965 N.W.2d 161
S.D.2021Background
- On August 1, 2016, Gerrit Tronvold (a rookie, unpaid PVFD volunteer) was driving his personal pickup to a routine Pierre Volunteer Fire Department (PVFD) monthly meeting when he failed to yield at an intersection and collided with a motorcycle ridden by Lisa Tammen and Randall Jurgens, causing severe injuries. Tronvold pled guilty to the traffic offense.
- Tronvold was not responding to an emergency, used his own vehicle, displayed a PVFD half‑license plate, and kept personal PPE in his truck; PVFD policy encouraged (but did not strictly enforce) attendance and required members to have reliable transportation.
- Plaintiffs sued Tronvold for negligence and amended to assert vicarious liability against the City of Pierre and the PVFD under respondeat superior; defendants moved for summary judgment.
- The circuit court granted summary judgment, holding Tronvold’s drive was an ordinary commute within the going‑and‑coming rule (so no vicarious liability) and alternatively finding the City/PVFD had not waived governmental immunity under their respective insurance coverages.
- Plaintiffs appealed, arguing Tronvold acted within the scope of employment (or under exceptions like required‑vehicle or special‑errand), and that insurance endorsements did not preserve immunity; the Supreme Court affirmed the summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tronvold was acting within the scope of employment (respondeat superior) | Attendance at required training/meeting and PVFD control (pager, PPE in truck, ID plate) made the commute work‑related | Ordinary commute: no employer control of means, no employer vehicle, no reimbursement, no special purpose | Going‑and‑coming rule applies; Tronvold not within scope, so no vicarious liability |
| Whether exceptions to the going‑and‑coming rule apply (required‑vehicle or special‑errand) | Adopt required‑vehicle or special‑errand exceptions because members must have vehicles and carry PPE | No sufficient control or distinct employer benefit to justify exceptions | Exceptions not applied; facts show ordinary commute, so exceptions fail |
| Whether the City waived sovereign immunity via its SDPAA coverages (GLC/Auto) | Plaintiffs: City’s auto coverage/no firefighting exclusion means City liable to extent of coverage | City: GLC contains firefighting exclusion; Auto Coverage did not expressly cover Tronvold/vehicle | Court found City did not waive immunity—coverage exclusions/limits precluded waiver |
| Whether PVFD waived immunity via Continental policy (Amendatory Endorsement) or whether gross negligence removes immunity | Plaintiffs: SDCL 21‑32A‑1 and policy should waive immunity; endorsement void as against public policy; gross negligence question exists | PVFD: Amendatory Endorsement preserves governmental immunity; policy excludes non‑emergency responses | PVFD retained immunity under the endorsement; no coverage waiver; gross‑negligence exception not reached on facts |
Key Cases Cited
- Kirlin v. Halverson, 758 N.W.2d 436 (scope of employment and respondeat superior standard)
- Bernie v. Catholic Diocese of Sioux Falls, 821 N.W.2d 232 (definition and test for scope of employment)
- Hass v. Wentzlaff, 816 N.W.2d 96 (scope‑of‑employment often a jury question)
- S.D. Pub. Entity Pool for Liab. v. Winger, 566 N.W.2d 125 (going‑and‑coming rule applied)
- Cardillo v. Liberty Mut. Ins. Co., 330 U.S. 469 (hazards of commute not ordinarily within employment)
- Pickrel v. Martin Beach, Inc., 124 N.W.2d 182 (employer‑furnished vehicle exception inapplicable here)
- Mudlin v. Hills Materials Co., 698 N.W.2d 67 (workers’ compensation travel factors; distinguishable)
- Konradi v. United States, 919 F.2d 1207 (policy considerations on expanding employer liability)