Furgeson v. Bisbee

Citations: 932 F. Supp. 1185; 1996 U.S. Dist. LEXIS 12071; 1996 WL 465140Docket: No. CIV 93-3039

Court: District Court, D. South Dakota; August 6, 1996; Federal District Court

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Defendants, including Emmett Keyser, Richard Beringson, and the South Dakota Department of Game, Fish and Parks, filed motions for summary judgment regarding claims by Marlene Furgeson and Nikki Gakin, representing Doug Furgeson’s estate and children. Doug Furgeson died in February 1992 after his vehicle was punctured by spike devices placed on a hill, allegedly installed willfully by a conservation officer, Dean Bisbee, to deter hill climbing. The plaintiffs seek damages for wrongful death, survival, and civil rights violations under 42 U.S.C. § 1983, asserting that the defendants are responsible for Furgeson’s death due to the placement of these spikes.

Key facts include that Bisbee placed the spikes without supervisory approval and designed them himself, while Beringson and Keyser, who were in higher positions, claimed ignorance of the spike placement. The court will grant summary judgment if there are no genuine disputes over material facts. The defendants argued that the plaintiffs' state law claims should be dismissed due to failure to provide the required written notice under SDCL 3-21-2, which mandates notification to the appropriate state officials within 180 days of the injury. Although Marlene Furgeson contacted the former governor shortly after her son’s death, this did not satisfy the statutory notice requirements, which specify the attorney general and commissioner of administration as the proper recipients.

Governor Mickelson confirmed that the Department collaborated with law enforcement upon discovering that an employee was involved in an investigation. He expressed a commitment to uncovering the facts and assured continued cooperation with local authorities, stating that the Department of Game, Fish, and Parks would act based on the investigation's outcome. He did not inform Ms. Furgeson of her obligation to notify other state officials regarding her son’s death. On May 12, 1992, plaintiffs’ counsel sent a letter to attorney Brent Wilbur, representing the Department, indicating that no destructive testing should be performed on Doug Furgeson's pickup, mentioning the death, and referencing specific items taken for investigation. This letter was also forwarded to Attorney General Mark Barnett, advising against destructive testing and asserting that it fulfilled the written notice requirement under SDCL 3-21-2 concerning the attorney general, despite not detailing the injury's specifics. Plaintiffs acknowledged that they failed to provide written notice to the commissioner of administration within the mandated 180 days following Furgeson's death, with formal notice sent two months after the deadline. Historically, the South Dakota Supreme Court has strictly enforced compliance with the notice requirements for claims against public entities. However, more recent rulings have allowed for exceptions when a public entity misleads a claimant. In one case, the court found the state estopped from invoking the notice defense due to actions that led a reasonable person to believe that notice had been adequately given. Even if the plaintiffs' letter did not fully meet the notice criteria, the court determined that the defendants should be estopped from asserting the notice defense, as Governor Mickelson had made affirmative representations about the investigation's progress without informing Ms. Furgeson of her notification responsibilities, implying that his office would take care of notifying relevant parties. The state and its representatives are not obligated to provide legal advice but cannot mislead claimants regarding their legal rights.

Governor Mickelson's representations in his letter to Ms. Furgeson were deemed credible enough to lead an objectively reasonable person to believe that proper authorities had been notified, given his position and reputation in South Dakota. Consequently, defendants are estopped from asserting the notice defense under SDCL Ch. 3-21, and summary judgment on plaintiffs’ survival and wrongful death claims will not be granted. The notice requirements of SDCL Ch. 3-21 do not affect the plaintiffs’ constitutional claims or their 42 U.S.C. 1983 action. The Department, as an arm of the state, is not considered a “person” under 42 U.S.C. 1983, thus summary judgment is appropriate for the Department on these claims. However, state officials sued in their individual capacities are considered “persons” under the statute. 

Regarding the liability of supervisors Beringson and Keyser, both defendants testified they were unaware of the spike devices placed by Bisbee and did not authorize their use. The plaintiffs failed to provide evidence to contradict this or to establish that Beringson or Keyser caused any injuries to Furgeson. Liability under 42 U.S.C. 1983 requires personal responsibility or knowledge of the violation, which the plaintiffs did not demonstrate for Beringson and Keyser. Therefore, no genuine issue of material fact exists concerning their liability, warranting summary judgment in their favor.

The court orders: 1) Granting summary judgment for defendants Emmett Keyser and Richard Beringson on all claims; 2) Summary judgment in favor of the Department of Game, Fish and Parks on the 42 U.S.C. 1983 claims; 3) Denying defendants’ motions for summary judgment in other respects.