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Hart v. Miller4/19/2000
o Miller on Hart's state claims.
[ ] Sovereign Immunity
[ ] Hart's tort claims of false imprisonment, assault and invasion of privacy when applied to her factual allegations are all intentional torts. One does not negligently solicit sexual favors. Sovereign immunity does not apply, as it is inapplicable to intentional torts committed by state employees. Bego, 407 NW2d at 808; Gasper v. Freidel, 450 NW2d 226, 229 (SD 1990); Ritter v. Johnson, 465 NW2d 196, 198 (SD 1991). As such we do not reach the issue of whether Miller was acting in a ministerial or discretionary capacity.
[ ] A. False Imprisonment
[ ] False imprisonment is an unlawful detention or restraint of a person against his or her will. Spenner, 1998 SD 56, , 580 NW2d at 611 (citing Darrow v. Schumacher, 495 NW2d at 522). Miller clearly had legal authority to investigate the facts surrounding the marijuana found in his patrol car. Hart consented to Miller's entry into her apartment, she was not handcuffed, and no weapon was drawn. There is no indication from the record Miller used any force during his brief questioning. It is undisputed Miller did not restrain or even touch Hart at any time. Miller never prevented her from leaving because she never attempted to leave. Hart also concedes Miller had a right to question her about ownership of the marijuana. When she ordered him to leave her apartment, he did so. Thus the trial court was correct in dismissing the claim for false imprisonment.
[ ] B. & C. Assault and Invasion of Privacy
[ ] Hart claims Miller's actions create a question of fact for a jury on whether he committed assault and invasion of her privacy, and thus, the trial court erred in granting Miller summary judgment. However, Hart's appellate brief cites no authority for her argument. Failure to cite authority waives this argument. SDCL 15-26A-60(6); State v. Pellegrino, 1998 SD 39, , 577 NW2d 590, 599.
[ ] The trial court properly granted summary judgment to Miller on Hart's state law claims. () Therefore, we affirm on Issue 3.
[ ] 4. Whether the trial court erred in granting summary judgment to Supervisors on Hart's state law claims of conspiracy and negligent supervision.
[ ] For this claim, Hart cites no legal authority in support of her argument. Again, failure to cite authority for an argument on appeal constitutes waiver of that issue. SDCL 15-26A-60(6); Pellegrino, 1998 SD 39, , 577 NW2d at 599.
Conclusion
[ ] We reverse and remand for trial on the § 1983 claim against Miller. We affirm summary judgment on the balance of the claims.
[ ] MILLER, Chief Justice and KONENKAMP, Justice, concur.
[ ] SABERS and AMUNDSON, Justices, concur in part and dissent in part.
SABERS, Justice (concurring in part and dissenting in part).
[ ] I concur in Issues 1, 2 and 4.
[ ] I dissent on Issue 3 concerning Hart's state law claims against Miller for false imprisonment, assault and invasion of privacy.
[ ] Certainly there are genuine issues of material fact as to all three of these claims when the evidence is viewed in the light most favorable to Hart. Wilson v. Great Northern Railway Co., 83 SD 207, 157 NW2d 19, 21 (1968).
[ ] Patrolman Miller had legal authority to investigate but not at that time and place, under those circumstances. There was no free and voluntary consent by Hart to let Miller enter her apartment - only a forced, coerced, intimidated will overcome by a pushy officer intent on "doing his thing."
[ ] Miller falsely imprisoned Hart for 15 minutes. He assaulted her se
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