*1 261 Accordingly Id. at 1132. That is our in holding consistent with Birhanzel is general with previous rule thus stated: consistent our decisions that waiving the absence of a statute sover- have a generally recognized courts eign from immunity liability, tort the “may suit
distinction between from immunity sue provisions and be sued” of SDCL 13- as re- liability, from tort 5-1 do not create a action cause of in tort. gards governmental and its state agencies. Accordingly, gen- the view has is affirmed. erally been taken that a merely statute
granting power to a school district or All Justices other public body educational or be sue
sued affect does not its tort immunity. added,
(Emphasis omitted). footnotes Am.Jur.2d, Municipal, School and State
Tort Liability, 73.
Jerauld County Paul-Mercury v. St. In- 1,
demnity 76 S.D. (1955), is consistent with that rule. Jerauld SMITH, H. James 575, interpreted N.W.2d at what now Appellant, 7-18-1,1 a statute similar to SDCL 13-5-1, permitting counties to sue and be GREEK, Henry Norman sued. We therein said: Appellees. Earl Defendants In maintaining and operating Memorial Hospital, Jerauld County was immune DIFFENBAUGH, Cates, M. Thomas V.E. from liability damages account of oc- Cates, Defendants, and Thelma Third casioned employ- its Party Appellants, Plaintiffs ees or servants. permits SDC 12.1801 county to sue and be sued. This is a suit, waiver of its from but is REYNOLDS CONSTRUCTION not a waiver of its immunity from liabili- COMPANY, Corporation, ty. No statute has been enacted Party Defendant. state depriving a county of its 13747, Nos. 13748. from in this liability regard. (Citations Supreme Court omitted, added). emphasis Conway v. Considered on Briefs Nov. (1966), we reaffirmed general rule adherence to Jerauld language: A distinction be- unquestionably exists
tween sovereign immunity from suit
sovereign immunity liability. from A
consent statute would not create a cause
of action in favor of a None- claimant.
theless, in the absence of en- legislative
actment the state is immune from suit for tort commited an offi-
cer or in the performance his (Citation omitted).
duties.
sued,
organized
plead
1. SDCL
reads:
and be im-
7-18-1
Each
such
sue and be
unorganized county
body corporate
pleaded,
each
is a
court in this state.
political purposes only,
for civil and
and as
*2
Company
highway
Construction
on
reno-
project
Sully County
vation
he was in-
when he
jured
August
that was
by
grain
being
struck
combine
a truck
pulled by
hauled on a trailer
driven
Diffenbaugh
defendant
and owned
Thelma Cates. In ad-
defendants Y.E. and
allegations
negligence
dition to his
of
defendants,
against
plaintiff alleged
these
Greek,
that defendants
Konechne and
Glodt,
respectively,
who were at
engineer,
engineer
the district
resident
engineer, for the
Dakota De-
project
Division
partment
Transportation,
of
of
in that
did
Highways,
negligent
they
were
properly
supervise Reyn-
not
instruct and
Company regarding prop-
olds Construction
safety
precautions,
er
measures and
includ-
ing the erection and maintenance of ade-
quate warning signs
danger sig-
and other
nals,
adequate flagmen
maintenance
devices,
other traffic control
and restric-
two-way
project
tions on
traffic on the
question.
alleges
also
regarding
engineers
failure of the
to
proper safety precautions
insure the
were
protect plaintiff
traveling
taken to
public, including
alleged
failure of these
require Reynolds
defendants to
Construc-
tion
with the
Company
comply
safety
to
contract
provisions of the construction
Department
with the South Dakota
Highways Manual on Uniform Traffic Con-
Highways.
trol Devices
for Streets
Mumford,
Pardy
Pardy,
T.R.
Protsch &
Howard,
plaintiff
appellant.
for
Thereafter, defendants Konechne and
complaint
third-party
against
Glodt filed a
Quist,
Gen.,
Atty.
Carl W.
Asst.
Mark V.
Reynolds
Company,
Construction
as did de
Gen.,
Meierhenry, Atty.
Robert D. Hofer of
Diffenbaugh
Defend
fendants
and Cates.
Riter,
Riter, Pierre,
Mayer, Hofer &
for
Greek, Konechne,
ants
and Glodt moved for
appellee.
defendant and
summary judgment on the basis
doc
Adam,
David A.
of May,
Gerdes
Gerdes &
of sovereign immunity.
party
trine
Pierre,
defendants,
Thompson,
third
Reynolds
Company
defendant
Construction
party plaintiffs
appellants.
summary judgment
moved for
on the
ground that its
of workers’ com
payment
WOLLMAN,Justice.
benefits to
barred
pensation
plaintiff
This
an appeal
partial summary
from a
third-party action for contribution.
judgment entered in
certain of
behalf of
granted summary judgment
trial court
the defendants. We reverse and remand.
Greek,
favor of defendants
Konechne and
Glodt,
complaint alleges
Plaintiff’s
that while in
denied
his employment
Reynolds Reynolds
Company.*
course of
Construction
*
pursuant
15-6-54(b)
express
We note that
trial court made an
determination that
Conway,
granting summary judgment
to de-
criticism.
S.D.
[v.
524],
Greek,
supra;
145 N.W.2d
Jerauld
fendants
County
Paul-Mercury Indemnity
relied
our deci-
primarily
upon
trial court
Saint
Sommer,
Co.,
High
sion in
Grade Oil
Inc. v.
(S.D.1980). High
Grade Oil
majority
follows our decisions in Sioux
represent
not
word on the
Co. does
last
Falls,
Falls
City
Const. Co.
Sioux
*3
sovereign
however,
subject
immunity,
(S.D.1980);
Wilson,
Kruger
N.W.2d 454
v.
held that
recently
we
whether
(S.D.1982);
DUNN and
HENDERSON, J., concurs in result. Dakota, FOSHEIM, C.J., dissents. STATE of South Appellee, HENDERSON, in re- (concurring Justice sult). FORD, Terry Lee Defendant join I am reluctant wholeheartedly Appellant. opinion expressly approved. as Leir is Leir, Thus, disqualify myself. I chose to No. at this I do not wish to of a approve Supreme Court of South decision I disqualified myself. wherein 26, 1982. April on Briefs Submitted
Hence, I concur in result only. 28, 1982. FOSHEIM, (dissenting). Chief Justice
Only Legislature has power what,
responsibility “direct law
manner and in what courts suits be
brought against the state.” art. S.D. Const. Birhanzel, In Merrill v. (S.D.1981), we said: consistently
We have held that if there departure
is to be a from the
rule, policy must declared and the be legisla- fixed
extent of
ture. Arms v. Minnehaha County, We ad- although recognize
here to this rule we subjected
that it has been to considerable review, just delay in. that we concur there was no reason for and that the a determination judgment purposes appellate was final for