Holland v. City of Geddes

all is- any We reverse retried event. that at least expected testify would be of his sues. and because Defendant and mental illness peculiar sensibilities Justice, and, MILLER, and Chief danger differently; 71.] perceives [¶

he AMUNDSON, differently the av- and respond th[a]n KONENKAMP would Justices, GILBERTSON, person. If that is to concur. erage reasonable law, Dakota Su- the South then prior overrule their preme Court should same clear. The and make the

decisions for this authority not allow present does ‘peculiar’ standard to allow for a Court every peculiar upon sensibilities based objective The reasonable individual. the State person is still standard 2000 SD of South Dakota. HOLLAND, Larry Plaintiffs and Susan Appellants, State, during pre- Clearly, the 69.] [¶ motions, Blem was to argued that trial person objectively reasonable abide GEDDES, Defendant OF CITY prohibited present- standard and was Appellee. During on his illness. evidence mental trial, Blem that he was testified 20863. No. “afraid,” jury an emotion Supreme of South Dakota. Court instructed to evaluate under ultimately person standard. objectively reasonable on Briefs Nov. 1999. Considered However, See Instructions 31, 2000. May Decided necessary explain it State determined “unnecessarily afraid” be- that Blem illness, thereby his mental re-

cause of jury subjective to use a stan- questing The State can not have it both dard. opportunity was denied ways. Blem present expert testimony and evidence illness, his

concerning nature of mental Blem’s mental at the the extent of illness is, shooting; time of the whether he episode and how his suffered from a manic affected, if all. Essen- perceptions are by the State tially, Blem was ambushed right to a fair trial. We and denied his violation of its conclude that State’s during in limine and its conduct motion prejudicial closing argument constitutes resulting in an unfair error trial. summary, we conclude that the on all four trial court erred issues. clearly prej- 4 were errors in Issues in Issues 2 Whether the errors udicial. sufficiently prejudicial 8 were themselves to warrant reversal we need as the entire case must be

not decide In granting

home. summary judgment for City, that the circuit ruled plaintiffs give timely notice of injury law, required by as and that period limitations aby tolled tinuing tort. We reverse because the City’s repair failure to its broken valve was a continuing suspending the limi- period tations until the valve was fixed. Thereafter, the notice timely.

Background Susan and Larry 2.] Holland moved to

Geddes, Dakota, South in 1990. Two later, years they rented out their home and left pursue a business venture in Wisconsin. they returned. The water service to the house had been off turned after their tenants moved out. When the Hollands were about to move home, they back into their asked City turning turn the water on. While , street, main valve City at the employee it, kept broke so that “it going a circle.” that, After the water could not service turned off. In February Larry no- ticed a leak coming from the shutoff valve it, repair under the house. To the main valve street had to be-turned off. March, By the leak “steady had become a drip;” and “getting worse and worse.” July From March 1994 to the Hol- “complained lands often” to City various City’s valve, about unrepaired officials years, no avail. For two water accumulated under the corner of the house, ground, leached into the and under- foundation, mined the causing the house to City finally repaired settle. The its valve July 10, 1996, September [¶ On the Hol- lands gave written notice of to the Kiner, Mitchell, Patrick plaintiffs W. for City, pursuant to City SDCL 3-21-2. The appellants. claim, denied their January and on Cadwell, Sanford, Douglas M. Deibert of 1998, the Hollands commenced suit. On Falls, Garry, Deibert & Sioux for defen- motion, City’s granted the circuit court appellee. dant and summary judgment Hollands, against the their deeming untimely. n KONENKAMP, Justice appeal, they following .'assert issues: (1) City sued the Did the in granting summary court err seepage judgment Geddes after water damaged their to the based on the failure damage, principal cause of out as the gled Did the court timely notice? provide regards the cumulative effect failure of the law deciding err in actionable, peri- the limitations and allows damaged valve was the continuing tolling wrongful tort the conduct begin not a to when injury and od (3) 598, Firth, Did the court limitations? 123 850 of v. Idaho statute ends. Curtis (1993). from estop 749, the assert failing continuing err in A tort 754 P.2d defense, based on actual the notice persists act over wrongful occurs when a injury? the For of and the nature notice of Actions 54 Limitations time. C.J.S. issues one analysis, we examine (footnote omitted). ease of (1987) the § 177 On ruling on those together, two and our hand, consequence a from continual other on issue three makes a decision issues continuing a unlawful act is not solitary a re settled standard of unnecessary. Our Dakota, 479 Brishky v. tort. South has judgments been summary for view 489, v. (citing 492 Ward N.W.2d and need be numerous cases not recited in Cir.1981)). (9th Caulk, 1144, 650 F.2d 1147 Oleson, here. Kobbeman v. repeated See plain- Brishky, suspension the of the ¶ 633, 20, 4, 574 N.W.2d SD 1998 continuing license a tiffs driver’s was not Tolling Continuing the Tort as suf- wrong, injury but an which he of Limitations Statute Id. continuing a aftereffect. fered a intending Parties sue continuing [¶ 4.] A instance of a classic [¶ 6.] timely written public entity give must first prolonged repeated or occurs with tort summary injury. In granting notice of In Holdner v. Columbia flooding of land. the circuit ruled that judgment, (1981), the 605, 627 P.2d 4 County, Or.App. 51 180-day with the comply Hollands did by damage a landowner sued for caused in 3-21-2. This requirement SDCL intermittently public from a running water provides: statute property. onto the landowner’s The road damage occurring in saw the landowner recovery damages No action for the of the author complained 1974 or 1975 and damage, personal injury, property for ities, prob the they failed resolve by or death caused a error or omission sued eventually the landowner entity employees lem. When public may or its 1977, suit public argued or in the defendant the against entity maintained the statute of two-year of was time-barred the employees its unless written notice time, injury of is that the “on place and cause limitations. The court ruled public entity provided by continuing conduct” a given going negligent to the “ chapter eighty continuing, within one hundred is this tort: Where tort injury. days continuing.... after is The rule right of action last of the statute runs from the date injury court found that the occurred The just and negligent the continuous [act] 1994; in broken when the water valve was (omissions origi equitable.’” Id. at 8 afterward, leakage the resultant water nal) Ytur (quoting Reynolds Metals Co. v. home was damaging only Hollands’ (9th bide, 321, Cir.1958)); but 333 “ill effect” of the broken valve. As States, F.Supp. v. 334 Rygg United notice to the gave Hollands no written cf. (D.N.D.1971) 219, (damage to farm 220-21 1996, than two September until more flooding by the govern land from caused years one half after the valve tort). continuing ment was not broken, untimely. was held their claim leaking A water line the basis [¶ 7.] continuing suspends A Shinnston, Handley for suit in v. Town of the statute of limitations. running (1982). Af- Giebink, W.Va. 289 201 169 S.E.2d 299 N.W.2d Alberts pipe plain- a on the (S.D.1980). ter the Town installed primary rationale for The leaking it and the property, began in tiffs’ no rule is that when discrete occurrence negli- Town complained. The conduct can be sin- continually wrongful leak, it gently continuing a a continuing tween tort and continued, property damage. causing aftereffect. A motel a owner sued Handley wrong court reasoned that when company struction damage for first ob- repeated, ful conduct is continual or “the earlier, years served ten resulting from at, of action cause accrues limita adjacent on excavation land. The owner from, [period] tions to run begin[s] sustained both inju- immediate and latent last or injury, date of the when the tor- conspicuous ries caused occurrence. acts 202 (quoting tious overt cease.” Id. at tort, no finding continuing the court § 54 C.J.S. Limitations of Actions plaintiff ruled that “where a sustains (1948)). Similarly, Eppling v. Se property noticeable from a trau- 396, untjens, 254 Iowa 117 N.W.2d 820 event, matic the statute of limitations be- (1962) a sought damages landowner and gins to run and is not tolled because there injunctive repeated damage relief for flood may damages arising also be latent from property adjacent an occurring his after the same traumatic event.” at Id 449. a landowner erected dike. Id. at 821-22. There was no continuous wrongful con- Supreme The Iowa Court characterized duct, single a only damage act with the wrong the a Id. continuing violation. at plaintiff did not of fully become aware until 825. tort, later. To constitute a continuing the observed, all elements of the tort A continuing [¶ 8.] tort occurs when continuing, including must be breach of continue, of all elements the tort not sim duty damages. and n. Id. 3. The breach damage In ply City the element. v. Defnet excavation, duty, ceased, of improper Detroit, 254, 327 Mich. 41 N.W.2d 539 of damage the continued. (1950), City the Defnets sued the to recov damages to their property resulting er 10.] Here we have continuing [¶ both City’s from the failure block off or duty continuing breach of damage. a repair sewer drain. The sewer was con dripped steadily, The water gradually er- 1901, pur in structed the Defnets oding damaging the soil and the Hollands’ 1924, in year chased their home a after it time, At the City’s house. same the was erected. The men abstract did not duty breach in failing repair of the sewer, tion the and the Defnets did not ongoing. broken valve was distin- This is become aware of its until existence 1928. guishable from cases where wrong year, The next began the house to settle a single flows from event. tortious Ac- 1941, appeared. and cracks the back cordingly, erroneously circuit court in, yard damage caved but further contin granted summary judgment. 180-day ued they repeatedly until 1944. After period did not commence until the line, City asked the the sewer terminated, wrong which when the finally private Defnets hired a contractor repaired main July valve was in of problem, job to work on the Therefore, the Hollands’ notice of completed. later Both the Defnets timely. City sought reimbursement [¶ 11.] Reversed. other for the work done. With little dis cussion, the court in held favor of the Defnets, stating: “Where there are con MILLER, [¶ 12.] Chief Justice and wrongful

tinuing period acts within the GILBERTSON, Justices, SABERS and statute, by recovery limited not is concur. (citations omitted). barred.” Id. 541 Justice, AMUNDSON, dissents. [¶ 13.] cases,

[¶ 9.] contrast to these Motel, decision Hall’s Park Inc. v. Rov- AMUNDSON, Justice (dissenting). Inc., Constr., 309, er 194 460 W.Va. S.E.2d (1995), 444 illustrates the be- respectfully distinction I dissent. 820 “ omitted) continuing vio- (noting ‘[a] Holland both Larry and Susan by continual unlawful damage oath that is occasioned under lation

testified event, acts, by single ill from an by was caused continual effects case not wit, Caulk, shut-off breaking ”); of the water v. 650 original violation’ Ward Cir.1981) turned back on (9th when their water 1144, (citing valve Col- F.2d 1147 dispute on the no by city. There is Lines, Inc., v. Air lins United act caused part that this (9th Cir.1975)) 594, (stating “[a] 596 that a party is settled damage. It well continuing violation occasioned of the facts claim a better version can not acts, by continual ill unlawful not tinual testimony. See by their own given than is violation”); original Hyon effects from Co., Morrell & 2000 SD Vaughn v. John Management Servs. v. Chi- Waste ¶ 919, 926; 31, 36, By- Lakes’ 606 N.W.2d 757, 158 Ill.Dec. cago, Ill.App.3d 214 Co., Store, v. Auto-Owners Ins. ron Inc. (citation omit- N.E.2d 132 574 ¶25, fn*, 589 N.W.2d 1999 SD ted) violation, (stating continuing that “[a] Hosp., Area (quoting Miller Lake however, continuing un- is occasioned ¶ (cita- 89, 14, 817, 820-21 551 N.W.2d SD conduct, by continual ill lawful acts omitted)). tions violation”). from initial effects Brishky v. previously held in [¶ We case, way no matter which This (S.D.1991), State, 479 N.W.2d it, ill cut with the continual you deals continu- [generally, when a involves plaintiffs act of the which effects injury, the of action accrues cause question oath. No acknowledged under the statute of limitations commences were aware and terminates, wrong [citation when I affirm give timely notice. would Although this has nev- omitted.] Court trial court. er, explained depth, the nature of jurisdictions continuing wrong, other A continuing violation occa-

have. acts, continual unlawful sioned original ac- continual ill effects from an omitted.] tion. [citation v. City Rapids, Grand See also McCune (6th Cir.1988) (quotation

Case Details

Case Name: Holland v. City of Geddes

Court Name: South Dakota Supreme Court

Date Published: May 31, 2000

Citation: 610 N.W.2d 816

Docket Number: None

Court Abbreviation: S.D.