The
SD Supreme Court handed down one decision this morning, holding inter alia:
- abuse of vulnerable adult cause of action
does not survive death
HERMANEK-PECK
v. SPRY, 2022 S.D. 60: This decision addresses important issues relating to
civil remedies available for the abuse of a vulnerable adult – more
specifically in this case, the remedy (if any) available to the estate of a
deceased vulnerable adult. The
underlying action was filed by the estate of the deceased vulnerable adult
in SD state court. Defendants removed the case to federal court on the basis of
diversity of citizenship. Next, the
federal district court, Honorable Lawrence L Piersol, certified three questions
to the SD Supreme Court. This decision
answers those questions. The opening
paragraph of the opinion summarizes the three questions and the Court’s answers,
as follows:
[¶1.] In this case, we
consider three certified questions from the United States District Court for
the District of South Dakota,1 all relating to rights and remedies available to
the estate of a vulnerable adult for conduct alleged to have been committed
during the vulnerable adult’s life. In essence, the questions ask whether SDCL
chapter 21-65 creates a private right of action that survives a vulnerable
adult’s death and whether a criminal conviction for theft by exploitation is
required for a cause of action under SDCL 22-46-13. We answer the questions by
holding that the right to commence an action under chapter 21-65 does not
survive the death of the vulnerable adult, though the ability to seek relief in
a separate action when there has been financial exploitation may still be
available after death. We further conclude that a predicate theft conviction is
not required to maintain an action authorized under SDCL 22-46-13.
The
Court’s decision is unanimous (5-0), with opinion authored by Justice
Salter.
This
decision may be accessed at
