Pierre, South Dakota - Personal Injury lawyer represented Plaintiffs and Appellants with suing the City for negligence.

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

#29251

-2-

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.0F

1

[¶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.

#29251

-3-

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.1F

2

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.”

#29251

-4-

[¶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

#29251

-5-

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.”

#29251

-6-

[¶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

#29251

-7-

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

#29251

-8-

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

#29251

-9-

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

#29251

-10-

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.2F

3 Instead, 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 "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.

#29251

-11-

[¶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

#29251

-12-

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, 159.3F

4

[¶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).

#29251

-13-

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.4F

5 The photographs also confirm there is no indication of prior

welding or damage to Grate 4, nor have Godbes claimed that the depictions of any of

the grates in the photographs were inaccurate.5F

6 The only verifiable instances in

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.

#29251

-14-

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.

#29251

-15-

[¶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

#29251

-16-

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.6F

7

[¶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.

#29251

-17-

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:

#29251

-18-

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.7F

8

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.

#29251

-19-

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.8F

9 City employee Brumbaugh stated that "in most

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.

#29251

-20-

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?”9F

10

[¶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.

#29251

-21-

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.”10F

11 Majority Opinion ¶ 29. The

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.11F

12 The majority then states that the dissent

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 . . .)

#29251

-22-

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.

#29251

-23-

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

#29251

-24-

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

#29251

-25-

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

#29251

-26-

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

#29251

-27-

highway grates. Therefore, summary judgment was inappropriate on the issue of

notice.

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.