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Bear v. Sesdac, Inc.

Supreme Court of South Dakota

May 17, 2017

BERNADINE RED BEAR a/k/a BERNADINE SHIELDS, as Administrator of the Estate of DARELLE RED BEAR, Deceased, Plaintiff and Appellant,
SESDAC, INC., Defendant and Appellee.

          ARGUED ON APRIL 25, 2017


          ROBIN L. ZEPHIER of Abourezk, Zephier & LaFleur, PC and SHILOH M. MACNALLY Attorneys for plaintiff and appellant.

          R. ALAN PETERSON DANA VAN BEEK PALMER of Lynn, Jackson, Shultz & LeBrun PC Attorneys for defendant and appellee.

          WILBUR, Justice

         [¶1.] On behalf of the estate of her brother, one sister brought suit against the owners of the group home where her brother resided, alleging that the company failed to provide adequate care, caused his wrongful death, and violated her brother's next of kin's right to decide what to do with their brother's body following his death. Prior to trial, the circuit court dismissed the third claim on summary judgment. After trial, the jury found the company negligent but concluded that the negligence was not the legal cause of the injury or damage. The sister, on behalf of her brother's estate, appeals. We affirm.


         [¶2.] In 1987, a circuit court ordered that Darelle "Bill" Red Bear reside at the Health and Human Services Center in Yankton, South Dakota. He had been diagnosed with schizophrenia and a mild mental disability. He had a history of inhalant abuse, alcohol abuse, and water intoxication. Bill lived at the Center until 2000, when he became a voluntary resident in one of SESDAC, Inc.'s residences. SESDAC is a private, nonprofit community-support provider located in Vermillion, South Dakota. It assists persons with developmental disabilities and provides support for those persons to live independently within their abilities. The State contracted with SESDAC to provide home- and community-based services to wards of the State, including Bill.

         [¶3.] In 2001, a circuit court declared Bill a person in need of protection. The court appointed the secretary for the Department of Human Services (DHS) to be Bill's legal guardian. The court found that Bill lacked the capacity to meet his health, care, safety, or therapeutic needs. The court gave the State, as Bill's guardian, the authority to make decisions regarding Bill's support, care, health, and therapeutic treatment, and to determine Bill's residence. Bill continued to reside in one of SESDAC's group homes. In 2004, the State designated Nikki Clark, a State employee, to be Bill's guardianship representative.

         [¶4.] This appeal concerns SESDAC's actions beginning on December 29, 2008. Bill was living in SESDAC's group home called the "Yale House" and began to exhibit flu-like symptoms. Over the next several days, SESDAC staff documented Bill's symptoms, their assessment of his conditions, and the medicine they administered. The staff also noted when they talked to the on-call supervisor and what the supervisor told the staff to do concerning Bill. The notes documented that the on-call supervisor told the staff that Bill would be taken to the hospital on December 31. It is undisputed that SESDAC did not take Bill to the hospital that day.

         [¶5.] SESDAC staff continued to monitor and report on Bill's symptoms from December 29, 2008 through January 4, 2009. The parties dispute the accuracy of SESDAC's documentation of Bill's symptoms, conditions, and treatment. It is undisputed that no medical professional examined Bill at the Yale House, although the on-call nurse did check in with SESDAC staff via telephone to receive updates on Bill's condition. The staff notes indicated that the staff attempted, sometimes unsuccessfully, to obtain a reading of Bill's blood pressure. On January 2, the staff notes documented that Bill's temperature was 97.5 degrees and that Bill had diarrhea. SESDAC staff administered an anti-diarrhea medication. On January 3, Bill's temperature was 98.3 degrees, and Bill continued to express that he did not feel well. On January 4, at 8:00 a.m., the staff wrote that Bill's temperature was 97.2 degrees, and he was still not feeling well. Bill drank a glass of orange juice. At 11:30 a.m., the staff documented that Bill's temperature was 93.5 degrees. According to the notes, the staff was unable to obtain a reading of Bill's blood pressure. The on-call supervisor told the worker at the Yale House to push fluids and that they would call the doctor the next day.

         [¶6.] At approximately 3:45 p.m., on January 4, a shift change occurred at the Yale House. Ana Nesselhoff was just leaving her shift, and Matthew Miranda was beginning his. SESDAC policy required that Nesselhoff update Miranda on the status of the residents. She informed Miranda that Bill was still not well and recommended that he check on Bill. Miranda went to Bill's room and found Bill unresponsive. Miranda could not rouse Bill or find a pulse. He called 911 and his supervisor. The parties dispute the order of these calls. It is undisputed, however, that Officer Robin Hower arrived at the Yale House, and he and another officer performed CPR on Bill until the ambulance arrived. The ambulance transported Bill to Sanford Vermillion Hospital. Bill died at the hospital at 5:03 p.m. after efforts to resuscitate him failed. He was 49 years old.

         [¶7.] Renea O'Connor from SESDAC notified Clark that Bill had died. O'Connor and Clark met at the hospital. Clark then notified DHS in Pierre that Bill had died. She had a telephone discussion with DHS director Jerry Hofer and another DHS employee about organ donation and the disposition of Bill's body. O'Connor later testified that she attempted to contact Bill's next of kin but was unable to locate a family member. According to SESDAC, neither Bill nor any family member had updated Bill's family information with SESDAC or DHS. According to Bill's estate, SESDAC called the Rosebud Reservation despite having documentation that Bill's family lived on the Pine Ridge Indian Reservation.

         [¶8.] O'Connor and Clark claimed that while they were still at the hospital, they learned that neither law enforcement nor the medical professionals were going to request an autopsy. In SESDAC's view, the medical professionals made the decision not to conduct an autopsy. Bill's estate, however, later alleged that O'Connor and Clark together decided that no autopsy would be performed. Bill's estate further claimed that SESDAC via O'Connor gave the required authorization to donate Bill's organs and cremate Bill's body. It is undisputed that O'Connor contacted Dr. Wayne Evans, a retired professor of Indian Studies, to inquire about what would be appropriate, cremation or burial. It is further undisputed that O'Connor participated in the post-death decisions concerning Bill's body.

         [¶9.] On January 5, 2009, Clark and DHS officially consented to the donation of Bill's organs and the cremation of his body. It is undisputed that no family member participated in any part of these decisions. Bill's funeral occurred on January 8 at Trinity Lutheran Church, and his remains were interred at Bluff View Cemetery in Vermillion, South Dakota.

         [¶10.] In April 2009, Bill's brother Kenneth Red Bear called SESDAC to speak with Bill. SESDAC informed Kenneth what had happened, namely that Bill was sick for a number of days prior to his death, that no autopsy was performed, that Bill's body was cremated, and that Bill had been buried in a grave in Vermillion. In response, Bill's sister Bernadine Red Bear, as the administrator of Bill's estate, sued SESDAC for negligence in the care and handling of Bill's body before and after his death. Bernadine, in her representative capacity, asserted three causes of action against SESDAC. First, she alleged that SESDAC negligently failed to provide Bill medical care in a timely manner, which caused Bill "mortal physical pain and mental suffering prior to his death on January 4th, 2009." Second, Bernadine asserted a wrongful death claim and sought to recover for the loss of companionship, society, love, affection, and solace of Bill. Third, Bernadine sought to recover for SEDAC's failure to seek proper consent for the handling of Bill's body after his death and for the decision to cremate Bill's body. Bernadine requested compensatory and punitive damages.

         [¶11.] SESDAC moved for partial summary judgment on Bernadine's third cause of action and her request for punitive damages, asserting that SESDAC owed no duty to Bill or Bill's estate. According to SESDAC, the State was Bill's legal guardian, and the State made the ultimate post-death decisions regarding Bill's body. SESDAC asserted that if the State "sought input from SESDAC employees on certain matters, giving of that input did not translate into an imposition of some kind of duty owed by SESDAC" to Bill or Bill's family. SESDAC also argued that even if a duty existed, Bernadine had failed to identify any evidence to support the claim that SESDAC engaged in extreme or outrageous conduct.

         [¶12.] Bernadine responded that the contractual relationship between the State and SESDAC imposed a co-duty upon SESDAC and the State regarding the handling of Bill's remains. Bernadine also argued that because the State's guardianship over Bill terminated upon Bill's death under SDCL 29A-5-507, SESDAC was the only remaining entity with at least constructive custody of Bill's body. Therefore, in Bernadine's view, SESDAC had a legal responsibility under SDCL 34-26-16(2) and SDCL 34-26-14 to use reasonable and due diligence to find and contact Bill's next of kin immediately after Bill's death. She asserted that by failing to do so, SESDAC infringed on Bill's family's legal right to possession, custody, and control of Bill's body for purposes of burial as stated in Chisum v. Behrens, 283 N.W.2d 235 (S.D. 1979).

         [¶13.] The court granted SESDAC's motion for partial summary judgment. The court noted that after viewing the facts in a light most favorable to Bernadine, SESDAC was involved in the discussions and had some input in the post-death decisions concerning Bill's body. But the court did not interpret SDCL 29A-5-507 to mean that the State's guardianship over Bill terminated upon Bill's death. The court concluded that the State, not SESDAC, owed Bill a duty. The court also disagreed with Bernadine's claim that SDCL chapter 34-26 created any duty upon SESDAC. The court alternatively concluded that even if a duty existed, Bernadine failed to present any evidence to support ...

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