(dissenting).
[¶ 19.] SDCL 20-9-1 provides in part: Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill....
[¶ 20.] SDCL 20-9-1 declares that every person, which includes a dog owner, is responsible for “injury to the person ... caused by want of ordinary care.” The majority opinion correctly recognizes that “a cause of action for negligence can survive without the owner’s actual knowledge of an animal’s dangerous propensities.” “In the absence of any evidence of viciousness of a dog ... liability for the injuries attach under the due diligence and ordinary care rule.” 4 AmJur2d Animals, § 107 (1995). Yet, while recognizing that *780knowledge of vidousness is not always required, the majority opinion analysis proceeds as though it is.
[¶ 21.] The owner of a domesticated animal may be subject to a negligence cause of action for harm caused. Bauman v. Auch, 539 N.W.2d 320, 324 (S.D.1995). I agree with the majority opinion’s statement that “Gehrts will still be allowed to recover if she can show that Nielson failed to use reasonable care in the circumstances in that Nielson as a prudent person should have foreseen the danger.” However, I disagree with the premature conclusion that the facts of this case warrant summary judgment for Nielson. “This Court has stated on numerous occasions that summary judgment is generally not appropriate in negligence actions.” Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139, 140 (S.D.1985); Nemec v. Deering, 350 N.W.2d 53, 56 (S.D.1984); Myers v. Lennox Co-op. Assn., 307 N.W.2d 863, 864 (S.D.1981). In addition, the existence of an affirmative defense, such as contributory negligence, is ordinarily a question of fact to be resolved by the jury. Myers, 307 N.W.2d at 864.
[¶ 22.] An owner of a domesticated animal has a duty to protect individuals if the danger should be reasonably anticipated. Zeeb v. Handel, 401 N.W.2d 536, 537 (S.D.1987). Whether that owner should anticipate such danger is a question of fact to be decided by a jury. Id. “The necessary precautions to be observed or foresight to be exercised are usually questions to be resolved by the jury.” Hardsaw v. Courtney, 665 N.E.2d 603, 607 (Ind.App.1996). “Any given method of restraining a dog may or may not be adequate .under the particular facts of a particular case.” Id.
[¶ 23.] Whether Nielson was negligent: 1) in restraining the dog, 2) allowing the fourteen year old girl to pet the dog, 3) failing to release the dog from the harness, or 4) whether Nielson knew that her coworker, Gehrts’ mother, owned a dog at that house are genuine issues of material fact that should be resolved by a jury. The facts of this case can not be resolved by summary judgment or rubber stamped by appellate review. The majority opinion’s finding that Nielson was not negligent for failing to release the dog from the harness is a function best left to the jury .2
[¶ 24.] I would reverse and remand for a jury to determine whether Nielson’s conduct fell below the standard of care. If it was, then and only then, do questions of assumption of the risk or contributory negligence arise. Therefore, I respectfully dissent.
[¶ 25.] MILLER, Chief Justice, joins this dissent.. In response to Gehrts argument that the dog should have been released from the harness, the majority opinion states:
Whether this would have prevented the injury is speculative. It may actually have exacerbated the situation. If Wilbur had become sufficiently agitated to pull free of Neilson's control, Gehrts' injuries may have been much more severe.
I believe, and South Dakota law provides, that such fact-finding is best left to the jury.