Godbe v. City of Rapid City ( 2022 )

#29251-a-SRJ
2022 S.D. 1IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
JULIE GODBE,
DAVID GODBE, Plaintiffs and Appellants,
v.
CITY OF RAPID CITY,
SOUTH DAKOTA, Defendant and Appellee,
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE MATTHEW M. BROWN
Judge
****
STEVEN C. BEARDSLEY
MICHAEL S. BEARDSLEY of
Beardsley, Jensen & Lee, Prof. LLC
Rapid City, South Dakota Attorneys for plaintiffs and
appellants.
ROBERT J. GALBRAITH
JOHN K. NOONEY of
Nooney & Solay LLP
Rapid City, South Dakota Attorneys for defendant and
appellee.
****
ARGUED
NOVEMBER 18, 2020
OPINION FILED 01/05/22
#29251
JENSEN, Chief Justice
[¶1.] Julie Godbe suffered horrific injuries after her bicycle tire caught in a
storm drain grate in Rapid City (City). Julie and her husband David (Godbes) sued
City for negligence. The circuit court granted City’s motion for summary judgment,
determining Godbes failed to generate a genuine issue of material fact showing that
City breached its statutory duty under SDCL 31-32-10. We affirm.
Facts and Procedural History
[¶2.] On July 17, 2015, Julie was riding her bicycle with David on East
Saint Patrick Street (Street) in Rapid City. The Street is 1.3 miles long and is
bisected by Rapid Creek. Julie was traveling near the curb on the west side of
Rapid Creek when she rode over a storm drain grate (Grate 4), which had steel bars
running parallel to the Street. Julie’s front bicycle tire fell through the grate,
causing her to catapult over the bicycle handle bars and land on her face. The
impact broke her neck and injured her spinal cord, leaving her a quadriplegic.
[¶3.] In October 2015, Godbes’ attorney and a representative from City took
photographs of Grate 4 and the other storm drain grates on the Street. The
photographs showed that twenty-five of the Street’s thirty grates, including Grate 4,
had bars that ran parallel to the Street. The photographs also showed that cross
metal straps had been welded on the parallel bars of some of the grates located to
the east of Rapid Creek. Several other grates on the east side of Rapid Creek had
indents where it appeared that cross straps had been welded to the grates at one
time but were subsequently torn off. There were also two, newer looking grates
designed with perpendicular bars. In contrast, photographs taken to the west of
-1-
#29251
Rapid Creek, including Grate 4, did not show that cross straps had been welded on
their parallel metal bars. Further, none of the grates to the west of Rapid Creek
had visible indents that would have suggested welded straps had been torn off.
However, photographs showed that at least two of the grates to the west of Rapid
Creek had been replaced with grates that had been designed with perpendicular
bars or checkered-plated bars. 1
0F
[¶4.] Sometime after the photographs were taken, City received statutory
notice of Godbes’ intention to bring an action. Godbes’ counsel also corresponded
with City, requesting that City replace all the parallel designed storm water grates.
Subsequently, City ordered Grate 4 and the other grates on the Street to be
replaced. There is no evidence that City gave Godbes notice before it replaced the
grates or that Godbes’ counsel requested that Grate 4 be preserved. City failed to
preserve Grate 4 or any of the other grates that were replaced.
[¶5.] In May 2016, Godbes filed a complaint alleging that City was negligent
for failing to replace the storm water grates on the Street. They alleged City
assumed responsibility to maintain the Street in 2004 and knew for years before the
accident that storm water grates with parallel bars were dangerous. Godbes
alleged a separate claim for negligent failure to maintain and repair Grate 4. David
also brought a claim for loss of consortium.
[¶6.] City filed a pre-answer motion to dismiss the complaint, pursuant to
SDCL 15-6-12(b)(5), arguing that Godbes failed to state a claim upon which relief
1. Photographs of the grates and the layout of the Street are included in an
appendix to this opinion.
-2-
#29251
could be granted. City argued it owed no duty of care to Godbes for the design,
maintenance, or a dangerous condition of the Street under Hohm v. City of Rapid
City, 2008 S.D. 65, 753 N.W.2d 895. “[C]ities’ common-law duties respecting streets
were abrogated by . . . legislative enactments. The duties are now limited by
statute [i.e., SDCL 31-32-10] . . . .” Id. ¶ 20, 753 N.W.2d at 905. City claimed that
its duty under SDCL 31-32-10 is limited to repair and only arises when a city
receives notice that damage to a road creates a safety hazard. City contended that
the complaint did not allege Grate 4 was in disrepair, or that City had notice of any
damage to Grate 4, as required by SDCL 31-32-10.
[¶7.] Godbes responded that Grate 4 was “out of repair” pursuant to SDCL
31-32-10 because it was dangerous and did not comply with City’s infrastructure
standards. In resisting the motion to dismiss, Godbes offered a 2007 report (Report)
containing City-approved “standard specifications,” which set forth that grates with
bars running parallel to the streets should be replaced with grates that had
perpendicular metal bars. Godbes also presented a 2011 City Master Plan (Master
Plan), which recommended City continue to replace or retrofit the unsafe grates. 2 1F
The Master Plan recognized the changes would “reduce City’s liability exposure.”
Godbes also argued Hohm did not eliminate a city’s common law duties to make its
roadways safe, but they have not raised this issue on appeal.
2. The Master Plan stated: “City should continue its efforts to retrofit existing
drainage grates. Some older drainage grates can create slippery conditions
for bicyclists and/or catch a bike wheel if they have metal grates that are
parallel to the direction of travel . . . . New grate styles have grates that are
perpendicular to the travel lane . . . . These newer grate types are much safer
for bicyclists.”
-3-
#29251
[¶8.] The circuit court issued a memorandum decision granting City’s
motion to dismiss. It held that Godbes had only alleged a design defect in the
grates for which City did not owe a duty, and Godbes failed to state a claim under
SDCL 31-32-10 because they did not allege that the Street or its grates were in a
damaged condition at the time of the accident. Before the circuit court entered an
order dismissing the complaint, Godbes filed a motion to amend their complaint and
a motion to reconsider. The circuit court entered an order granting Godbes’ motion
to file an amended complaint but denied the motion to reconsider and dismissed the
original complaint.
[¶9.] In their amended complaint, Godbes realleged many of the same
claims from the original complaint, but also alleged that City had modified Grate 4
and other Street grates by welding metal straps across the parallel bars of the
grates. Godbes claimed that the modified grates were in a damaged condition at the
time of the accident because the welded straps had been torn off. Further, they
alleged City breached its duty under SDCL 31-32-10 because it knew or should have
known that the straps were damaged and failed to repair them.
[¶10.] After submitting their amended complaint, Godbes deposed four City
employees including: Donald Brumbaugh, City Street Superintendent from 2004 to
2016; Dale Tech, Public Works Director and formerly an engineer with City; Trevor
Schmelz, former Risk Manager for City; and Dale Pfeifle, current City Street
Superintendent and former Assistant Street Superintendent. The employees
acknowledged City was aware of its dangerously designed grating system for years
and had planned to replace or modify grates that had parallel bars prior to the
-4-
#29251
accident. All four employees testified that some of City’s grates had been modified
with welded cross straps. They also agreed that if the welded straps on grates were
torn off, then the grates needed repair and were dangerous to cyclists.
[¶11.] Three of the employees had worked for the City for years prior to the
accident. However, no employee could identify which grates on the Street had been
welded with cross straps prior to Julie’s accident, or when any of these
modifications were made. In his deposition, Brumbaugh testified that cross straps
may have been welded onto the grates before City assumed responsibility for the
Street in 2004. After reviewing the photographs, he also testified that the welded
straps on the grates to the east of Rapid Creek appeared to be old. In an affidavit,
Brumbaugh stated he was not aware that City had ever welded straps on the
Street’s grates between 2004 and Julie’s accident in 2015 but stated City had
welded cross straps on the Street’s grates following Julie’s accident. However, the
record does not show which grates the affidavit references.
[¶12.] City employees also acknowledged that cross straps welded onto the
grates could be damaged and therefore needed to be maintained. Brumbaugh
stated that straps were only “temporary fixes.” Tech testified that straps required
ongoing maintenance to keep streets safe. Brumbaugh and Tech also stated that
snowplows or heavy street equipment could tear off the straps. Brumbaugh
continued that, “in most cases,” the bars of a grate would have visible indents if
their straps had been torn off. However, whether a grate shows visible markers of
prior welding “[d]epends on how [the straps] were put on.”
-5-
#29251
[¶13.] Despite City’s awareness that modified grates required maintenance,
Brumbaugh stated that City lacked an official grate repair policy. However, he
clarified that “inspection[s of the grates] have and do occur,” and City would
examine grates as “part of [City’s] criteria for inspection.” During routine
inspections, Brumbaugh claimed that City employees would weld straps onto grates
that they observed were dangerous, stating City “would definitely [weld straps onto
dangerous grates] at some point in time. It’s a question of when [City] ha[d] time to
do it.” But “City is full of hundreds of grates . . . . [It] could be weeks, months, days,
whatever, between checks that any number of things could happen to grates[.]”.
[¶14.] Godbes also asked City employees about the decision to replace and
dispose of Grate 4 and the rest of the grates on the Street after Julie’s accident.
Brumbaugh could not state when City removed and replaced these grates.
However, he stated that Tech would have given him an oral directive to perform the
work before Brumbaugh retired at the end of 2016. Brumbaugh also testified that
he knew there had been an accident involving one of the Street’s grates when he
would have received the directive. Brumbaugh did not replace the grates personally
and did not know who did. He also did not know what happened to the grates after
they were replaced.
[¶15.] Tech confirmed that he issued the directive to replace the Street’s
grates, but he could not remember when he did so. When he made the decision,
Tech knew that one grate on the Street was the subject of possible litigation. Tech
also acknowledged that this grate could have been important evidence in the
lawsuit. Nevertheless, Tech stated that it “never occurred to [him]” to earmark and
-6-
#29251
preserve Grate 4. Tech and Schmelz, like Brumbaugh, denied any knowledge of
who physically replaced the grates and how City disposed of them.
[¶16.] Following discovery, City filed a motion for summary judgment. It
argued that Grate 4 could not have been damaged because the photograph of Grate
4 showed “absolutely no evidence of crossbars.” In support, City offered the opinion
of its welding expert Charles Leeper, who opined that “upon thorough analysis” of
the photographs, “the grate in question . . . had never been welded on before Ms.
Godbe’s accident.”
[¶17.] In resisting the motion, Godbes acknowledged the photograph of Grate
4 did not show obvious signs of welding but countered that many other grates on the
Street did. From this evidence, Godbes claimed that a jury could infer every grate
on the Street, including Grate 4, had been welded with cross straps at some point,
but the welded “cross pieces [were] eventually . . . ripped off.” Additionally, Godbes
argued City “knew or should have known” that the straps had been damaged
because it knew straps were only “temporary fixes.” Finally, Godbes argued City
intentionally destroyed Grate 4, which would entitle them to a spoliation
instruction at trial permitting the jury to infer that had Grate 4 been preserved, it
would have shown evidence of welding.
[¶18.] The circuit court granted City’s motion for summary judgment, holding
Godbes failed to offer sufficient evidence that City had notice that Grate 4 had been
modified with welded cross straps and was subsequently damaged. The court did
not address Godbes’ request for a spoliation instruction. Godbes appeal and raise
two issues for our review: (1) whether they generated a genuine issue of material
-7-
#29251
fact that Grate 4 was damaged at the time of the accident, and (2) whether City
received notice of damage as required by SDCL 31-32-10.
Analysis and Decision
[¶19.] We review the circuit court’s entry of summary judgment de novo.
State v. BP plc, 2020 S.D. 47, ¶ 18, 948 N.W.2d 45, 52. “The existence of a duty in a
negligence action is a question of law subject to de novo review by this Court.”
Hohm, 2008 S.D. 65, ¶ 3, 753 N.W.2d at 898 (citation omitted).
[¶20.] “[S]ummary judgment is appropriate when there is no genuine issue of
material fact[, and] . . . there must be no genuine issue on the inferences to be
drawn from those facts.” A-G-E Corp. v. State, 2006 S.D. 66, ¶ 17, 719 N.W.2d 780,
786. “[S]ummary judgment is not a substitute for trial; a belief that the non-moving
party will not prevail at trial is not an appropriate basis for granting the motion on
issues not shown to be a sham, frivolous or unsubstantiated . . . .” Toben v. Jeske,
2006 S.D. 57, ¶ 16, 718 N.W.2d 32, 37 (citation omitted). “We view all reasonable
inferences drawn from the facts in the light most favorable to the non-moving
party.” Luther v. City of Winner, 2004 S.D. 1, ¶ 6, 674 N.W.2d 339, 343 (citation
omitted).
[¶21.] “We require those resisting summary judgment to show that they will
be able to place sufficient evidence in the record at trial to support findings on all
the elements on which they have the burden of proof.” Foster-Naser v. Aurora
Cnty., 2016 S.D. 6, ¶ 11, 874 N.W.2d 505, 508 (citation omitted). “A sufficient
showing requires that ‘[t]he party challenging summary judgment . . . substantiate
his allegations with sufficient probative evidence that would permit a finding in his
-8-
#29251
favor on more than mere speculation, conjecture, or fantasy.’” Nationwide Mut. Ins.
Co. v. Barton Solvents Inc., 2014 S.D. 70, ¶ 10, 855 N.W.2d 145, 149 (citation
omitted). “Mere speculation and general assertions, without some concrete
evidence, are not enough to avoid summary judgment.” N. Star Mut. Ins. v. Korzan,
2015 S.D. 97, ¶ 21, 873 N.W.2d 57, 63.
[¶22.] There is no common law right of action against the City with regard to
streets or highways. Hohm, 2008 S.D. 65, ¶ 20, 753 N.W.2d at 905. Therefore,
Godbes argue that their claim arises under SDCL 31-32-10, which provides:
If any highway, culvert, or bridge is damaged by flood, fire or
other cause, to the extent that it endangers the safety of public
travel, the governing body responsible for the maintenance of
such highway, culvert, or bridge, shall within forty-eight hours
of receiving notice of such danger, erect guards over such defect
or across such highway of sufficient height, width, and strength
to guard the public from accident or injury and shall repair the
damage or provide an alternative means of crossing within a
reasonable time after receiving notice of the danger.
However, “[a]lthough this statute imposes a duty, the duty is only to warn of danger
and to make reasonably timely repairs upon notice that a damaged roadway is
creating a safety hazard. The statute creates no duty to design or construct a
roadway safely in the first place.” Wilson v. Hogan, 473 N.W.2d 492, 496 (S.D.
1991).
[¶23.] To establish that City had a duty under SDCL 31-32-10 to warn of, or
to repair a dangerous condition on the Street, Godbes must first demonstrate that
Grate 4 was in a damaged condition at the time of the accident. “Entry of summary
judgment is mandated against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which
-9-
#29251
that party will bear the burden of proof at trial.” Zephier v. Cath. Diocese of Sioux
Falls, 2008 S.D. 56, ¶ 6, 752 N.W.2d 658, 662. This requires Godbes to present
evidence on the question of whether Grate 4 had been modified with welded cross
straps and that the straps had been torn off the grate at the time of the accident.
[¶24.] Although the parties argued the question of whether Grate 4 was in a
damaged condition in their submissions to the circuit court, the court did not
resolve this question in granting summary judgment. 3 Instead, the circuit court
2F
assumed, without deciding, that Godbes had offered sufficient facts to establish that
Grate 4 was damaged at the time of the accident, and “circl[ed] back to the issue of
notice.” After applying an actual notice standard to SDCL 31-32-10, the court
granted summary judgment to City, holding that “there is nothing in the
established record that anyone from the [C]ity had notice of damage (from
snowplows or otherwise) . . . to any of the grates on [the] Street.”
[¶25.] Before applying the notice requirement under SDCL 31-32-10, there
must be facts showing that Grate 4 was damaged. SDCL 31-32-10 does not apply if
the defects of the highway, such as the dangerous design of the grate system, were
“inherent defects in the design or plan of the highway[.]” Zens v. Chi., Milwaukee,
St. Paul and Pac. R.R. Co., 386 N.W.2d 475, 478 (S.D. 1986). Therefore, we must
resolve the fundamental question of whether there are material facts in dispute
that Grate 4 was damaged before considering whether City had notice of any
damage to the Grate.
3. Both parties have fully briefed and argued this issue on appeal.
-10-
#29251
[¶26.] Godbes argue that they have presented sufficient evidence from which
a jury may infer Grate 4 had been welded with straps, and its straps had been
ripped off. They rely on the Report and Master Plan, which laid out City’s plan to
replace its grates. Godbes also rely on City employee depositions and the
photographs of the grates, which they argue show City had replaced or modified at
least some of the grates on the Street with cross straps. Because of the danger
posed by City’s original grating system, Godbes argue that it stands to reason that
City would not have modified some of the grates on the Street without modifying all
the grates. Further, Godbes claim the absence of visible straps or indents on the
photograph of Grate 4 is not conclusive proof it had never been welded.
[¶27.] City responds that Godbes have failed to present any evidence to show
that Grate 4 was modified and damaged at the time of the accident. In particular,
City points to the photographs of every grate on the Street taken by Godbes’ counsel
shortly after the accident. The photographs taken of Grate 4 and each of the other
grates to the west of Rapid Creek do not show any visible signs of welding or
damage. In contrast, photographs of every grate with parallel bars on the east side
of Rapid Creek showed some evidence of having been welded with cross straps. City
also relies on the testimony of its expert, Charles Leeper, who provided an opinion
from his review of the photographs that Grate 4 had not been welded.
[¶28.] Godbes have failed to present any evidence to show that cross straps
were ever welded onto Grate 4 and then torn off, leaving Grate 4 in a damaged
condition on July 17, 2015. Our decisions permit reasonable inferences to be drawn
from the evidence that may support a claim for relief, but inferences that lack a
-11-
#29251
sufficient factual basis and instead rely on speculation or guesswork are
insufficient. See Quinn v. Farmers Ins. Exch., 2014 S.D. 14, ¶ 20, 844 N.W.2d 619,
624–25; Nationwide, 2014 S.D. 70, ¶ 10, 855 N.W.2d at 149. Thus, our summary
judgment standard recognizes that a party resisting summary judgment is entitled
to all “reasonable inferences” in their favor that are supported by the evidence, but
where the evidence along with any reasonable inferences requires “speculation,
conjecture, or fantasy” to support the claim, summary judgment must be granted.
See e.g., Est. of Elliott ex rel. Elliott v. A & B Welding Supply Co., 1999 S.D. 57,
¶ 16, 594 N.W.2d 707, 710; Tolle v. Lev, 2011 S.D. 65, ¶ 11, 804 N.W.2d 440, 444;
Hanson v. Big Stone Therapies, Inc., 2018 S.D. 60, ¶ 29, 916 N.W.2d 151, 159. 4 3F
[¶29.] Godbes’ claim that Grate 4 was damaged rests entirely on multiple
inferences drawn from evidence showing that City knew the design of the parallel
grates was unsafe, that straps were welded onto some of the parallel grates on the
Street, and that some straps were torn off these grates. From this evidence, Godbes
4. Although not controlling in this case, other courts have adopted rules to
ensure an inference has a sufficient factual basis. “[A]n inference cannot be
derived from another inference. An inference must be based on a known or
proved fact.” Kmart Corp. v. Bassett, 769 So. 2d 282, 287 (Ala. 2000) (internal
quotation marks omitted). “If a party to a civil action depends upon
inferences to be drawn from circumstantial evidence as proof of one fact, it
cannot construct a further inference upon the initial inference in order to
establish a further fact unless it can be found that the original, basic
inference was established to the exclusion of all other reasonable inferences.”
Desvarieux v. Bridgestone Retail Operations, LLC, 300 So. 3d 723, 727 n.3
(Fla. Dist. Ct. App. 2020). “[A] trier of fact . . . may not draw an inference
based entirely upon another inference, unsupported by any additional fact or
another inference from other facts.” Nageotte v. Cafaro Co., 828 N.E.2d 683,
692 (Ohio Ct. App. 2005). See also Schuler v. Mid-Central Cardiology, 729
N.E.2d 536, 544 (Ill. App. Ct. 2000); Dildine v. Town & Country Truck Sales,
Inc., 577 S.E.2d 882, 884 (Ga. Ct. App. 2003); Carnevale v. Smith, 404 A.2d
836, 841 (R.I. 1979).
-12-
#29251
rely on inferences that all of the parallel grates on the Street, including Grate 4,
must have been welded with straps and that the straps were then torn off without
leaving welding indents. Thus, they argue a jury could find Grate 4 was in a
damaged condition at the time of the accident. These multiple inferences are not
reasonable based upon the absence of any evidence or indication that Grate 4, or
any of the grates to the west of Rapid Creek, were ever modified with welded cross
straps and then torn off.
[¶30.] In particular, Godbes had the opportunity to inspect and photograph
each of the grates on the Street shortly after the accident, yet they failed to present
evidence from anyone who saw Grate 4, before or after the accident, that there was
any observable indication that Grate 4 had been fitted with straps and was in a
damaged condition. 5 The photographs also confirm there is no indication of prior
4F
welding or damage to Grate 4, nor have Godbes claimed that the depictions of any of
the grates in the photographs were inaccurate. 6 The only verifiable instances in
5F
which the straps failed are ones where the parallel grates bear the unmistakable
5. The dissent’s reliance on Brumbaugh’s and Leeper’s testimony as creating a
genuine issue of material fact is misguided because neither individual
indicated that Grate 4 was damaged or displayed any visual markings of
welded straps. Further, Brumbaugh and Leeper did not present any
evidence, nor are there other facts in the record, that would in any way
suggest that all the Street’s grates had been uniformly modified with cross
straps.
6. The dissent improperly relies on the absence of evidence to argue that “it is
equally likely that the grates could have had straps welded to them without
photographs showing marks from the welding.” Dissent ¶ 43. This admitted
absence of evidence does not satisfy Godbes’ burden of proof on summary
judgment and would leave a jury to guess or speculate at trial whether Grate
4 was in a damaged condition at the time of the accident.
-13-
#29251
welding marks of the now-missing straps, and these marks can be clearly seen in
the photographic evidence.
[¶31.] But more fundamentally, Godbes have not demonstrated that the
installation of welded straps on the parallel grates along the Street was universal.
The photographs show that straps had been welded onto every grate to the east of
Rapid Creek, while the photographs taken of every grate to the west of Rapid
Creek, including Grate 4, show no indication of welding. Further, Godbes have also
failed to show City ever installed straps on all the parallel grates on the Street or
had a definitive plan to do so. In fact, Godbes own expert testified that he “d[id]n’t
think there is enough evidence to show that every grate had bars welded across it.”
A jury would be left to speculate as to whether Grate 4 had ever been fitted with
cross straps that had been torn off.
[¶32.] Based on our review of the record, Godbes have not presented a
genuine issue of material fact that Grate 4 was damaged on the day of Julie’s
accident. See Bickner v. Raymond Twp., 2008 S.D. 27, ¶ 11, 747 N.W.2d 668, 671
(holding that summary judgment was proper when “[n]othing in the record
establishe[d] that the township road was damaged or in a defective condition”). As
such, SDCL 31-32-10 is inapposite and it is unnecessary for us to address whether
City had notice of an undamaged condition. “[T]his Court will affirm the circuit
court’s ruling granting a motion for summary judgment if any basis exists to
support the ruling.” Discover Bank v. Stanley, 2008 S.D. 111, ¶ 19, 757 N.W.2d 756,
762.
-14-
#29251
[¶33.] Godbes argue, however, that City’s failure to preserve Grate 4, after it
had received notice of the impending lawsuit, amounts to spoliation of the evidence.
Therefore, they claim an entitlement to an adverse inference instruction against
City at trial, which would allow the jury to draw an inference that Grate 4 was
damaged if it finds City destroyed the evidence intentionally and in bad faith. See
Red Bear v. SESDAC, Inc., 2017 S.D. 27, ¶ 32, 896 N.W.2d 270, 279; State v.
Engesser, 2003 S.D. 47, ¶ 44, 661 N.W.2d 739, 753.
[¶34.] The circuit court did not address this spoliation claim, and while it
may be premature to determine whether a spoliation instruction would be
appropriate at trial, the evidence is undisputed that Godbes’ counsel had the
opportunity to observe and photograph Grate 4 and all the other grates on the
Street shortly after the accident, that Godbes urged City to replace the grates but
did not request City to preserve Grate 4, and that City replaced all the grates on the
Street in response to the request from Godbes. Further, even if Godbes managed to
overcome this evidence and obtain a spoliation instruction at trial, the jury would
be advised that it may only draw an inference that the grate contained evidence
unfavorable to City if it first determines that City acted intentionally and with bad
faith by not preserving Grate 4 during the process of replacing these grates. The
potential for such an inference is not substantive evidence and does not relieve
Godbes of their burden at summary judgment to present evidence showing a
genuine issue of material fact that Grate 4 was damaged. See, e.g., Byrnie v. Town
of Cromwell, Bd. of Educ., 243 F.3d 93, 107 (2d Cir. 2001); Todeschi v. Sumitomo
Metal Mining Pogo, LLC, 394 P.3d 562, 577 (Alaska 2017); Beers v. Bayliner Marine
-15-
#29251
Corp., 675 A.2d 829, 833 (Conn. 1996); McLain v. Taco Bell Corp., 527 S.E.2d 712,
716 (N.C. Ct. App. 2000); DiLeo v. Nugent, 592 A.2d 1126, 1132 (Md. Ct. Spec. App.
1991). In the absence of facts showing that Grate 4 had been welded and damaged,
the possibility that Godbes could present evidence of spoliation by City at trial does
not create a genuine issue of material fact for summary judgment purposes. 7 6F
[¶35.] This is a troubling and tragic case. By all accounts, City knew the
design of its grating system was dangerous to cyclists when it assumed
responsibility of the Street in 2004. Julie’s injuries could have been prevented had
City acted on this knowledge and replaced the dangerously designed grates as its
own guidelines set forth. However, SDCL 31-32-10 does not provide a remedy
against a governmental entity for known dangerous design defects on a highway or
street, and any expansion of this statutory duty is within the prerogative of the
Legislature, not this Court. Further, our prior decision in Hohm—concluding that
SDCL 31-32-10 eliminated any common law duties—is binding on this Court and
has not been raised as an issue on appeal. Therefore, we affirm.
[¶36.] SALTER and DEVANEY, Justices, and GILBERTSON, Retired Chief
Justice, concur.
[¶37.] KERN, Justice, dissents.
[¶38.] MYREN, Justice, not having been a member of the Court at the time
this action was submitted to the Court, did not participate.
7. The dissent suggests that questions exist as to whether City destroyed Grate
4 in bad faith so as to give rise to a claim for spoliation of evidence at trial.
But even if we were to assume that Godbes can present a case for a spoliation
at trial, the dissent fails to cite any authority to support the notion that such
an inference is sufficient to create a genuine issue of material fact.
-16-
#29251
KERN, Justice (dissenting).
[¶39.] Today the majority affirms a circuit court’s erroneous grant of
summary judgment, depriving the Godbes of the right to present their claim against
the City to a jury for its negligent maintenance of drainage grates that led to Julie
Godbe’s severe injuries. Therefore, I must respectfully dissent.
[¶40.] When reviewing a circuit court’s entry of summary judgment, we
consider de novo whether there is a genuine issue of material fact and whether
there is a genuine issue on the inferences to be drawn from those facts. A-G-E
Corp., 2006 S.D. 66, ¶ 17, 719 N.W.2d at 786. We view the evidence and all
reasonable inferences in a light most favorable to the nonmoving party and resolve
reasonable doubts against the moving party. See Knecht v. Evridge, 2020 S.D. 9, ¶
51, 940 N.W.2d 318, 333 (citation omitted). Further, “[w]e will affirm only when
there are no genuine issues of material fact and the legal questions have been
correctly decided.” Id. Applying these well-settled rules here, the City has not
shown that the material facts and reasonable inferences drawn therefrom are
undisputed as to whether Grate 4 was damaged at the time of the accident, whether
spoliation occurred with the destruction of Grate 4, and whether the City had
constructive notice of highway damage.
Whether a genuine issue of material fact exists as to damage on Grate 4
[¶41.] SDCL 31-32-10 requires the governing body responsible for
maintaining a highway to respond promptly to dangerous highway, culvert, or
bridge damage. SDCL 31-32-10’s plain language encompasses damage to any
highway, culvert, or bridge:
-17-
#29251
to the extent that [the damage] endangers the safety of public
travel, the governing body . . . shall within forty-eight hours of
receiving notice of such danger, erect guards over such defect . . .
and shall repair the damage or provide an alternative means of
crossing within a reasonable time after receiving notice of the
danger.
The notice contemplated in SDCL 31-32-10 may be either actual or constructive
notice. Fritz v. Howard Twp., 1997 S.D. 122, ¶ 21, 570 N.W.2d 240, 245;
Clementson v. Union Cnty., 63 S.D. 104, 256 N.W. 794, 796 (1934). Therefore, for
the statutory duty outlined in SDCL 31-32-10 to be present, a plaintiff must show
that (1) a highway has been damaged; and (2) the governing body responsible for
maintenance of the highway has notice, either actual or constructive, of the damage.
The Godbes have sufficiently shown a genuine issue of material fact as to both
prongs of this statutory duty, making summary judgment improper.
[¶42.] Accepting the majority’s construction of the law, and upon review of
the record, the Godbes have established the existence of a disputed genuine issue of
material fact, namely, that the highway was damaged because a part of it—Grate
4—was damaged. The Godbes presented multiple photographs of grates along East
St. Patrick Street that were damaged by having metal straps scraped off them. 8 7F
The majority opinion attempts to distinguish between damage of the grates west of
Rapid Creek on East St. Patrick Street viewed separately from the grates east of
Rapid Creek, stating, “The photographs taken of Grate 4 and each of the other
8. Once an appendage (like a sign or grate) of a highway is created, it becomes
part of the highway. Fritz, 1997 S.D. 122, ¶ 20, 570 N.W.2d at 244; Kiel v.
DeSmet Twp., 90 S.D. 492, 497, 242 N.W.2d 153, 155 (1976) (“the county . . .
erected a warning sign. It then became a physical and integral part of the
highway.”). The grates were part of the highway and the straps welded to
the grates became part of the grates and, thus, part of the highway.
-18-
#29251
grates to the west of Rapid Creek do not show any visible signs of welding or
damage.” The majority opinion states that:
[The City] argued that Grate 4 could not have been damaged
because the photograph of Grate 4 showed “absolutely no
evidence of crossbars.” In support, City offered the opinion of its
welding expert Charles Leeper, who opined that “upon thorough
analysis” of the photographs, “the grate in question . . . had
never been welded on before Ms. Godbe’s accident.”
(Emphasis added). However, Leeper reviewed only the photographs of the 30 grates
on East St. Patrick Street that were taken by the Godbes’ counsel, which included
only one photograph of Grate 4, to determine that the grate never had cross straps
attached to it. The majority views this information in contravention of what the law
requires: instead of viewing this evidence and all reasonable inferences in a light
most favorable to the nonmoving party and resolving reasonable doubts against the
moving party, the majority accepts the City’s arguments wholesale, as if the facts
upon which they are based were not disputed. See Knecht, 2020 S.D. 9, ¶ 51, 940
N.W.2d at 333 (citation omitted).
[¶43.] These facts, however, are resolutely disputed by the Godbes. The
Godbes specifically challenged welding expert Charles Leeper’s opinion as being
based on a paucity of information. 9 City employee Brumbaugh stated that “in most
8F
cases,” the bars of a grate would have visible indents if their straps had been torn
off. However, Brumbaugh clarified that whether a grate shows visible markers of
9. Specifically, the Godbes moved prior to summary judgment to exclude
testimony from Leeper because they allege that he did not rely on sufficient
facts and data and that his opinions and testimony were not based on reliable
methods or principles. It does not appear from the record that the court ruled
on this motion.
-19-
#29251
prior welding “[d]epends on how [the straps] were put on.” Unfortunately, Leeper
did not ever look at or test the grates on East St. Patrick Street himself; he only
considered visual markers of prior welding from one photograph of Grate 4 in
comparison to single photographs of other grates on the street. Leeper answered
“Right” to the Godbes’ deposition question that “you can’t tell from photographs
whether some welds took and some didn’t take, correct?” 10 9F
[¶44.] Because Brumbaugh testified that visible markers of prior welding
may not appear, depending on how the straps were put on the grate, and Leeper
acknowledged that it was impossible to tell from photographs whether the welds on
Grate 4 “took” or not, there is uncertainty in the record as to whether Grate 4 had
straps welded to it that were scraped off. The majority frames its discussion of this
evidence by stating that “[t]he photographs also confirm there is no indication of
10. The following exchange also occurred during Leeper’s deposition:
Q: You’ve seen bad welds?
A: Yes.
Q: And you’ve seen bad enough welds they don’t take at all?
A: Yes.
Q: And if they don’t take at all, they’re not going to leave
much of a scar, are they?
A: No.
Q: And if they don’t leave a scar because it’s a bad weld done
by perhaps a bad welder, you’re not going to see much of
anything on the metal object you’re looking at, correct?
A: No.
Q: Well, we don’t know the competence of the welder that
ever welded on any of these grates, right?
A: Correct.
Q: We don’t know if there was rust on the grate or the metal
object when it was allegedly welded?
A: Correct.
Q: We don’t know if there was grease on there that could also
affect the weld, correct?
A: Correct. Yeah.
-20-
#29251
prior welding or damage to Grate 4, nor have Godbes claimed that the depictions of
any of the grates in the photographs were inaccurate.” Majority Opinion ¶ 30. This
reasoning fails to consider that it is equally likely that the grates could have had
straps welded to them without photographs showing marks from the welding.
Viewing this evidence in favor of the Godbes, there is a genuine dispute of material
fact as to whether Grate 4 specifically was damaged, making summary judgment
inappropriate.
[¶45.] The majority opinion bemoans the supposedly unreasonable inferences
that must be made in order to view the evidence in favor of the Godbes. It
acknowledges the evidence that “the City knew the design of the parallel grates was
unsafe, that straps were welded onto some of the parallel grates on the Street, and
that some of the straps were torn off these grates.” 11 Majority Opinion ¶ 29. The
10F
photograph of Grate 4 shows that there were no straps on Grate 4 at the time of the
accident, meaning that the grate either never had straps or that the straps were
ripped off. Furthermore, both parties have agreed that when the straps are ripped
off of a grate, the grate is damaged. 12 The majority then states that the dissent
11F
11. Viewing the evidence in this way leads to the unnecessarily harsh result that
if Julie Godbe’s tire had fallen through a different grate (that was just as
dangerous—for example, Grate 11, as shown in the appendix to the majority
opinion) on the same street, she could have recovered fully, but because her
tire fell through the wrong grate, she cannot recover at all. The law does not
require this type of arbitrary distinction.
12. City employee Brumbaugh stated in his deposition:
Q: And you understand that if there are welded straps on [the grates],
that they need to be maintained?
A: Typically.
Q: And that’s because if you don’t maintain them, it may create a hazard?
(continued . . .)
-21-
#29251
takes multiple, unreasonable inferences to draw the conclusion that Grate 4 had
straps welded to it which were ripped off. However, there are two potential
inferences that can be drawn here: the first, in favor of the City, that there never
were straps on Grate 4; the second, in favor of the Godbes, that there were straps on
Grate 4 that had been ripped off. Because we are reviewing a summary judgment
and the Godbes are the nonmoving party, we must view the evidence and the
inferences to be drawn therefrom in favor of the Godbes. The majority ignores our
clear summary judgment standard to conclude otherwise.
Whether spoliation occurred
[¶46.] Compounding the issue of whether Grate 4 had straps welded to it is
the fact that the grates at issue have been destroyed by the City. This destruction
of evidence prohibits further inquiry into whether Grate 4 had straps welded onto
it. Therefore, this case presents concerning, undisputed facts involving the
________________________
(. . . continued)
A: It could.
[...]
Q: And typically the equipment that you could think of that would tear
metal straps off a metal grate would be a snowplow, correct?
A: If they were to hit them, yes.
[...]
Q: And the city has gone out and repaired metal straps that have been
torn off of grates, correct?
A: If we receive a complaint on them.
Q: And that would show the knowledge that the city would have that
sometimes equipment may tear off the straps?
A: It could be the cause, yes. I mean, there’s any number of reasons.
[...]
Q: So once the straps are torn off, the grate in its configuration now with
the straps has been damaged, correct?
A: Correct.
-22-
#29251
potential intentional spoliation of key evidence, and the City’s action prevents
further inquiry into whether Grate 4 was damaged.
[¶47.] There is no question that the City had control over Grate 4 at all times
during the litigation. The City intentionally removed the Grate and destroyed it
while also admitting to knowing about the Godbes’ case against the City. As
troubling as that appears, additionally, there is no evidence of who removed the
grates for the City, how the grates were disposed of, or when the decision was made
to destroy the grates. Grate 4 was crucial evidence of the Godbes’ claim, and other
than a solitary, inadequate photograph taken by the Godbes’ own attorney, no other
evidence now exists concerning the possibility of welding repairs to Grate 4. A
closer look or more sophisticated examination of Grate 4 by an expert for the
Godbes is now impossible. And Charles Leeper, the City’s own welding expert,
testified that there are physical tests that could have been run on the actual grate,
had it not been destroyed, to show whether it had been welded on or not.
[¶48.] The Godbes argued in their brief to the circuit court that the City
intentionally destroyed the grates after being notified of the pending litigation.
Notably, the circuit court’s memorandum decision makes no mention of whether
intentional spoliation occurred and whether it warranted sanctions. As the record
now stands, it is not possible to discern the City’s mindset when it destroyed Grate
4, and this Court does not undertake fact-finding to determine whether a party
acted in good or bad faith.
[¶49.] Litigants are under a strict duty to refrain from the intentional
destruction of evidence, which is a form of obstruction of justice. Engesser, 2003
-23-
#29251
S.D. 47, ¶ 44, 661 N.W.2d at753. Accordingly, when spoliation occurs, the circuit
court may grant a “spoliation inference,” permitting the fact-finder to infer that
“destroyed evidence would have been unfavorable to the position of the offending
party.” Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994). We
have previously explained that:
An instruction on the inference that may be drawn from the
spoliation of evidence is proper only when substantial evidence
exists to support a conclusion that the evidence was in existence,
that it was in the possession or under the control of the party
against whom the inference may be drawn, that the evidence
would have been admissible at trial, and that the party
responsible for destroying the evidence did so intentionally and
in bad faith.
Engesser, 2003 S.D. 47, ¶ 46, 661 N.W.2d at 755. All elements except that of bad
faith are definitively present here. Grate 4 was in existence, it was under the
control of the City, the City intentionally destroyed it, and it would have been
admissible at trial. Therefore, if the City destroyed Grate 4 in bad faith, the Godbes
should be entitled to an inference that Grate 4 would have been unfavorable to the
City’s position.
[¶50.] The Godbes have validly challenged the City’s expert opinion that
Grate 4 had never been welded, creating a genuine issue of material fact. This
genuine issue of material fact cannot now be resolved because of the City’s action in
destroying the grates. The majority opinion here traps the Godbes within its own
circular reasoning: it relies on an expert opinion based on a single photograph to
determine conclusively that Grate 4 never had cross straps welded to it. The
majority then faults the Godbes for not providing more evidence about the grate to
show that it was damaged, even though the City destroyed the grate, prohibiting
-24-
#29251
the Godbes from providing more evidence. This creates a perverse result in that,
because the City destroyed evidence, it prevails on summary judgment.
Whether the City had constructive notice of highway damage
[¶51.] The majority acknowledges that the circuit court did not grant
summary judgment on either of the two issues discussed above; rather, the circuit
court “assumed, without deciding, that Godbes had offered sufficient facts to
establish that Grate 4 was damaged at the time of the accident,” and then applied
“an actual notice standard to SDCL 31-32-10” and “granted summary judgment to
City, holding that ‘there is nothing in the established record that any one from the
[C]ity had notice of damage (from snowplows or otherwise) . . . to any of the grates
on [the] Street.’” Majority Opinion ¶ 24. The majority does not undertake any
analysis on this issue, but because the circuit court mistakenly required evidence of
actual notice when only constructive notice was required, a brief discussion of the
constructive notice requirement is important.
[¶52.] The second requirement of the statutory duty in SDCL 31-32-10 is that
the governing body of the highway have notice of damage, whether constructive or
actual. Constructive notice occurs when an entity “has actual notice of
circumstances sufficient to put a prudent man upon inquiry as to a particular fact,
and [that entity] omits to make such inquiry with reasonable diligence[.]” Fritz,
1997 S.D. 122, ¶ 21, 570 N.W.2d at 245 (citation omitted). Here, the City had
knowledge that snowplows regularly scraped cross straps off the grates on St.
Patrick Street, damaging the grates and making them unsafe for bicyclists.
Specifically, the City had to regularly maintain the welded straps because it knew
-25-
#29251
that straps were often ripped off the grates, creating a safety hazard, and multiple
photographs of various grates along East St. Patrick Street show grates with
partially ripped-off straps. That the City knew that the straps were regularly being
ripped off by the snowplows put the City on “actual notice of circumstances
sufficient to put a prudent man upon inquiry as to a particular fact [that straps
were being ripped off].” See id. The City then “omit[ted] to make such inquiry
[whether straps had been ripped off any grates] with reasonable diligence,”
therefore, the City should be “deemed to have constructive notice of the fact [that
the straps had been ripped off] itself.” See id.
[¶53.] Here, the City knew that grates were unsafe and damaged if straps
were ripped off. However, the City, while knowing that snowplows regularly ripped
off straps, chose not to check if any grates were damaged after plowing, thus
willfully remaining ignorant as to whether any grates had been damaged and the
highway was unsafe. Constructive notice exists to hold responsible those who
choose to ignore the potential danger that they themselves have caused—and the
City chose to, and got away with, ignoring this danger.
[¶54.] The issue of constructive notice is to be determined by the trier of fact.
Here, as in Fritz, it is “a question of fact for the jury to determine whether” the City
should have discovered the highway defects “in time to replace [the grates] before
this accident.” 1997 S.D. 122, ¶ 22, 570 N.W.2d at 245. This evidence presents a
genuine issue of material fact as to whether the City had constructive notice of the
damage to the highway from snowplows ripping off the straps welded onto the
-26-
#29251
highway grates. Therefore, summary judgment was inappropriate on the issue of
notice.
Conclusion
[¶55.] For these reasons, I would reverse the court’s grant of summary
judgment and remand this case for fact-finding regarding whether Grate 4 had
perpendicular straps welded to it that were ripped off, whether the City engaged in
intentional, bad-faith spoliation of key evidence, and whether the City had
constructive notice of highway damage.
-27-
#29251
Appendix
East Saint Patrick Street
West of Rapid Creek
-28-
#29251
East of Rapid Creek
-29-