#25657-rev & rem-JKK

2010 S.D. 96

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                 * * * *

MICHELLE SALZER,                            Plaintiff and Appellant,

v.

WILLIAM BARFF,                              Defendant and Appellee.

                                 * * * *

                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                    MEADE COUNTY, SOUTH DAKOTA

                                 * * * *

                       HONORABLE JOHN W. BASTIAN
                                Judge

                                 * * * *

DAVID L. CLAGGETT                           Attorney for plaintiff
Spearfish, South Dakota                     and appellant.

THOMAS E. BRADY of
Brady & Pluimer, PC                         Attorneys for defendant
Spearfish, South Dakota                     and appellee.

                                 * * * *
                                           CONSIDERED ON BRIEFS
                                           ON NOVEMBER 15, 2010

                                           OPINION FILED 12/15/10
#25657

KONENKAMP, Justice

[¶1.]        In responding to an emergency call, a police officer ran a red light and

struck plaintiff’s vehicle. Plaintiff brought suit against the officer for negligence.

Granting summary judgment for the officer, the circuit court ruled that the

limitation period expired under SDCL 9-24-5, which requires a negligence action

against a “municipality” to be brought within two years. The court concluded that

although the statute makes no mention of municipal employees, the term

“municipality” includes employees. Because the plain language of the limitations

statute does not include employees within its purview, we reverse and remand.

                                     Background

[¶2.]        This case was decided on summary judgment, and therefore, we view

the facts in a light most favorable to Plaintiff Michelle Salzer, the non-moving

party. On July 30, 2006, Salzer was traveling west on Lazelle Street in Sturgis,

South Dakota. William Barff, a Sturgis police officer, was driving his police vehicle,

responding to an emergency grass fire call. His siren was not activated. Barff drove

through a red light and struck Salzer’s vehicle. She was injured as a result.

[¶3.]        Almost three years later, on July 28, 2009, Salzer brought suit against

the City of Sturgis and Barff. The city was later dismissed by stipulation. Barff

moved for summary judgment arguing that Salzer’s suit against him was untimely

under SDCL 9-24-5. This statute requires that “[a]ny action for recovery of

damages for personal injury or death caused by the negligence of a municipality” be

commenced within two years. Id. Although Salzer’s claim was against Barff

personally, he argued that SDCL 9-24-5 applied because a municipality can only act

                                           -1-
#25657

through its employees. Salzer, on the other hand, contended that unlike cases in

which a municipality, albeit through its employees, is negligent, her action against

Barff is unrelated to his municipal employee status. She maintained that under

SDCL 15-2-14(3), she had three years to bring a claim for personal injury against

Barff. The circuit court granted summary judgment to Barff, holding that Salzer’s

claim was subject to the limitation period in SDCL 9-24-5. On appeal, we review

questions of statutory construction de novo. Perdue, Inc. v. Rounds, 2010 S.D. 38, ¶

7 n.2, 782 N.W.2d 375, 377 n.2 (citations omitted).

                              Analysis and Decision

[¶4.]        Relying on our rules of statutory construction, Salzer maintains that

SDCL 9-24-5 is clear and unambiguous: giving the words their plain meaning and

effect, “municipality” does not include municipal employees. Barff, on the other

hand, avers that if SDCL 9-24-5 is to have any effect, it must encompass municipal

employees, “as every claim for personal injury or property damage has to be based

on the allegedly negligent act or omission of one or more individuals.”

[¶5.]        When the language of a statute is clear and unambiguous, our

interpretation is confined to declaring the meaning as plainly expressed. Perdue,

2010 S.D. 38, ¶ 7 n.2, 782 N.W.2d at 377 n.2 (citations omitted). “The legislative

intent is determined from what the [L]egislature said, rather than from what we or

others think it should have said.” Petition of Famous Brands, Inc., 347 N.W.2d 882,

885 (S.D. 1984) (citation omitted). We have no cause to invoke the canons of

construction where the language of a statute is clear. Id.




                                         -2-
#25657

[¶6.]        Here, SDCL 9-24-5 provides:

             Any action for recovery of damages for personal injury or death
             caused by the negligence of a municipality must be commenced
             within two years from the occurrence of the accident causing the
             injury or death.

(Emphasis added.) The Legislature defines “municipality” as “all cities and towns

organized under the laws of this state[.]” SDCL 9-1-1(6) (defining words used in

Title 9). On the face of the statute, the words are plain: an action against a city or

town for negligence must be commenced within two years. There appears to be no

ambiguity. In cases of doubt over the meaning of a statute, we have said that “the

cardinal purpose of statutory construction — ascertaining legislative intent —

ought not be limited to simply reading a statute’s bare language” and in some cases

a literal interpretation of a statute can lead to an absurd and unreasonable

conclusion. State v. Davis, 1999 S.D. 98, ¶ 7, 598 N.W.2d 535, 537 (citation

omitted). Even if we thought SDCL 9-24-5 was unclear, an examination of other

related enactments only confirms our Legislature’s declared intent.

[¶7.]        In 1986, the Legislature repealed four of the six statutes in SDCL

Chapter 9-24. See 1986 S.D. Sess. Laws ch. 4, § 8. The repealed statutes dealt with

certain notice requirements for actions against municipalities. In the same

legislative session, SDCL Chapter 3-21 was enacted. See 1986 S.D. Sess. Laws ch.

4, § 2. That chapter relates to the same notice requirements of SDCL 9-24-2

through SDCL 9-24-4. Yet SDCL Chapter 3-21 is broader. It applies to any “public




                                          -3-
#25657

entity” and specifically includes employees of those public entities.* SDCL 3-21-2.

Nonetheless, SDCL 9-24-5 was not amended to include municipal employees.

[¶8.]         Considering this legislative history, especially the inclusion of

employees with public entities in SDCL Chapter 3-21, and the omission of

employees with municipalities in SDCL Chapter 9-24, interpreting “municipality” in

SDCL 9-24-5 to exclude municipal employees within its purview is not an

unreasonable conclusion. The reasonableness of this conclusion is supported by the

fact that two appellate courts, faced with interpreting similar statutory language,

decided the same way. See Schear v. City of Highland Park, 244 N.E.2d 72 (Ill. Ct.

App. 1968) (interpreting now-repealed 85 Ill. Rev. Stat. § 8-101 (1965)); Bosteder v.

City of Renton, 117 P.3d 316 (Wash. 2005) (interpreting now-amended RCWA

4.96.020).

[¶9.]         Before 1986, Illinois applied, among other things, a general statute of

limitations to claims against government employees in their individual capacities

because the Illinois Tort Immunity Act limited actions only “against a local

entity[.]” See Racich v. Anderson, 608 N.E.2d 972, 974 (Ill. Ct. App. 1993). Section



*       SDCL 3-21-2 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. Nothing in this chapter tolls
              or extends any applicable limitation on the time for commencing an
              action.

        (Emphasis added.)

                                           -4-
#25657

8-101, however, was amended in 1986, adding “or any of its employees” and

changing the statute of limitations from two years to one year. Id. After its

amendment, the statute was interpreted to preclude actions against government

employees in their individual capacities unless brought within the one-year statute

of limitations. Id.; Herriott v. Powers, 603 N.E.2d 654, 657 (Ill. Ct. App. 1992); see

also Sperandeo v. Zavitz, 850 N.E.2d 394 (Ill. Ct. App. 2006).

[¶10.]       In Washington, former Washington Revised Code section 4.96.020 did

not specifically include employees, and therefore, the Washington Supreme Court

ruled that the statute did not apply to claims against individual government

employees. See Wright v. Terrell, 170 P.3d 570, 571 (Wash. 2007); Bosteder v. City

of Renton, 117 P.3d 316, 335-36 (Wash. 2005) (Sanders, J., writing for the majority).

Afterwards, however, Washington amended RCWA 4.96.020 “to apply to claims for

damages against all local governmental entities and their officers, employees, or

volunteers, acting in such capacity[.]” See RCWA 4.96.020(1) (2006).

[¶11.]       A review of other cases addressing claims against employees in their

individual capacities reveals that many jurisdictions, if not the majority, specifically

include government employees in the limitations periods applicable to government

entities. See Ariz. Rev. Stat. Ann. § 12-821; West. Ann. Cal. Gov. Code § 950.6(b);

Fla. Stat. § 768.28; Idaho Code Ann. § 6-911; 745 ILCS 10/8-101 (Illinois); Iowa

Code § 669.2-669.13; 14 Me. Rev. Stat. § 8110; Miss. Code Ann. § 11-46-11(1); Neb.

Rev. Stat. § 81-8,210(4); N.Y. Gen. Mun. Law § 50; N.D. Cent. Code § 32-12.1-04;

Or. Rev. Stat. § 30.275(9) (notice statute); Rev. Code. Wash. Ann. § 4.96.020; Wyo.

Stat. Ann. § 1-39-114. Unlike these other states, South Dakota chose not to include


                                          -5-
#25657

employees within SDCL 9-24-5. Nor was the term “municipality” defined in Title 9

to include municipal employees. And it did not amend SDCL 9-24-5 when it

specifically included employees along with public entities in enacting SDCL

Chapter 3-21.

[¶12.]       Our task is limited to deciding whether Salzer’s suit against Barff is

controlled by SDCL 9-24-5. After the city was dismissed, all that remained was a

suit alleging Barff’s failure to obey the rules of the road, a duty one automobile

driver owes to another. Under the plain language of the statute, the mere fact that

Barff’s allegedly negligent acts occurred during the scope of his employment does

not include him within the term “municipality” in SDCL 9-24-5. We have often said

that it is beyond our role to supply omitted language to “avoid or produce a

particular result.” Matter of Sales Tax Refund Applications of Black Hills Power

and Light Co., 298 N.W.2d 799, 802 (S.D. 1980); see also Stover v. Critchfield, 510

N.W.2d 681, 686 (S.D. 1994). Today, we adhere to that principle.

[¶13.]       Reversed and remanded.

[¶14.]       GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY and

SEVERSON, Justices, concur.




                                          -6-
