(concurring in result in part and dissenting in part).
I concur in result on both issues but dissent on defamation.
When considering a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). All doubts are to be resolved in favor of the nonmoving party. Id. Summary judgment is an extreme remedy not appropriate for disposing of factual issues or as a substitute for trial. Koeniguer v. Eckrich, 422 N.W.2d 600, 601 (S.D.1988).
By dismissing the defamation claim, the trial court usurped the function of the jury. Rather than viewing the evidence in the light most favorable to the non-moving party as required under a summary judgment motion, see Wilson, 83 S.D. at 212,157. N.W.2d at 21, the trial court erroneously determined the merits of the defamation claim. A genuine issue of material fact was presented because people knew of the incident the next day. They were pointing at Howe calling her names that questioned her chastity. Obviously, these people heard about these incidents from sources originating with Reiman. Reiman was the likely source of some of these rumors.1 The falsity of those rumors, that Howe was walking around nude, voluntarily engaging others in touching her and that she had been penetrated digitally, presents genuine issues of material fact.
At his deposition, Reiman admitted that he made false statements about Howe to others. He admitted the publication of these falsehoods. When asked why he made these misstatements, he said because he was afraid.2 Reiman Deposition at 13. The trial court’s ruling states that the “emotional distress [Howe] suffered was as a result of the rampant rumors that started to circulate .... ” Trial Court’s Ruling, at 3. The question of the source and veracity of those rumors should be presented to the jury. The burden is on defendant to show that there are no genuine issues of material fact. Dept, of Rev. v. Thiewes, 448 N.W.2d 1, 2-3 (S.D. 1989). Defendant has failed to meet his burden in this respect.
This matter is filled with factual matters and disputes. Only the jury can resolve factual disputes such as this.
This matter has been tragic and embarrassing for all of these families involved. I sense a strong temptation on the part of the *87court to end it as soon as possible by any available means — even the wrongful denial of a jury trial. But the end never justifies the means.
The grant of summary judgment may seem to be a good thing on the defamation count, but it would deny plaintiff the right to a jury trial. It would be a sad day for South Dakota if the final chapter is the denial of the Constitutional right to a jury trial.
I know this is a difficult thing for the families involved, but it cannot be swept under the rug. It will come to rest properly only after a jury trial.
The Constitution guarantees the right to a jury trial — the trial court denied it.
The Constitution guarantees that courts shall remain open — the trial court closed it.
We should reverse and remand for a fair trial on all issues.
. Another boy at the high school testified that he had heard that Howe had been penetrated digitally at the Mansion that night:
Q. Did anybody directly tell you that they had [penetrated her digitally] that night?
A. Nobody directly told me.
Q. Who did you hear did?
A. I don't remember any names, I just remember that it happened up there and that Toni was the victim.
Deposition of Cody Allen Asher, at 13.
Reiman told this exact story to police, later admitting that it was false. Deposition of Rei-man, at 13. He was the likely source of this false rumor that circulated around the high school. Reiman's admitted publication of the false rumor to law enforcement is sufficient for defamation. A genuine factual issue of the source of that rumor has been presented by Howe and the defamation claim should survive summary judgment. Koeniguer, 422 N.W.2d at 601.
. Reiman testified as follows:
Q. Did you ever tell anybody that [he] had [digitally penetrated] her?
A. Yes, I did.
Q. Why did you say that to anybody?
A. Because I was very scared at the time.
Q. And in. fact did [he] ever tell you that he [digitally penetrated] her?
A. No, he did not.
Deposition of Reiman -at 13.