Truman v. Griese

• Decision Date: 11 February 2009
• Docket Number: No. 24707.,24707.
• Citation: 762 N.W.2d 75,2009 SD 8
• Parties: Monny TRUMAN, individually and as special administrator of the Estate of Patricia Truman, Deceased, Steven Rounds and Dee Ann Rounds, husband and wife, individually and as conservators for Ciara Rounds and Zachary Rounds, minors, and as the natural parents of Jesse Gerard Rounds, deceased unborn child, Plaintiffs and Appellants, v. Darren GRIESE, South Dakota Department of Transportation Pierre Region Traffic Engineer, and John Does, employees of the South Dakota Department of Transportation, Defendants and Appellees.
• Court: South Dakota Supreme Court

762 N.W.2d 75

2009 SD 8

Monny TRUMAN, individually and as special administrator of the Estate of Patricia Truman, Deceased, Steven Rounds and Dee Ann Rounds, husband and wife, individually and as conservators for Ciara Rounds and Zachary Rounds, minors, and as the natural parents of Jesse Gerard Rounds, deceased unborn child, Plaintiffs and Appellants, v. Darren GRIESE, South Dakota Department of Transportation Pierre Region Traffic Engineer, and John Does, employees of the South Dakota Department of Transportation, Defendants and Appellees.

No. 24707.

Supreme Court of South Dakota.

Argued April 23, 2008.

Decided February 11, 2009.

Reassigned December 9, 2008.

Ronald A. Parsons, Jr., A. Russell Janklow, Tamara A. Wilka of Johnson, Heidepriem,

Janklow, Abdallah & Johnson, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

Jeffrey R. Connolly, J. Crisman Palmer of Gunderson, Palmer, Goodsell & Nelson, LLP, Rapid City, South Dakota, Attorneys for defendants and appellees.

GILBERTSON, Chief Justice (on reassignment).

[¶ 1.] Monny Truman (Truman), individually and as special administrator of his wife Patricia's estate, and Steven and Dee Ann Rounds¹ sued Darren Griese (Griese), in his official capacity as South Dakota Department of Transportation (DOT) Pierre Region Traffic Engineer, and employees of the DOT as John Does after a car accident forty miles west of Pierre. Griese moved for summary judgment based on sovereign immunity. The trial court granted Griese's motion. Truman appeals.² We affirm.

FACTS

[¶ 2.] The accident occurred at the intersection of three highways: South Dakota Highway 34, South Dakota Highway 63, and United States Highway 14. This intersection is also known as "Four Corners." The traffic design of this interchange is not easily conveyed in words. S.D. Highways 63 and 34 meet at a "T" intersection. S.D. 34 forms the top of the "T," running east-west. S.D. 63 forms the bottom of the "T," north-south, but continues west along the top-left part of the "T," merging at a right angle with S.D. 34.

[¶ 3.] U.S. 14 travels across top-right part of the "T," east-west with S.D. 34, then continues north-south with S.D. 63. However, U.S. 14 does not continue to a stop at the right angle intersection of the "T." Instead, U.S. 14 curves between the two roads, just southeast of the "T." This curved route creates two "Y" intersections at the junctions of U.S. 14 and S.D. 63 (south of the "T" intersection), and U.S. 14 and S.D. 34 (east of the "T" intersection). As a result of this design, the through-traffic on U.S. 14 does not stop to make the direction change. See Attachment 1.

[¶ 4.] On February 13, 2004, Monny and Patricia Truman, Dee Ann Rounds, twelve-year-old Ciara Rounds, and eight-year-old Zachary Rounds were driving in Truman's vehicle from Pierre to Rapid City. They traveled west-bound on U.S. 14/S.D. 34. Truman approached Four Corners and followed U.S. 14 along the south-bound curve.

[¶ 5.] At the same time, Richard Giago was driving north on S.D. 63/U.S. 14 (The bottom of the "T"). Giago's wife, Sue Ann, and son, Jayden, were passengers in his vehicle. When Giago reached the point where S.D. 63/U.S. 14 diverge, he continued northward on S.D. 63, across the "Y" junction.³

[¶ 6.] The vehicles collided almost head on. The results were devastating. Truman suffered broken bones, a skull injury, and permanent vision loss in his right eye; Patricia was killed; Dee Ann suffered severe head injuries and multiple broken bones; Dee Ann and Steven lost their unborn child, Jesse; Ciara and Zachary suffered minor injuries; Giago and Jayden both suffered severe injuries and were hospitalized; Sue Ann was killed.

[¶ 7.] Truman brought claims against Griese for negligence, wrongful death and loss of consortium. Truman alleged Griese violated duties imposed by SDCL 31-28-6 by failing to post additional traffic control signs at Four Corners. Griese filed a motion for summary judgment on the basis of sovereign immunity. The trial court entered an order in favor of Griese's motion.

[¶ 8.] Truman appeals the following issue:

Whether Truman's claims under SDCL 31-28-6, regarding the necessity for and placement of highway warning signs, are barred by sovereign immunity under the facts of this case.⁴

STANDARD OF REVIEW

[¶ 9.] "Sovereign immunity is the right of public entities to be free from liability for tort claims unless waived by legislative enactment." Public Entity Pool for Liability v. Score, 2003 SD 17, ¶ 7 n. 3, 658 N.W.2d 64, 67 n. 3 (citing Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 636 (1999)). "In the absence of constitutional or statutory authority, an action cannot be maintained against the State." Id. (citing generally Lick v. Dahl, 285 N.W.2d 594 (S.D.1979); Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 (1961); Griffis v. State, 68 S.D. 360, 2 N.W.2d 666 (1942); Mullen v. Dwight, 42 S.D. 171, 173 N.W. 645 (1919)) (emphasis added).

[¶ 10.] It is settled that whether sovereign immunity applies is a question of law. Bickner v. Raymond Township, 2008 SD 27, ¶ 10, 747 N.W.2d 668, 671 (citations omitted). "Whether sovereign immunity precludes a plaintiff from pursuing a claim is a question of law which is reviewed de novo." King v. Landguth, 2007 SD 2, ¶ 8, 726 N.W.2d 603, 607 (citing Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.1987))). Additionally, the predicate question, whether the governmental duties under SDCL 31-28-6 are ministerial or discretionary, is a question of law for this Court. Bickner, 2008 SD 27, ¶ 10, 747 N.W.2d at 671 (citing Hansen v. SD Dept. of Transp., 1998 SD 109, ¶ 18, 584 N.W.2d 881, 885).

ANALYSIS AND DECISION

[¶ 11.] No one can look at the facts surrounding this litigation without a sense of sorrow. Lives were lost and lives were damaged. Yet our task is a narrow one— to determine if the State of South Dakota's sovereign immunity applies. In order to make this determination, first, we identify Truman's claim as it relates to this action. Next, we address the distinction between ministerial and discretionary duties in recognizing sovereign immunity. Then, we apply our sovereign immunity analysis to SDCL 31-28-6. Finally, we address the inapplicability of Truman's evidence and arguments regarding "material facts" in the grant of summary judgment on the basis of sovereign immunity. Because we conclude that Griese's duties under SDCL 31-28-6 are discretionary, sovereign immunity applies and the trial court is affirmed.

Truman's Claim

[¶ 12.] It is useful to begin by restating the precise conduct that Truman alleges does not have the protection of sovereign immunity. Broadly, Truman asserts that the omission⁵ of additional signs at Four Corners violated Griese's duty to install traffic control signs pursuant to SDCL 31-28-6. This alleged omission could have occurred during one of two time periods— either in the initial engineering and design of the intersection, or when a duty to erect signs arose after the intersection was built.

[¶ 13.] The State has not waived sovereign immunity or consented to suit for any omission of signs that occurred during the initial engineering and design of Four Corners.

To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance and to the extent that coverage is afforded thereunder, the public entity shall be deemed to have waived the common law doctrine of sovereign immunity and shall be deemed to have consented to suit in the same manner that any other party may be sued.

SDCL 21-32A-1. Pursuant to SDCL 3-22-1, the engineering and design of roadways is specifically excluded from this State's public entity pool for liability (PEPL).⁶ Therefore, the State has not waived common law sovereign immunity for any omission that occurred during this time period.

[¶ 14.] Instead, Truman's claim alleges that changes have occurred in the nature of the intersection since its construction, which requires the erection of new warning signs. Truman does not identify any physical changes that have occurred or that the road has fallen out of repair. Therefore, the only issue is whether the legal requirements, duties, or standards applied to this intersection have changed.

[¶ 15.] The PEPL Memorandum of Liability Coverage to Employees of the State of South Dakota, point 16, provides that the ministerial acts of a government actor are not excluded from coverage. Because these acts are not excluded from coverage, the PEPL fund provides coverage for damages that result from ministerial acts. Thus, Truman argues, sovereign immunity has been waived for these acts.

[¶ 16.] The issue of PEPL coverage is not the definitive issue regarding Griese's purported liability. Even if, as argued by Truman and the dissent, PEPL coverage is a statutory waiver of sovereign immunity in this case, such a waiver alone does not create a duty where none would otherwise exist. See Gulbranson v. Flandreau Tp. 458 N.W.2d 361, 363 (S.D.1990); Zens v. Chicago, Milwaukee, St. Paul & Pac. R.R. Co., 386 N.W.2d 475 (S.D.1986). The waiver of immunity and consent to be sued "in the same manner that any other party may be sued" contained in SDCL 21-32A-1 does not itself impose duties on a public official with PEPL coverage. "The legislature's intent to impose new duties upon public entities is simply not expressed in SDCL 21-32A-1. In fact, the term "duty" is not used at all in this statute." Gulbranson, 458 N.W.2d at 363. "[T]he phrase `in the same manner' refers to a mode of procedure and not to the basis upon which a public entity may be sued." Id. Therefore, for Truman's claims to survive summary judgment on the basis of sovereign immunity, Truman must prove that Griese owed Truman a ministerial duty as a matter of law.

[¶ 17.] Truman claims that the Legislature has waived sovereign immunity for the omission...