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Holland v. City of Geddes5/31/2000
Appeal from the First Judicial Circuit, Charles Mix County, SDHon. Lee A. Tappe, Judge
Reversed
Considered on Briefs Nov 29, 1999;
[ ] The plaintiffs sued the City of Geddes after water seepage damaged their home. In granting summary judgment for the City, the circuit court ruled that the plaintiffs failed to give timely notice of injury as required by law, and that the limitations period was not tolled by a continuing tort. We reverse because the City's failure to repair its broken valve was a continuing tort suspending the limitations period until the valve was fixed. Thereafter, the notice was timely.
BACKGROUND
[ ] Susan and Larry Holland moved to Geddes, South Dakota, in 1990. Two years later, they rented out their home and left to pursue a business venture in Wisconsin. In 1993 they returned. The water service to the house had been turned off after their tenants moved out. When the Hollands were about to move back into their home, they asked the City to turn the water on. While turning the main valve at the street, a City employee broke it, so that "it kept going in a circle." After that, the water service could not be turned off. In February 1994, Larry noticed a leak coming from the shutoff valve under the house. To repair it, the main valve at the street had to be turned off. By March, the leak had become a "steady drip," and was "getting worse and worse." From March 1994 to July 1996, the Hollands "complained often" to various City officials about the City's unrepaired valve, but to no avail. For two years, water accumulated under the corner of the house, leached into the ground, and undermined the foundation, causing the house to settle. The City finally repaired its valve in July 1996.
[ ] On September 10, 1996, the Hollands gave written notice of injury to the City, pursuant to SDCL 3-21-2. The City denied their claim, and on January 28, 1998, the Hollands commenced suit. On the City's motion, the circuit court granted summary judgment against the Hollands, deeming their notice untimely. In this appeal, they assert the following issues: (1) Did the court err in granting summary judgment to the City based on the failure to provide timely notice? (2) Did the court err in deciding that the failure of the City to repair the damaged valve was a single injury and not a continuing tort tolling the statute of limitations? (3) Did the court err in failing to estop the City from asserting the notice defense, based on actual notice and the nature of the injury? For ease of analysis, we examine issues one and two together, and our ruling on those issues makes a decision on issue three unnecessary. Our settled standard of review for summary judgments has been recited in numerous cases and need not be repeated here. See Kobbeman v. Oleson, 1998 SD 20, , 574 NW2d 633, 635.
Continuing Tort as Tolling the Statute of Limitations
[ ] Parties intending to sue a public entity must first give timely written notice of injury. In granting summary judgment, the circuit court ruled that the Hollands did not comply with the 180-day notice requirement in SDCL 3-21-2. This statute provides:
No action for the recovery of damages for personal injury, property damage, error or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury. The court found that the injury occurred when the water valve was broken in 1994; afterward, the resultant water leakage damaging the Hollands' home
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