 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Holland v. City of Geddes5/31/2000
continued until 1944. After they repeatedly asked the City to repair the sewer line, the Defnets finally hired a private contractor to work on the problem, a job the City later completed. Both the Defnets and the City sought reimbursement from the other for the work done. With little discussion, the court held in favor of the Defnets, stating: "Where there are continuing wrongful acts within the period limited by the statute, recovery is not barred." Id. at 541 (citations omitted).
[ ] In contrast to these cases, the decision in Hall's Park Motel, Inc. v. Rover Constr., Inc., 460 SE2d 444 (WVa 1995), illustrates the distinction between a continuing tort and a continuing aftereffect. A motel owner sued a construction company for damage first observed ten years earlier, resulting from excavation on adjacent land. The owner sustained both immediate and latent injuries caused by a conspicuous occurrence. In finding no continuing tort, the court ruled that "where a plaintiff sustains a noticeable injury to property from a traumatic event, the statute of limitations begins to run and is not tolled because there may also be latent damages arising from the same traumatic event." Id. at 449. There was no continuous wrongful conduct, only a single act with damage the plaintiff did not become fully aware of until later. To constitute a continuing tort, the court observed, all elements of the tort must be continuing, including breach of duty and damages. Id. n3. The breach of duty, improper excavation, ceased, but the damage continued.
[ ] Here we have both continuing breach of duty and continuing damage. The water dripped steadily, gradually eroding the soil and damaging the Hollands' house. At the same time, the City's breach of duty in failing to repair the broken valve was ongoing. This is distinguishable from cases where the wrong flows from a single tortious event. Accordingly, the circuit court erroneously granted summary judgment. The 180-day notice period did not commence until the wrong terminated, which was when the main valve was repaired in July of 1996. Therefore, the Hollands' notice of injury was timely.
[ ] Reversed.
[ ] MILLER, Chief Justice and SABERS and GILBERTSON, Justices, concur.
[ ] AMUNDSON, Justice, dissents. AMUNDSON, Justice (dissenting).
[ ] I respectfully dissent.
[ ] Larry and Susan Holland both testified under oath that the damage in this case was caused by a single event, to wit, the breaking of the water shut-off valve when their water was turned back on by the city. There is no dispute on the plaintiff's part that this single act caused the damage. It is well settled that a party can not claim a better version of the facts than is given by their own testimony. See Vaughn v. John Morrell & Co., 2000 SD 31, , 606 NW2d 919, 926; Lakes' Byron Store, Inc. v. Auto-Owners Ins. Co., 1999 SD 25, fn*, 589 NW2d 608, 609 (quoting Miller v. Lake Area Hosp., 1996 SD 89, , 551 NW2d 817, 820-21 (citations omitted)).
[ ] We previously held in Brishky v. South Dakota, 479 NW2d 489, 492 (SD 1991),
enerally, when a tort involves continuing injury, the cause of action accrues and the statute of limitations commences when the wrong terminates. [citation omitted.] Although this Court has never, in depth, explained the nature of a continuing wrong, other jurisdictions have. A continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original action. [citation omitted.] See also McCune v. City of Grand Rapids, 842 F2d 903, 905 (6thCir 1988) (quotation omitted) (noting that "' continuing violation is occasioned by continual unlawful acts, not by con
Page 1 2 3 4 South Dakota Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
By using the system, you agree to TERMS OF SERVICE
|