Kringen v. Shea

333 N.W.2d 445, 10 Educ. L. Rep. 1185, 1983 S.D. LEXIS 310

• Court: South Dakota Supreme Court
• Decided: May 4, 1983
• Docket: 13831
• Status: Published

Opinions

DUNN, Justice.

This is an appeal from an order of the trial court dismissing a complaint which alleged certain injuries were the result of negligent acts of omission on the part of the South Dakota State Board of Regents (Board) and one of its employees, Tom Shea (Shea). We affirm in part, reverse in part, and remand.

In April of 1981, Bradley D. Kringen (appellant) was an enrolled student at Dakota State College in Madison, South Dakota. One of appellant’s courses was entitled “Beginning Gymnastics,” which was being taught by Shea. On April 30, 1981, appellant was injured while performing on a trampoline during his gymnastics class. Appellant suffered an injury between the fourth and fifth vertebra of his back which rendered him a quadraplegic. Appellant brought this action against Shea, alleging inter alia failure to supervise, failure to adequately instruct and supervise the utilization of the trampoline, and failure to provide proper safety instructions. Appellant also brought an action against the Board on similar theories. The trial court granted a motion to dismiss, concluding the complaint failed to state a claim upon which relief could be granted and that the complaint was barred under the doctrine of sovereign immunity. The trial court directed that the motion to dismiss be treated as one for summary judgment. Appellant now asks us to review the trial court’s action.

We first must determine whether the action against the Board is barred by the doctrine of sovereign immunity. Appellant contends that SDCL 13-49-11,¹ by giving the Board the power to “sue and be sued,” indicates a legislative intent that the Board not be vested with sovereign immunity. In essence, appellant urges us to recognize the “sue and be sued” statute to be legislative consent to tort liability in actions against the Board. We decline the invitation to so rule.

We need look no further than our recent decision in Guillaume by Guillaume v. Staum, 328 N.W.2d 259 (S.D.1982), to dispose of this issue. There, the appealing party alleged school districts were subject to tort liability as a result of SDCL 13-5-1.² That statute, like the one we review in the case at hand, also contains a “may sue and be sued” clause. In Guillaume, we concluded that: “[I]n the absence of a statute waiving sovereign immunity from tort liability, the ‘may sue and be sued’ provisions of SDCL 13-5-1 do not create a cause of action in tort.” 328 N.W.2d at 261. See also Jerauld County v. St. Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571 (1955).

We choose to adhere to the rationale set forth in Guillaume, and accordingly conclude the “sue and be sued” clause contained in SDCL 13-49-11 does not, in the absence of statutory authority expressly waiving sovereign immunity, create a cause of action in tort against the Board. Thus, that portion of the summary judgment exonerating the Board from liability is affirmed.

Finally, we address the trial court’s conclusion that the doctrine of sovereign immunity protects state employees from suits as long as the employee does not commit “wrongful acts in excess of their official authority.” In granting summary judgment, the trial court primarily relied on High Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736 (S.D.1980). Subsequent to the trial court’s action, this court released several opinions on the subject of sovereign immunity. National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982); Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982). In those cases, we concluded that the issue of whether immunity extends to a state employee depends on the function performed by that employee — discretionary or ministerial. Since the trial court did not have the opportunity to review this cause of action in light of these recent opinions, we reverse that portion of the summary judgment dealing with Shea’s individual liability and remand the case to the trial court for further consideration in light of Kruger and Leir. See Smith v. Greek, 328 N.W.2d 261 (S.D.1982).

The order of the trial court is affirmed in part, reversed in part, and remanded.

WOLLMAN and MORGAN, JJ., concur. HENDERSON, J., concurs specially. FOSHEIM, C.J., concurs in part and dissents in part.

1 . SDCL 13 — 49—11 provides:

The board of regents is, and it and its successors in office shall continue to be a corporation, or body corporate, with power to sue and be sued, to hold and manage, for the purposes for which they were established, any property belonging to the educational institutions under its control, collectively or severally, of which it shall in any manner become possessed.

2 . SDCL 13-5-1 provides:

Any territory heretofore or hereafter organized for the express purpose of operating not less than a twelve-year school program and governed by a duly elected school board is defined to be a school district. It may sue and be sued, contract and be contracted with, purchase, hold, and use personal and real property for school purposes, and sell and dispose of the same.