Brаdley D. KRINGEN, Plaintiff and Appellant, v. Tom SHEA and State Board of Regents, A Public Corporation, Defendants and Appellees.
No. 13831.
Supreme Court of South Dakota.
Considered on Briefs March 21, 1983. Decided May 4, 1983.
333 N.W.2d 445
Derald W. Wiehl of May, Johnson, Doyle & Becker, Sioux Falls, for defendants and appellees.
DUNN, Justice.
This is an appeal from an ordеr of the trial court dismissing a complaint which alleged certain injuries were the result of negligent acts of omission on the part of the South Dakota Stаte Board of Regents (Board) and one of its employees, Tom Shea (Shea). We affirm in part, reverse in part, and remand.
In April of 1981, Bradley D. Kringen (aрpellant) was an enrolled student at Dakota State College in Madison, South Dakota. One of appellant‘s courses was entitled Beginning Gymnastics, which was being taught by Shea. On April 30, 1981, appellant was injured while performing on a trampoline during his gymnastics class. Appellant suffered an injury between the fourth and fifth vertebra of his back which rendered him a quadraplegic.
Appellant brought this action against Shea, alleging inter alia failure to supervise, failure to adequately instruct and supervise the utilization of the trampоline, and failure to provide proper safety instructions. Appellant also brought an action against the Board on similar theories. The trial court granted a motion to dismiss, concluding the complaint failed to state a claim upon which relief could be granted and that the complaint was bаrred under the doctrine of sovereign immunity. The trial court directed that the motion to dismiss be treated as one for summary judgment. Appellant now asks us to review the trial court‘s action.
We need look no further than our recent decision in Guillaume by Guillaume v. Staum, 328 N.W.2d 259 (S.D.1982), tо dispose of this issue. There, the appealing party alleged school districts were subject to tort liability as a result of
We choose to adhere to the rationale set forth in Guillaume, and accordingly conclude the sue and be sued clause contained in
Finally, we address the trial court‘s conclusion that the doctrine of sovereign immunity protects state employeеs from suits as long as the employee does not commit wrongful acts in excess of their official authority. In granting summary judgment, the trial court primarily relied on High Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980). Subsеquent to the trial court‘s action, this court released several opinions on the subject of sovereign immunity. National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982); Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982). In those cases, we concluded that the issue of whether immunity extends to a state employee depends on the function performed by that employee—discretionary or ministerial. Sincе the trial court did not have the opportunity to review this cause of action in light of these recent opinions, we reverse that portion of thе summary judgment dealing with Shea‘s individual liability and remand the case to the trial court for further consideration in light of Kruger and Leir. See Smith v. Greek, 328 N.W.2d 261 (S.D.1982).
The order of the trial court is affirmed in part, reversed in part, and remanded.
WOLLMAN and MORGAN, JJ., concur.
HENDERSON, J., concurs specially.
FOSHEIM, C.J., concurs in part and dissents in part.
HENDERSON, Justice (specially concurring).
Although I agree with that aspect of the majority decision which affirms the trial court‘s judgment exonerating the State Board оf Regents from liability, I specially join in the last aspect of this decision.
A Motion to Dismiss appellant‘s entire cause of action pursuant to
There werе no depositions, interrogatories, affidavits and other discovery documents in the record upon which the trial court could make a discretionary-ministerial differentiation. Appellee never interposed an answer; the lawsuit never got that far. Under
FOSHEIM, Chief Justice (concurring in part, dissenting in part).
Consistent with my dissents in National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982) and Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982), I part company with that part of the majority opinion which remands and instructs thе trial court to determine whether Shea‘s actions were discretionary or ministerial.
The facts before us are essentially identical to those in Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981), which the majority either overlooked or ignored. The appellant in Merrill was injured while participating in a public school wrestling class supervised by an employee of the school system. The sole issue was whether the trial court‘s summary judgment was properly granted on the basis of sovereign immunity. In Merrill we reaffirmed the settled rule that A school district officer in the performance of his duties acts in a political capacity, as much so as the Governor of a state, and is not liable for negligent acts of omission occurring in the performance of such political or public duties[.] Id., quoting Plumbing Supply Co. v. Board of Education, etc., 32 S.D. 270, 142 N.W. 1131, 1132 (1931). In Merrill we unanimously concluded the instructors were acting within the scope of their employment and affirmed the summary judgment.
If we are in effect reversing or modifying Merrill why not say so? The discretionary-ministerial injections of Leir and Kruger have provided enough confusion concerning sovereign immunity. It does not need a reversal or modification by imрlication. It would be better to lay it on the line that we are repudiating our consistent, constitutionally based1 position that if there is to be a departure from sovereign immunity, it must be declared, and the extent of liability fixed, by the legislature. Arms v. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 (1943).