National Bank of South Dakota v. Leir, 13561

• Decision Date: 03 November 1982
• Docket Number: No. 13561,13561
• Parties: NATIONAL BANK OF SOUTH DAKOTA, Guardian Ad Litem for Debbie Carstensen and Bonnie McCoy, Plaintiff and Appellant, v. Richard L. LEIR; Kay Streeter; Annamae Blume; and Noreen Lemery, Defendants and Appellees, and Glenn Franklin Brown; and Iva Brown a/k/a Ivy Brown, Defendants.
• Court: South Dakota Supreme Court

Page 845

325 N.W.2d 845

NATIONAL BANK OF SOUTH DAKOTA, Guardian Ad Litem for Debbie

Carstensen and Bonnie McCoy, Plaintiff and Appellant, v. Richard L. LEIR; Kay Streeter; Annamae Blume; and Noreen

Lemery, Defendants and Appellees,

and

Glenn Franklin Brown; and Iva Brown a/k/a Ivy Brown,

Defendants.

No. 13561.

Supreme Court of South Dakota.

Argued Feb. 22, 1982.

Decided Nov. 3, 1982.

Gregory A. Eiesland of Lynn, Jackson, Shultz & Lebrun, Rapid City, for plaintiff and appellant; Gary D. Jensen of Lynn, Jackson, Shultz & Lebrun, Rapid City, on brief.

Glenn H. Johnson and Jerry D. Johnson of Banks & Johnson, Rapid City, for defendants and appellees.

MORGAN, Justice.

This is an appeal from a summary judgment against the appellant, National Bank of South Dakota, guardian ad litem for D.C. and B.M., minors (guardian). Guardian sued defendant social workers for their alleged negligent placement and supervision of D.C. and B.M. in a foster home. The trial court entered summary judgment against guardian and in favor of social workers on the grounds that these social workers are immune from suit under the sovereign immunity doctrine. Guardian appeals and we reverse and remand.

In May 1975 social workers placed sisters D.C., then seven years of age, and B.M., then four years of age, in the foster home of Glenn and Ivy Brown. For the next two years, the sisters were sexually abused by their foster father, State v. Brown, 285 N.W.2d 843 (S.D.1979), and physically abused by both of their foster parents. According to Department of Social Services' (Department) files maintained by these social workers, a number of incidents took place while the sisters were in the Brown foster home. During this time, social workers received complaints from the neighbors that the Browns were abusing D.C. and B.M. Additionally, D.C. and B.M.'s mother reported to the social workers that there were "rumors" about Glenn Brown, that B.M. was forced to sleep on the floor, and that B.M. had bruises that may be caused by abuse. Social workers, however, accepted the Browns' explanation that B.M.'s bruises resulted from her "accident prone" nature. Despite these complaints of abuse and their knowledge of Browns' animosity toward the children's mother, ¹ the social workers did not remove the children from the Browns' home.

Also during this two-year period, significant changes were noted in D.C.'s and B.M.'s behavior. According to Department's files, although D.C. previously was an excellent student, her grades dropped and in April 1977 when she was hospitalized for abdominal disorders the physician attributed her illness to emotional problems. The younger sister, B.M., lapsed into a baby role, was nasty to other children, would injure herself, continued going through eating motions when her plate was empty, and was "very destructive." At this time, one of the social workers noted in her file that she had "encouraged [Mrs. Brown] to forget about those [rumors of abuse] as [Mrs. Brown] can't do an effective job of mothering if she keeps worrying about what everyone will say."

While D.C. and B.M. were placed in the Browns' foster home, the social workers only once talked to the sisters alone and that discussion involved their mother's visitations. Although one social worker noted in her file that she had a "suspicious attitude" and "doubts about the wholesomeness of the [Brown] family situation," D.C. and B.M. were left in the Browns' care until a car accident in June 1977 in which Mrs. Brown was injured. After the car accident, the sisters were placed in a different foster home and in August 1977 they were returned to their natural mother. Shortly after the sisters were returned to their mother, they informed her of the physical and sexual abuse. State v. Brown, 285 N.W.2d at 844. Subsequently, as a result of his sexual abuse of D.C. and B.M., Glenn Brown was convicted of four counts of rape in the first degree, and two counts of indecent molestation of a minor child. ² Id.

As guardian ad litem for D.C. and B.M., guardian instituted this action against social workers, alleging that social workers' neglect and violations of Department's rules and regulations made possible the continuing sexual and physical abuse of D.C. and B.M. Social workers denied the allegations and filed a motion to dismiss, asserting that they are immune from suit under the sovereign immunity principles announced in High-Grade Oil Co. v. Sommer, 295 N.W.2d 736 (S.D.1980). The trial court, treating the motion as one for summary judgment, granted summary judgment in favor of social workers. Guardian now appeals and the sole issue facing the court is whether social workers, as state employees, are immune from suit for acts of negligence under the sovereign immunity doctrine. For the purpose of this opinion only, we assume that the guardian has a valid claim for negligence.

Sovereign immunity provides the state with immunity from suit unless the state has consented to the particular suit alleged. Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524 (1966); see 72 Am.Jur.2d States Secs. 99-114 (1974). As an outgrowth of sovereign immunity, a public officer may also be immune from suit when acting within the scope of his authority. Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980). In some instances, a suit, although nominally against a public officer in an individual capacity, actually is a suit against the state where the state is the real party against which relief is sought. In these instances, the suit is barred by sovereign immunity. High-Grade Oil Co. v. Sommer, supra.

Initially, this court must determine whether this action by guardian ad litem is an action against the state. As stated in High-Grade Oil, an action is against the state,

[w]here the state is the real party against which relief is sought, and where a judgment for the plaintiff although nominally against the officer as an individual, could operate to subject the state to liability[.] ³

295 N.W.2d at 737. See White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614 (1925).

In High-Grade Oil, this court held that the action, although nominally against a state employee, was actually against the state. The South Dakota Constitution, art. XIII, Sec. 9, provides that highway construction is a function of state government. The legislature vested that responsibility in the Department of Transportation. A decision in High-Grade Oil adverse to Sommer would require the Department of Transportation to alter the curve. Maxwell v. State, 391 So.2d 1230, cert. den. 394 So.2d 281 (La.App.1980); State Farm Mut. Auto. Ins. Co. v. Slaydon, 376 So.2d 97 (La.1979); Wilson v. State, 364 So.2d 1313 (La.App.1978), cert. den. 366 So.2d 563 (1979); Furness v. Michigan Public Service Com'n, 100 Mich.App. 365, 299 N.W.2d 35 (1980). Such a requirement places a financial burden upon the state and, of course, subjects the state to liability. Because the decision would have subjected the state to liability, the High-Grade Oil action was in effect an action against the state and barred by sovereign immunity. ⁴

In contrast to High-Grade Oil, an adverse decision in the instant case would not subject the state to liability. Where the suit in High-Grade Oil stems from the design and construction of a curve in a highway, the suit against social workers stems from their own personal action and inaction. A finding of negligence in the instant case would impose financial liability upon the social workers not the state. Because this suit does not expose the state to liability, this action is not barred by sovereign immunity as an action against the state.

After determining that this is not an action against the state, we now must determine whether this action is against social workers in their official capacities or as individuals. The immunity available to employees of governmental units is actually "an outgrowth of the doctrine of governmental immunity." Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d at 458. In some instances, sovereign immunity will bar a suit against an employee acting within the scope of his employment. Sioux Falls Const. Co. v. City of Sioux Falls, supra (citing to Restatement (Second) of Torts Sec. 895D (1979)). See 72 Am.Jur.2d States Sec. 115 (1974).

Whether immunity is available to a governmental employee depends upon the nature of the function exercised by the employee. Sioux Falls Const. Co. v. City of Sioux Falls, supra; Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881 (1915); State v. Ruth, 9 S.D. 84, 68 N.W. 189 (1896); see 72 Am.Jur.2d States Sec. 115 (1974). Immunity extends to an employee who, while acting within the scope of his employment, exercises a discretionary function. Sioux Falls Const. Co. v. City of Sioux Falls, supra. In reviewing the discretionary versus ministerial dichotomy, we have held that a state employee who "fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty." State v. Ruth, 9 S.D. at 90, 68 N.W. at 190. See, Conway v. Humbert, supra; Walters v. City of Carthage, supra.

In Sioux Falls Const. Co., ⁵ we looked to Restatement (Second) of Torts Sec. 895D (1979), in determining what is a discretionary function. The factors listed therein at comment f include:

(1) The nature and importance of the function that the officer is performing....

(2) The extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of a coordinate branch of government....

(3) The extent to which the imposition of liability would impair the free exercise of his discretion by the officer....

(4) The extent to which the ultimate financial responsibility will fall on the officer....

(5) The likelihood that harm will result to...