Merrill v. Birhanzel, No. 32-2

CourtSouth Dakota Supreme Court
Writing for the CourtFOSHEIM
Citation310 N.W.2d 522
PartiesKerwin MERRILL, by Larry Merrill, his Guardian Ad Litem, Plaintiff and Appellant, v. Thomas BIRHANZEL, William Biehl and Pierre School Districtefendants and Appellees. . Considered Briefs On
Decision Date10 August 1981
Docket NumberD,No. 32-2,No. 13320

Page 522

310 N.W.2d 522
Kerwin MERRILL, by Larry Merrill, his Guardian Ad Litem,
Plaintiff and Appellant,
v.
Thomas BIRHANZEL, William Biehl and Pierre School District
No. 32-2, Defendants and Appellees.
No. 13320.
Supreme Court of South Dakota.
Considered Briefs On Aug. 10, 1981.
Decided Sept. 23, 1981.

James Robbennolt of Duncan, Olinger, Srstka, Lovald & Robbennolt, Pierre, for plaintiff and appellant.

Robert D. Hofer of Riter, Mayer, Hofer & Riter, Pierre, for defendants and appellees.

FOSHEIM, Justice.

Appellant sustained an injury at school on November 15, 1976. The sole issue involves the summary judgment which was granted on the basis of sovereign immunity. We affirm.

Appellant participated in a physical education wrestling class which was required by the school curriculum. During the course of the wrestling match, appellant was thrown to the ground and his left ankle was broken. When the injury occurred, this particular wrestling match was being officiated by a classmate, and the class was being supervised by defendant Birhanzel, an instructor. The defendant Biehl, a teacher, was in the vicinity of the match at the time of the injury.

The South Dakota Constitution, Article III, § 27, provides: "The Legislature shall direct by law in what manner and in what courts suits may be brought against the state."

It is the settled law in this State that:

School districts are state agencies exercising and wielding a distributive portion of the sovereign power of the state, and the officers of school districts are the living agencies through whom the sovereign state act is carried into effect. A school district officer in the performance of his duties acts in a political capacity, as much so as the Governor of a state, and is not liable for negligent acts of omission occurring in the performance of such political or public duties, unless the sovereign power of the state has authorized and consented to a suit for such negligence.

Plumbing Supply Co. v. Board of Education, Etc., 32 S.D. 270, 142 N.W. 1131, 1132 (1913). See also Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219 (1894).

In Schornack v. School Dist. No. 17-2 of Brown County, 64 S.D. 215, 217, 266 N.W. 141, 142 (1936), we confirmed the immunity

Page 523

concept expressed in Plumbing Supply Co., supra, and extended it to ultra vires acts of negligence:

(I)f the respondent school districts did exceed the authority granted them, then the acts of the school district officers in so exceeding their authority were ultra vires, and the districts cannot be held liable for negligence in the performance of such acts which were ultra vires and beyond the officers' scope of authority. (Citations omitted.) ( 1 )

Appellant contends, however, that by purchasing liability insurance as authorized by statute, SDCL 13-8-39 and 13-10-9, 2 the appellee school district waived immunity. In support of that contention appellant relies heavily on this language in High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 739 (S.D.1980).

Finally, we look to appellants' most persuasive argument, that the purchase of liability insurance constitutes a waiver of immunity, particularly as to officers and employees of the state. The record reflects that there are two policies of liability insurance, each with substantial coverage; one apparently purchased by the State Purchasing Department and the other apparently purchased by the State Bureau of Administration. On...

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18 practice notes
  • 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
    ...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. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 The only stat......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...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. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 The cement p......
  • Request for Opinion of Supreme Court Relative to Constitutionality of SDCL 21-32-17, In re, No. 15187
    • United States
    • Supreme Court of South Dakota
    • December 18, 1985
    ...from the immunity rule, the policy must be declared and the extent of liability fixed by the legislature." Merrill v. Birhanzel, 310 N.W.2d 522, 524 (S.D.1981). Thus, we have always acknowledged the legislature's constitutional authority found in Article III, Sec. 27 to impose conditio......
  • Gasper v. Freidel, No. 16540
    • United States
    • Supreme Court of South Dakota
    • October 19, 1989
    ...sovereign power of the state has authorized and consented to a suit for such negligence. 407 N.W.2d at 804 (quoting Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), and Plumbing Supply Co. v. Board of Education, 32 S.D. 270, 272-73, 142 N.W. 1131, 1132 At the time of this accident, there wa......
  • Request a trial to view additional results
18 cases
  • 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
    ...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. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 The only stat......
  • Arcon Const. Co., Inc. v. South Dakota Cement Plant, Nos. 14139
    • United States
    • Supreme Court of South Dakota
    • May 2, 1984
    ...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. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 The cement p......
  • Request for Opinion of Supreme Court Relative to Constitutionality of SDCL 21-32-17, In re, No. 15187
    • United States
    • Supreme Court of South Dakota
    • December 18, 1985
    ...from the immunity rule, the policy must be declared and the extent of liability fixed by the legislature." Merrill v. Birhanzel, 310 N.W.2d 522, 524 (S.D.1981). Thus, we have always acknowledged the legislature's constitutional authority found in Article III, Sec. 27 to impose conditio......
  • Gasper v. Freidel, No. 16540
    • United States
    • Supreme Court of South Dakota
    • October 19, 1989
    ...sovereign power of the state has authorized and consented to a suit for such negligence. 407 N.W.2d at 804 (quoting Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), and Plumbing Supply Co. v. Board of Education, 32 S.D. 270, 272-73, 142 N.W. 1131, 1132 At the time of this accident, there wa......
  • Request a trial to view additional results

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