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Gakin v. City of Rapid City6/1/2005
Argued March 22, 2005
[ .] Maria Gakin and Frederick Eagle Tail, Jr. filed suit alleging that cemetery employees moved the grave of their deceased infant son without their consent. The city of Rapid City (City), which owns and operates the cemetery, denies these accusations. The trial court granted the City's motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal and we affirm Issues 1 and 3A and reverse Issues 2 and 3B.
Facts
[ .] Maria Gakin (Gakin) and Frederick Eagle Tail, Jr. are the natural parents of a deceased infant, Ty Eagle Tail (Ty). Ty was born on July 27, 1999 with a severe genetic and physical impairment known as Anencephalus. Due to his medical condition, Ty passed away approximately two and one-half months after birth. Ty's parents hired Kirk Funeral Home to provide the funeral arrangements. This included a traditional Christian/Lakota funeral at St. Matthew's Episcopal Church in Rapid City, followed by a burial service at Mountain View Cemetery. The funeral and burial took place on October 15, 1999.
[ .] Within days after the funeral, the parents suspected that the grave site had been moved several feet from its original position. A month or two later, Gakin telephoned Thomas Vallette (Vallette), the cemetery supervisor, to discuss the matter. During the phone call, Gakin accused the cemetery of moving the gravesite without her permission. Vallette denied those accusations.
[ .] In September, 2001, almost two years after Ty's funeral, the parent's attorney contacted the cemetery in an effort to determine if the infant's grave site had been moved after the funeral and burial. The city attorney responded to the inquiry and explained that while preparing the gravesite the day before the funeral, cemetery employee Jerry Zimmerman (Zimmerman) mistakenly dug the grave in the wrong spot. The error was discovered by Vallette and the next morning he and Zimmerman filled-in the grave and dug a grave in the correct location prior to the funeral service later that afternoon.
[ .] Nonetheless, the parents remained suspicious and on May 9, 2002, they had Ty's remains disinterred. The disinterment confirmed that Ty's remains were in fact buried in his marked grave, but that the casket faced east rather than west, the traditional manner. The parents maintain that pictures taken at the funeral and at the disinterment, along with the positioning of the casket, show that it had been moved sometime after the funeral and burial.
[ .] The parents filed a Complaint against the city of Rapid City and certain unnamed defendants alleging negligence, reckless and intentional conduct, violation of contract, intentional and negligent infliction of emotional distress, trespass, failure to train and supervise cemetery employees, and punitive damages. On November 19, 2003, they amended the Complaint to include the specific named defendants, Vallette and Zimmerman, and added the claims of fraud, deceit and concealment. The trial court granted the City's motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal raising three issues, which we rewrite as four issues:
1. Whether the trial court erred in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2.
2. Whether the trial court erred in granting summary judgment on all state contract claims.
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