Wulf v. Senst

• Decision Date: 27 August 2003
• Docket Number: No. 22428, No. 22429.
• Parties: Arnold WULF, individually and as representative of the Estate of Landon Paul Wulf, Plaintiff and Appellant, v. Jeff SENST; Mervin Bultje; Kirk Preheim and Preheim Lawn & Landscape, Inc., as successor of Preheim Lawn & Landscape, Defendants and Appellees, and Jeff Senst and Mervin Bultje, Defendants, Third Party Plaintiffs and Appellees, v. Myra Wulf, Third Party Defendant and Appellant. Catherine Westphal and Joanna Westphal, Plaintiffs and Appellees, v. Myra Wulf, Defendant and Appellant, and Farmers Insurance Exchange, Defendant, v. Jeff Senst; Mervin Bultje; Kirk Preheim; and Preheim Lawn and Landscape, Inc., as successor of Preheim Lawn and Landscape, Third Party Defendants and Appellees.
• Court: South Dakota Supreme Court

669 N.W.2d 135

2003 SD 105

Arnold WULF, individually and as representative of the Estate of Landon Paul Wulf, Plaintiff and Appellant, v. Jeff SENST; Mervin Bultje; Kirk Preheim and Preheim Lawn & Landscape, Inc., as successor of Preheim Lawn & Landscape, Defendants and Appellees, and Jeff Senst and Mervin Bultje, Defendants, Third Party Plaintiffs and Appellees, v. Myra Wulf, Third Party Defendant and Appellant.

Catherine Westphal and Joanna Westphal, Plaintiffs and Appellees, v. Myra Wulf, Defendant and Appellant, and Farmers Insurance Exchange, Defendant, v. Jeff Senst; Mervin Bultje; Kirk Preheim; and Preheim Lawn and Landscape, Inc., as successor of Preheim Lawn and Landscape, Third Party Defendants and Appellees.

Nos. 22428, 22429.

Supreme Court of South Dakota.

Argued February 11, 2003.

Decided August 27, 2003.

Michael J. Schaffer of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellants Arnold Wulf and Myra Wulf.

Roger A. Sudbeck of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, South Dakota, Attorneys for appellees Jeff Senst and Mervin Bultje.

Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry, Sioux Falls, South Dakota, Attorneys for appellees Kirk Preheim & Preheim Lawn & Landscape, Inc.

Todd C. Miller, and Steven M. Johnson of Johnson, Heidepriem, Miner, Marlow & Janklow, Sioux Falls, South Dakota, Attorneys for appellees Catherine Westphal and Joanna Westphal.

RUSCH, Circuit Judge.

[¶ 1.] These appeals involve two related cases. Both cases arose from an automobile accident on January 21, 2000, involving cars driven by Myra Wulf and Catherine Westphal. The trial court granted summary judgment in favor of Jeff Senst and Mervin Bultje, employees of the South Dakota Department of Transportation (DOT), on the grounds of sovereign immunity and denied a motion to consolidate the two cases for trial. We reverse.

FACTS

[¶ 2.] Both of these cases resulted from a tragic automobile accident that occurred on Highway 42 between Sioux Falls and Brandon at approximately 7:30 a.m. on January 21, 2000. Myra Wulf and her son, Landon, were traveling east on Highway 42 as she was taking him to school. Catherine Westphal and her daughter, Joanna, were traveling west on Highway 42 as she was going to work. A car, which has never been located or identified, fishtailed in front of Wulf, causing her to brake and lose control of her vehicle. As a result, Wulf's car crossed the center line and collided with Westphal's vehicle. Westphal and her daughter were injured, Wulf was seriously injured, and her son was killed.

[¶ 3.] Highway 42 between Sioux Falls and Brandon is part of the state highway system, so the State of South Dakota is responsible for clearing snow and ice from the highway. Historically this portion of Highway 42 has been a difficult road to maintain because of hills, numerous curves, high banks, trees, and shady areas.

[¶ 4.] The State of South Dakota has delegated responsibility for maintenance of its roads and highways to DOT. SDCL 31-4-14. DOT contracted with Kirk Preheim and Preheim Lawn and Landscape, Inc., to provide winter road maintenance over this portion of Highway 42. Melvin Bultje is the Sioux Falls Area DOT maintenance supervisor. He is responsible for supervising and directing the work activities of highway maintenance crews over 300 miles of roads in the Sioux Falls area. Jeff Senst is DOT Sioux Falls area engineer and Bultje's immediate supervisor. Senst reports to Tom Weeks, the DOT regional engineer.¹ Both Bultje and Senst were responsible for insuring that Highway 42 between Sioux Falls and Brandon was safe for travel. However, Senst relied on Bultje to make the specific decisions on snow and ice removal.

[¶ 5.] On January 19, 2000, a winter storm hit the Sioux Falls/Brandon area. The storm began in the early morning hours with rain that changed to snow as the temperature dropped nearly 30 degrees within four hours. Because of the heavy snow the entire Sioux Falls area DOT maintenance crew was called in to work between 4:00 and 4:30 that morning. The morning traffic on January 19 packed down the snow on all of the area highways. The snow and rain froze hard to the road surface so additional contractors were called out with scrapers.

[¶ 6.] Both DOT and private trucks and scrapers worked throughout January 19 and into the night of January 19/20, clearing and sanding the roads. Throughout this time Preheim's two trucks worked on Highway 42 as well as the other roads for which he was responsible. The next day, January 20, temperatures were near zero. Because of the temperature and road conditions, the sand/salt mixtures and truck scrapers used by the maintenance crews had limited effect. Preheim estimated that on January 20 his crew made at least twenty round trips plowing and sanding this area of Highway 42. During this two-day period Preheim and Bultje discussed whether calcium or magnesium flakes would melt the ice and snow on the road but determined that they would probably not be effective under the existing weather conditions. They also discussed whether a road grader would break up the snow pack and ice on the road. Preheim brought out a road grader to see if it would be effective and made four passes over this stretch of Highway 42 on January 20. In addition to the grading, a truck followed and plowed and sanded the road.

[¶ 7.] At approximately 8:00 p.m. on January 20, Preheim and Bultje decided to stop sanding and deicing efforts on Highway 42 and start again at 8:00 a.m. on January 21. Bultje claims that the highway was "all sanded out" so he authorized the maintenance crews, including Preheim's, to quit and not to return to work until 8:00 a.m. the following morning. When Preheim quit work at 8:00 p.m. on January 20, he claims he and one of his employees drove home over Highway 42 and it was in good condition. He also claimed at that time the road was so thoroughly sanded that it "looked black." Preheim has also testified he drove over this road at 6:00 a.m. the following morning on the way to work, and Highway 42 was well sanded and in good condition.

[¶ 8.] In response to the motion for summary judgment, Wulfs provided affidavits from three witnesses who were familiar with Highway 42 and who had traveled over it on January 20 and 21. Two of those witnesses were volunteer firemen and emergency medical technicians who responded to the Wulf/Westphal accident. These witnesses disputed the claims that the road was well sanded and in good condition.

[¶ 9.] Mark Kuca indicated by affidavit that Highway 42 was in such bad condition on the afternoon of January 20 that he personally called Senst telling him that DOT needed to maintain the road or "someone was going to die." He also claims that when he arrived at the Wulf/Westphal accident on the morning of January 21, the road was icy and slippery, that it was difficult to do anything because of the slippery conditions, that there was no sand or salt on the roadway, that there were two inches of ice on the roadway, and that the road did not appear to him to have been sanded the night before the accident.

[¶ 10.] Tim Nicolai, who lives within several miles of the accident scene, indicated that he traveled past the location of the accident about twenty minutes before it occurred. According to his affidavit, the road did not appear to have been sanded or salted, either the night before the accident or on the morning of the accident, and that his vehicle slid as he went up a hill so that he had to put it in 4 wheel drive. He also claimed that when he arrived at the accident scene, his fire truck slid on the ice, that it was so slippery at the scene that the firemen had to walk by shuffling their feet to avoid falling down, and that the area where the accident occurred had not been sanded.

[¶ 11.] A third witness, Warren McLain, indicated that he was on Highway 42 between 7:30 p.m. and 9:30 p.m. on January 20 and that the road was snow-packed and icy and that no sand had been applied to the road. He further indicated that his vehicle wheels spun due to the ice.

[¶ 12.] SDCL 31-5-8.3 requires DOT establish a winter safe highway maintenance plan for snow removal, sanding and deicing in order to provide safe highways during cold weather months. In response to this requirement DOT has established various winter road maintenance policies, including Policy 2531 which deals with sanding.² It is this DOT policy which establishes Senst and Bultje's responsibilities, not the contract between DOT and Preheim.

[¶ 13.] On the morning of January 21 sanding operations did not commence at 5:00 a.m. as required by Policy 2531. Bultje authorized the maintenance crews to wait until three hours later, 8:00 a.m., to start sanding. Unfortunately, the Wulf/Westphal accident occurred at 7:30 a.m., one-half hour prior to the scheduled 8:00 a.m. start time.

[¶ 14.] Two different lawsuits were filed as a result of the accident. In the first, Catherine Westphal and Joanna Westphal sued Myra Wulf, alleging that Wulf's negligence caused injury to Catherine Westphal and Joanna Westphal.³ Wulf then brought a third party action against Preheim, who was responsible for the maintenance of Highway 42, and against Senst and Bultje, the supervising DOT employees. In this third party action Wulf seeks indemnity and contribution from Preheim for negligent maintenance of the highway and from DOT employees, who she claims knew or should have known that Preheim was not properly maintaining the highway. Wulf also seeks damages for the injuries that she sustained as a result of this negligence.

[¶ 15.] In the second action, Arnold Wulf (Myra's husband), individually and as a representative of the estate of their son Landon, sued Preheim for negligent maintenance of Highway 42 and the DOT employees who were responsible for supervising that maintenance. He alleges Preheim negligently maintained the highway and DOT knew...