Smith v. Greek, Nos. 13747

CourtSupreme Court of South Dakota
Writing for the CourtWOLLMAN; HENDERSON; FOSHEIM; HENDERSON; FOSHEIM
Citation328 N.W.2d 261
PartiesJames H. SMITH, Plaintiff and Appellant, v. Henry GREEK, Norman Konechne, and Earl Glodt, Defendants and Appellees. Thomas M. DIFFENBAUGH, V.E. Cates, and Thelma Cates, Defendants, Third Party Plaintiffs and Appellants, v. REYNOLDS CONSTRUCTION COMPANY, a Corporation, Third Party Defendant. . Considered on Briefs
Decision Date19 November 1982
Docket Number13748,Nos. 13747

Page 261

328 N.W.2d 261
James H. SMITH, Plaintiff and Appellant,
v.
Henry GREEK, Norman Konechne, and Earl Glodt, Defendants and
Appellees.
Thomas M. DIFFENBAUGH, V.E. Cates, and Thelma Cates,
Defendants, Third Party Plaintiffs and Appellants,
v.
REYNOLDS CONSTRUCTION COMPANY, a Corporation, Third Party Defendant.
Nos. 13747, 13748.
Supreme Court of South Dakota.
Considered on Briefs Nov. 19, 1982.
Decided Dec. 28, 1982.

Page 262

T.R. Pardy of Mumford, Protsch & Pardy, Howard, for plaintiff and appellant.

Carl W. Quist, Asst. Atty. Gen., Mark V. Meierhenry, Atty. Gen., Robert D. Hofer of Riter, Mayer, Hofer & Riter, Pierre, for defendant and appellee.

David A. Gerdes of May, Adam, Gerdes & Thompson, Pierre, for defendants, third party plaintiffs and appellants.

WOLLMAN, Justice.

This is an appeal from a partial summary judgment entered in behalf of certain of the defendants. We reverse and remand.

Plaintiff's complaint alleges that while in the course of his employment with Reynolds Construction Company on a highway renovation project in Sully County he was injured on August 4, 1978, when he was struck by a grain combine that was being hauled on a trailer pulled by a truck driven by defendant Diffenbaugh and owned by defendants V.E. and Thelma Cates. In addition to his allegations of negligence against these defendants, plaintiff alleged that defendants Greek, Konechne and Glodt, who were at the time, respectively, the district engineer, resident engineer and project engineer, for the South Dakota Department of Transportation, Division of Highways, were negligent in that they did not properly instruct and supervise Reynolds Construction Company regarding proper safety measures and precautions, including the erection and maintenance of adequate warning signs and other danger signals, maintenance of adequate flagmen and other traffic control devices, and restrictions on two-way traffic on the project in question. Plaintiff also alleges negligence regarding the failure of the engineers to insure the proper safety precautions were taken to protect plaintiff and the traveling public, including the alleged failure of these defendants to require Reynolds Construction Company to comply with the safety provisions of the construction contract and with the South Dakota Department of Highways Manual on Uniform Traffic Control Devices for Streets and Highways.

Thereafter, defendants Konechne and Glodt filed a third party complaint against Reynolds...

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4 practice notes
  • Wulf v. Senst, No. 22428
    • United States
    • Supreme Court of South Dakota
    • August 27, 2003
    ...plow); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980) (sovereign immunity applies to design of a highway); Smith v. Greek, 328 N.W.2d 261 (S.D.1982) (whether sovereign immunity applies to DOT engineers should have been determined based upon whether their function was minister......
  • Bego v. Gordon, No. 15295
    • United States
    • Supreme Court of South Dakota
    • November 17, 1986
    ...whether they assert wrongful acts in excess of the employee's official authority. See Merrill, 310 N.W.2d at 523, n. 1; Smith v. Greek, 328 N.W.2d 261, 263 As mentioned before, whether immunity extends to an employee sued in his individual capacity depends on the function performed by the e......
  • Schaub by Schaub v. Moerke, No. 13900
    • United States
    • Supreme Court of South Dakota
    • March 22, 1983
    ...National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982). See also, Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Smith v. Greek, 328 N.W.2d 261 (S.D.1982). In Leir, we Whether immunity is available to a governmental employee depends upon the nature of the function exercised by the em......
  • Kringen v. Shea, No. 13831
    • United States
    • Supreme Court of South Dakota
    • March 21, 1983
    ...sovereign immunity from tort liability, the 'may sue and be sued' provisions of SDCL 13-5-1 do not create a cause of action in tort." 328 N.W.2d at 261. See also Jerauld County v. St. Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571 We choose to adhere to the rationale set forth in Guil......
4 cases
  • Wulf v. Senst, No. 22428
    • United States
    • Supreme Court of South Dakota
    • August 27, 2003
    ...plow); High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980) (sovereign immunity applies to design of a highway); Smith v. Greek, 328 N.W.2d 261 (S.D.1982) (whether sovereign immunity applies to DOT engineers should have been determined based upon whether their function was minister......
  • Bego v. Gordon, No. 15295
    • United States
    • Supreme Court of South Dakota
    • November 17, 1986
    ...whether they assert wrongful acts in excess of the employee's official authority. See Merrill, 310 N.W.2d at 523, n. 1; Smith v. Greek, 328 N.W.2d 261, 263 As mentioned before, whether immunity extends to an employee sued in his individual capacity depends on the function performed by the e......
  • Schaub by Schaub v. Moerke, No. 13900
    • United States
    • Supreme Court of South Dakota
    • March 22, 1983
    ...National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982). See also, Kringen v. Shea, 333 N.W.2d 445 (S.D.1983); Smith v. Greek, 328 N.W.2d 261 (S.D.1982). In Leir, we Whether immunity is available to a governmental employee depends upon the nature of the function exercised by the em......
  • Kringen v. Shea, No. 13831
    • United States
    • Supreme Court of South Dakota
    • March 21, 1983
    ...sovereign immunity from tort liability, the 'may sue and be sued' provisions of SDCL 13-5-1 do not create a cause of action in tort." 328 N.W.2d at 261. See also Jerauld County v. St. Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571 We choose to adhere to the rationale set forth in Guil......

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