Holland v. City of Geddes

2000 SD 71, 610 N.W.2d 816, 2000 S.D. LEXIS 70
CourtSouth Dakota Supreme Court
DecidedMay 31, 2000
DocketNone
StatusPublished
Cited by10 cases

This text of 2000 SD 71 (Holland v. City of Geddes) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Holland v. City of Geddes, 2000 SD 71, 610 N.W.2d 816, 2000 S.D. LEXIS 70 (S.D. 2000).

Opinions

KONENKAMP, Justice

[¶ 1.] The plaintiffs sued the City of Geddes after water seepage damaged their home. In granting summary judgment for the City, the circuit court ruled that the plaintiffs failed to give timely notice of injury as required by law, and that the limitations period was not tolled by a continuing tort. We reverse because the City’s failure to repair its broken valve was a continuing tort suspending the limitations period until the valve was fixed. Thereafter, the notice was timely.

Background

[¶ 2.] Susan and Larry Holland moved to Geddes, South Dakota, in 1990. Two years later, they rented out their home and left to pursue a business venture in Wisconsin. In 1993 they returned. The water service to the house had been turned off after their tenants moved out. When the Hollands were about to move back into their home, they asked the City to turn the water on. While turning the main valve , at the street, a City employee broke it, so that “it kept going in a circle.” After that, the water service could not be turned off. In February 1994, Larry noticed a leak coming from the shutoff valve under the house. To repair it, the main valve at the street had to be-turned off. By March, the leak had become a “steady drip;” and was “getting worse and worse.” From March 1994 to July 1996, the Hollands “complained often” to various City officials about the City’s unrepaired valve, but to no avail. For two years, water accumulated under the corner of the house, leached into the ground, and undermined the foundation, causing the house to settle. The City finally repaired its valve in July 1996.

[¶ 3.] On September 10, 1996, the Hollands gave written notice of injury to the City, pursuant to SDCL 3-21-2. The City denied their claim, and on January 28, 1998, the Hollands commenced suit. On the City’s motion, the circuit court granted summary judgment against the Hollands, deeming their notice untimely. In this appeal, they .'assert the following ■ issues: (1) Did the court err in granting summary judgment to the City based on the failure [818]*818to provide timely notice? (2) Did the court err in deciding that the failure of the City to repair the damaged valve was a single injury and not a continuing tort tolling the statute of limitations? (3) Did the court err in failing to estop the City from asserting the notice defense, based on actual notice and the nature of the injury? For ease of analysis, we examine issues one and two together, and our ruling on those issues makes a decision on issue three unnecessary. Our settled standard of review for summary judgments has been recited in numerous cases and need not be repeated here. See Kobbeman v. Oleson, 1998 SD 20, ¶ 4, 574 N.W.2d 633, 635.

Continuing Tort as Tolling the Statute of Limitations

[¶ 4.] Parties intending to sue a public entity must first give timely written notice of injury. In granting summary judgment, the circuit court ruled that the Hollands did not comply with the 180-day notice requirement in SDCL 3-21-2. This statute provides:

No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

The court found that the injury occurred when the water valve was broken in 1994; afterward, the resultant water leakage damaging the Hollands’ home was only the “ill effect” of the broken valve. As the Hollands gave no written notice to the City until September 10, 1996, more than two and one half years after the valve was broken, their claim was held untimely.

[¶ 5.] A continuing tort suspends the running of the statute of limitations. Alberts v. Giebink, 299 N.W.2d 454, 456 (S.D.1980). The primary rationale for this rule is that when no discrete occurrence in continually wrongful conduct can be singled out as the principal cause of damage, the law regards the cumulative effect as actionable, and allows the limitations period to begin when the wrongful conduct ends. Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 754 (1993). A continuing tort occurs when a wrongful act persists over time. 54 C.J.S. Limitations of Actions § 177 (1987) (footnote omitted). On the other hand, a continual consequence from a solitary unlawful act is not a continuing tort. Brishky v. South Dakota, 479 N.W.2d 489, 492 (1991) (citing Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981)). In Brishky, the suspension of the plaintiffs driver’s license was not a continuing wrong, but an injury from which he suffered a continuing aftereffect. Id.

[¶ 6.] A classic instance of a continuing tort occurs with prolonged or repeated flooding of land. In Holdner v. Columbia County, 51 Or.App. 605, 627 P.2d 4 (1981), a landowner sued for damage caused by water running intermittently from a public road onto the landowner’s property. The landowner saw the damage occurring in 1974 or 1975 and complained to the authorities, but they failed to resolve the problem. When the landowner eventually sued in 1977, the defendant argued that the suit was time-barred by the two-year statute of limitations. The court ruled that the “ongoing negligent conduct” was a continuing tort: “ Where the tort is continuing, the right of action is continuing.... The rule that the statute runs from the last date of the continuous negligent [act] is just and equitable.’” Id. at 8 (omissions in original) (quoting Reynolds Metals Co. v. Yturbide, 258 F.2d 321, 333 (9th Cir.1958)); but cf. Rygg v. United States, 334 F.Supp. 219, 220-21 (D.N.D.1971) (damage to farmland from flooding caused by the government was not continuing tort).

[¶ 7.] A leaking water line was the basis for suit in Handley v. Town of Shinnston, 169 W.Va. 617, 289 S.E.2d 201 (1982). After the Town installed a pipe on the plaintiffs’ property, it began leaking and the plaintiffs complained. The Town negli[819]*819gently failed to repair the leak, and it continued, causing property damage. The Handley court reasoned that when wrongful conduct is continual or repeated, “the cause of action accrues at, and the limitations [period] begin[s] to run from, the date of the last injury, or when the tor-tious overt acts cease.” Id. at 202 (quoting 54 C.J.S. Limitations of Actions § 169 (1948)). Similarly, in Eppling v. Seuntjens, 254 Iowa 396, 117 N.W.2d 820

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Holland v. City of Geddes
2000 SD 71 (South Dakota Supreme Court, 2000)

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Bluebook (online)
2000 SD 71, 610 N.W.2d 816, 2000 S.D. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holland-v-city-of-geddes-sd-2000.