Hedel-Ostrowski v. City Of Spearfish

679 N.W.2d 491 (2004)

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Nature of the Case

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Facts

On September 18, 1999, P took her two children to a D city park. P fell when the swing she was using broke. The fall caused nerve damage in her lower leg. P retained counsel, and timely submitted a claim against D for her injuries. D denied her claim. P was referred to another attorney who failed to pursue her claim in court. P then retained a third attorney who commenced an action on her behalf on September 12, 2002. The complaint named D, Miracle Recreation Company, Playpower, Inc., and Cameron Holdings Corp. as defendants. P filed a Motion to Amend on November 7, 2002, to add D1, head of Spearfish Parks and Recreation, as a defendant. It also added a claim for nuisance against D in addition to her initial negligence claim. D filed a Motion for Summary Judgment claiming the negligence action was barred by SDCL 9-24-5 which requires commencement of an action against a municipality within two years of the occurrence. D also filed a Motion for Summary Judgment claiming that the negligence action against D1 was barred by the three-year statute of limitations in SDCL 15-2-14(3) and that the nuisance action against D should be dismissed for failure to state a claim. The trial court granted P's Motion to amend. It then granted summary judgment to D and D1 dismissing the negligence and nuisance claims. P appealed.