Preview:

David Brown Eyes a/k/a
David Brown Eyes Hostrawer and
Jonette Brown Eyes a/k/a Jonette Burndine

Plaintiffs and Appellants
v.
South Dakota Department of Social Services et al

Defendants and Appellees

[2001 SD 81]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Seventh Judicial Circuit
Pennington County, South Dakota
Hon. Thomas L. Trimble, Judge

Rena M Atchison of
Langley-Atchison Law Office
Rapid City, South Dakota
Attorneys for plaintiffs and appellants

J. Crisman Palmer and
Sarah Hirsch Wittmuss
Gunderson, Palmer, Goodsell & Nelson
Rapid City, South Dakota
Attorneys for defendants and appellees

Considered on Briefs March 19, 2001
Opinion Filed 6/27/2001

#21668

GORS, Circuit Judge
[¶1.] David and Jonette Brown Eyes (Plaintiffs) appeal a summary judgment in favor of the Department of Social Services (Department), Department Secretary James Ellenbecker (Ellenbecker), Department District Manager Dennis Bendt (Bendt) and Social Workers Linda Anderson (Anderson), Beverly Lafferty (Lafferty) and JoAnna Mitchell (Mitchell). We affirm.
FACTS
[¶2.] S.V., born in 1990, and T.V., born in 1991, were Indian children affiliated with the Ogalala Sioux Tribe. Mother was killed in a car accident and Father was in prison for an unrelated crime against Mother. The children were adjudicated abused or neglected with the final order terminating parental rights entered on April 4, 1995. Father appealed. More than a year later, on April 26, 1996, the Department placed S.V. and T.V. in foster care for eventual adoption by Plaintiffs in Aurora, Colorado. Four days later, on April 30, 1996, this Court remanded the appeal to the juvenile court to hold an evidentiary hearing to consider whether the tribal court had exclusive jurisdiction or whether concurrent state and tribal jurisdiction existed. Plaintiffs learned of the jurisdiction problem on June 4-5, 1996, when they attended the juvenile court hearing on remand. On June 14, 1996, the juvenile court determined that the tribal court had exclusive jurisdiction. The children were removed from Plaintiffs’ home in late July 1996. The children had been in Plaintiffs’ home for about three months when they were removed.
[¶3.] In June 1997, Plaintiffs sued Department, Ellenbecker, Bendt, Anderson, Lafferty and Mitchell for negligence, reckless and negligent performance of their duties and reckless and negligent misrepresentation. The complaint was later amended to allege bad faith and intentional misrepresentation. Plaintiffs sought reimbursement for actual expenses in excess of $31,000 and for unspecified damages for emotional distress, anxiety and harm.
[¶ 4.] The Department and the named individuals moved for summary judgment, which the trial court granted, based on immunity of the defendants and no breach of contract.
STANDARD OF REVIEW
[¶ 5.] The standard of review of a summary judgment is whether there is any genuine issue of material fact and whether the movant is entitled to judgment as a matter of law. The evidence is viewed most favorably to the nonmoving party and reasonable doubts are resolved against the moving party. The nonmoving party must present specific facts which show that a genuine, material issue for trial exists. On appeal, we determine only whether a genuine issue of material fact exists and whether the law was applied correctly. If there is any basis which supports the ruling of the trial court, we affirm. Casazza v. State, 2000 SD 120,¶8, 616 NW2d 872, 874 (quoting Dakota Cheese, Inc. v. Ford, 1999 SD 147, ¶15, 603 NW2d 73, 76). Summary judgment should be granted if the pleadings, depositions, interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact and show that the moving party isentitled to judgment as a matter of law. Julson v. Federated Mut. Ins. Co., 1997 SD 43, ¶5, 562 NW2d117, 119 (quoting Ford v. Moore, 1996 SD 112, ¶7, 552 NW2d 850, 852); SDCL 15-6-56(c). Finally, summary judgment will only be affirmed if there are no genuine issues of material fact and the legal questions have been decided correctly. Ford, 1996 SD 112 at ¶7, 552 NW2d at 852; Bego v. Gordon, 407 NW2d 801, 804 (SD 1987).
[¶ 6.] Sovereign immunity is a question of law and review of the issue is de novo . Hansen v. South Dakota Dept. of Transp., 1998 SD 109, ¶7, 584 NW2d 881, 883. Summary judgment is appropriate for sovereign immunity claims. Casazza, 2000 SD 120 at ¶8, 616 NW2d at 874.
Tort Claims
Sovereign Immunity
South Dakota Department of Social Services
[¶7.] The State of South Dakota has sovereign immunity from suit. SD Const art III, §27; Wilson v. Hogan, 473 NW2d 492, 494 (SD 1991). The Department of Social Services is an entity of the State. SDConst art IV, §9; SDCL 1-32-2(3); 1-36; and 28-1-1. The State may waive sovereign immunity and consent to be sued. Hansen, 1998 SD 109 at ¶¶9-12, 584 NW2d at 883-84. Sovereign immunity may be waived by purchasing liability insurance or by risk-sharing under SDCL 21-32-16 or 21-32A-2. The State has not consented to be sued, purchased liability insurance or chosen to be covered by risk-sharing. Therefore, the State has not waived sovereign immunity in this case. The Department was properly granted summary judgment on Plaintiffs’ tort claims based on sovereign immunity. Wilson, 473 NW2d at 494.
Secretary Ellenbecker and District Manager Bendt
[¶8.] A state employee acting within the scope of the employee’s duty may also be immune from suit. “[T]he governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state’s consent.

Download 814811.pdf

South Dakota Law