Storm v. City of Brookings

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
AARON STORM, 4:19-CV-04175-RAL
Plaintiff,
vs..
CITY OF BROOKINGS,
OPINION AND ORDER GRANTING
DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT
Defendant.
Plaintiff Aaron Storm ("Aaron") shattered his vertebrae while sledding down Larson Park
Hill ("the Hill") in Brookings, South Dakota, during a family outing. Aaron sued the City of
Brookings ("the City") for one count of negligence and one count of gross negligence, claiming,
that the City knew sledding on the Hill was dangerous and failed to warn ofthe danger or inform
the public that the Hill was closed to sledding. Doe. 1 at 4-5; Doc. 21 at 9-10. The City filed a
motion for summary judgment. Doe. 14, which this Court now grants.
I. Material Facts in the Light Most Favorable to Aaron
The Hill has been a popular sledding site in Brookings since the 1980s, and the City owns
and maintains it. Doe. 15 at 1-2; Doc. 17-5 at 4; Doc. 22 at 2; Doc. 23 at 3. The east side of the
Hill is the steepest side and historically the most popular side for sledding. Doc. 17-5 at 4; Doc.
17-9 at 5; Doe. 23-31 at 4; Doc. 23-27 at 14, but the public has sledded on all sides of the Hill
through the years. Doc. 21 at 3.
At some point before 2013, although the record does not establish when. Sunrise Ridge
Road was built near the bottom ofthe east side of the Hill. Doc. 17-5 at 3; Doc. 23-20 at 8. The
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road created a hazard because people sledding down the east side ofthe Hill would sometimes sled
into the street and oncoming traffic. Doc. 17-5 at 3. To prevent injury and traffic accidents, the
City placed large hay bales at the bottom ofthe east side ofthe Hill to "catch" sledders before they
slid onto the street. Doc. 17-5 at 3; Doc. 23-18 at 3. But then the City began to receive reports
that people sustained injuries from sledding into these hay bales. Doc. 23-18 at 2. The City did
not keep records ofthese injuries or any injuries generally from sledding on the Hill, hut knew that
the hay bales in particular and sledding on the Hill generally caused injuries over the years. Doc.
22 at 3; Doc. 23-18 at 3. During the 2013 and 2014 winter season,the City's Parks and Recreation
Fall and Winter Activity Guide advertised the Hill as a sledding hill except when closed for
extreme icing or other dangerous weather conditions. Doc. 23-2 at 8. The guide further explained
that the hay bales at the bottom ofthe Hill were installed for public safety. Doc. 23-2 at 8.
Aaron was injured while sledding on the south side ofthe Hill. Doc. 1 at 3. While the City
knew that people sometimes suffered injuries from sledding on the steeper east side of the Hill,
City employees did not testify about or otherwise document any injuries sustained from sledding
on the south side ofthe Hill. Doc. 15 at 3; Doc. 16 at 5; Doc. 17-8 at 3; Doc. 17-9 at 12-13; Doc.
22 at 2; Doc. 23-18 at 2; Doc. 23-21 at 9; Doc. 29 at 1. The south side has a gentler slope, but
there is a concrete drainage ditch that runs east to west along its base over which sledders
sometimes passed when sledding down the Hill's south side. Doc. 17-5 at 4, 6; Doc. 17-9 at 5.
The ditch is about three feet wide and was construeted in the late 1980s or early 1990s. Doc. 15
at 1; Doc. 23-18 at 3; Doc. 23-21 at 14. The record does not state how deep the ditch is, but the
edge of the ditch forms a bump that sledders pass over before dropping down several inches or
more into the ditch. Doc. 17-2 at 9; Doc. 17-5 at 4. The drainage ditch is plainly visible from the
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south side ofthe Hill when there is light snow on the ground. Doc. 16 at 3-5; Doc. 17-2 at 4-5;
Doc. 23-20 at 8.
In January 2014, Dr. Richard Hieb wrote the City's Director ofParks and Recreation Peter
Colson stating that,in the past week,he and other doctors had treated several injuries from children
who had been sledding on the Hill. Doc. 23-7; Doc. 23-18 at 3. The letter stated that "[tjhese
injuries invariably involve running into the large comstock bales that are placed at the base ofthe
north [sic] end ofthe hill," and over years oftreating sledding injuries in the City,"it has become
obvious to the medical community that [the bales] in themselves are causing injuries." Although
the letter refers to hay bales on the "north" side of the Hill, the record makes clear that the hay
bales were installed on the east side. Doc. 17-5 at 3; Doc. 23-18 at 3; Doc. 23-23 at 9. Dr. Hieb
recommended replacing the bales with smaller bales that would provide more cushion or
alternatively,"perhaps sledding offthe north [sic] side of Larson Hill should be forbidden." Doc.
23-7.
At a City Council meeting in February 2015, City Manager Jeff Weldon proposed closing
the Hill to sledding. Doc. 21 at 4. Weldon stated:
We have long known of the potential injury hazards associated with downhill sledding at
Larson Park. While a very popular winter recreational activity for kids, we repeatedly get
reports of injuries from children hitting obstacles at the bottom of the hill. Despite our
efforts to make the hill as safe as possible, accidents are rmavoidable. However, the
frequency is beginning to alarm us. Every year we install hay bales at the base ofthe hill
as a barrier to over-sledding. For the most part, while they are effective, some injuries still
result— It is imfortunate that such incidents could result in the elimination ofan otherwise
enjoyable activity for the vast majority of users. We will re-examine this issue over the
summer and see if we can find a better alternative for next winter.
Doc. 21 at 4.
In the fall of2015, Weldon officially decided to close "the Hill" to sledding. Doc. 21 at 5;
Doc. 23-1; Doc. 23-8 at 1; Doc. 23-19 at 6. The recorded notes ofthe City's Parks and Recreation
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advisory meeting that fall stated that "Larson Hill" would be closed to sledding. Doc. 19 at 26;
Doc.23-1 at 1. Yet Weldon and Colson later testified in their depositions that they had only closed
the east side of the Hill^ because that is where, in their view, all the injuries occurred. Doc. 17-7
at 2-5; Doc. 17-9 at 4-7. Weldon told his staffthat only the east side ofthe Hill was closed. Doc.
17-7 at 9, but some City employees believed that the entire Hill had been closed to sledding. Doc.
17-5 at 9; Doc. 23-27 at 15.
This absence of clarity as to whether part or all of the Hill was closed to sledding was
accompanied by less than ideal communication about the City's no sleddhig or restricted sledding
policy for the Hill. Following the 2015 decision, the City's fall and winter recreational brochure
deleted references to sledding on the Hill. Doc.22 at 10; Doc.23-4; Doc. 23-11; Doc.23-12; Doc.
23-13; Doc. 23-14; Doc. 23-15; Doc. 23-19 at 6; Doc. 23-6 at 2. The City's Parks and Recreation
Department did not publish any notice about the closure on its Facebook page. Doc. 21 at 12; Doc.
22 at 11. But a community newspaper, the Brookings Register, published the decision and
included this quote from Weldon:"We are closing the one side of the hill facing the street. We
are not going to close the other side. We're doing this for liability and safety reasons." Doc. 23-
9 at 2; Doc. 23-10; Doc. 29 at 4. KDLT news also interviewed Weldon and did a news report on
the closure, during which Weldon explained that while the east side ofthe Hill was closed, sledders
were welcome to sled on the other sides ofthe Hill.^ Doc. 23-19 at 6; Doc. 23-27 at 14.
^ The City initially conceded that the south side ofthe Hill was closed before 2018 in its answer to
Aaron's complaint. Doc.4 at 1. However,the City's position after discovery is that only the east
side ofthe Hill was closed to sledding. Doc. 16 at 12; Doc. 30 at 7.
^ The City's decision to restrict sledding on the Hill incited some public backlash. A Facebook
group called "Take Back the Hill" formed to protest the decision. Doc. 17-7 at 4; Doc. 23-21 at
7; Doc. 23-27 at 14. Weldon also received derogatory anonymous messages on his work and
personal voicemail shortly after the closure was aimounced. Doc. 17-7 at 4; Doc. 23-27 at 14.
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In the fall of2015, the City placed a no sledding sign on the east side ofthe Hill. Doc. 22
at 9; Doc. 23-24 at 5; Doc. 23-27 at 14. But citizens routinely took down such signs. Doc. 22 at
10. As a temporary deterrent, the City installed a fence in the middle ofthe east slope ofthe Hill.
Doc. 23-23 at 7; Doc. 23-18 at 3. But after heavy snow, sledders packed snow "ramps" up to the
fence and sledded over it. Doc.23-23 at 8. The City did not have an official policy for monitoring
and maintaining sledding conditions on the Hill. Doc. 22 at 10; Doc. 23-22 at 5; Doc. 23-23 at 9,
15. Still, during the 2015 and 2016 winter season. City employees would periodically check the
east side ofthe Hill and remove these snow "ramps." Doc. 23-23 at 8.
The City removed the fence sometime around the summer of2016 and planted trees on the
east side ofthe Hill to permanently deter sledders. Doc. 23-23 at 8. After the trees were planted,
the public continued sledding on the other sides of the Hill. Doc. 23-21 at 7. The City placed a
no sledding sign on the east side of Hill in the fall of 2016, 2017, and 2018. Doc. 23-21 at 11;
Doc. 23-23 at 15,17-18.
Although the City's Department of Parks and Recreation had stopped advertising the Hill
as a sledding hill in 2015, South Dakota State University continued to publish materials describing
the Hill as a sledding hill. Doc. 22 at 14. The City's Visitor's Bureau also advertised the Hill as
a sledding hill from 2017 to 2021. Doc. 22 at 13-14; Doc. 29 at 7. Internet searches suggest that
the Hill remains a popular place for sledding. S^ Doc. 23-16; Doc. 23-17.
Aaron was injured on November 17, 2018, when he and his wife Diedre were visiting
Diedre's parents in Brookings for Thanksgiving with their two young daughters. Doc. 21 at 15.
Aaron had been raised in Sioux Falls and Deidre had been raised in Brookings, but they live in
Texas. Doc. 21 at 15; Doc.22 at 15. Aaron's daughters, Ellie and Mia, had never been sledding;
and Aaron and his daughters, along with Aaron's brother-in-law Kevin and Kevin's daughter
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Riley, decided to go sledding and parked on the south side ofthe Hill in Larson Park. Doc. 15 at
1; Doc. 24 at 1; Doc. 23-20 at 8. Aaron believed that the Hill was open to sledding, and the Hill
did not have any no sledding signs on its south side. Doc. 21 at 9. A no sledding sign had been
posted on the east side ofthe Hill that year, but it had been taken down before Aaron was injured.
Doc. 21 at 9; Doc. 22 at 9. The City had not posted any no sledding sign on the south side ofthe
Hill.^ Doc. 21 at 9; Doc. 22 at 9.
There was light snow on the ground,but the outline ofthe conerete drainage ditch and grass
nearby were visible. Doc. 15 at 2; Doc. 17-2 at 9. Photographs of the drainage ditch on the day
of the accident, taken from Aaron's cellphone, are provided at the end of this opinion. Aaron
admitted he must have crossed the drainage ditch to walk to the top of the Hill, but he did not
remember doing so. Doc. 15 at 1-2; Doc. 22 at 1; Doc. 23-20 at 8; Doc. 29 at 9.
Ellie, Mia, Riley, and Kevin sledded down the south side of the Hill first, while Aaron
recorded them on his cell phone. Doc. 15 at 2; Doc. 21 at 16. Kevin and Riley sledded down the
Hill and crossed the drainage ditch. Doc. 15 at 2. Kevin stated that he felt a little bump when he
went over the ditch but suffered no injuries. Doc. 17-2 at 6. Kevin was not aware that the ditch
was made of concrete, and Aaron's footage showed Kevin's-footprints in the ditch over the snow.
Doc. 17-2 at 7-9. Ellie sledded down the Hill and stopped before reaching the drainage ditch.
Doc. 17-2 at 8, 10. Mia also sledded down the Hill without injury. Doc. 17-2 at 10.
Then Aaron sledded down the Hill with Ellie in his lap. Doe. 21 at 16; Doc. 23-20 at 11.
When Aaron reached the bottom ofthe Hill and went over the drainage ditch, he "caught air" and
^ The City initially stated that it had posted a no sledding sign on the south side of the Hill at the
time of Aaron's injury. Doc. 4 at 2. After discovery, the parties agree that the lone no sledding
sign was posted on the east side ofthe Hill before Aaron's injury. Doc. 21 at 9; Doc.22 at 9; Doc.
29 at 5.
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came down on his tailbone at the far side of the ditch. Doc. 1 at 3; Doc. 21 at 16. Aaron stated
that it "felt like a grenade had gone off in [his] baek." Doc. 21 at 16. He was in immediate and
severe pain and was taken to the emergency room in Brookings before being transported by
ambulance to Sioux Falls. Doc. 21 at 16; Doc. 23-6 at 2. Aaron had shattered a vertebrae and
required multiple surgeries. Doe. 21 at 16-17; Doe. 23-6 at 2-3. After Aaron was injured, no
sledding signs were posted on all sides ofthe Hill. Doe. 21 at 10.
Aaron suffers from pain and disability due to his injury. Doc. 1 at 3; Doc. 21 at 17. He
used to be very aetive, but now cannot do many ofthe physical activities he used to enjoy without
experiencing severe pain. Doe. 21 at 17. He also has difficulty getting more than three or four
hours of uninterrupted sleep and cannot do basic household tasks without pain. Doe. 21 at 17.
II. Legal Standard
Under Rule 56(a) ofthe Federal Rules of Civil Proeedure,summary judgment is proper "if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter oflaw." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett. 477 U.S.
317, 322(1986). A party opposing a properly supported motion for summary judgment"may not
rest upon mere allegations or denials" in his pleadings but "must set forth specifie faets showing
that there is a genuine issue for trial." Gacek v. Owens & Minor Di.stribution. Inc.. 666 F.3d 1142,
1145 (8th Cir. 2012); see also Moslev v. Citv of Northwoods. 415 F.3d 908, 910 (8th Cir. 2005).
To establish that a material faet is genuinely disputed,the party opposing summaryjudgment must
"eit[e] to particular parts of materials in the reeord" that establish a genuine dispute or "show[]
that the materials eited do not establish the absence ... of a genuine dispute ...." Fed. R. Civ. P.
56(c)(1)(A), (B). In ruling on a motion for summary judgment, the facts and inferences fairly
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drawn from those facts are "viewed in the light most favorable to the party opposing the motion."
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 475 U.S. 574, 587-88 (1986).
South Dakota law govems the substantive issues in this case based on diversity of
citizenship jurisdiction. Bores v. Domino's Pizza. LLC. 530 F.3d 671, 674 (8th Cir. 2008); Erie
R.R. Co. V. Tompkins, 304 U.S. 64,78 (1938). Under South Dakota law, cities may be liable for
"gross negligence or willful or wanton misconduct" for the care and maintenance of public land
used for recreational purposes. SDCL § 20-9-22. "In South Dakota,the phrases gross negligence
and willful or wanton misconduct mean the same thing." Fischer v. City of Sioux Falls. 919
N.W.2d 211, 215 (S.D. 2018). "[Rjeckless, willful, or wanton misconduct. .. entails a mental
element. The defendant must know or have reason to know of the risk and must in addition
proceed without concem for the safety of others." Id,(cleaned up and citation omitted). While
"willful and wanton misconduct is not identical to intentional conduct, .. . [it] does partake to
some appreciable extent of the nature of a deliberate and intentional wrong." Id,(cleaned up and
citations omitted). "[A] defendant's reckless state of mind may be inferred from conduct and
actions so patently dangerous that a reasonable person under the circumstances would know, or
should know, that his conduct will in all probability prove disastrous." Gabriel v. Bauman. 847
N.W.2d 537, 543(S.D. 2014)(cleaned up and citation omitted).
"[TJhe requirements for alleging willful or wanton misconduct (i.e., gross negligence) are
different than those for alleging negligence. While a plaintiff alleging negligence must prove
merely that some harm is possible, a plaintiff alleging willful or wanton misconduct must prove a
substantial probability of serious physical harm." Fischer. 919 N.W.2d at 215; see also Gabriel.
847 N.W.2d at 541. The Supreme Court of South Dakota has stated that "draw[ing] the line of
willful, wanton,or reckless conduct too near to that constituting negligent conduct" risks "opening
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a door leading to impossible confusion and eventual disregard ofthe legislative intent to give relief
from liability for negligence." Gabriel. 847 N.W.2d at 543 (cleaned up and citation omitted).
"Whether one acts willfully, wantonly, or recklessly is, like negligence, normally ajury question."
Id at 542.
III. Discussion
Aaron's first cause of action is for negligence, doc. 1 at 3-4, but cities are immune from
liability for negligent conduct concerning public land used for recreational purposes under South
Dakota law. SDCL §§ 20-9-20, 21; see also Fischer. 919 N.W.2d at 217. As such, the City is
entitled to summary judgment on Aaron's negligence claim, and Aaron does not argue against
summary judgment on his negligence claim. Doc. 21 at 18-26. Aaron however argues that the
City was grossly negligent through willful and wanton misconduct in its management of the Hill,
and that at a minimum, a genuine dispute of material fact exists. Doc. 21 at 18-26. A South
Dakota city cannot be liable in a case such as this unless it was grossly negligent, that is, was
engaged in willful and wanton misconduct. SDCL § 20-9-22.
The parties dispute whether the City had closed the south side of the Hill before Aaron's
injury. Relying on Weldon's memo to the City Council, Weldon's statements at the City Parks
and Recreation advisory board meeting in the fall of 2015, and the testimony of several City
employees, Aaron argues that the entire Hill, including the south side, had been closed to sledding
before his injury because the City was aware of injuries associated with sledding down the Hill.
Doc. 21 at 2, 4, 6; Doc. 22 at 16; Doc. 24 at 1—2. Aaron then argues that the City was grossly
negligent for failing to post signs that the south side of the Hill was closed to sledding or was
dangerous. Doc. 21 at 2. Aaron maintahis that had signs been installed on the south side of the
Hill, then he would not have gone sledding and been injured. Doc.21 at 9. He further claims there
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was sufficient evidence that the City acted with a reckless state of mind because it had received
reports ofinjuries sustained from sledding down the Hill over the years and failed to keep official
records ofthese injuries. Doc. 21 at 20, 23-24.
In its answer to Aaron's complaint, the City conceded that the south side of the Hill had
been closed. Doc. 4 at 1. However,the City now claims that the south side ofthe Hill was never
closed, relying on Colson's and Weldon's testimony, public armouncements that only the east side
of the Hill had been closed, evidence of injuries arising from the steep east side, and the bales
installed on the east side as a safety measure. Doc. 30 at 7. Taking the facts in the light most
favorable to the non-movant Aaron, this Court must presume for purposes of ruling on the City's
summary judgment motion that the reports ofinjuries were such that the City had closed the entire
Hill to sledding.
The City also argues that it was not grossly negligent because the drainage ditch did not
pose a probable and easily perceptible risk of death or serious physical harm. Doc. 16 at 10; Doc.
30 at 5. The City points to the absence ofany evidence that the drainage ditch caused any injuries,
apart from Aaron's injury, since it was built over thirty years ago. Doc. 16 at 10-11; Doc. 30 at
3^,10-11.
The Supreme Court of South Dakota recently discussed the standard for gross negligence
under SDCL § 20-9-22 in the closely analogous case ofFischer v. City of Sioux Falls. 919 N.W.2d
211 (S.D. 2018). fri that case, the plaintiff was riding a bike and took a short cut through grass at
a public park in Sioux Falls when his front bike tire caught in a natural ditch hidden in the grass.
Fischer. 919 N.W.2d at 213. The plaintiff was thrown from his bike and suffered serious injuries
including multiple fractures. Id. At the time of the accident, Sioux Falls employees knew ofthe
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ditch and thought that a bicyclist could be injured by riding over it, but the eity did not post a
warning sign near the ditch or fill it in. Id. at 213-14.
The Supreme Court of South Dakota nonetheless granted the defendant's motion for
summary judgment in Fischer, holding that "[t]he evidenee in the reeord does not suggest that the
rut posed an easily perceptible danger of death or other serious physical harm .... Nor does the
evidenee in the record suggest that the probability of sueh 'danger' is substantially greater than
that required for ordinary negligenee." Id at 216. Even though "the evidenee in the record
suggest[ed] that the City knew its conduct posed an unreasonable risk of harm to the public (i.e.,
that the City was negligent) that evidence d[id] not suggest that the City acted with a conscious
realization that a serious physieal injury was a probable,as distinguished from a possible (ordinary
negligence), result of such conduct." Id (cleaned up and citations omitted). Quoting Tranbv v
Brodock. 348 N.W.2d 458, 461 (S.D. 1984), the court in Fischer noted that gross negligenee or
willful or wanton misconduet partake "to some appreciable extent... ofthe nature of a deliberate
and intentional wrong." Fischer. 919 N.W.2d at 215. Indeed, there is a parallel between the
elevated "gross negligenee" standard imder SDCL § 20-9-22 and the standard required for punitive
damages under South Dakota law. See Est. of Stengle bv Stengle v. Walgreen Co.. No. 3:20-CV-
03001-RAL, 2021 WL 858836, at *3-5 (D.S.D. Mar. 8, 2021); Doc. 37 at 5-10 in case 20-CV-
03001.
Here, Aaron's elaims against the City are in the nature of negligence claims—the City's
laxity in colleeting and keeping information on sledding injuries or policing activity at the Hill,
the City's failure to post a warning sign or a no sledding sign, and the City's alleged failure to take
other steps to effectively close or communieate the closure ofthe south side ofthe Hill to sledding.
Yet, like in Fischer, the evidenee does not support a claim that the City engaged in willful or
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wanton misconduct or acted with conscious realization that serious physical injury was a probable
result of that conduct. Although the drainage ditch may have posed an unreasonable risk, it did
not pose an "easily perceptible danger of death or substantial physical harm" that was "probable"
rather than "possible"—especially given the dearth ofevidence that anyone suffered injuries from
sledding over that drainage ditch in the last thirty years. Fischer. 919 N.W.2d at 215-16; see also
Gabriel, 847 N.W.2d at 541. The City's failures to install no sledding or warning signs on the
south side of the Hill, or otherwise more effectively close the Hill to sledding, as a matter of law
are not of the nature of a deliberate and intentional wrong necessary to satisfy the "gross
negligence" standard set by South Dakota law to maintain this action against the City.
IV. Conclusion and Order
For the reasons explained, it is hereby
ORDERED that the Defendant's motion for summary judgment. Doc. 14, is granted.
DATED this Jt/**day of February,2022.
BY THE COURT:
ROBERTO A. LANGE
CHIEF JUDGE
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Stills from Aaron's cellphone videos recorded on November 17. 2018, of the drainage ditch
on the south side of the Hill.
h
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