BLUE FOX BAR, INC., Plaintiff and Appellant, v. CITY OF YANKTON, Defendant and Appellee.
Nos. 15721, 15739.
Supreme Court of South Dakota.
Argued Oct. 5, 1987. Decided June 8, 1988.
424 N.W.2d 915
The cases from other jurisdictions cited by Lyerla have a common flaw. In each case the attempt statute contains an element of specific intent while the standard of culpability otherwise required for the commission of the underlying offense is something less than specific intent. In this respect, Instruction No. 20 (as set forth in footnote 4 of the majority opinion) was more favorable to Lyerla than the law required in that paragraph 1 implies that specific intent might also be required for second-degree murder.
The majority opinion cites People v. Perez, 108 Misc.2d 65, 66, 437 N.Y.S.2d 46, 48 (1981) and People v. Hernandez, 44 Colo. App. 161, 614 P.2d 900, 901 (1980), for the proposition that one cannot intentionally attempt to cause the death of another by a reckless act and for the proposition that the perpetration of an unintended killing is a logical impossibility. Further, these cases are cited to support the proposition that the words “attempt” and “negligence” are at war with one another; that they are internally inconsistent and cannot sensibly co-exist. These cases place emphasis on the word “intentional” contrary to the South Dakota statute on attempt. As previously indicated, the “intent” or “attempt” required under the South Dakota statute is simply to voluntarily act as opposed to an involuntary or forced action. In other words, an attempt to pull the trigger and shoot the gun is enough. This type of “attempt” and the “dangerous” or “stupid” act are not at war with one another; they are internally consistent and can sensibly co-exist.
Much of the confusion in this matter results from the use of the word murder, which implies an intent to take life. What we are really dealing with under South Dakota law is homicide, named second-degree murder. To intentionally pull the trigger and shoot a gun in this dangerous manner was not homicide because neither Gropper girl died, but it was attempted homicide, also known as attempted second-degree murder. Accordingly, attempted second-degree murder is a crime in South Dakota, and Lyerla‘s convictions for attempted second-degree murder should be affirmed.
Jerry L. Pollard of Light Law Offices, Yankton, for plaintiff and appellant.
Steven M. Johnson of Brady, Kabeiseman, Reade & Johnson, Yankton, for defendant and appellee.
GERKEN, Circuit Judge.
Blue Fox Bar, Inc. (Blue Fox) appeals from the trial court‘s judgment for the City of Yankton and from the court‘s denial of Blue Fox‘s motion for a new trial. The City of Yankton has filed a notice of review from the trial court‘s order denying the city‘s motion for summary judgment. We affirm.
FACTS
In 1978 and 1980 this lift station underwent certain modifications. In 1978 an alarm circuit was added to the lift station. This alarm circuit was tied into the lab at the sewage treatment plant and enabled the lift station to be monitored in case a problem developed. In 1980 the sewer line
In 1979 Blue Fox purchased the Super 8 Motel. Although outside the city limits, the Super 8 Motel was provided water and sewer services by the City of Yankton. Water rates for those outside the city limits were double the rates of those paid by residents of Yankton. Sewer rates were the same. The hookup by the Super 8 to the city sewer system was authorized by the Yankton city commission. The Super 8 Motel was serviced by the lift station located on the east side of Yankton.
On September 5, 1984, sewage backed up in the basement of the Super 8 Motel. Originally believing that the problem was caused by blockage within the motel, one of Blue Fox‘s employees attempted to remedy the situation. When his attempts to rectify the situation failed, a plumber was called. The plumber established that the source of the problem was outside the motel and notified the city. It was discovered that the lift station which serviced the Super 8 was not operating. The cause of the problem was electrical in nature; a breaker to the control panel was either in the “off” or “tripped” position. Without power to the control panel, the alarm system, which was added in 1978, failed to work. Once the circuit breaker was turned to the “on” position, the system functioned properly.
Blue Fox started this action to recover damages sustained by the Super 8 Motel as a result of the sewage backup. In its complaint, Blue Fox alleged causes of action in negligence, strict liability, and breach of contract. The City of Yankton moved for summary judgment alleging that it was immune from such suit because of the doctrine of sovereign immunity. The trial court denied the motion finding that the complaint stated a cause of action upon which relief could be granted. The case was tried before a jury in January 1987. At the close of the City of Yankton‘s evidence, the trial court dismissed Blue Fox‘s cause of action in contract and strict liability. The jury found for the City of Yankton on the claim of negligence. The court denied Blue Fox‘s motion for a new trial.
On appeal, Blue Fox asserts that the trial court erred by dismissing its causes of action in contract and strict liability, by refusing to instruct the jury on the doctrine of res ipsa loquitur, and by refusing its motion for a new trial. In its notice of review the City of Yankton contends that the trial court‘s refusal to grant summary judgment was improper. We address this issue first due to its possible effect on Blue Fox‘s appeal.
DECISION
I.
DOES THE DOCTRINE OF SOVEREIGN IMMUNITY PRECLUDE BLUE FOX FROM MAINTAINING A CAUSE OF ACTION AGAINST THE CITY OF YANKTON?
UNDER THE FACTS AND CIRCUMSTANCES OF THIS CASE, WE HOLD THAT IT DOES NOT.
Sovereign immunity is the principle that the state cannot be sued unless it has given its consent or has otherwise waived its immunity. City of Rapid City v. Boland, 271 N.W.2d 60, 64 (S.D. 1978); Cuka v. State, 80 S.D. 232, 122 N.W.2d 83, 85 (1963). When acting within its governmental powers, a municipal corporation is acting as an agent for the state and partakes in its sovereignty in respect to its immunity. City of Rapid City v. Boland, Id.; Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524, 526 (1966). However, a municipality is liable in the same manner as an individual or corporation for torts in its corporate or proprietary capacity. Sioux Falls Construction Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D. 1980); Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606, 608 (1958).
Governmental immunity is not a defense to a claim against the state for contractual liability arising out of either
The trial court determined that the City of Yankton was operating in a corporate or proprietary function by constructing and maintaining a sewer system, and, therefore, a cause of action existed in tort against the City of Yankton. This court, in citing to the case of State v. Board of Commissioners, 53 S.D. 609, 222 N.W. 583 (1928), has previously stated:
Municipal Corporations enjoy their immunity from liability for torts only in so far as they partake of the state‘s immunity, and only in the exercise of those governmental powers and duties imposed upon them as representing the state. In the exercise of those administrative powers conferred upon, or permitted to them solely for their own benefit in their corporate capacity, whether performed for gain or not and whether of the nature of a business enterprise or not, they are neither sovereign nor immune. They are only sovereign and only immune in so far as they represent the state. They have no sovereignty of their own, they are in no sense sovereign per se.
Oien v. City of Sioux Falls, 393 N.W.2d 286, 291 (S.D. 1986). It is well established that it is the nature of the duty performed which determines liability. Conway v. Humbert, supra at 527; Bucholz v. City of Sioux Falls, supra at 610. In constructing and maintaining a sewer system, the City of Yankton was acting pursuant to
SDC Supp. 50.0101 makes it the duty of the county to relieve and support all poor and indigent persons having a lawful poor relief settlement therein. In this general duty is included, among other things, the specific duty to provide hospitalization, medical care and treatment. In the acceptance of the duty the county has no choice. (citations omitted)
In the present case, the City of Yankton had no duty to construct or maintain a sewer system either within the municipality or outside its corporate limits. However, by undertaking the construction and maintenance of a sewer system, the city acted in a proprietary capacity and, therefore, may be held liable in tort for wrongs committed in its exercise of this function.
II.
DID THE TRIAL COURT ERR WHEN IT DISMISSED PLAINTIFF‘S CAUSE OF ACTION IN CONTRACT?
WE HOLD THAT IT DID NOT.
Blue Fox claims that the Yankton city commission‘s ratification of an agreement
It is well established that a municipal corporation has only such powers as those granted to it by the constitution or statutes of this state, or such as incidental thereto. Schryver v. Schirmer, 84 S.D. 352, 171 N.W.2d 634, 635 (1969); City of Watertown v. Meseberg, 82 S.D. 250, 144 N.W.2d 42, 44 (1966). Blue Fox has indicated in its brief that, pursuant to
A municipality wherein sewage treatment or septic plant is maintained shall have power to contract for the privilege of connecting to said plant for the purpose of treating or disposing of private sewage or industrial waste originating within the municipality or within one mile of the corporate limits, provided said plant has capacity over the requirements of the municipality for handling such sewage or industrial waste. (emphasis added)
This court has stated that no one has any vested rights in the use of sewers nor can the city grant such a vested right. Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89, 95 (1944). In Ericksen, supra, this court considered whether the City of Sioux Falls could enter into a contract with John Morrell & Company to dispose of John Morrell‘s industrial sewage from its plant in the city of Sioux Falls. In determining that the city did not have the right to enter into a contract regarding the sewers, the court stated:
The supervision and regulation of the sewers is a police function of the city. Therefore, in granting permission for the use of the sewers in the first instance and for the continuing use thereof, the city must at all times retain control, and any attempt by way of contract to deprive the city of that control is void. The police power of the city cannot be bargained away by contract, but must at all times be available for use to meet such public needs as may arise. McQuillan, Municipal Corporations, 2d Ed Rev., §§ 393, 1564.
It should be noted that in Ericksen, supra,
III.
DID THE TRIAL COURT ERR WHEN IT DISMISSED PLAINTIFF‘S CAUSE OF ACTION FOR STRICT LIABILITY IN TORT?
WE HOLD THAT IT DID NOT.
In the case of Shann v. City of Rapid City, 72 S.D. 418, 35 N.W.2d 399 (1948), this court considered whether a city could be held absolutely liable for the backup of sewage from a sanitary sewer onto a plaintiff‘s property. In holding that such liability could not be imposed, the court stated:
Were the city to be held to an absolute liability for any and all damage to a person suffered by reason of water and sewage set back upon his property through a connection with a sanitary sewer and this regardless of negligence or fault on the part of the city, there would be placed upon the city such an unreasonable burden that its authorities would hesitate to give the city the benefits of a sanitary system.
35 N.W.2d at 401. The court in Shann, supra, also stated that if liability were to attach under the facts of the case, it must depend upon some established negligence of the city. Id. 35 N.W.2d at 400-401.
Blue Fox contends that Shann, supra, should be distinguished because the Shann case dealt with sewer services within a municipality, and, in this case sewer services were provided outside of city limits. This contention is without merit. The court in Shann, supra, made no distinction between sewer services provided within city limits and those provided outside city limits. Its concern was with the burden that would be placed upon the city if the city were held to absolute liability. This burden would be the same regardless of where the sewer system was extended. Therefore, the trial court‘s dismissal of Blue Fox‘s cause of action in strict liability was proper.
IV.
WAS THE TRIAL COURT‘S REFUSAL OF BLUE FOX‘S INSTRUCTIONS ON RES IPSA LOQUITUR PROPER?
WE HOLD THAT IT WAS.
In refusing to give Blue Fox‘s proposed instruction on the doctrine of res ipsa loquitur, the trial court relied on the case of Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (1975), which held that it was not proper for the trial court to give an instruction on res ipsa loquitur where damages were sustained due to an overflowing sanitary sewer. In Shipley, supra, the court reiterated the established rule that one of the requirements of res ipsa loquitur is that “the instrumentality which caused the injury must have been under the full management and control of the defendant or his servants.” Id. 235 N.W.2d at 913. As it pertains to a sewer system, the court found that this requirement could not be met and stated:
In giving the Instruction # 13 to the jury on res ipsa the trial court was allowing the jury to decide whether or not “the sewer by which damage to the plaintiff was proximately caused, was in the possession or under the exclusive control of the Defendant at all times material to
this action.” In view of the case law on the subject and the testimony in the record an affirmative finding on the question would have been entirely unsupported. The trial record is clear that Defendant‘s sewer system is not under its exclusive control. It is easily accessible. Any homeowner whose own plumbing feeds into it thereby has access to it. A passerby can gain access through unsecured manholes in the public streets and on Halloween and at other times, the record shows, manhole covers have been removed and the manholes left open.
In the case at bar, Blue Fox‘s witness, Gary Klutz, testified that the pump motors were protected against overload current conditions. If a foreign object was contained in the sewage and either jammed or slowed down a pump, the circuit breaker would trip. After this occurred the object could pass through the system. This testimony clearly indicates that the electrical failure could have been caused by an instrumentality that this court has already deemed not to be within the exclusive control of a city. The trial court‘s refusal to give an instruction on res ipsa loquitur under these circumstances was proper.
Since there was no error in the trial court‘s decision to dismiss the causes of action in contract and strict liability, or in refusing to give the proposed instruction on res ipsa loquitur, and the jury verdict was not contrary to the evidence presented, the trial court‘s refusal to grant a new trial on this matter was proper.
The judgment of the trial court is affirmed.
WUEST, C.J., and MORGAN, J., concur.
HENDERSON and SABERS, JJ., dissent.
GERKEN, Circuit Judge, for MILLER, J., disqualified.
HENDERSON, Justice (dissenting).
In joining Justice Sabers’ dissent, it escapes logic and reason that a municipality
Where political subdivisions of this state openly contract with the private sector, should they not be held to their contract? Must they not maintain a credible posture? If they can hide behind their governmental veil, they become men of commerce only when it is to their liking. This cannot be.
Here, the City of Yankton‘s own director of public works testified that services were provided under a contractual agreement with the Super 8. “It is settled law in South Dakota that a party to a lawsuit cannot claim the benefit of a version of relevant facts more favorable to his own contentions than he has given in his own testimony.” Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D. 1978). See also Swee v. Myrl & Roy‘s Paving, Inc., 283 N.W.2d 570 (S.D. 1979).
SABERS, Justice (dissenting).
Blue Fox Bar did not receive a fair trial because the trial court dismissed the breach-of-contract claim against the City of Yankton.
The trial court erred in dismissing the breach-of-contract claim where the City‘s director of public works Eugene Hoag testified to the existence of a contractual agreement, including specific water and sewer rates.
Q. (By Plaintiff‘s Counsel) ... At that time in 1984 the Super-8 was outside the city limits of Yankton; is that correct?
A. Yes, that‘s correct.
Q. And that was under a contractual agreement with the Super-8, since they were outside the city limits the Super-8 paid a double water rate based on gallonage, or paid twice as much for the gallonage as somebody in town would?
Q. And that was so that the City would recover the funds that it had put into extending service beyond the city limits; is that correct?
A. Yes. Everyone that has a contract with the City for being outside the City pays double water rates; a policy of the City Commission.
Q. And it was the City Commission that entered into that agreement?
A. Yes it was.
Q. And that included sewer services; correct?
A. The sewer rates were the same as a customer inside the city limits, because everyone on the sewer system has to be the same rate. Just the water was the double rate.
Q. But the agreement was to provide sewer and water services?
A. Yes it was.
The above testimony clearly shows proof of a contract. As appropriately stated by plaintiff‘s counsel,
“Four to six inches of raw sewage represents the breach, and the damages were clearly foreseeable. This Court, nor any court, can equitably justify a municipality entering into agreements, reaping the benefits and avoiding the burdens.”
Citing State Board of Education v. City of Ypsilanti, 350 Mich. 5, 85 N.W.2d 94 (1957); Bleick v. City of Papillion, 219 Neb. 575, 365 N.W.2d 405 (1985); Trimont Land Co. v. Truckee Sanitary Dist., 145 Cal.App.3d 330, 193 Cal.Rptr. 568 (3d Dist. 1983). Although factually distinguishable these cases recognized that “agreements” with political subdivisions must contain burdens along with benefits for the political subdivision.
The reliance of the majority opinion on Ericksen v. City of Sioux Falls, 70 S.D. 40, 14 N.W.2d 89 (1944), is somewhat misplaced. Plaintiff‘s counsel argues that as applied to this case Ericksen is inherently wrong and against public policy. He also distinguishes Ericksen because it turns on the issue of the health and welfare of the residents, who could have been denied proper services in order to fulfill the contract with Morrells (because of lack of capacity to provide services to both). Additionally, he argues Ericksen differs from the present case because capacity is not at issue. The instant case does not turn upon police powers or contracting away control, but involves only the safety and well-being of the contracting party and its customers.
The majority opinion holds that:
SDCL 9-48-32 merely gives a city the right to allow a party to use the sewer system at a stated rate. Here, the City Commission‘s ratification of an agreement to allow the Super-8 to hook up to the sewer line at a specified rate created no duties, rights or obligations on either party.
To hold that no duties, rights or obligations on either party were created even appears inconsistent with the statement in the majority opinion: “... by undertaking the construction and maintenance of a sewer system, the City acted in a proprietary capacity, and therefore, may be held liable in tort for wrongs committed in its exercise of this function.” If the City is liable to its customers for negligence, I fail to see why it cannot be liable to its customers for breach of contract.
A municipality wherein a sewage treatment or septic plant is maintained shall have power to contract for the privilege of connecting to said plant for the purpose of treating or disposing of private sewage or industrial waste originating within the municipality or within one mile of the corporate limits, provided said plant has capacity over the requirements of the municipality for handling such sewage or industrial waste. (emphasis added)
The statute itself refers to and eliminates the argument over capacity. Despite that,
Accordingly, I respectfully submit that Blue Fox Bar did not receive a fair trial for this reason.
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