## Facts

- On September 18, 1999, Dawn Hedel-Ostrowski was injured at a City of Spearfish park when a swing broke, causing her to fall and suffer lower-leg nerve damage.
- She timely submitted a written municipal claim; the City denied it.
- A civil action was filed in September 2002 against the City and certain playground-equipment companies.
- In November 2002, Hedel-Ostrowski moved to amend the complaint to add (1) Keith Hepper, head of Parks and Recreation, as a defendant and (2) a nuisance claim against the City.
- The circuit court allowed the amendment but granted summary judgment for the City on negligence (time-barred) and nuisance (failure to state a claim), and for Hepper on negligence (time-barred).

## Issues

1. Whether the negligence action against the City was barred by SDCL 9-24-5’s two-year limitations period for actions against municipalities.
2. Whether the negligence claim against Hepper, added after the three-year personal-injury limitations period, related back under SDCL 15-6-15(c).
3. Whether the amended pleadings alleged a legally sufficient nuisance claim against the City.

## Decision

- The Supreme Court affirmed summary judgment for the City on the negligence claim because the suit was commenced more than two years after the injury, contrary to SDCL 9-24-5.
- The Court affirmed summary judgment for Hepper because the negligence claim was filed after the three-year personal-injury limitations period in SDCL 15-2-14(3), and the amendment did not relate back under SDCL 15-6-15(c).
- The Court affirmed dismissal of the nuisance claim for failure to state a claim, treating it as an attempted relabeling of a negligence theory based on a single incident.

## Legal Principles

- SDCL 9-24-5 requires that an action against a municipality be commenced within two years after the cause of action accrues; filing and denial of a municipal claim does not extend that limitations period.
- Under SDCL 15-6-15(c), adding a new defendant after the limitations period requires, among other elements, that the new party knew or should have known that, but for a mistake concerning identity, the action would have been brought against that party.
- A plaintiff’s late decision, lack of knowledge, or inaction in naming an additional defendant is not, by itself, a “mistake concerning identity” for relation-back purposes.
- A nuisance claim must plead facts supporting a cognizable nuisance theory; merely recasting a one-time negligent act or condition as “nuisance” is insufficient.

## Conclusion

The court held the municipal negligence claim was untimely under SDCL 9-24-5, the added claim against the municipal employee did not relate back under SDCL 15-6-15(c) and was untimely under the personal-injury statute, and the nuisance count failed to plead a separate actionable nuisance theory.


Hedel-Ostrowski v. City of Spearfish, 679 N.W.2d 491 (S.D. 2004)