*1 Thus, our task is to determine the nature sovereign
and extent of the state’s immuni-
ty statutory under these directives. Ultimately, for the ex reasons Court,
pressed by agree I
immunity afforded under the specific more (SDCL
immunity statutes 3-21-8 and 3-
21-9) abrogated by is not insurance or risk
pool participation under SDCL 21-32A-1. MEIERHENRY, Justice, joins special writing.
this
Alex ANDRUSHCHENKO
Andrushchenko, as Guardian Ad Li D.A., Minor, Nataliya
tem of
Andrushchenko, Individually, Plain Appellants,
tiffs and Lyuba Silchuk,
Ivan SILCHUK
Metzger Construction, Inc. and M & Plumbing-HVAC, L.L.C.,
M Defen Appellees.
dants and
No. 24464.
Supreme Court South Dakota.
Argued on Oct.
Decided Jan. *3 bedroom, Firm, access to master Law master with Rollyn Samp Samp H. bathroom, Falls, Dakota, Attorneys whirlpool tub. She which had South Sioux bring did not D.A. downstairs with her nor appellants. plaintiffs playing that he report parents to his Garry, Shawn M. Nichols of C. William thereafter, Shortly upstairs. alone Cadwell, Sanford, Garry, LLP, Deibert & They up adults D.A. ran heard scream. Falls, Dakota, Attorneys for Sioux South him in the stairs and found bathtub Silehuk. appellees evidently master bathroom. He Richardson, Wise, Wyly, A. Roy ofWise baby’s opened the door of the room and LLP, Aberdeen, *4 Sauck, Hieb, South Da- & the master He turned entered bathroom. kota, Metzger Attorneys appellee for Con- toys on the hot water and other placed and struction. objects in the He either bathtub. then Falls, O’Leary, D. Mark Sioux South intentionally accidentally or climbed Dakota, M & Attorney appellee for M slipped The into bathtub. hot water Plumbing. caused severe burns. The water F. approximately tub 160° His burns was MEIERHENRY, Justice. treatment, required including extensive Nataliya Alex Andrushchenko and [¶ 1.] plastic surgery. (Andrushchenkos), guardians ad as litem in Silchuks’ water heaters were D.A., Nataliya their minor child and part stalled of the construction of their as Andrushchenko, individually, brought suit prior home a few months to the incident. (Silchuks), Lyuba Ivan Silehuk against and Construction, general Metzger as the con Construction, Inc., and M Metzger <&M tractor, hired M & to install the water M M) (collec (M Plumbing-HVAC, L.L.C. & M M claimed it set the ther heaters. & defendants) injuries that tively for D.A. 125°F. mostats at scalding in the
sustained from Sil- granted chuks’ The circuit court bathtub. alleged that the Andrushchenkos summary to the defendants. judgment They claim negligent. defendants were appeal. Andrushchenkos We affirm. the duty that Silchuks owed D.A. of ordi his nary reasonable care because of and FACTUAL AND PROCEDURAL gratu a status as an invitee and because of BACKGROUND by Mrs. itous undertaken Silehuk presented The circuit court was 2.] [¶ They Metzger had protect D.A. claim undisputed certain facts. On Decem with a to set the water heater thermostats 29, 2002, invited ber Silchuks Andrush- by the at 120° F. established 2003 Uni son, D.A., three-year-old and chenkos their Plumbing and the water heater form Code Early in over to their home for lunch. Metzger’s duty extends manuals and visit, and D.A. turned on the faucets flood They as D.A. also parties to third such Later, the main floor bathroom. ed M had a to warn claim that M & D.A. upstairs children and went Silehuk a setting Silchuks that thermostat went play. upstairs Mrs. saw Silehuk high scalding. risk of playing that D.A. was not with Silchuks, M Metzger M & [¶ himself in playing 5.] children. He was af summary judgment for the room. closed the filed motions another area of She affi discovery. filed baby to the ter Andrushchenkos door bedroom where summary to the rejoined opposition adults on the davits in sleeping and Metzger judgment baby sleeping floor. motion. Silchuks main objected to three op position summary of Andrushchenkos’ to the judgment (1) reports posing police affidavits: motion. (2) incident, investigation of the Whether circuit court erred in use
water heater and care manual and granting summary judgment de- (8) copy of the 2003 Building Uniform fendants. The circuit court Code. sustained the ob jections the three affidavits STANDARD OF and their REVIEW because of lack of foundation attachments reviewing grant 8.] “When relevancy. summary judgment, ‘we must determine moving party The circuit whether court entered sum demonstrated mary any judgment genuine for all defendants. absence of issue of materi undisputed court determined from the al fact and showed judg evi entitlement ” dence that had not estab ment on the merits as a matter law.’ ¶ Stem, 51, lished owed a duty Kling defendants 2007 SD injured child. As to defendants Sil- N.W.2d 617. “All facts and favorable *5 chuks, circuit court the determined that as inferences from those facts must be viewed a social D.A. the status guest of licen in a light favorable to nonmoving most the Thus, only duty see. Silchuks owed a Schulte, party.” 73, v. Hendrix 2007 SD ¶ dangerous warn of or make safe concealed 6, 845, However, 736 N.W.2d the at known to them the time conditions D.A. nonmoving party “present must more than injuries. his sustained The court deter [unsupported speculative conclusions and pro mined that Andrushchenkos had not statements, genuine do not [which] raise duced sufficient evidence demonstrate issue Burley Kytec of fact.” v. Innovative that any alleged danger Silchuks knew of ¶ Inc., Sports 82, 34, Equipment, SD 2007 Similarly, reject ous condition. the court 397, 737 (quoting N.W.2d 408 Paradigm gratuitous duty ed Andrushchenkos’ theo Hotel Mortg. Fund v. Falls Sioux Hotel ry. The court based its determination on Co., Inc., (S.D.1994)). 567, 511 N.W.2d 569 evidence Ms. Andrushchenko admit “Summary judgment generally not feasi deposition ted in her that she had not ble in negligence cases.” Satterlee v. relinquished responsibility her to supervise Johnson, (S.D.1995). 256, N.W.2d 258 D.A. while Andrushchenkos’ home. The “The duty question existence of a is a of court found that also Andrushchenkos had law that is reviewed de novo.” State Auto presented not evidence Silchuks had B.N.C., 89, ¶20, Ins. Co. v. 2005 SD agreed responsibility to assume the to su (citation omitted). pervise D.A. Evidentiary rulings are re M, Metzger As to and M & the viewed an under abuse of discretion stan circuit court determined that Andrush- dard. Twice v. Whidby, Looks 569 N.W.2d presented had not ehenkos evidence that (S.D.1997). 459, 460 they ordinance, any had violated statute or standard, industry which would have creat ANALYSIS ed a to D.A. no and that arose in by 1. Whether the circuit erred court common law. appeal Andrushchenkos admitting not exhibits: offered in following raise the issues: opposition summary judg- to the ment motion.
ISSUES 1. Whether the court attempted [¶ circuit erred Andrushchenkos 10.]
not admitting exhibits offered in to offer op- copies police reports prepared Delzer, (S.D. 283 N.W.2d Department Co. Falls Police by the Sioux 1979). by subpoena. obtained the to show that the exhibits
submitted Id. that the demonstrated police investigation Clearly, Andrushchenkos’ attor 12.] time was 160° F. at the temperature water police not of the ney was the custodian affida accompanying scalding. of the did not its reports, and the court abuse attorney, from Andrushchenkos’ vit by sustaining objection. the discretion of the records not from custodian Additionally, con none of defendants reports. made who from officers temperature tested that reports to consider the The court refused Regardless high enough scald. foundation. of lack of because it ruling, the court indicated considered temperature be
the evidence
the water
consistently
have
We
it came in
other
through
cause
admissible
submitting
Thus,
an affidavit
party
held that
for purposes
and relevant sources.
lay
proper
summary
ruling,
foundation
court
judgment
has
admissibility.
light
An affidavit
most
establish
considered
evidence
The court
favorable to Andrushchenkos.
of the records or
from
custodian
true,
took,
that the
out of
the fact
necessary to establish
witness is
qualified
tap was 160° F. and
the water
DuBray v.
Dakota
foundation. See
South
on
highest
¶
thermostats were
heater
Services,
130, 15,
Dept,
Social
SD
setting.
(holding it is the burden
[w]hen support and employee operator technical motions, an attor summary judgment Manufacturing. for Rheem same ney’s governed by affidavit manufacturing manufactures Rheem 5. admissibility per to regard rules of Richmond Water Heaters.... and knowledge competency.... sonal num- Furthermore, gave I Mr. Adams model attorney’s an affidavit heat- of Defendant Silchuck’s water summary judg not utilized for ber should be Report of Offi- as listed in the Police er testimony unless the ment decisions Spaeth. cer trial be admissible at therefrom would give ... . must not database affidavits Mr. searched his Adams copies to .PDF matters that would and sent me via e-mail regarding evidence Defen- and Manuals for the Use Care Maryland fact.” Cas. questions be dant water heater model for appeal, attorneys Silchuk’s On (sent years Apl0960-i.pdf), as argue for that the use (sent Apl0960-10.pdf), and 2002 as care self-authenticating and manuals were (sent Apl0960-ll.pdf). as and should have been admitted under 19-17-1(4) (9). They SDCL & claim each Copies of the manuals and Mr. Adams’s e- self-authenticating manual was because mail were attached the Affidavit as ex- title, its its reference contact informa hibits. tion at the same address the manufac and pro [¶ 14.] The use care manual turer, contents, substance, its appearance, safety general precautions vided concern internal patterns coupled being and with ing temperature settings the water and consuming public directed to the and not temperatures warned that over 125° litigation. They claim the manual set the instantly F. could cause severe burns or by Metzger standard which and M & M death from The manual also indi scalds. were install the water heaters and ad highest cated that at the setting just the thermostats. temperature would reach 160° F. Silchuks objected Metzger arguing 19-17-1(4) (9) 17.] SDCL & set forth manual irrelevant because Sil- requirements document to be chuks’ water heaters were different models self-authenticating: manuals, depicted than requirement of authentication or hearsay manuals contained inadmissible precedent identification as a condition and lacked proper foundation. admissibility is satisfied evidence suf- The circuit court ruled to support finding ficient that the mat- proper manuals lacked foundation. The in question ter proponent is what its court did not abuse its discretion mak By way claims. of illustration only, and ing that ruling. attorney’s limitation, affidavit by way following not concerning attorney who talked examples are of authentication or identi- attorney how the retrieved manual in fication with conforming require- *7 fact, questions especially volved since ments of this section: challenged defendants whether this was the manual for the water heaters installed (4) Appearance, contents, substance, in-
in Using attorney’s Silchucks’ home. an ternal patterns, or distinctive affidavit in manner also this runs the risk characteristics, in conjunction taken of the attorney becoming a fact in witness with circumstances. clearly not allowed under the case— code of ethics. South Dakota Rules of (9) describing Evidence a process or 3.7(a)(1) (“a Responsibility Professional system used to a produce result and lawyer shall act an at not advocate a showing process that the system or trial in lawyer likely which the is to be a produces an accurate result. (1) necessary witness unless: the testimo issue”). ny (9) 19-17-1(4) relates to an uncontested See SDCL and are identical to Delzer, 901(b)(4) also Maryland Cas. Co. v. 283 Federal Rules of Evidence and (S.D.1979) 244, (“an (9). N.W.2d attorney’s A review of the manual reveals noth- affidavit not be ing should utilized for sum in its appearance or content that mary judgment decisions unless the testi it self-authenticating. makes In State v. mony Ratten, therefrom would be admissible at this proponent Court that a stated trial.”) (citation omitted). of self-authenticating evidence “must make care). standard of prove applicable is showing evidence prima a facia 469, Code, Thus, Plumbing the 2003 Uniform it to be.” 312 N.W.2d purports what (S.D.1981). case, by City had adopted this an exami- which not been 469-70 In injuries, no time manual makes connection Falls at the of D.A.’s nation Sioux tendency manual and the heaters and no between the was not relevant The in the Silchuks’ home. a of M M to part installed establish on & model of the manufacturer and at a names set the water heater thermostats low from manual. temperature. number are absent er Thus, contents of appearance and circuit did not abuse 20.] The court [¶ support a find- manual insufficient are it its discretion when refused consider for it is the manual the water ing heater police reports, manu 19- in home under SDCL heaters Silchuks’ Plumbing and the 2003 Uniform Code al 17-1(4). lay failed to because Andrushchenkos 19-17-1(9) admissibility for proper foundation or to SDCL also relevance of the records. establish the to the manual. apply not use care does ex Rule Committee Notes Federal court erred in Whether circuit “Example of rule 901: plain application summary judgment granting be- (9) designed situations which were in dis- cause material facts accuracy dependent upon a of a result is required by pute a resolution X produces which it. process system jury. Among a instance. rays afford familiar prevail “In order developments comput more is the recent negligence, plaintiff must a suit based on 901, Advisory Com er....” Fed.R.Evid. duty, duty, proximate of that prove breach argued mittee Notes. causation, injury.” factual and actual the water heater manual established v. South Dakota Fisher Sand & Gravel Co. relationship temperatures between water Trans., ¶12, 8, 1997 SD Dept, way by of a table attributed scalds “A can be created N.W.2d Burn Institute. The circuit the Shriners Typically, statute or common law.” Id. court found the table lacked foundation. question is a for the existence agree. The does not constitute We table Hendrix, court to resolve. SD type to in process referred SDCL ¶ 8, (citing at 847 Erickson 19-17-1(9). (S.D.1985)). Lavielle, 368 N.W.2d also ev 19.] Andrushchenkos offered relationship “whether question involves *8 of 2003 of the idence the version Uniform the parties the such that exists between Code, Plumbing they which set the claimed impose upon legal the defendant a law will at 120°F. The temperature water standard for the obligation of reasonable conduct plumber installed the water heaters who of Casillas v. Schu plaintiff.” benefit the he set water at testified that the heaters ¶ bauer, 42, 84, 14, 2006 714 N.W.2d SD However, F. admit 125° Andrushchenkos the ted that the 2003 version of Code not in effect at time the water heaters as Summary Judgment to Silchucks v. Mil Chicago,
were installed. See Zens (a) Duty as Licensees to Social Guests Co., waukee, R. 479 Paul and St. Pacific cases, (S.D.1991) prior In we 155, (recognizing our N.W.2d the common law classifica adopted alleged after an have retained guidelines licensee, in and invitee tendency trespasser, to of negligence act of have no tions liability. determining temp landowner See evidence that the knew Silchuks Inc., Cooperative, Musch v. H-D Electric excessively erature of the hot or (S.D.1990).1 149, 150 The ma 460 N.W.2d presented it An- scalding danger. jority of that retain the common law courts dispute drushchenkos did not that M & M classify guests as licen distinctions social set they the thermostats and were not (Second) sees. See Restatement Torts tampered with after that. We need not 330, general duty § owed to temperature if determine of the water concealed, danger “to warn licensees is of requirements met danger of a hidden to ous conditions known the landowner.” facts, the light because viewed in most ¶ Deal, 6, 15, v. Luke SD Andrushchenkos, favorable did not es 165, applying 169. The rationale for temp tablish that Silchuks knew the water guests of care to social lower standard presented a danger erature about which is that the versus business invitees social they guests. warn social land guest is invited to the owner’s as a expectation and has no reasonable favor (b) Undertaking Special Gratuitous will that the owner make the land safer for Duty guest the social than the owner does for recog South Dakota (Second) himself. The Restatement nizes the common law gratu doctrine of § “a person Torts 330 defines licensee as duty. B.N.C., itous Auto Co. State Ins. privileged who is to enter or remain on 89, SD N.W.2d 379. The com only possessor’s land by virtue of con gratuitous mon law rule is defined in sent.” (Second) Torts, § Restatement as Thus, Silchuks had a adopted by this Court: concealed, any dangerous warn of known undertakes, gratuitously One who or duty depends conditions. Silchuks’ on consideration, whether to render services to they dangerous knew of con dition, person whether another which he recognize a reasonable should appreciated danger necessary would have protection for the oth- of the temperature posed. summary In a subject person things, er’s or lia- judgment moving proceeding, party bility physical to the other for harm demonstrating has burden of the ab resulting from his failure to exercise any genuine sence of issue material fact perform reasonable care to his under- matter judgment entitlement as a if, taking law. The be evidence must viewed (a) his failure to exercise such care light most favorable to Andrushchenkos. harm, increases risk of such the nonmoving party, As (b) the harm is suffered because must come forward with sufficient evi un- upon other’s reliance dence, constituting conjec than more mere dertaking ture, genuine there were issues of facts, material Burley, light fact. See 2007 SD viewed most favor- *9 ¶ 34, Here, Andrushchenkos, at able support N.W.2d Andrush- to do not provide any chenkos failed to implied express affirmative the or of undertaking a Many abrogated have prior rulings states these classifica- ed our we reconsider or if SDCL adopted abrogated tions and a have standard of “reason- law 20-9-1 common classifica- able imposes duty care under the circumstances” for a ordinary all tions and of in care Musch, possessors property. of See all situations. The issue was neither briefed parties request- argued N.W.2d at 150. The have not nor to the Court. should not be set above for the that water heaters duty responsible to be gratuitous 210° F. upstairs temperature a maximum of An- of while he was care D.A. only proffered evi home. The drushchenkos Silehuks’ impliedly relinquished duty or had a expressly Metzger never and M & M dence D.A. See supervise to obligation their above F. not to set the thermostats 120° Howard, 581 v. N.W.2d Sunnarborg manual, use heater and care (“the responsibility (Minn.App.1998) admitted into evidence. which not may child be relin- supervision for of such Thus, provide to Andrushchenkos failed only upon mutual con- or obtained quished statutory of a or common law evidence sent, implied, by legally the one or express set hot water heater thermo duty to by of the child and charged with care F. at or below 120° stats assuming responsibility”). the one evidence, upon the [¶28.] Based duty pro to of the Silehuks [¶ 25.] determining not err in circuit court did hidden D.A. and to warn of known tect to establish a that Andrushchenkos failed as aris dangers properly is characterized Summary judgment in favor of duty. ing proper from D.A.’s on Silehuks’ status and M was Metzger proper. M & duty arose ty as a licensee. No additional Affirmed. 29.] [¶ par facts of case. D.A.’s under the this visit during the entire present ents were GILBERTSON, Justice, Chief [¶ 30.] responsible for primarily and were ZINTER, and and KONENKAMP At no supervision care of the child. Justices, concur. responsi their they relinquished time had at bility. Sunnarborg, See SABERS, Justice, dissents. (“Generally, parent pres a when is 398-99 SABERS, (dissenting). Justice ent, for a responsibility provide to I solely on issue 32.] dissent safety par [¶ rests with the child’s care and of genuine issues mate ent, in a whether there are not party and a third does stand negligence in fact relation child.”); rial relationship O.L. special R.L., Lyuba Silchuk. (Mo.App. W.D. 62 S.W.3d 2001) (it custody “acceptance of the Lyuba negligence of must of a child creates [that] and control minor directly comparison in not be viewed duty relationship support a a sufficient mother father. It is that of D.A.’s care.”). and father D.A.’s mother obvious that D.A., did The circuit court not err ag
[¶ an negligent permitting 26.] were summary judgment Silehuks granting boy, play by three-year-old gressive claim. gratuitous on on a period for an extended time himself house, especially separate floor M Judgment Metzger as to Summary on knowing he liked to turn &M flooding prior on point faucets to the argue 27.] Andrushchenkos occasion. Code, adopted Plumbing the 2000 Uniform of D.A.’s Falls, Lyuba was not aware established city of Sioux on faucets because & to turn Metzger propensity and M part on the both until at not tell her later However, no D.A.’s mother did the 2000 Code contains M. However, Lyuba was aware hospital. rise to a not give that would language by himself on playing that D.A. was thermostat above to set a water heater an the house for extended separate floor of merely provided 120° The 2000 *10 F. Code period Lamb, of time. She he was an v. ag 77, 79, knew S.D. 59 N.W.2d gressive three-year-old boy because he had (1953), and is entitled to have a jury damage done some house her and she genuine determine whether these issues of had warned his mother that she would be give material fact liability rise to for negli responsible any damage. Lyu- further gence part Lyuba. on the ba was aware also that D.A.’s mother ig question here is not wheth warning nored play her and left D.A. to er a is a three-year- homeowner liable to separate himself on a To an aggres floor. boy old when the negligence boy’s three-year-old boy, sive everything is an mother greater is than that of the home nuisance, especially attractive if he is left question owner. The here is whether a separate alone on a floor for an extended is three-year-old homeowner liable to a period of time. boy negligence may when her have con present All of these genu facts boy’s injuries. tributed to the Specifically, ine issues of material fact as to whether circumstances, under Casillas and these Lyuba directly negligent was to D.A. That question Lyuba’s is whether conduct Lyuba would be entitled to contribution reasonable relation D.A. There from mother D.A.’s and father is immateri fore, summary judgment premature al to may subject this lawsuit. That be the granted and improperly under these cir addition, of another lawsuit. In the rela cumstances. This case should be reversed tionship Lyuba between D.A. was such for trial remanded on this issue. will impose upon the law her legal obligation of reasonable conduct for the
benefit Schubauer, of D.A. See Casillas (defendant SD reasonably
could anticipated have his bull stray Here,
would onto highway).
D.A., three-year-old, unlikely to be
negligent law, eyes Doyen see