#25824-a-JKK
2011 S.D. 43
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
ROSE PRAY, Plaintiff and Appellant,
v.
WILLIS T. WHITESKUNK, Defendant,
and
CITY OF FLANDREAU, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
MOODY COUNTY, SOUTH DAKOTA
* * * *
HONORABLE TIM D. TUCKER
Judge
* * * *
JOHN A. SHAEFFER of
Shaeffer Law Office
Flandreau, South Dakota Attorneys for plaintiff
and appellant.
GARY P. THIMSEN
ADAM R. HOIER of
Woods, Fuller, Shultz & Smith, PC
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
* * * *
CONSIDERED ON BRIEFS
ON MAY 23, 2011
OPINION FILED 07/27/11
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KONENKAMP, Justice
[¶1.] Plaintiff fell and was injured when a Rottweiler broke loose from its
owner and dashed across the street toward her. She brought an action for damages
against the dog owner and the city. As against the city, she asserted that it knew
the dog was dangerous and failed to enforce its vicious animal ordinance. In
granting summary judgment for the city, the circuit court ruled that the city owed
plaintiff no special duty. We affirm because plaintiff has failed to establish that the
city acted to protect plaintiff individually or as a member of a specific class, induced
her specific reliance on the city’s protection, or failed to use due care to avoid
increasing the risk of harm to her.
Background
[¶2.] On December 12, 2009, Rose Pray was walking her dog on a sidewalk
in the City of Flandreau across the street from Willis Whiteskunk’s home. As she
walked by, Whiteskunk and his girlfriend, Kristen Stearns, were outside hanging
Christmas lights on Whiteskunk’s home. Whiteskunk was on a ladder, and Stearns
was holding Whiteskunk’s Rottweiler on a leash. Suddenly, the Rottweiler broke
free and bolted across the street toward Pray and her dog. Whiteskunk yelled for
his dog to return, and it did, but not before Pray fell, either because of Whiteskunk’s
dog or because she tripped over her dog’s leash. Whiteskunk ran over to Pray and
asked if she was alright. Pray was crying: she had hurt her knee and could not
stand on her own. Whiteskunk drove her to the hospital. She had a broken knee.
[¶3.] Pray brought a negligence suit against the city and Whiteskunk. Pray
alleged that the city knew Whiteskunk’s dog was dangerous and negligently failed
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to enforce its vicious animal ordinance. In arguing for summary judgment, the city
contended that it owed no duty to Pray, relying on Tipton v. Town of Tabor (Tipton
I), 538 N.W.2d 783, 785 (S.D. 1995). One generally owes no duty to control the
conduct of third persons. Id. But in Tipton I, this Court held that “a government
entity is liable for failure to enforce its laws . . . when it assumes a special, rather
than a public, duty.” Id. (citing Hagen v. City of Sioux Falls, 464 N.W.2d 396, 399
(S.D. 1990)). To determine whether a special duty exists, four elements must be
considered: (1) whether the city had actual knowledge of the dangerous condition;
(2) whether persons reasonably relied on the city’s representations and conduct; (3)
whether an ordinance or statute is clearly for the protection of a particular class of
persons rather than the public as a whole; and (4) whether the city failed to use due
care to avoid increasing the risk of harm. Id. at 787 (citing Cracraft v. City of St.
Louis Park, 279 N.W.2d 801, 806-07 (Minn. 1979)).
[¶4.] At a hearing on the city’s motion for summary judgment, Pray agreed
that Tipton I applied, but argued that summary judgment was inappropriate
because there were material issues of fact in dispute on whether the city had actual
knowledge that the dog was vicious, on whether she relied on the city’s ordinance to
protect her from vicious animals, and on whether the city increased the risk of harm
to Pray when it failed to ensure that Whiteskunk complied with City of Flandreau
Ordinance, Title 6, chapter 6.4 (Ordinance 6.4). In opposition to the city’s motion
for summary judgment, Pray presented evidence that eight months before her
injury, on April 14, 2009, Whiteskunk’s dog bit a city employee while the employee
attempted to read the gas meter at Whiteskunk’s home. After the attack, the city
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declared Whiteskunk’s dog a vicious animal as described in Ordinance 6.4. The city
issued Whiteskunk a letter informing him of the designation and advising him of
the restrictions and requirements applicable to owning a vicious animal. In
particular, Whiteskunk was informed:
If the animal is kept indoors, the animal must be under the
control of a person over 18 years of age.
If the animal is outdoors and attended, the animal shall be
muzzled, on a leash no longer than six (6) feet and under the
control of a person over 18 years of age.
If the animal is outdoors and unattended, the animal must be
locked in an escape proof kennel approved by the Chief of Police
or his representative.
The fencing material used in the kennel must not have
openings with a diameter of more than two (2) inches, and
in the case of a wooden fence the gaps shall not be more
than two (2) inches;
Any gates within such pen or structure shall be lockable
and of such design to prevent the entry of children or the
escape of the animal;
The required pen or structure shall have a top and bottom
with both secured to the sides;
The pen or structure shall protect the animal from the
elements;
The pen or structure may be required to have double
exterior walls to prevent the insertion of fingers, hands or
other objects within reach of the animal; and
A sign denoting a vicious animal shall be displayed on the
kennel or enclosure and on a place visible from the
sidewalk or road adjacent to the property where the
animal is kept.
The owner shall carry a minimum of $100,000 liability
insurance covering the medical and/or veterinary costs resulting
from the vicious actions or any other damage the animal may do
or cause to be done. Proof of such insurance shall be filed with
the Chief of Police.
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[¶5.] Pray also offered evidence that sometime after April 28, 2009, and
after Whiteskunk received this letter, Michael Eisenbarth, the Chief of Police at
that time, went to Whiteskunk’s residence to ensure compliance. But, according to
Pray, the city failed to verify that Whiteskunk had a vicious animal sign displayed
in an area visible from the sidewalk or adjacent road.
[¶6.] At the conclusion of the hearing, the circuit court granted the city’s
motion for summary judgment. In its oral ruling, it remarked that there were
issues of fact on whether the City had actual knowledge, whether there was
reliance, and whether the harm was aggravated. But because Ordinance 6.4 is
clearly for the protection of the public as a whole, the court concluded that Pray
failed to establish an issue of fact on whether the ordinance was enacted for the
protection of a particular class. Because she could not meet all four Tipton I
elements the court granted summary judgment to the city. Pray appeals.
Analysis and Decision
[¶7.] Pray asserts that she need not establish all four Tipton I elements to
prove that the city owed her a special duty. Because the circuit court found issues
of fact on three of the four elements, she argues that summary judgment was
improper. The city concedes that Pray was not required to establish an issue of fact
on each of the four elements. But it maintains that there are no issues of fact on
any element, thus the city undertook no special duty with respect to Pray.
[¶8.] In Tipton I, we wrote that “[s]trong evidence concerning any
combination of these factors may be sufficient to impose liability on a government
entity.” 538 N.W.2d at 787 (citation omitted). Then, in Tipton II, we reiterated that
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all four elements need not necessarily be met for a special duty to exist. Tipton v.
Town of Tabor (Tipton II), 1997 S.D. 96, ¶ 28, 567 N.W.2d 351, 363-64 (quoting
Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1985)). Therefore, the circuit
court erred in ruling that Pray needed to prove every element. Yet the court’s error
will not preclude us from determining whether there is any legal reason to justify
summary judgment. See Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 5, 581
N.W.2d 510, 513 (citation omitted).
[¶9.] “Summary judgment is usually inappropriate in a negligence case,
except when no duty exists as a matter of law.” McGuire v. Curry, 2009 S.D. 40, ¶
7, 766 N.W.2d 501, 505 (citing Bordeaux v. Shannon Cnty. Sch., 2005 S.D. 117, ¶ 11,
707 N.W.2d 123, 126 (citation omitted)). The circuit court’s conclusion that no duty
was owed to a plaintiff is a question of law, reviewed de novo. Id.; Tipton I, 538
N.W.2d at 785. To establish that the city owed Pray a special duty, she must show
some duty owed to her as an individual or as a member of a class, rather than to the
public as a whole. See Tipton II, 1997 S.D. 96, ¶ 13, 567 N.W.2d at 358. It is
insufficient that the city enacted a vicious animal ordinance. “‘[E]nactments and
regulations are intended only for the purpose of securing to individuals the
enjoyment of rights and privileges to which they are entitled as members of the
public, rather than for the purpose of protecting any individual from harm.’” Id. ¶
10 (quoting Restatement (Second) of Torts § 288 cmt. b (1965)). Nonetheless, in
Tipton I, we rejected a bright-line rule that a special duty can only exist if “there is
language in a statute or ordinance[,] which shows an intent to protect a particular
and circumscribed class of persons.” 538 N.W.2d at 787 (overruling Hagen v. City of
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Sioux Falls, 464 N.W.2d 396 (S.D. 1990)). Had we not rejected such a rule, Pray’s
claim would fail, for the city’s vicious animal ordinance, by its plain language, is not
intended to protect a particular or circumscribed class of persons.
[¶10.] An enactment’s words being just one consideration, however, we look
to the additional relevant elements identified in Tipton I: actual knowledge of a
dangerous condition, reasonable reliance, and failure to avoid increasing the risk of
harm. Id. These additional elements assist courts in deciding whether a special
duty has been assumed, and whether a city “has by its conduct already made a
policy decision to deploy its resources to protect [an individual or class of
individuals].” Tipton II, 1997 S.D. 96, ¶ 13, 567 N.W.2d at 358.
[¶11.] Because we view the evidence in a light most favorable to the
nonmoving party, we must conclude that the city had actual knowledge of the dog’s
dangerousness. Indeed, the evidence is substantial. Before April 14, 2001, several
postal workers reported Whiteskunk’s dog to the city. Postal workers Martin
Parsley and Erika Leacraft testified by deposition about their encounters with
Whiteskunk’s Rottweiler, and its dangerous propensities. Most significant, on April
28, 2009, the city declared the Rottweiler to be vicious after it bit a city employee.
[¶12.] In Tipton II, we held that evidence of actual knowledge alone is
insufficient to establish that a city undertook a special or private duty. See 1997
S.D. 96, ¶ 28, 567 N.W.2d at 364. To conclude otherwise would impose liability
against a government entity for simple negligence, and would “judicially intrude[]
upon resource allocation decisions belonging to policy makers.” Id. Therefore,
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“[o]nly when actual knowledge is coupled with one or more of the other factors, can
we uphold both the spirit and substance of the private duty exception.” Id.
[¶13.] On the remaining elements — reasonable reliance on representations
and conduct of the city, and evidence of a failure by the city to use due care to avoid
increasing the risk of harm — there are no issues of fact in dispute. Pray presented
no evidence that she relied on specific actions or representations of the city, which
caused her to forego other alternatives of protecting herself. See Tipton II, 1997
S.D. 96, ¶¶ 32-33, 567 N.W.2d at 365. Nor has she presented any evidence that she
was aware the city declared Whiteskunk’s dog to be vicious.
[¶14.] Nonetheless, Pray avers that the city failed to use due care to avoid
increasing the risk of harm to her because the city failed to ensure that Whiteskunk
complied with the requirements of Ordinance 6.4 after the city specifically acted
and declared Whiteskunk’s dog to be vicious. The city’s failure, according to Pray,
increased the risk of harm to her because if Whiteskunk had a sign warning that a
vicious dog was on the premises she would have walked a different route. This
element, however, does not ask whether the city simply failed to act, but whether
the city failed to use due care to avoid increasing the risk of harm. The city has to
be more than negligent. A failure to diminish potential harm is not enough. The
city’s actions must either cause the harm itself or have exposed Pray to new or
greater risks, leaving Pray in a worse position than she would have been before the
city’s actions. See id. ¶ 38.
[¶15.] While there is evidence that the city failed to ensure Whiteskunk’s full
compliance with Ordinance 6.4, there is no evidence that Pray was in a worse
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position after the city’s action than she would have been had the city not acted.
Before the city acted, Whiteskunk had no restrictions or requirements for his
vicious dog. There was no requirement that it be on a leash, contained in an escape-
proof kennel, or controlled by a person over 18 years old. Because there is no
evidence that the official action taken by the city caused the harm itself or exposed
Pray to new or greater risks, leaving her in a worse position than she was in before
the city took action, Pray has failed to establish an issue of fact in dispute on this
element.
[¶16.] Although the circuit court incorrectly ruled that all four Tipton I
elements must be established to prove a special duty, we can declare as a matter of
law that Pray has not met the legal requirements to show such a duty.
[¶17.] Affirmed.
[¶18.] GILBERTSON, Chief Justice, and ZINTER and SEVERSON, Justices,
and MEIERHENRY, Retired Justice, concur.
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