Oien v. City of Sioux Falls

• Decision Date: 10 April 1985
• Docket Number: No. 14763,14763
• Citation: 393 N.W.2d 286
• Parties: Kay L. OIEN, as Guardian Ad Litem for her Minor Child, Casie Oien, Plaintiff and Appellant, v. The CITY OF SIOUX FALLS, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 286

393 N.W.2d 286

Kay L. OIEN, as Guardian Ad Litem for her Minor Child, Casie Oien, Plaintiff and Appellant, v. The CITY OF SIOUX FALLS, Defendant and Appellee.

No. 14763.

Supreme Court of South Dakota.

Considered on Briefs April 10, 1985.

Decided Sept. 10, 1986.

Thomas K. Wilka of Hagen & Wilka, Sioux Falls, (Karen E. Schreier of Hagen & Wilka, Sioux Falls, on the brief) for plaintiff and appellant.

Timothy J. Nimick of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.

MORGAN, Justice.

This appeal arises from a personal injury action initiated by plaintiff Kay Oien (Oien), as Guardian Ad Litem for her four-year-old child, Casie Oien (Casie), against the defendant City of Sioux Falls (City). City filed a motion for summary judgment on grounds that SDCL 9-38-55 and SDCL 9-38-105 immunized it from liability under the facts of this case. The trial court found that SDCL 9-38-55 ¹ and SDCL 9- 38-105 ² afforded City municipal immunity and granted City's motion for summary judgment. Oien appeals and we reverse and remand.

City employees chemically treated the water in a municipal swimming pool and left a quantity of the water treatment chemicals on the pool's edge. Casie came into contact with the chemical solution when she sat down at the pool's edge. The solution caused severe chemical burns on the child's buttocks. Immediate medical treatment was required. The child suffered pain and faces permanent scarring and potential infection. Oien alleged that City's employees negligently left some of the chemical solution on the edge of the pool during swimming hours and thereby violated City's duty of care to protect pool users from contact with such chemicals.

City asserts that SDCL 9-38-55 and 9-38-105 (park immunity statutes) shield it from negligence actions arising from its operation of parks and public recreation facilities. City relies on our holding in Grosz v. City of Sioux Falls, 346 N.W.2d 446 (S.D.1984), wherein we stated we believe that the plain import of SDCL 9-38-55 and 9-38-105 is to immunize municipalities from tort liability arising out of the construction and maintenance of public parks, recreation areas and playgrounds.

Oien alleges that the park immunity statutes are unconstitutional under the provisions of South Dakota Constitution art. VI, Sec. 20, the so-called "open courts" provision which provides:

All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

The issue thus presented to us is: Is the legislative attempt to extend sovereign immunity to municipal operation of parks, playgrounds and pools unconstitutional? We hold that it is.

In High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980), we discussed sovereign immunity in relation to article VI, Sec. 20, as pertains to state government. In that regard, we said:

To say that sovereign immunity is a constitutional violation is on its face an incongruity. In our republican form of government the people are the sovereign. The rights granted under the constitution are such rights as the sovereign grants. The sovereign can retain rights or qualify the grant. As we have noted ... the doctrine of sovereign immunity predates our constitution.

295 N.W.2d at 739. [W]hile ... the doctrine [of sovereign immunity] is 'judge made law,' we are reminded that it is a doctrine of long standing; so long in fact, that it antecedes the federal and state constitutions. 295 N.W.2d at 738.

We then noted that our state constitution took cognizance of the doctrine of sovereign immunity when it provided in article III, Sec. 27, that "the legislature shall direct by law in what manner and in what courts suits may be brought against the state."

In State v. Board of Commissioners, 53 S.D. 609, 630, 222 N.W. 583, 592 (1928) (quoting Riddoch v. State, 68 Wash. 329, 333-35, 123 P. 450, 452-53 (1912)), this court held that:

'[T]he state is inherently sovereign at all times and in every capacity. It is the organized embodiment of the sovereign power of the whole people. By reason of this sovereignty, it possesses all powers, but only such powers, as are within the limitations of the state Constitution and without the prohibitions of the Federal Constitution. It can do no act except in the exercise of this sovereign power and within these constitutional limitations.'

And further:

[T]here is not, legally speaking, any distinction in the capacity in which the government of the state acts, or in the essential nature of its operation as a matter of law, in the performance of any one function intrusted to it by the people as compared with the performance of other functions so intrusted. We therefore hold that there cannot be successfully maintained, as a matter of law, in this state, under the circumstances here involved, a distinction between what has been frequently denominated as a [governmental] and [proprietary] capacity of the state....

53 S.D. at 632-33, 222 N.W. at 593.

In discussing the doctrine of sovereign immunity on a municipal level as it relates to article VI, Sec. 20, and in the light of the provisions of article III, Sec. 27, we are first reminded that "[a] court, in construing a constitutional provision, must give regard to the whole instrument, must seek to harmonize the various provisions, and must, if possible, give effect to all the provisions." South Dakota Auto. Club, Inc. v. Volk, 305 N.W.2d 693, 696 (S.D.1981). In addition, we are of course mindful that Oien bears the burden of proving beyond a reasonable doubt that the statutes violate the state constitutional provisions. There is a strong presumption that the laws enacted by the legislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Matter of Certain Territorial Elec. Boundaries, Etc., 281 N.W.2d 65 (S.D.1979). Constitutional review of legislative enactments must be handled without regard for the legislative wisdom behind the enacted law, we must focus on its constitutionality. McDonald v. School Bd. of Yankton, Etc., 90 S.D. 599, 246 N.W.2d 93 (1976). Finally, this court must adopt any reasonable and legitimate construction of the statutes which will permit us to uphold the legislature's enactments. Matter of Certain Territorial Elec. Boundaries, Etc., supra.

In Conway v. Humbert, 82 S.D. 317, 322, 145 N.W.2d 524, 527 (1966), this court held: "The legislature within constitutional limitations unquestionably has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort." (Emphasis added.) The opinion goes on, in an exercise of pure dicta, to state: "A municipality and its governing board are specifically exempted from tort liability where the activity engaged in is the improvement, maintenance or operation of a park which is under the supervision of a park board." Citing SDC 45.2539 (the predecessor of SDCL 9-38-55) and Glirbas v. City of Sioux Falls, 64 S.D. 45, 264 N.W. 196 (1935). The decision in Glirbas, however, did not uphold the cited statute in any manner. The issue in that case was whether the complaint against the city stated a cause of action sufficient to withstand a demurrer. The court acknowledged the existence of the statute but declined to take judicial notice that the necessary election had been ordered and held with successful results to bring the city under the provisions of the statute. Nor were the provisions of article VI, Sec. 20, even remotely discussed.

In Grosz, supra, we acknowledged that shortly after the decision in Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438 (1923), the South Dakota Legislature enacted what is now known as SDCL 9-38-55 and in 1949 enacted what is now SDCL 9-38-105. The Grosz decision reiterated the Conway statement that "[t]he power to define tort liability of a municipality rests with the legislature subject to constitutional limitations." 346 N.W.2d at 447. (Emphasis added.) We further held: (1) the construction and maintenance of bicycle paths falls within the purview of the statute; (2) under the statute it is immaterial whether the city was engaged in proprietary or governmental functions; and (3) the plain import of the park immunity statutes is to immunize municipalites from tort liability from activities within their purview. It is important to note that the constitutionality of the parks immunity statutes was not questioned in the briefs nor mentioned in the opinion. Oien is the first case in which anyone has sought to test the enactment of those statutes under the provisions of article VI, Sec. 20.

An important aspect of our review is the relationship between the provisions of article III, Sec. 27, and article VI, Sec. 20. To begin with, we first are reminded of some basic constitutional law. In State ex rel. Wagner v. Summers, 33 S.D. 40, 49, 144 N.W. 730, 732 (1913), we stated:

It is elementary that the legislative power of the Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.

It is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the state Constitution is not a grant of power, but is a limitation upon the powers of the Legislature.

In In re Heartland Consumers Power District, 85 S.D. 205, 208-9, 180 N.W.2d 398, 400 (1970), we reiterated that holding, stating: "The Constitution of South Dakota is not a grant but a limitation upon the lawmaking powers of the state legislature and it may enact any law not expressly or inferentially prohibited by the state or federal constitutions." And further, "in order to determine that an act is unconstitutional we must find some provision that prohibits the enactment of a statute rather than for grants of such power." Id., 85 S.D....