Luther v. City of Winner

• Decision Date: 07 January 2004
• Docket Number: No. 22830., No. 22816
• Citation: 674 N.W.2d 339,2004 SD 1
• Parties: Donald LUTHER and Connie Luther, Plaintiffs and Appellants, v. CITY OF WINNER, a South Dakota Municipality, and Dan Britton, Defendants and Appellees.
• Court: South Dakota Supreme Court

674 N.W.2d 339

2004 SD 1

Donald LUTHER and Connie Luther, Plaintiffs and Appellants, v. CITY OF WINNER, a South Dakota Municipality, and Dan Britton, Defendants and Appellees.

Nos. 22816, 22830.

Supreme Court of South Dakota.

Considered on Briefs November 17, 2003.

Decided January 7, 2004.

Stephanie E. Pochop of Johnson, Eklund, Nicholson, Peterson, Gregory, South Dakota, Attorneys for plaintiffs and appellants.

David A. Pfeifle of May and Johnson, Sioux Falls, South Dakota, Attorneys for defendant and appellee, City of Winner.

J.M. Grossenburg, Winner, South Dakota, Attorney for defendant and appellee, Dan Britton.

SABERS, Justice.

[¶ 1.] Donald Luther sued Dan Britton and the City of Winner (City) for negligence. City brought a motion for summary judgment in which Britton joined. The trial court denied that motion. Britton then brought another motion for summary judgment which City joined. The trial court granted the second motion in favor of both defendants. Luther appeals. By notice of review, City and Britton appeal the denial of the first motion for summary judgment. We 1) affirm the grant of Britton's second motion for summary judgment; 2) reverse the grant of summary judgment with regard to City's second motion for summary judgment; and 3) affirm the denial of defendants' first motion for summary judgment.

FACTS

[¶ 2.] In 1997, City finished a project that included renovation of several blocks of its Main Street. The renovations included changing curbs, gutters and sidewalks. Britton was the engineer hired by City to design the renovations. Because one side of the street was approximately two feet lower than the other side, there were serious drainage problems. Part of the correction of these problems included changing the sidewalks in front of several downtown stores, including Karl's Appliance. The new design for the sidewalk in front of Karl's includes a 6 inch step in the sidewalk in addition to the curb.

[¶ 3.] Britton's brief notes the following information regarding the sidewalk design:

The sidewalk runs north and south. Karl's T.V. is located on the west side of the street in the middle of the block. The Winner Elk's club is located on the east side of Main Street. The sidewalk in front of Karl's, from the curb to the store front, is approximately 14.4 feet wide. The step in question is approximately 4.6. feet west of the curb. It is then approximately 9.8 feet west from the step to the front of Karl's.¹

In other words, a customer of Karl's would step out of the store on a level surface, walk approximately ten feet forward, encounter a six inch step down in the middle of the sidewalk, walk approximately four and a half feet and encounter the curb.

[¶ 4.] On June 23, 1999, Luther went to Karl's to purchase a refrigerator switch. He walked into the store from the street. He climbed both the curb and the step to get into the store. After shopping for awhile, Luther attempted to return to his car. As he walked toward his car, he forgot the step was there and he fell, causing injury to his shoulder. Luther asserts that at the time of his fall, there was no handrail or marking on the step or sidewalk to indicate that there was a step.

[¶ 5.] Luther brought suit against Britton and City for negligent design and construction, and failure to warn of a dangerous condition. The trial court granted summary judgment to both defendants, holding that Plaintiff failed to present expert testimony regarding the standard of care. Luther appeals raising two issues:

1. Whether there are genuine issues of material fact which preclude summary judgment on the negligent design and failure to warn claims against Britton.

2. Whether there are genuine issues of material fact which preclude summary judgment on the negligence claim against the City.

By notice of review, the defendants raise one issue:

3. Whether the trial court erred in denying the defendants' first motion for summary judgment.

STANDARD OF REVIEW

[¶ 6.] Our standard of review on a grant or denial of summary judgment is well settled. Summary judgment is proper where, 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 that the moving party is entitled to judgment as a matter of law. SDCL 15-6-56(c).

We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. [] We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. [] In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Roden v. General Cas. Co. of Wisconsin, 2003 SD 130, ¶ 5, 671 N.W.2d 622, 624 (internal citations and quotations omitted).

[¶ 7.] 1. WHETHER THERE ARE GENUINE ISSUES OF MATERIAL FACT WHICH PRECLUDE SUMMARY JUDGMENT ON THE NEGLIGENT DESIGN AND FAILURE TO WARN CLAIMS AGAINST BRITTON.

[¶ 8.] Luther asserts that his complaint alleged two claims of negligence against Britton; negligence in the design of the step and failure to warn. He asserts that, as designed and constructed, the sidewalk was unreasonably dangerous and that both defendants were liable for failure to place appropriate warning signs or markings.² On Britton's motion for summary judgment, the trial court held:

In this case, from a review of the record, the court believes that an expert would be required. And there is no evidence present to show what the standard of care would be for the city engineer. And that whether or not that curb, and what all went into that street project, really did require expertise, and requires the plaintiff to come in and show that that work fell below that standard of care.

[¶ 9.] There is no requirement that a party produce expert testimony when the question is within a layperson's knowledge. Bland v. Davison County, 1997 SD 92 ¶ 30, 566 N.W.2d 452, 461 (citing Schaffer v. Edward D. Jones, 1996 SD 94, ¶ 8, 552 N.W.2d 801, 805). However, expert testimony is required to establish the standard of care for a professional unless the issue is within the common knowledge of the jury. Mid-Western Elec. Inc., v. DeWild Grant Reckert & Associates Co., 500 N.W.2d 250, 255 (S.D. 1993) (citing Magbuhat v. Kovarik, 382 N.W.2d 43 (S.D.1986)). To use an analogy favored by the parties, an expert witness may not be required when a plaintiff is alleging that a surgeon cut off the wrong limb; a layperson would know based on their common knowledge whether such a surgery was negligent. On the other hand, if the question was whether the surgeon correctly performed a complicated surgery for which he or she was specially trained, an expert may be required. Luther argues that this case did not require expert testimony because a layperson would know if the design of the sidewalk was negligent. In the alternative, he argues that he provided evidence of the appropriate standard of care through Britton's deposition testimony.

[¶ 10.] Luther argues that the following evidence was sufficient to overcome the trial court's determination that expert testimony was necessary on the professional standard of care for an engineer:

1) Britton admitted that he consulted, designed, oversaw and worked on the sidewalk in question.

2) Luther testified that the step was "unmarked, hard to see and easy to forget."

3) An affidavit from Luther's doctor stated in part, "at the time that Mr. Luther came to see me, I did comment to him that there had been several other people who had fallen in that same area who had sought medical care for their injuries at my clinic[.]"

4) Luther testified that the manager of Karl's told him that he was aware of another person falling in the area.

5) Britton stated that he had heard a conversation about somebody falling in the area.³

[¶ 11.] These assertions were insufficient to overcome summary judgment. "[T]he non-moving party in a summary judgment proceeding `must set forth specific facts showing that there is a genuine issue for trial.'" Roden, 2003 SD 130 at ¶ 31, 671 N.W.2d at 629 (quoting SDCL 15-6-56(e)). The affidavit of Luther's doctor was hearsay and would have been inadmissible. The statement by Luther that the manager at Karl's knew of another person who fell was hearsay within hearsay and would have been inadmissible. Luther's argument that Britton was aware that someone had fallen on the step was insufficient to establish negligence as there is no indication in the testimony when Britton received this information. All that remains are Luther's conclusory assertions that the step was negligently designed and constructed because he fell. Such conclusory assertions are insufficient to establish a genuine issue of material fact with regard to the design of the sidewalk. Id.

[¶ 12.] Although it is a close question because a step in a sidewalk is an obvious obstruction, but easy to overlook or forget, Luther's failure to present expert testimony on the professional standard of care for an engineer is fatal to his claim against Britton. While these assertions may create a genuine issue of material fact as to whether the step was properly marked, without expert testimony, there is insufficient evidence to indicate that Britton's design and construction were negligent. Nor is there evidence to support the assertion that Britton, who was not the landowner, retained a duty, two years after construction was completed, to provide warning that there was a step.

[¶ 13.] Luther asserts that the following quotes from Britton's deposition amount to evidence of the standard of care applicable to Britton:

Q. [Mr. Johnson]: Now tell me about marking steps, what's your understanding of the ADA requirements for marking steps to alert people of them?

A. [Britton]: If they are—we painted those in—I don't know the exact date in...