#26589-aff in pt, rev in pt & rem-JKK
2014 S.D. 30

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA
                                        ****

AREYMAN E. GABRIEL,                            Plaintiff and Appellant,

      v.

TIM J. BAUMAN, CHESTER RURAL
FIRE PROTECTION DISTRICT,
and CHESTER FIRE DEPARTMENT,                   Defendants and Appellees.

                                 ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                      LAKE COUNTY, SOUTH DAKOTA
                                ****
                      THE HONORABLE TIM D. TUCKER
                                Judge
                                        ****

PETER J. BENDORF
Sioux Falls, South Dakota
      and
GARY W. SCHUMACHER of
Wilkinson & Wilkinson
De Smet, South Dakota                          Attorneys for plaintiff
                                               and appellant.

LISA M. PROSTROLLO
MICHAEL L. LUCE of
Murphy, Goldammer & Prendergast, LLP
Sioux Falls, South Dakota                      Attorneys for defendant
                                               and appellee Tim J. Bauman.

MICHAEL J. SCHAFFER
PAUL H. LINDE of
Schaffer Law Office, Prof., LLC
Sioux Falls, South Dakota                      Attorneys for defendants and
                                               appellees Chester Rural Fire
                                               Protection District & Chester
                                               Fire Department.
                                        ****
                                               ARGUED ON OCTOBER 2, 2013
                                               OPINION FILED 05/21/14
#26589

KONENKAMP, Justice

[¶1.]        Responding to an emergency, a volunteer firefighter speeding on his

way to the fire station struck a vehicle crossing an intersection, injuring the

plaintiff and his passenger. In the suit against the firefighter and his local fire

district, plaintiff alleged that the firefighter’s conduct was willful, wanton, and

reckless and that the fire department negligently trained the firefighter and

inadequately equipped the firefighter’s vehicle. The circuit court dismissed the suit

on summary judgment, ruling as a matter of law that there was insufficient

evidence the firefighter and fire district acted willfully, wantonly, or recklessly

under SDCL 20-9-4.1.

                                     Background

[¶2.]        Tim Bauman is a volunteer firefighter for the Chester Fire

Department in the Chester Rural Fire Protection District. On the 4th of July in

2007, Bauman and his wife, Cheryl, were at a celebration in Wentworth, South

Dakota. Cheryl is a volunteer first responder and an EMT. While at the

celebration, Bauman received a page from Chester Fire directing him to respond to

a fire. They left the celebration in Bauman’s personal pickup. He activated his

hazard lights and sped toward the fire hall. When Bauman was traveling south on

Lake County Road 15, he came over a hill and saw a north-bound vehicle positioned

to make a left turn where the road intersected with Horizon Heights Road. Cheryl

also saw the vehicle and said, “Oh, no, don’t go, don’t go,” and then, “Oh, thank God,

they’re not going to go.” But the driver, Areyman Gabriel, then proceeded into the

intersection. Bauman later explained that although he slowed his vehicle near the


                                           -1-
#26589

intersection, at which he had the right of way, Gabriel’s north-bound vehicle turned

directly in front of him. Bauman slammed on his brakes, but could not avoid the

collision. Both Gabriel and his passenger, Mandi Gronseth, were injured.

[¶3.]        Gronseth brought suit against Bauman and Chester Fire in the United

States District Court for the District of South Dakota. She alleged that Bauman

was negligent, which negligence proximately caused her injuries. She further

claimed that Chester Fire was vicariously liable for Bauman’s negligence under the

doctrine of respondeat superior. Gronseth later dismissed her claim against

Bauman. Chester Fire moved for summary judgment asserting that Bauman was

immune from liability under SDCL 20-9-4.1, which immunity extended to Chester

Fire. The statute, known as the “Good Samaritan statute,” provided at the time:

             No peace officer, conservation officer, member of any fire
             department, police department and their first aid, rescue or
             emergency squad, or any citizen acting as such as a volunteer, or
             any other person is liable for any civil damages as a result of
             their acts of commission or omission arising out of and in the
             course of their rendering in good faith, any emergency care and
             services during an emergency which is in their judgment
             indicated and necessary at the time. Such relief from liability
             for civil damages shall extend to the operation of any motor
             vehicle in connection with any such care or services.

             Nothing in this section grants any such relief to any person
             causing any damage by his willful, wanton or reckless act of
             commission or omission.

Id.

[¶4.]        Before ruling on Chester Fire’s motion for summary judgment, the

federal district court recognized that this Court had not yet interpreted SDCL 20-9-

4.1. Therefore, the district court certified the following question to the South

Dakota Supreme Court:

                                          -2-
#26589

             The Defendant driver was driving his own vehicle to the fire hall
             from which the firemen would then drive an emergency vehicle
             to the scene of the fire. Is the driving to the fire hall “any
             emergency care or services during an emergency. . . .” so that
             SDCL 20-9-4.1 would preclude liability to Plaintiff passenger
             unless Plaintiff showed the causing of “any damage by
             [Defendant’s] willful, wanton or reckless act of commission or
             omission”?

In re Certification of a Question of Law, 2010 S.D. 16, ¶ 6, 779 N.W.2d 158, 161

(alteration in original). We answered:

             [T]he act of this volunteer fire fighter driving to the fire hall in a
             personal vehicle in response to an emergency fire call is included
             within the language “any emergency care and services,” so that
             SDCL 20-9-4.1 would preclude liability unless Gronseth shows
             that Bauman’s conduct was “willful, wanton or reckless[.]”

Id. ¶ 16.

[¶5.]        While Gronseth’s federal suit was pending, Gabriel brought suit in

state court against Bauman and Chester Fire. He, like Gronseth, alleged that

Bauman was negligent and Chester Fire was vicariously liable for Bauman’s

negligence. Gabriel further alleged that Chester Fire negligently trained Bauman

and failed to equip his vehicle appropriately. After this Court’s decision in

Certification of a Question of Law, 2010 S.D. 16, 779 N.W.2d 158, Gabriel amended

his complaint to allege that Bauman’s conduct was willful, wanton, or reckless. He

then reasserted that Chester Fire was vicariously liable for Bauman’s negligence

and that Chester Fire negligently trained Bauman and inadequately equipped

Bauman’s vehicle, which conduct proximately caused injury to Gabriel.

[¶6.]        Bauman and Chester Fire moved for summary judgment on the ground

that Bauman’s conduct was not willful, wanton, or reckless as a matter of law.

During the hearing, Bauman and Chester Fire directed the circuit court to cases

                                           -3-
#26589

interpreting the phrase “willful and wanton misconduct” from our long-repealed

guest statute. See, e.g., Melby v. Anderson, 64 S.D. 249, 266 N.W. 135 (1936) (citing

our former guest statute, which has been repealed by 1978 S.D. Sess. Laws ch. 240,

§ 1). Relying on these cases, Bauman and Chester Fire insisted that Gabriel must

prove that Bauman consciously realized that by speeding in response to an

emergency he would in all probability collide with Gabriel’s vehicle. Chester Fire

further asserted that SDCL 20-9-4.1 extended immunity to Chester Fire against

Gabriel’s negligent training and equipment claims.

[¶7.]        At the conclusion of the hearing, the circuit court orally granted

Bauman and Chester Fire summary judgment. It ruled that “[t]here was nothing

beyond the speed of Mr. Bauman that was a factor in this accident from his

conduct[,]” and based on the law, “speed alone is insufficient.” The court further

ruled that “the training and equipment issue[s]” with Chester Fire “were not willful,

wanton, or reckless” as a matter of law.

[¶8.]        In this appeal, Gabriel asserts that the circuit court erred when it

granted summary judgment to Bauman because (1) the cases interpreting the

repealed guest statute are not controlling, (2) speed alone may constitute willful,

wanton, or reckless conduct, and (3) there are additional circumstances beyond

Bauman’s speed to support a finding that Bauman acted willfully, wantonly, or

recklessly. Gabriel also asserts that the court erred when it granted summary

judgment to Chester Fire because Chester Fire’s administrative decisions related to




                                           -4-
#26589

training and equipment do not meet the “during an emergency” requirement of

SDCL 20-9-4.1. 1

                               Analysis and Decision

[¶9.]         Gabriel maintains that the circuit court erroneously relied on South

Dakota’s repealed guest statute to rule as a matter of law that Bauman did not act

willfully, wantonly, or recklessly. See SDCL 32-34-1 (repealed by 1978 S.D. Sess.

Laws ch. 240, § 1). Under that statute, a passenger in a vehicle could not recover

damages from the vehicle owner or operator for negligence unless there was “willful

and wanton misconduct of the owner or operator” and that misconduct contributed

to the guest’s injury. Id. Emphasizing the absence of the word “reckless” and

highlighting that the guest statute used the conjunctive “and,” Gabriel argues that

“willful and wanton misconduct” cannot invoke the same statutory standard as a

“willful, wanton, or reckless act of commission or omission[.]” Moreover, he argues

that there is no support for the court’s declaration that speed alone can never rise to

the level of willful, wanton, or reckless conduct. Finally, Gabriel contends that he

presented sufficient evidence in addition to Bauman’s speed to establish that there




1.      Summary judgment is proper “if the pleadings, depositions, answers to
        interrogatories, and admissions on file, together with the affidavits, if any,
        show that there is no genuine issue as to any material fact, and that the
        moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c).
        We view the evidence in a light most favorable to the nonmoving party.
        Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567,
        569 (S.D. 1994) (citation omitted). “Statutory interpretation is a question of
        law reviewed de novo.” In re B.Y. Dev., Inc., 2010 S.D. 57, ¶ 7, 785 N.W.2d
        296, 299 (citation omitted).

                                           -5-
#26589

is an issue of material fact in dispute on whether Bauman’s conduct was willful,

wanton, or reckless.

[¶10.]       In granting Bauman and Chester Fire summary judgment, the circuit

court did not identify what standard it used under SDCL 20-9-4.1 or what language

it found persuasive from our cases interpreting the repealed guest statute.

Nonetheless, at the close of the hearing, the court ruled:

             The court does find as a matter of law that Mr. Bauman’s
             conduct was not willful, wanton, or reckless as defined by
             statute. That there’s not a material fact in issue relating to that
             decision.

             The court finds that under the cases previously determined by
             the Supreme Court, speed alone is insufficient. There was
             nothing beyond the speed of Mr. Bauman that was a factor in
             this accident from his conduct.

Bauman and Chester Fire assert that although the guest statute has been repealed,

this “Court’s directives regarding the meaning of willful, wanton, or reckless

misconduct remain authoritative[.]”

[¶11.]       We have not before interpreted what is meant by the language “willful,

wanton, or reckless act of commission or omission” under SDCL 20-9-4.1. But we

have defined “willful and wanton misconduct” in the context of our repealed guest

statute, see Melby, 64 S.D. 249, 266 N.W. at 137 (adopting the definition), “willful

misconduct” in the context of our workers’ compensation statutes, see Holscher v.

Valley Queen Cheese Factory, 2006 S.D. 35, ¶ 48, 713 N.W.2d 555, 567-68, “willful

and wanton misconduct” in the context of certain criminal statutes, see State v.

Seidschlaw, 304 N.W.2d 102, 105-06 (S.D. 1981), willful, wanton, or malicious in the

context of punitive damages, see Berry v. Risdall, 1998 S.D. 18, ¶ 33, 576 N.W.2d 1,


                                          -6-
#26589

9, and “reckless” in the context of release agreements, see Holzer v. Dakota

Speedway, Inc., 2000 S.D. 65, ¶ 17, 610 N.W.2d 787, 793. In these cases, we have

consistently declared that willful, wanton, and reckless conduct “partakes to some

appreciable extent, though not entirely, of the nature of a deliberate and intentional

wrong.” Melby, 64 S.D. 249, 266 N.W. at 137; see Holscher, 2006 S.D. 35, ¶ 48 n.2,

713 N.W.2d at 568 n.2; Berry, 1998 S.D. 18, ¶ 35, 576 N.W.2d at 9. “‘Conduct is

gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious

realization that injury is a probable, as distinguished from a possible (ordinary

negligence), result of such conduct.’” Holzer, 2000 S.D. 65, ¶ 17, 610 N.W.2d at 793

(quoting Lee v. Beauchene, 337 N.W.2d 827, 828 (S.D. 1983)); see Melby, 64 S.D. 249,

266 N.W. at 137. We have also said that a defendant must have “an affirmatively

reckless state of mind.” Allen v. McLain, 74 S.D. 646, 649, 58 N.W.2d 232, 234

(1953) (emphasis added); Espeland v. Green, 74 S.D. 484, 489, 54 N.W.2d 465, 467

(1952).

[¶12.]         Gabriel does not challenge these definitions. Rather, he contends that

the Legislature meant something different in SDCL 20-9-4.1 by using the word

“reckless” and the disjunctive “or.” But the prevailing view among courts defining

these terms is that “willful,” “wanton,” and “reckless” most commonly mean the

same thing. 2 In essence, most authorities recognize that all three terms signify an



2.       See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34, at
         212-14 (5th ed. 1984); see also Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57,
         127 S. Ct. 2201, 2208-09, 167 L. Ed. 2d 1045 (2007) (Fair Credit Reporting
         Act); Catheline v. Seaboard Coast Line R.R. Co., 348 F. Supp. 43, 47-48 (M.D.
         Fla. 1972); Martin v. Brady, 802 A.2d 814, 819 (Conn. 2002); Elliot v. City of
         Waterbury, 715 A.2d 27, 42 (Conn. 1998); Dubay v. Irish, 542 A.2d 711, 719
                                                                      (continued . . .)
                                             -7-
#26589

actor’s mental state and look to whether the actor intended to do an act that was of

an unreasonable character, in disregard of a known or obvious risk, which risk was

so great as to make it highly probable that harm would result. See W. Page Keeton,

et al., Prosser and Keeton on the Law of Torts § 34 (5th ed. 1984).

[¶13.]       Thus, the circuit court did not err when it used this Court’s definition

of “willful and wanton misconduct” from our repealed guest statute to gauge

whether Bauman’s conduct was willful, wanton, or reckless under SDCL 20-9-4.1.

Yet we question the circuit court’s ruling that speed alone would not be sufficient to

rise to the level of willful, wanton, or reckless conduct. We might conceive of

instances where a driver’s speed alone would become willful, wanton, or reckless

under SDCL 20-9-4.1.

[¶14.]       Regardless, Gabriel is not claiming that Bauman’s speed alone

constituted willful, wanton, or reckless conduct. He contends that additional facts

combined with speed create a jury question sufficient to survive summary

judgment. Specifically, Gabriel points to the fact that (1) Bauman was trained and

instructed by Chester Fire to obey the speed limits and other rules of the road, (2)



__________________
(. . . continued)
         (Conn. 1988) (declining to draw “definitional distinctions” between the
         terms); Thompson v. Bohlken, 312 N.W.2d 501, 504-05 (Iowa 1981); Turner v.
         City of Ruleville, 735 So. 2d 226, 230 (Miss. 1999); Dotzler v. Tuttle, 449
         N.W.2d 774, 781 (Neb. 1990) (guest statute); contra Sandler v.
         Commonwealth, 644 N.E.2d 641, 643-44 (Mass. 1995) (defining each word
         separately). Indeed, the Restatement (Second) of Torts § 500 (2013)
         recognized that the words “willful,” “wanton,” and “reckless” have been used
         singularly or in combination to describe characteristics of conduct. See also
         57A Am. Jur. 2d Negligence § 241 Generally (2014); 65 C.J.S. Negligence §
         100 (2014).

                                          -8-
#26589

Chester Fire Chief, Steve Heyn, testified that Chester Fire chose not to equip

personal vehicles with emergency lights because of a concern that the firefighters

would drive “like cowboys,” (3) the collision occurred on the 4th of July, which

Bauman knew would cause an increase in traffic, (4) Bauman saw Gabriel’s vehicle

at least 887 feet before the collision and heard Cheryl say, “Oh no, don’t go,” and (5)

Bauman did not attempt to apply the breaks until 96 feet before the collision.

[¶15.]       In reviewing whether the court erred in granting summary judgment,

we ask not only whether there is a conflict in the evidence, but also whether the

undisputed facts are such that reasonable minds might differ in interpreting them

in arriving at different conclusions on whether the defendant was willful, wanton,

or reckless. Whether one acts willfully, wantonly, or recklessly is, like negligence,

normally a jury question. See State v. Tammi, 520 N.W.2d 619, 622 (S.D. 1994);

Campbell v. Massucci, 944 N.E.2d 245, 251 (Ohio Ct. App. 2010).

[¶16.]       Because willfulness, wantonness, or recklessness “is almost never

admitted, and can be proved only by the conduct and the circumstances, an

objective standard must of necessity in practice be applied.” W. Page Keeton et al.,

Prosser and Keeton Handbook on the Law of Torts § 34, at 212-14. The conduct

must be more than mere mistake, inadvertence, or inattention. There need not be

an affirmative wish to injure another, but, instead, a willingness to injure another.

“[A] defendant’s reckless state of mind may be inferred from conduct and actions so

patently dangerous that a reasonable person under the circumstances would know,

or should know, that his conduct will in all probability prove disastrous[.]”

Wittmeier v. Post, 78 S.D. 520, 526, 105 N.W.2d 65, 68 (1960). On the other hand,


                                          -9-
#26589

this Court warned long ago that if we draw the line of willful, wanton, or reckless

conduct too near to that constituting negligent conduct, we risk “opening a door

leading to impossible confusion and eventual disregard of the legislative intent . . .

to give relief from liability for negligence.” Espeland, 74 S.D. at 490-91, 54 N.W.2d

at 468.

[¶17.]       Under the undisputed facts, this case is controlled by Gunderson v.

Sopiwnik. In Gunderson, a guest statute case, this Court observed that a

defendant’s driving, nearly identical to Bauman’s, failed to demonstrate a conscious

realization that an accident was probable rather than possible. See 75 S.D. 402,

408, 66 N.W.2d 510, 513 (1954). We quote the Court:

             Essential to such conduct is the conscious realization by
             defendant that his acts [would] in all probability (as
             distinguished from possibly) produce the precise result which it
             did produce. We believe the facts and inferences to be drawn
             therefrom fail to show any such realization by defendant. True,
             defendant was driving too fast as he approached and entered this
             intersection, but there is nothing upon which to base a finding
             that he consciously realized that the driver of the [other] car
             would in all probability as distinguished from possibly turn
             across his path at a point where it would be impossible for
             defendant to stop before a collision occurred.

Id. (emphasis added).

[¶18.]       Taken in a light most favorable to Gabriel, the facts of this case show

that Bauman was speeding to the fire station with his hazard lights engaged.

Bauman saw that Gabriel’s vehicle intended to turn, but Bauman had the right of

way and he did not think Gabriel’s vehicle was going to turn in front of him.

Despite an unobstructed view of Bauman’s oncoming vehicle for approximately 887

feet, Gabriel turned in front of Bauman. Bauman attempted to avoid the accident,

but was unable to stop in time.
                                          -10-
#26589

[¶19.]       Reasonable persons may understand that they should not exceed the

speed limit and that by exceeding the speed limit, they are undertaking a risk of

causing an accident. Under our case law, however, reasonable persons under the

same or similar circumstances present in this case would not have consciously

realized that speeding would — in all probability — result in the accident that

occurred. Nothing in the record can support a jury finding that Bauman consciously

realized, before it was too late to avoid the collision, that Gabriel would in all

probability turn in front of him. See id. at 408, 66 N.W.2d at 513. We affirm

summary judgment for Bauman.

[¶20.]       On the other hand, the circuit court erred when it granted summary

judgment to Chester Fire on Gabriel’s negligent training and equipment claims

based on the immunity in SDCL 20-9-4.1. Although Chester Fire contends that the

immunity in SDCL 20-9-4.1 extends to Gabriel’s direct negligence claim, because

the claim arises out of Bauman’s rendering of emergency services, SDCL 20-9-4.1

does not protect the acts of a fire department or fire district. The statute provides

immunity to a “peace officer, conservation officer, member of any fire department,

police department and their first aid, rescue or emergency squad, or any citizen

acting as such as a volunteer, or any other person[.]” Id. Unlike the cases cited by

Chester Fire, our statute does not specifically include a fire department or district

or define “person” to include a fire district or fire department. Compare SDCL 20-9-

4.1 with Cubit v. Mahaska Cnty., 677 N.W.2d 777, 782 (Iowa 2004) (statute applies

to municipality); District of Columbia v. Walker, 689 A.2d 40, 49 (D.C. 1997)

(statute includes district); Stevenson v. Capital Fire Mut. Aid Sys., Inc., 661 A.2d 86,


                                          -11-
#26589

87 (Vt. 1995) (specifically relates to municipality). Chester Fire is not immune

under SDCL 20-9-4.1. 3

[¶21.]         Chester Fire also asserts that it is protected from liability by sovereign

immunity. But Chester Fire did not plead or raise sovereign immunity as an

affirmative defense in its answer to Gabriel’s complaint or amended complaint.

Immunity from liability for damages under SDCL 21-32A-3 must be timely asserted

and “[m]ere conclusory allegations are not substitutes for specific facts.” See Olesen

v. Town of Hurley, 2004 S.D. 136, ¶ 12, 691 N.W.2d 324, 328. The dissent dismisses

Chester Fire’s failure to specifically plead the affirmative defense because Chester

Fire pleaded that it was “immune” generally and made one statement during its

argument at the November 2012 summary judgment hearing that Chester Fire is a

public body, Bauman is a public employee, and discretionary acts are exempt and

immune. The dissent further contends that Chester Fire is immune from suit

unless and until Gabriel proves that Chester Fire waived its immunity under SDCL

21-32A-3.

[¶22.]         Chester Fire is not immune from suit in the same way the State enjoys

sovereign immunity protection. “We must remind ourselves (and the Legislature)

that the state’s sovereign immunity is the state’s sovereign immunity and nothing

more. It belongs to the state and to no one else.” Aune v. B-Y Water Dist., 464




3.       That is not to say, however, that Chester Fire is not protected by SDCL 20-9-
         4.1 against Gabriel’s claim that Chester Fire is vicariously liable for
         Bauman’s negligence. That claim arises out of Bauman’s rendering in good
         faith emergency care. If Bauman is not liable, Chester Fire is not vicariously
         liable.

                                           -12-
#26589

N.W.2d 1, 5 (S.D. 1990); see Cromwell v. Rapid City Police Dep’t, 2001 S.D. 100, ¶

13, 632 N.W.2d 20, 24. Rather, the South Dakota Legislature “extended the reach

of sovereign immunity to all public entities of this state,” by adopting SDCL 21-32A-

3. Cromwell, 2001 S.D. 100, ¶ 13, 632 N.W.2d at 24. In doing so, the Legislature

specifically imposed the burden on a public entity to invoke its immunity as an

affirmative defense. See, e.g., Elkjer v. City of Rapid City , 2005 S.D. 45, ¶ 7, 695

N.W.2d 235, 238 (City did not raise the defense, so sovereign immunity not directly

in issue); Olesen, 2004 S.D. 136, ¶ 13, 691 N.W.2d at 328 (sovereign immunity

waived).

[¶23.]       At no point did Chester Fire make a specific request that the circuit

court address the issue of sovereign immunity. Raising a legal argument for the

first time in an appellate brief limits the opposing party’s ability to respond. Had

the issue been specifically raised below, “the parties would have had an opportunity

to consider whether additional evidence was needed to decide the issue and

certainly would have had an opportunity to brief the issue for the trial court’s

consideration.” Hall v. State, 2006 S.D. 24, ¶ 12, 712 N.W.2d 22, 27. Moreover,

“[w]e will ordinarily decline to review issues not properly presented to the trial

court.” Estate of Gaspar v. Vogt, Brown & Merry, 2003 S.D. 126, ¶ 15, 670 N.W.2d

918, 924 (citation omitted); see also Steiner v. Cnty. of Marshall, 1997 S.D. 109, ¶

27, 568 N.W.2d 627, 633 (citation omitted).

[¶24.]       It would be improvident to declare that Chester Fire is protected by

sovereign immunity when the record before us is scant and the allegations by

Chester Fire are conclusory. The circuit court granted summary judgment solely


                                          -13-
#26589

under SDCL 20-9-4.1. If we, like the dissent, were to make inferences from Chester

Fire’s statements, we could just as easily rule that Chester Fire has insurance and,

therefore, has waived sovereign immunity under SDCL 21-32A-3. Chester Fire

alluded to the existence of insurance during a partial summary judgment hearing in

August 2012, when it discussed sovereign immunity and argued that it did not

waive immunity on Gabriel’s claim for punitive damages, because there was no

insurance coverage for punitive damages. In any event, there is no record evidence

either way concerning risk-pool and insurance coverage; therefore, there are

genuine issues of material fact on that issue. “Summary judgment is appropriate

under SDCL 15-6-56 when the entire record reveals that there is no genuine issue

on any material fact and that the moving party is entitled to a judgment as a matter

of law. If there are genuine issues of material fact, then summary judgment is

improper.” Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 124-25 (citations

omitted). Because Chester Fire did not affirmatively assert its immunity from suit

under SDCL 21-32A-3, we decline to decide the sovereign immunity issue. 4

[¶25.]         Affirmed in part, reversed in part, and remanded.

[¶26.]         ZINTER, SEVERSON and WILBUR, Justices, concur.

[¶27.]         GILBERTSON, Chief Justice, dissents.




4.       The dissent argues that we should uphold summary judgment because
         Gabriel did not raise insurance coverage as a waiver of sovereign immunity.
         This subject was not broached at the trial court level or in the appellate
         briefs. Before we rule on such a question, we ought to give the parties a fair
         opportunity to address it.

                                           -14-
#26589

GILBERTSON, Chief Justice (dissenting).

[¶28.]         I respectfully dissent. The Court correctly notes that SDCL 20-9-4.1

does not directly protect the acts of a fire department or fire district. However, as

the South Dakota Constitution is the “mother law” which provides sovereign

immunity 5 protection, resort to SDCL 20-9-4.1 is unnecessary. See Davis v. State,

2011 S.D. 51, ¶ 76, 804 N.W.2d 618, 643 (Gilbertson, C.J., concurring in result)

(citations omitted). Despite the circuit court’s erroneous reliance on SDCL 20-9-4.1,

“on appeal this Court will affirm the circuit court’s ruling granting a motion for

summary judgment if any basis exists to support the ruling.” Stern Oil Co. v.

Brown, 2012 S.D. 56, ¶ 9, 817 N.W.2d 395, 399 (citing Discover Bank v. Stanley,

2008 S.D. 111, ¶ 19, 757 N.W.2d 756, 762). In this case, Chester Fire adequately

carried its burden of proving that it is entitled to governmental immunity, 6 as



5.       Article III, § 27 does not use the word “sovereign” nor does it use the word
         “immunity.” The term relates back to the common law origins of the doctrine
         where in England the King or Queen was sovereign and immune from suit.
         Plumbing Supply Co. v. Bd. of Educ., 32 S.D. 270, 142 N.W. 1131, 1132
         (1913). Article III, § 27 simply declares it is up to the Legislature to establish
         “in what manner and in what courts suits may be brought against the state.”
         Neither does Article III, § 27 use the term “governmental immunity.”

6.       This Court has often used the terms “sovereign immunity” and
         “governmental immunity” interchangeably. See, e.g., Cromwell, 2001 S.D.
         100, ¶ 23, 632 N.W.2d at 26; Aune, 464 N.W.2d at 4; Blue Fox Bar, Inc. v. City
         of Yankton, 424 N.W.2d 915, 917-18 (S.D. 1988); L.R. Foy Constr. Co. v. S.D.
         State Cement Plant Comm’n, 399 N.W.2d 340, 346 (S.D. 1987). Some
         jurisdictions have clearly delineated the difference between the terms. See,
         e.g., Vejseli v. Pasha, 923 A.2d 688, 695-96 (Conn. 2007) (recognizing that
         sovereign immunity only applies to the state, whereas governmental
         immunity applies to municipalities); Shootman v. Dep’t of Transp., 926 P.2d
         1200, 1203 n.2 (Colo. 1996) (“The term ‘sovereign immunity’ generally refers
         to the immunity of the state or federal government whereas the term
         ‘governmental immunity’ refers to the immunity of all levels of government.”)
                                                                     (continued . . .)
                                            -15-
#26589

expressed by our Constitution7 and our case law and recognized by SDCL 21-32A-3.

[¶29.]         The common-law doctrine of sovereign immunity was incorporated into

Article III, § 27 of the South Dakota Constitution. “Sovereign immunity ‘prevents

the governing acts of the state, its agencies, other public entities, and their

employees from attack in court without the state’s consent.’” Dan Nelson, Auto.,

Inc. v. Viken, 2005 S.D. 109, ¶ 27, 706 N.W.2d 239, 249 (quoting Wulf v. Senst, 2003

S.D. 105, ¶ 20, 669 N.W.2d 135, 142). “The legislature within constitutional

limitations unquestionably has control over the liability to which the state and its

governmental subdivisions and agencies may be subjected for tort.” Conway v.

Humbert, 82 S.D. 317, 322, 145 N.W.2d 524, 527 (1966). See also Bickner v.

Raymond Twp., 2008 S.D. 27, ¶ 10, 747 N.W.2d 668, 671 (“Sovereign immunity is

the right of public entities to be free from liability for tort claims unless waived by

legislative enactment.”) (citation omitted). This Court has long held “that if there is

to be a departure from the rule of governmental immunity it should result from

legislative action.” Cromwell, 2001 S.D. 100, ¶ 23, 632 N.W.2d at 26 (quoting High-



__________________
(. . . continued)
         (citation omitted); Ross v. Consumers Power Co., 363 N.W.2d 641, 649 (Mich.
         1984) (“Although the concepts of ‘sovereign immunity’ and ‘governmental
         immunity’ are related, they have distinct origins and histories[.]”).

7.       A debate ensued in the Constitutional Convention of 1885 concerning the
         adoption of this provision into the Constitution. It was argued the provision
         was unnecessary as the Legislature had the inherent power to determine
         such an issue as suits against the state. The provision adopted by this
         Convention is still the text of the South Dakota Constitution today. “The
         Legislature shall direct by law in what manner and in what courts suits may
         be brought against the state.” S.D. Const. art. III, § 27. See 1 South Dakota
         Constitutional Debates, 142, 234-35 (Huronite 1907).

                                          -16-
#26589

Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D. 1980)). Moreover, any

abrogation must be express. Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 33, 827

N.W.2d 55, 67 (citation omitted).

[¶30.]       In Conway v. Humbert, this Court recognized that “[t]he power to

organize a fire department for prevention of injury and damage by fire is clearly

governmental and, in the absence of statutory provision to the contrary, a

municipality will not ordinarily be liable for the negligent acts of firemen in the

performance of their duties.” 82 S.D. at 321, 145 N.W.2d at 527 (citations omitted).

This immunity did not stem from statutory language whereby the Legislature

explicitly stated that municipalities were cloaked in immunity from liability.

Rather, municipalities were cloaked in sovereign immunity, because “in the

performance of a governmental function a municipal corporation acts as agent of the

state and partakes of its sovereignty with respect to immunity.” Id., 145 N.W.2d at

526 (citation omitted). The Legislature simply categorized towns as “bodies

corporate” and authorized them to carry out governmental functions. See generally

Territory of Dakota Laws of 1872-73, ch. 51 (establishing towns and townships).

The approach taken by this Court of looking at the function of the entity was finally

memorialized in part in 1986, when the Legislature defined a public entity as “the

State of South Dakota, all of its branches and agencies, boards and commissions[,

and] all public entities established by law exercising any part of the sovereign

power of the state . . . and all other legal entities that public entities are authorized




                                          -17-
#26589

by law to establish.” SDCL 3-21-1(2). The same year, the Legislature statutorily

recognized that such entities were immune from liability unless immunity was

waived by participation in a risk sharing pool or insurance. SDCL 21-32A-3. 8

These acts of the Legislature finally recognized in statute what this Court had long

acknowledged from common law: that immunity from suit extended to all public

entities performing a governmental function. See Conway, 82 S.D. at 322, 145

N.W.2d at 527 (acknowledging that abrogating “the common law rule of

governmental immunity would apply to all governmental entities including

counties, townships, school districts and the like”); see also Plumbing Supply Co., 32

S.D. 270, 142 N.W. at 1132 (recognizing that counties, civil townships, and school

districts “are the agents of the state for the purpose of carrying into effect the

functions of government, and as such are not liable to be sued civilly for damages

caused by neglect to perform such duties” (emphasis added)).

[¶31.]         The Court declines to address the issue of sovereign immunity, stating

that Chester Fire’s assertion of the defense was a “mere conclusory allegation,” and

should therefore fail. I do not agree. The record reflects that Chester Fire asserted

it was immune in its answer, offered tangible evidence of its status as a public

entity as recognized by the State, and argued the applicable rules of law qualifying

it for governmental immunity from liability. It continues to persuasively argue

these rules of law on appeal to this Court.



8.       In Brown v. Egan Consol. Sch. Dist. No. 50–2, we opined that for waiver
         purposes, the definition of “public entities” under SDCL 3-21-1 applies to
         “public entities” as used in SDCL chapter 21-32A. 449 N.W.2d 259, 262 (S.D.
         1989).

                                          -18-
#26589

[¶32.]         In its answers to Gabriel’s complaint and amended complaint, Chester

Fire stated, “These Defendants allege that they are entitled to immunity for any

claims asserted by the Plaintiff.” The answer was not qualified by limitation.

Chester fire supported this claim to defense with factual evidence of its status as a

public entity. In an affidavit supporting Chester Fire’s opposition to Gabriel’s

motion for summary judgment, counsel submitted Chester Rural Fire Protection

District’s registration with the State as a rural fire protection district and a copy of

SDCL 34-31A-16, which designates properly organized rural fire protection districts

as “bod[ies] politic and corporate.” 9 This affidavit was later incorporated into

Chester Fire’s motion for summary judgment. In a separately asserted argument

Chester Fire denied liability under SDCL 20-9-4.1, because Bauman’s conduct was

not willful, wanton, or reckless.

[¶33.]         Although Chester Fire did not use the term “sovereign immunity,” the

record reflects that Chester Fire argued the applicable rule of law in this case using

the terms “immunity” and “government immunity.” See supra n.6. Specifically, at

the summary judgment hearing Chester fire argued:

               In other words, if the statute or regulation has the word may in
               it, it’s discretionary with the entity or the police or the fire chief
               in this case to provide those, under principals of government
               immunity. And these are public entities, and [Bauman] is a
               public employee, because these fire districts and fire


9.       SDCL 34-31A-16 establishes properly organized rural fire protection districts
         as “bod[ies] politic and corporate.” This language is similar to language used
         by the 1872 Territorial Legislature, when towns were first recognized in
         statute. Territory of Dakota Laws of 1872-73, ch. 51, § 8 provides that “Each
         town is a body corporate, and has capacity: (1) “[t]o sue and be sued[,]” (2)
         “purchase and hold lands[,]” (3) make contracts, and (4) make orders for the
         disposition, regulation, or use of its property.

                                            -19-
#26589

               departments are considered a corporate body politics under the
               statute. Discretionary functions are exempt and are immune.
               [Gabriel has] not resisted that in any fashion in any of [his]
               reply briefs.

[¶34.]         Chester Fire’s arguments to the circuit court as to “government

immunity” sufficiently reflect the applicable rules of law. Rural fire protection

districts are a type of public entity created by the Legislature to carry out a

government function. 10 Generally, public entities are immune from liability when

carrying out discretionary governmental functions. See SDCL 21-32A-3; Wilson v.

Hogan, 473 N.W.2d 492, 494 (S.D. 1991) (citing Gasper v. Freidel, 450 N.W.2d 226,

230 (S.D. 1990); Aune, 464 N.W.2d at 3 (additional citations omitted)). We have

recognized that the State cannot extend governmental immunity to proprietary

functions, even if carried out by a public entity. Aune, 464 N.W.2d at 5; see also

Oien v. City of Sioux Falls, 393 N.W.2d 286, 290 (S.D. 1986). Public entities are

only protected like the State from liability when they are acting like the State in

carrying out governmental functions. Chester Fire carried its burden of proving it



10.      Our case law indicates that providing fire protection services to the public is
         a governmental function. Conway, 82 S.D. at 321, 145 N.W.2d at 527. In
         carrying out this function, rural fire protection districts are granted, inter
         alia, the power to levy taxes, annex territory, develop and carry out a fire
         protection plan for the district, and establish or contract with a fire
         department. See SDCL 34-31A-17(1) (determine general fire protection
         program); SDCL 34-31A-22 to 24 (levy and collect taxes); SDCL 34-31A-36
         (annex territory). Chester Fire Department would qualify as a legal entity
         that Chester Rural Fire Protection District is “authorized by law to
         establish.” See SDCL 34-31A-17(1),(6) (granting rural fire protection districts
         the authority to “[t]o determine upon a general fire protection program for
         the district” and “[t]o organize, establish, equip, maintain, and supervise a
         fire department or company to serve the district”). Thus both entities are
         cloaked in the immunity from liability contemplated by case law and
         enumerated in SDCL 3-21-3.

                                           -20-
#26589

was a public entity—a registered rural fire protection district authorized by SDCL

34-31A-16—and that it was carrying out the governmental function of fire

protection.

[¶35.]        Gabriel’s claims against Chester Fire stem from alleged negligence in

training and equipping Bauman. However, as argued by Chester Fire, the functions

of training and equipping the firefighters are discretionary functions. “In order to

find a duty ‘ministerial,’ [as opposed to discretionary,] we must find a ‘governing

rule or standard’ so clear and specific that it directs the government actor without

calling upon the actor to ascertain how and when to implement that rule or

standard.” Truman v. Griese, 2009 S.D. 8, ¶ 22, 762 N.W.2d 75, 81. There is no

clear and specific governing rule for the training and equipping of a fire crew by a

rural fire protection district. Rather, there is a general grant of authority. See

SDCL 34-31A-17 (granting fire protection districts the “general powers . . . to

organize, establish, equip, maintain, and supervise a fire department or company to

serve the district” (emphasis added)). This direction given by statute is not so clear

and specific that “one could . . . pluck an ordinary citizen off the street and expect

they could successfully execute the duties” of training and equipping a fire crew.

See Truman, 2009 S.D. 8, ¶ 22, 762 N.W.2d at 81 (quoting Hansen v. S.D. Dep’t of

Transp., 1998 S.D. 109, ¶ 29, 584 N.W.2d 881, 887-88). Thus, Chester Fire was

immune from liability in carrying out these duties, because they were discretionary

governmental functions performed by a public entity. Gabriel raised no applicable

argument to refute this grant of immunity.




                                          -21-
#26589

[¶36.]       On appeal, Gabriel’s only counter to Chester Fire’s governmental

immunity defense is that Chester Fire failed to carry its “burden of showing that it

has not waived sovereign immunity pursuant to SDCL 21-32A-1.” This argument

inappropriately places upon Chester Fire the burden of raising and refuting an

exception to the general rule of immunity. We have held that the party raising the

affirmative defense of immunity has the burden of proving that it is entitled to

immunity. Masad v. Weber, 2009 S.D. 80, ¶ 15, 772 N.W.2d 144, 152-153.

However, “[t]he party opposing summary judgment must establish the specific facts

which show that a genuine and material issue for trial exists.” Wulf, 2003 S.D. 105,

¶ 18, 669 N.W.2d at 142 (citation omitted).

[¶37.]       In this case, Chester Fire established it was entitled to immunity as a

public entity. Chester Fire’s governmental immunity did not originate from its lack

of insurance, such that Chester Fire must prove lack of insurance to establish its

entitlement to immunity. Rather, as SDCL 3-21-1 indicates, the purchase of

insurance coverage acts as an exception, waiving the long-recognized immunity

from liability to the extent the entity can be shown to have purchased insurance

covering the specific harm alleged. See Patterson Farm, Inc. v. City of Britton, 22 F.

Supp. 2d 1085, 1094 (D.S.D. 1998) (noting that city’s immunity was not waived as to

pollution claims because insurance policy specifically excluded coverage).




                                         -22-
#26589

[¶38.]         Governmental immunity can be waived by various means. 11

Nevertheless, as previously noted, any abrogation must be express. 12 Accordingly,

once a defendant public entity establishes that it is entitled to immunity, the

burden of production should shift to the plaintiff to establish specific facts showing

that the defendant has waived immunity, and therefore “a genuine and material

issue for trial exists.” See Wulf, 2003 S.D. 105, ¶ 18, 669 N.W.2d at 142 (citation

omitted). 13 In this case, Gabriel as the non-moving party needed to establish the

existence of a genuine issue of material fact, i.e., that Chester Fire waived its




11.      See, e.g., SDCL 21-32A-3 (waiver by participation in risk sharing pool or
         purchase of insurance); Sisney v. Reisch, 2008 S.D. 72, ¶ 13, 754 N.W.2d 813,
         819 (waiver by contract where the governmental entity has the legal
         authority to do so); S.D. Const. art. III, § 27 (waiver by legislative act).

12.      While analysis of legislative enactments concerning suits against
         governmental entities generally deals with the issue of abrogation, there is
         nothing in Article III, § 27 indicating legislative action must always flow in
         that direction. The Constitution also clearly grants the Legislature the
         authority to abrogate the abrogation and place the entity in the immune class
         where it once was subject to suit. See, e.g., SDCL 20-9-45 (immunizing from
         liability some acts of non-profit fire, ambulance, and search and rescue
         entities).

13.      We require this type of shifting burden of production when a plaintiff claims
         an exception to the affirmative defense of statute of limitations lapse. See
         Zephier v. Catholic Diocese of Sioux Falls, 2008 S.D. 56, ¶ 9, 752 N.W.2d 658,
         663. Other jurisdictions have applied this burden-shifting approach to
         governmental immunity. See, e.g., Hendrix v. Bexar Cnty. Hosp. Dist., 31
         S.W.3d 661, 662 (Tex. App. 2000); Harris v. Sutton, 918 N.E.2d 181, 185
         (Ohio Ct. App. 2009); Ex parte Lawley, 38 So. 3d 41, 47 (Ala. 2009); Rodriguez
         v. Transnave Inc., 8 F.3d 284, 287 n.6 (5th Cir. 1993) (citations omitted)
         (explaining burden shifting in Foreign Sovereign Immunity Act).

                                          -23-
#26589

immunity by purchasing insurance that covered Gabriel’s claim. 14 Gabriel did not

raise the issue of insurance or any other means by which Chester Fire allegedly

waived its immunity. Therefore, I would affirm summary judgment in favor of

Chester Fire based on governmental immunity.




14.   The only time insurance was mentioned by either party was in the August 13,
      2012 motion hearing in the context of Gabriel’s punitive damages claim
      against Chester Fire. Chester Fire stated:

            But as far as punitive damages in this case, there is—there can’t be
            punitive damages in this case against a public entity, cause under the
            law of insurance, a public entity, which the Chester Fire Department
            and Chester Rural Fire Protection District are, there’s a waiver of
            sovereign immunity only to the extent of insurance coverage. There’s
            no coverage under the City of Pierre case for punitive damages.
            Therefore, there can’t be a waiver, therefore they can’t recover them in
            this.

      Chester Fire argued this point as a matter of law—that even if there were
      insurance, no insurance can cover punitive damages. Thus Chester Fire
      could never be liable for punitive damages. Gabriel dropped the punitive
      damages claim shortly thereafter.

                                       -24-
