.W.2d 502.3 SDCL 21–35–23 provides:If the amount of compensation awarded to the defendant by final judgment in proceedings pursuant to this chapter ......
-
Krsnak v. Brant Lake Sanitary Dist., 28352
...of the source of the contamination, merely raises unsupported conclusions and speculation. See Long v. State , 2017 S.D. 79, ¶ 23, 904 N.W.2d 502, 511 ("[T]he duty to show both actual and proximate causation is implicit in inverse condemnation.") The circuit court did not err in dismissing ......