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43 S.D. L. Rev. 706 (1998)
Gleason v. Peters: An Application of the Public Duty Rule as a Judicial Resurrection of Sovereign Immunity

handle is hein.journals/sdlr43 and id is 714 raw text is: GLEASON v. PETERS: AN APPLICATION OF THE PUBLIC DUTY RULE AS A JUDICIAL RESURRECTION OF SOVEREIGN IMMUNITY SUZANNE M. DARDIS Even though sovereign immunity is conditionally waived in South Dakota, the supreme court has held that the public duty rule is still a valid defense available to governmental entities in suits brought against them by citizens of the general public. The public duty rule shields governmental units from liability arising out of a breach of a duty owed to the general public unless a special relationship exists between the plaintiff and government. This judicially-created rule essentially reinstates sovereign immunity in the same situations where the legisla- ture has waived it. Furthermore, the application of this rule, as seen in Gleason v. Peters, allows courts to contradict legislative intent by pro- viding sovereign immunity with a new identity. This casenote will ex- plore the proposition that South Dakota should judicially abrogate the public duty rule to the extent that sovereign immunity has been legisla- tively abrogated. I. INTRODUCTION The doctrine of sovereign immunity protects governmental entities from tort liability in the absence of legislative enactment.' Thus, the State can not be sued unless it has given its consent or has otherwise waived its immunity.2 In 1991, the South Dakota Legislature conditionally waived sovereign immunity as an available defense for public entities and the state.3 Immunity is waived in specific circumstances where the public en- tity either participates in a risk sharing pool or purchases liability insur- ance.4 When a public entity does purchase insurance, it is deemed to have consented to suit in the same manner that any other party may be sued.5 Despite this explicit language, the South Dakota Supreme Court has applied an additional barrier to shield the government from tort liabil- 1. Bego v. Gordon, 407 N.W.2d 801, 805 (S.D. 1986) (holding that immunity is not extended to public officials who commit intentional torts while acting outside the scope of their authority). 2. City of Rapid City v. Boland, 271 N.W.2d 60, 64 (S.D. 1978) (holding that the civil de- fense immunity statute, S.D.C.L. § 33-15-38, shields governmental entities from liability when a taking of property is pursuant to imminent necessity or the structure presents an imminent hazard to the general public). 3. See S.D.C.L. § 21-32A-2 (Supp. 1997); S.D.C.L. § 21-32A-1 (1987). Since 1981, sovereign immunity has been waived against the state in situations where the state has purchased liability insurance. S.D.C.L. § 21-32-16 (1987). Furthermore, in 1986, sovereign immunity was waived against a public entity, other than the state, to the extent that the public entity participated in a risk sharing pool or purchased liability insurance. S.D.C.L. § 21-32A-1. A 1991 amendment in- cluded the state in the waiver of sovereign immunity where they also participated in a risk sharing pool or where liability insurance exists. S.D.C.L. § 21-32A-2. 4. S.D.C.L. § 21-32A-1. 5. Id.

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