Brenda M. King, as personal representative of the Estate of Ashley Marie King, deceased, et al. v. Dennis Landguth, Secretary of the South Dakota Department of Transportation

[1.] This action arose from a one car accident in rural Turner County, where Ashley Marie King suffered fatal injuries and Barbara V. King (Barbara) suffered serious but non-fatal injuries, after the driver hit a box culvert in the ditch. Brenda M. King (Brenda), on behalf of Ashley, and Barbara sued the State of South Dakota, the South Dakota Department of Transportation (DOT), and DOT employees. The circuit court dismissed two of King's1 claims. A jury trial was held regarding the third claim of DOT employees' negligence in failing to maintain the signs. The jury returned a verdict in favor of the DOT employees and King appealed. The DOT employees also submitted two issues for review. We affirm.

FACT

[2.] On October 19, 2002, Joshua Engel (Josh), his mother, Debra Engel (Debra), his cousin Ashley, and his grandmother, Barbara, were traveling west from Sioux Falls to Platte on Highway 44. At approximately 6:00 p.m., the car left the west bound lane, crossed the center line, entered the east bound lane and proceeded into the southern ditch. The car was traveling between 65 and 70 mph before leaving the road. According to Josh, he awoke when the car was three-fourths of the way into the oncoming traffic lane, when his mother yelled at him to wake up. He then swerved into the southern ditch (the ditch adjacent to the oncoming traffic lane), to avoid an oncoming vehicle approximately 800 feet ahead.

[3.] Josh stated he tried, but was unable, to maneuver the car back onto the road. He then tried to bring the vehicle to a stop in the ditch. Before coming to a stop, the car hit a cement box culvert, approximately 320 feet from where the car entered the ditch. He said he did not see the culvert prior to the accident. According to Josh, had he seen the culvert, he felt he could have avoided it. Barbara suffered severe injuries and was flown to a Sioux Falls hospital. Ashley's injuries were fatal.

[4.] King sued the State of South Dakota, the DOT and several DOT individuals.2 The DOT employees sued the driver of the car, Josh, as a Third Party Defendant. King alleged the DOT employees were negligent in marking the culvert and maintaining the signs.

[5.] The court dismissed the claims against the State of South Dakota and the DOT due to sovereign immunity. Likewise, the claims that the DOT employees were negligent in marking the box culvert were dismissed based on sovereign immunity. The DOT's motion to dismiss the claim of negligence in maintaining the markers was denied and a jury trial was held. The jury found for the DOT employees.

[6.] King appeals and raises one issue:

1. Whether the circuit court erred in deciding sovereign immunity bars King's claim of negligence in marking the box culvert on the basis that these actions are discretionary functions.3

The DOT employees filed a notice of review raising two issues:

2. Whether, as a matter of law, the proximate cause of the accident was the negligence of Josh Engel.

3. Whether the jury should have been advised that the Kings settled their claims against the driver of the vehicle.

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