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Unified Judicial System
Paulette Hall and Donald Williams
Plaintiffs and Appellees
v. City of Watertown, by and through the City of Watertown Police Department, and Shane Smith, Individually and in his capacity as Police Officer for the City of Watertown
Defendants and Appellants

[2001 SD 137]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Fifth Judicial Circuit
Codington County, South Dakota
Hon. Ronald K. Roehr, Judge

David R. Gienapp of
Arneson, Issehuth & Gienapp
Madison, South Dakota
Attorneys for plaintiffs and appellees.

Roy A. Wise of
Richardson, Groseclose, Wyly, Wise & Sauck
Aberdeen, South Dakota
Attorneys for defendants and appellants.

Considered on Briefs October 2, 2001
Opinion Filed 11/14/2001

#21851

KONENKAMP, Justice
[¶1.] We granted intermediate appeal to decide whether the statute conferring immunity for injuries caused by escapees and persons resisting arrest overrides the statute waiving immunity to the extent of liability coverage. Although the circuit court prematurely concluded that one statute trumped the other, it reached the right result in finding a waiver of immunity. We affirm.
Background
[¶2.] Officer Shane Smith, a Watertown police officer, spotted someone driving erratically on Highway
20. The officer turned on his flashing lights, but the driver, John Behnke, fled. He drove over a concrete flower pillar onto a grassy area and hit a tree. Officer Smith pulled up beside the temporarily stalled vehicle, which, as it turned out, Behnke had earlier stolen from a used car lot. When the officer got out of his patrol car, Behnke restarted the engine, spun around, and hit the back end of the police vehicle. He turned, drove directly at the officer, and struck the left front door of the patrol car. After this, Behnke headed back onto Highway 20. Officer Smith followed with lights flashing and siren sounding. As the pursuit continued, the vehicles reached speeds of 60 m.p.h. Behnke turned at high speed at an intersection, lost control, went over a curb, and crashed into the residence of Paulette Hall and Donald Williams. Both sustained injuries: Hall, a broken back, and Williams, unspecified lesser injuries.
[¶3.] Hall and Williams sued the City of Watertown, its police department, and Officer Smith. They alleged first, that Officer Smith was negligent and reckless in pursuing Behnke, a juvenile operating a stolen automobile, and second, that the City was negligent in failing properly to supervise and train Officer Smith in correct procedures for apprehending fleeing vehicles. Defendants moved for summary judgment, arguing that SDCL 3-21-9 granted them immunity and constituted a complete defense as a matter of law.
file:///C|/Users/Peter/Desktop/Opinions/758755.htm[5/8/2013 8:14:07 PM] Unified Judicial System
The court upheld immunity under SDCL 3-21-9, but ruled that it was waived under SDCL 21-32A-1. On appeal, defendants contend that statutory immunity afforded in SDCL 3-21-9 is not waived by participation in liability coverage.
Analysis and Decision
[¶ 4.] Sovereign immunity is a legal concept examined de novo, with no deference to the circuit court’s legal reasoning. Cromwell v. Rapid City Police Dep’t., 2001 SD 100, ¶8, 632 NW2d 20, 23.Despite arguments from both sides that the issue before us depends on the relative priority of § 3-21-9contrasted with §§ 21-32A-1 and 21-32A-2, we believe a more elementary question presents itself,namely, whether § 3-21-9 may be properly applied to this fact situation.[1]
[¶ 5.] Immunity is conferred under SDCL 3-21-9:
No person, political subdivision or the state is liable for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release, or for any injury caused by or resulting from: (1) an escaping or escaped prisoner; (2) an escaping or escaped person; (3) a person resisting arrest; (4) a prisoner to any other prisoner; or (5) services or programs administered by or on behalf of the prison, jail or correctional facility.
The circuit court found that Behnke was either “an escaping person

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