The SD Supreme Court handed down two decisions this morning:
1) Guardianship dispute;
2) Dismissal of Wrongful Death action reversed;
3) City and Volunteer Fire Department immunized as to tort
claim
Summaries follows:
MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF ADAM, 2021
S.D. 54: The underlying dispute in this
matter is detailed; however the issue as presented and resolved on appeal is
relatively straight forward, as set forth in opening paragraph of the Opinion:
[¶1.] In
this guardianship and conservatorship action, the conservator filed a motion
for approval of a settlement agreement reached in a separate civil action brought by the conservator against the
protected person’s son and daughter-in-law.
Three of the protected person’s other children objected to the motion
and requested that they be allowed to
present live testimony at the hearing on the conservator’s motion. The circuit court denied the request
but continued the hearing to allow the
children to submit affidavits and briefs. After the hearing, the court
granted the conservator’s motion for
approval of the settlement. The objecting children appeal, asserting the circuit court erred in denying
an evidentiary hearing and in approving
the settlement agreement. We affirm.
This decision also rejects a request for appellate attorney
fees by the son and daughter-in-law in the amount of $10,933.29 because “the [underlying dispute and] settlement agreement exists solely
because of their alleged improper conduct in
their relationship with [the protected person]” and “their participation in this appeal was not necessary to defend
the settlement.”
This decision is unanimous (5-0), with opinion by Justice
DeVaney. Circuit Judge Sogn sat on this case in lieu of Chief Justice Jensen.
SHEARD v. HATTUM, 2021 S.D. 55: As explained in ¶1. of the Court’s opinion, “Chalan Hedman and Troy Hattum lost their lives after an
explosion and fire at the Hattum Family Farms. Chalan’s estate (the Estate)
brought a wrongful death suit against the Hattum Family Farms and individual
members of the Hattum family, seeking damages on strict liability and
negligence theories.”
The
trial court sustained the Defendants’ Motion for Summary Judgment, dismissing
all claims. The SD Supreme Court
reversed and remanded, holding:
[¶44.] We
affirm the circuit court’s dismissal of the negligence claim against the
Hattums. We reverse and remand the circuit court’s dismissal of the strict
liability claim, concluding that genuine issues of material fact exist as to whether
Troy was acting in the scope of his employment when he welded the tank and
whether Chalan assumed the risk. We also leave open the legal question of
whether welding a diesel fuel tank is an abnormally dangerous activity.
This ruling is unanimous (5-0), with opinion authored by Chief
Justice Jensen. Circuit Judge Magera sat
on this case, in lieu of Justice DeVaney.
TAMMEN AND JURGENS v. TRONVOLD, 2021 S.D. 56: This is an
action for damages by a motorcyclist and passenger who were injured as a result
of a collision with a volunteer member of the Pierre Volunteer Fire Department
(PVFD), at which time the member was traveling “to a routine PVFD
meeting.” Both plaintiffs suffered
life-threatening injuries and were required to have their left legs amputated
above their knees. The trial court
granted summary judgment to both the City of Pierre and the PVFD on the basis
that the tortfeasor was not “acting with the scope
of his employment when he collided with Plaintiff’s motorcycle.” The SD
Supreme Court affirmed, stating:
[¶36.]
Based on our review of the facts in the light most favorable to Plaintiffs, we
affirm the circuit court’s determination that Plaintiffs failed to raise
genuine issues of material fact regarding whether Tronvold was acting within
the scope of his employment or agency. This is because, even if Tronvold is an
agent or employee, his ordinary commute to the PVFD meeting placed him squarely
within the going and coming rule, precluding liability under the doctrine of
respondeat superior.
This ruling is unanimous.
This case was argued on October 5, 2020, at which time Retired Chief
Justice Gilbertson was on the Court and accordingly his vote, not Justice
Myren’s, is included in the 5-0 endorsement of the Court’s opinion which is
authored by Justice Kern.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
