Kay L. OIEN, as Guardian Ad Litem for her Minor Child, Casie Oien, Plaintiff and Appellant, v. The CITY OF SIOUX FALLS, Defendant and Appellee.
No. 14763.
Supreme Court of South Dakota.
Considered on Briefs April 10, 1985. Decided Sept. 10, 1986.
Rehearing Denied Oct. 16, 1986.
286 S.D. 286 | 393 N.W.2d 286
[W]e think plaintiffs’ evidence was sufficient to raise a jury issue on the question whether [agent‘s] conduct was attributable to his principal. Estate Life [insurer] put [agent] in a position which enabled him, while apparently acting within his authority, to perpetrate the frauds upon [plaintiffs]. And on this evidence, we cannot say as a matter of law that plaintiffs had notice that [agent] was acting for his own purposes.3
Similarly, as a matter of law, can we rule that there was no nexus between Arndt‘s visit to the Leafgreen home on May 18, 1981, in his capacity as an American Family agent to review liability insurance and the subsequent theft on June 27, 1981? I think we cannot. From the Leafgreens’ point of view, Arndt was clothed with all the authority of American Family Insurance Company necessary to sell its product. He cultivated a relationship with the Leafgreens over an extended period of time which in effect, lulled them into a false sense of security. Arndt‘s presence at the Leafgreen home, his learning of the existence of the box with cash, valuables, and important papers, and learning which room the box was stored in were all a part of or directly incidental to the business of American Family Insurance Company. Surely there exists a jury question under the Dudley rationale as to whether the Leafgreens had notice that Arndt was acting for his own purposes.
It appears that Arndt‘s key knowledge that Leafgreens would be in Rapid City for an entire day resulted more from his personal friendship with Leafgreens than from his employer‘s business. Whether this friendship with Leafgreens arose from the business of American Family or vice versa is not clear from this limited record.
Arndt‘s decision to engage others in the theft of these valuables was made during his employment with American Family, and so was the theft itself. The fact that Arndt damaged American Family at the same time by causing an insurance loss, is an important consideration but is not necessarily determinative.
This summary analysis of these important questions leads me to conclude that reasonable minds could differ. Therefore, Leafgreens are entitled to have a jury determine these questions under proper instructions. We should reverse and remand to the trial court for a jury trial.
Timothy J. Nimick of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.
MORGAN, Justice.
This appeal arises from a personal injury action initiated by plaintiff Kay Oien (Oien), as Guardian Ad Litem for her four-year-old child, Casie Oien (Casie), against the defendant City of Sioux Falls (City). City filed a motion for summary judgment on grounds that
City employees chemically treated the water in a municipal swimming pool and left a quantity of the water treatment chemicals on the pool‘s edge. Casie came into contact with the chemical solution when she sat down at the pool‘s edge. The solution caused severe chemical burns on the child‘s buttocks. Immediate medical treatment was required. The child suffered pain and faces permanent scarring and potential infection. Oien alleged that City‘s employees negligently left some of the chemical solution on the edge of the pool during swimming hours and thereby violated City‘s duty of care to protect pool users from contact with such chemicals.
City asserts that
Oien alleges that the park immunity statutes are unconstitutional under the provisions of
All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.
The issue thus presented to us is: Is the legislative attempt to extend sovereign immunity to municipal operation of parks, playgrounds and pools unconstitutional? We hold that it is.
In High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980), we discussed sovereign immunity in relation to
To say that sovereign immunity is a constitutional violation is on its face an incongruity. In our republican form of government the people are the sovereign. The rights granted under the constitution are such rights as the sovereign grants. The sovereign can retain rights or qualify the grant. As we have noted . . . the doctrine of sovereign immunity predates our constitution. . . .
295 N.W.2d at 739. [W]hile . . . the doctrine [of sovereign immunity] is ‘judge made law,’ we are reminded that it is a doctrine of long standing; so long in fact, that it antecedes the federal and state constitutions. 295 N.W.2d at 738.
We then noted that our state constitution took cognizance of the doctrine of sovereign immunity when it provided in
In State v. Board of Commissioners, 53 S.D. 609, 630, 222 N.W. 583, 592 (1928) (quoting Riddoch v. State, 68 Wash. 329, 333-35, 123 P. 450, 452-53 (1912)), this court held that:
[T]he state is inherently sovereign at all times and in every capacity. It is the organized embodiment of the sovereign power of the whole people. By reason of
this sovereignty, it possesses all powers, but only such powers, as are within the limitations of the state Constitution and without the prohibitions of the Federal Constitution. It can do no act except in the exercise of this sovereign power and within these constitutional limitations.
And further:
[T]here is not, legally speaking, any distinction in the capacity in which the government of the state acts, or in the essential nature of its operation as a matter of law, in the performance of any one function intrusted to it by the people as compared with the performance of other functions so intrusted. We therefore hold that there cannot be successfully maintained, as a matter of law, in this state, under the circumstances here involved, a distinction between what has been frequently denominated as a [governmental] and [proprietary] capacity of the state....
53 S.D. at 632-33, 222 N.W. at 593.
In discussing the doctrine of sovereign immunity on a municipal level as it relates to
In Conway v. Humbert, 82 S.D. 317, 322, 145 N.W.2d 524, 527 (1966), this court held: “The legislature within constitutional limitations unquestionably has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort.” (Emphasis added.) The opinion goes on, in an exercise of pure dicta, to state: “A municipality and its governing board are specifically exempted from tort liability where the activity engaged in is the improvement, maintenance or operation of a park which is under the supervision of a park board.” Citing
In Grosz, supra, we acknowledged that shortly after the decision in Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438 (1923), the South Dakota Legislature enacted what is now known as
An important aspect of our review is the relationship between the provisions of
It is elementary that the legislative power of the Legislature is unlimited except as it is limited by the state Constitution and federal Constitution.
It is also elementary that while the federal Constitution is viewed as a grant of power to Congress, the state Constitution is not a grant of power, but is a limitation upon the powers of the Legislature.
In In re Heartland Consumers Power District, 85 S.D. 205, 208-9, 180 N.W.2d 398, 400 (1970), we reiterated that holding, stating: “The Constitution of South Dakota is not a grant but a limitation upon the lawmaking powers of the state legislature and it may enact any law not expressly or inferentially prohibited by the state or federal constitutions.” And further, “in order to determine that an act is unconstitutional we must find some provision that prohibits the enactment of a statute rather than for grants of such power.” Id., 85 S.D. at 209, 180 N.W.2d at 400. In High-Grade Oil, supra, we characterized
In Simons v. Kidd, 73 S.D. 41, 46, 38 N.W.2d 883, 886 (1949) (quoting Mattson v. Astoria, 39 Or. 577, 579, 65 P. 1066, 1067 (1901)), we characterized
Under the common law sovereign immunity only extended to the state and its agencies and subdivisions. Municipal corporations are not considered in all respects to be agencies or subdivisions of the state. In South Dakota, sovereign immunity extends to municipalities only to the extent that they are acting as agents for the state, i.e., in a governmental capacity.
As early as 1893, this court recognized in O‘Rourke v. Sioux Falls, 4 S.D. 47, 51, 54 N.W. 1044, 1045-46, that
[t]here are two kinds of duties imposed upon a municipal corporation, in respect to which there is a clear distinction, -one is imposed for governmental purposes, and is discharged in the interest of the public, and the other arises from the grant of some special power, in the exercise of which the municipality acts as a legal individual. In the latter case the power is not held or exercised by the municipality as or because it is one of the political subdivisions of the state, and for public governmental purposes, but as and because it is, as an individual might
be, the grantee of such power for private purposes. In such case the municipality is on the same footing with a private grantee of the same power, and is, like him, liable for an injury caused by the improper use of such power. But where the power is conferred upon the municpality (sic) as one of the political divisions of the state, and conferred, not for any benefit to result therefrom to such municipality, but as a means in the exercise of the sovereign power for the benefit of the public, the corporation is not answerable for nonfeasance or misfeasance by its public agents.
See also Jensen v. Juul, 66 S.D. 1, 5, 278 N.W. 6, 8 (1938) wherein we held:
Although a corporation may be public, and not private, because established and controlled by the state for public purposes, it does not follow that such corporation is in effect the state and that the same immunity from liability attaches. Generally, in reference to liability for torts a municipal corporation has a dual character. It is vested with powers of a governmental character for the administration of general laws of the state and no liability for tort ordinarily attaches for damages caused by negligence while in the exercise of such powers. In so far, however, as municipal corporations exercise powers not of this character, there is no immunity from liability.
In Board of County Commissioners, 53 S.D. at 630, 222 N.W. at 592, we further held:
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.
In Norberg, supra, we held the City of Watertown liable for negligence in the maintenance of its swimming area and in Jensen, supra, we held the Town of Irene liable for negligence in the maintenance of a baseball field. In both cases we determined that such activities did not constitute the exercise of a governmental function.
Since construction, maintenance, and operation of parks, playgrounds and pools have traditionally been held to be a proprietary function, the park immunity statutes which attempt to expand sovereign immunity to municipalities acting in a proprietary capacity and to thereby defeat a cause of action for negligent acts committed in that capacity clearly violates the constitutional limitations of
We reverse the judgment of the trial court and remand for further proceedings.
HENDERSON, J., and McKEEVER, Circuit Judge, concur.
WUEST, C.J., and FOSHEIM, J., dissent.
McKEEVER, Circuit Judge, sitting for SABERS, J., disqualified.
WUEST, Chief Justice (dissenting).
I dissent.
As stated in the majority opinion, the party asserting a statute is unconstitutional bears the burden of proving beyond a reasonable doubt the statute violates the constitution and there is a strong presumption the laws enacted by the legislature are constitutional. The majority cites cases, O‘Rourke (1893), supra; Jensen (1938), supra; and Board of County Commissioners (1928), supra, concerning the difference
In my opinion, such cases do not prove beyond a reasonable doubt that the park immunity statutes are unconstitutional. Nor, does appellant cite any competent authority or reasons to overturn those statutes. Governmental and proprietary functions are judge-made law, and in my opinion the legislature may change them and grant immunity as they have done by enacting the park statutes. Further,
I am authorized to state that Justice FOSHEIM joins in this dissent.