#28406-a-DG
2018 S.D. 71

                              IN THE SUPREME COURT
                                      OF THE
                             STATE OF SOUTH DAKOTA



                                     ****


ROBERT FISCHER,                                 Plaintiff and Appellant,

      v.

CITY OF SIOUX FALLS,                            Defendant and Appellee.


                                 ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA
                                ****
                      THE HONORABLE JOHN R. PEKAS
                                Judge
                                ****



ANDREW R. DAMGAARD
JAMI J. BISHOP of
Johnson, Janklow, Abdallah
 & Reiter, LLP
Sioux Falls, South Dakota                       Attorneys for plaintiff and
                                                appellant.

WILLIAM C. GARRY
MELISSA R. JELEN of
Caldwell, Sanford, Deibert
 & Garry, LLP
Sioux Falls, South Dakota                       Attorneys for defendant and
                                                appellee.


                                     ****
                                                CONSIDERED ON BRIEFS
                                                ON MARCH 19, 2018
                                                OPINION FILED 10/03/18
#28406

GILBERTSON, Chief Justice

[¶1.]        Robert Fischer sustained serious injuries while riding a bicycle

through a public park in Sioux Falls. Fischer sued the City of Sioux Falls for

negligence, but the circuit court granted the City’s request for summary judgment,

concluding that the City is immune from liability for such negligence claims.

Fischer appeals, arguing there is a genuine issue of material fact as to whether the

City’s conduct amounts to gross negligence or willful or wanton misconduct. We

affirm.

                          Facts and Procedural History

[¶2.]        On June 29, 2014, Fischer and his grandson were riding their bicycles

along a paved path in Kuehn Park, which is owned by the City of Sioux Falls.

Kuehn Park offers a golf course, playground, softball diamonds, swimming pool, and

tennis courts. For parkgoers entering via the paved path, the most direct route to

the tennis courts and swimming pool is through the northern gate of the tennis

courts. Noticing that the tennis courts’ northern gate was open, Fischer diverted

from the path and rode through the grass, intending to access the tennis courts and

swimming pool. While riding into a depressed area, the front tire of Fischer’s

bicycle became lodged in a natural drainage ditch that had been concealed by grass.

Fischer was thrown from his bicycle and sustained serious injuries, including

fractures in his back, neck, and sternum.

[¶3.]        Fischer filed an action against the City on May 3, 2016, alleging a

single claim of “negligence.” In the complaint, Fischer alleged that the City owed

him a duty to make the park reasonably safe or to warn him of concealed dangers

like the drainage ditch. He also alleged that the City “failed to use reasonable care
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or diligence to design, construct, maintain in good repair, inspect and upgrade the

area where [Fischer] was injured or to warn [him] of the concealed danger.”

[¶4.]        On November 14, 2016, the City filed a motion requesting summary

judgment. The City argued that it was immune from liability for negligence under

SDCL 20-9-20, which generally states that a political subdivision of South Dakota

owes no duty of care to keep land used for outdoor recreational purposes safe or to

warn of dangerous conditions. Although Fischer had not alleged gross negligence or

willful or wanton misconduct in his complaint, he responded that SDCL 20-9-20 did

not immunize the City from liability for such claims. The parties deposed several of

the City’s employees, who generally testified that they were aware of the natural

drainage ditch, that the ditch was often concealed by grass, and that they believed a

bicyclist attempting to ride over the ditch could be injured. After holding a hearing

on September 11, 2017, the circuit court granted the City’s motion.

[¶5.]        Fischer appeals, raising the following issue: Whether the circuit court

erred by granting the City’s motion for summary judgment.

                                Standard of Review

[¶6.]        Summary judgment is appropriate “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” SDCL 15-6-56(c). This Court

“view[s] the evidence ‘most favorably to the nonmoving party and resolve[s]

reasonable doubts against the moving party[,]’” Gades v. Meyer Modernizing Co.,

2015 S.D. 42, ¶ 7, 865 N.W.2d 155, 158 (quoting Peters v. Great W. Bank, Inc.,


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2015 S.D. 4, ¶ 5, 859 N.W.2d 618, 621), but a plaintiff must “substantiate [his]

allegations with sufficient probative evidence that would permit a finding in [his]

favor on more than mere speculation, conjecture, or fantasy[,]” Schaefer v. Sioux

Spine & Sport, PLLC, 2018 S.D. 5, ¶ 9, 906 N.W.2d 427, 431 (quoting Peters,

2015 S.D. 4, ¶ 13, 859 N.W.2d at 624). Questions of law are reviewed de novo.

Mont.-Dakota Utils. Co. v. Parkshill Farms, LLC, 2017 S.D. 88, ¶ 9, 905 N.W.2d

334, 338.

                               Analysis and Decision

[¶7.]         Fischer argues the circuit court erred by granting the City summary

judgment. Fischer’s complaint identifies a single cause of action: “negligence.” The

court granted summary judgment based on SDCL 20-9-20 and -21, which immunize

a municipality from liability for negligence in connection with land open to the

public for recreational use. 1 As Fischer points out, however, a municipality remains



1.      SDCL 20-9-20 removes a municipality’s duty of reasonable care:
              Except as provided in § 20-9-22, any political subdivision of
              South Dakota, and its employees acting within the scope of their
              duties owe no duty of care to keep the land safe for entry or use
              by others for outdoor recreational purposes, or to give any
              warning of a dangerous condition, use, structure, or activity on
              the land to persons entering the land for outdoor recreational
              purposes.
        (Emphasis added.) And SDCL 20-9-21 removes a public-park goer’s status as
        an invitee:
              Except as provided in § 20-9-22, any political subdivision of
              South Dakota, and its employees, by either directly or indirectly
              inviting or permitting the person to use the land described for
              outdoor recreational purposes or by charging a fee for
              admittance to parks, campgrounds, or other recreational areas,
              do not thereby:
                                                        (continued . . .)
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liable for an injury caused on such land that results from the “gross negligence or

willful or wanton misconduct” of a municipality employee. SDCL 20-9-22(1). The

City points out that the phrases gross negligence and willful or wanton misconduct

are noticeably absent from Fischer’s complaint. But Fischer maintains that the

question whether the conduct alleged transcends ordinary negligence is a factual

question to be resolved by a jury.

[¶8.]         In South Dakota, the phrases gross negligence and willful or wanton

misconduct mean the same thing. E.g., Holscher v. Valley Queen Cheese Factory,

2006 S.D. 35, ¶ 48 n.2, 713 N.W.2d 555, 568 n.2 (quoting Granflaten v. Rohde,

66 S.D. 335, 339, 283 N.W.2d 153, 155 (1938)) (“The words ‘gross negligence’ are, for

practical purposes, substantially synonymous with the phrase ‘willful and wanton

misconduct.’”); Melby v. Anderson, 64 S.D. 249, 252-53, 266 N.W.2d 135, 137 (1936)

(holding that the phrase gross negligence “is really a misnomer” and that “the

conduct described by those words . . . amounts to willful, wanton, or reckless

misconduct”). These phrases refer to a category of tort that is “different in kind and

characteristics” than negligence. E.g., Tranby v. Brodock, 348 N.W.2d 458, 461

(S.D. 1984). Both categories involve an assessment of the risk that a defendant’s
______________
(. . . continued)
                    (1) Extend any assurance that the land is safe for any
                        purpose; or
                    (2) Confer upon any person the legal status of an invitee or
                        licensee to whom a duty of care is owed; or
                    (3) Assume responsibility for, or incur liability for, any injury
                        to persons or property caused by an act of omission of the
                        political subdivision of South Dakota, and its employees
                        as to maintenance of the land.
        (Emphasis added.)

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conduct poses to others. State v. Larson, 1998 S.D. 80, ¶ 14, 582 N.W.2d 15, 18.

Negligence involves an “unreasonable risk of harm to another[.]” W. Page Keeton

et al., Prosser and Keeton on the Law of Torts § 34, at 212 (5th ed. 1984); see also

Englund v. Vital, 2013 S.D. 71, ¶ 21 n.6, 838 N.W.2d 621, 629 n.6. But for conduct

to be willful or wanton, the risk involved must be “substantially greater than that

which is necessary to make [the] conduct negligent.” Holzer v. Dakota Speedway

Inc., 2000 S.D. 65, ¶ 17, 610 N.W.2d 787, 793 (quoting Restatement (Second) of

Torts § 500 (Am. Law Inst. 1965)). And the harm threatened must be “an easily

perceptible danger of death or substantial physical harm[.]” Restatement (Second)

of Torts § 500 cmt. a; see also Holzer, 2000 S.D. 65, ¶ 17, 610 N.W.2d at 793.

[¶9.]        Additionally, establishing willful or wanton misconduct requires proof

of an element not present in a negligence claim. “The central issue in the ordinary

negligence case is whether the defendant has deviated from the required standard

of reasonable care, not his mental state at the time of the conduct.” Papke v.

Harbert, 2007 S.D. 87, ¶ 17, 738 N.W.2d 510, 516 (quoting Shamburger v. Behrens,

380 N.W.2d 659, 663 (S.D. 1986)). In contrast, “courts have often said that reckless,

willful[,] or wanton misconduct . . . entails a mental element. The defendant must

know or have reason to know of the risk and must in addition proceed without

concern for the safety of others . . . .” Dan B. Dobbs et al., The Law of Torts § 140

(2d ed.), Westlaw (database updated June 2018) (emphasis added). Or as this Court

has said, the “defendant must have ‘an affirmatively reckless state of mind.’”

Gabriel v. Bauman, 2014 S.D. 30, ¶ 11, 847 N.W.2d 537, 541 (quoting Allen v.

McLain, 74 S.D. 646, 649, 58 N.W.2d 232, 234 (1953)). So while “[w]illful and


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wanton misconduct is not identical to intentional conduct,” Kelly v. Kelly, 89 S.D.

58, 61, 228 N.W.2d 332, 333 (1975), willful and wanton misconduct does “partake[]

to some appreciable extent . . . of the nature of a deliberate and intentional wrong.”

Tranby, 348 N.W.2d at 461.

[¶10.]       In light of the foregoing, the requirements for alleging willful or

wanton misconduct (i.e., gross negligence) are different than those for alleging

negligence. While a plaintiff alleging negligence must prove merely that some harm

is possible, a plaintiff alleging willful or wanton misconduct must prove a

substantial probability of serious physical harm. Moreover, a plaintiff alleging

willful or wanton misconduct must prove the defendant acted with a culpable

mental state. Thus, while alleging willful or wanton misconduct can raise a jury

question as to whether a defendant’s conduct has been negligent, Antonen v.

Swanson, 74 S.D. 1, 11, 48 N.W.2d 161, 166-67 (1951), alleging negligence is

insufficient to raise a jury question as to whether a defendant’s conduct has been

willful or wanton, Olesen v. Snyder, 249 N.W.2d 266, 270 (S.D. 1976). Because

Fischer “did not allege willful [or] wanton misconduct specifically or generally” in

his complaint, the question is whether Fischer alleged “any facts which might

[imply] such conduct on the part of” the City. Id.

[¶11.]       As noted above, the phrases gross negligence and willful or wanton

misconduct do not appear in Fischer’s complaint. Nor does the evidence submitted

on the motion for summary judgment (i.e., the pleadings, depositions, answers to

interrogatories, admissions, and affidavits, pursuant to SDCL 15-6-56(c))

distinguish his cause of action from one for ordinary negligence. The evidence in


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the record does not suggest that the rut posed an easily perceptible danger of death

or other serious physical harm; indeed, Fischer’s complaint asserts that the rut

simply “poses danger to citizens at the park[.]” (Emphasis added.) Nor does the

evidence in the record suggest that the probability of such “danger” is substantially

greater than that required for ordinary negligence—Fischer’s complaint does not

address the question of probability at all. Even on appeal, Fischer’s summary of the

City’s employees’ deposition testimony suggests that harm was merely possible

rather than substantially probable; he asserts that the employees testified that “the

front tire [of a bicycle] could sink into the rut,” that “the front tire could get stuck,”

that “the bike could flip,” and that “a member of the public could be seriously

injured.” (Emphasis added.) So while the evidence in the record suggests that the

City knew its conduct posed an unreasonable risk of harm to the public (i.e., that

the City was negligent) that evidence does not suggest that the City acted “with a

conscious realization that [a serious physical] injury [was] a probable, as

distinguished from a possible (ordinary negligence), result of such conduct.”

Gabriel, 2014 S.D. 30, ¶ 11, 847 N.W.2d at 541 (emphasis added) (quoting Holzer,

2000 S.D. 65, ¶ 17, 610 N.W.2d at 793).

[¶12.]        Considering the evidence in the record in light of the differences

between negligence and willful or wanton misconduct, the circuit court did not err

by granting summary judgment. “[T]his Court warned long ago that if we draw the

line of willful, wanton, or reckless conduct too near to that constituting negligent

conduct, we risk ‘opening a door leading to impossible confusion and eventual

disregard of the legislative intent to give relief from liability for negligence.’”


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Gabriel, 2014 S.D. 30, ¶ 16, 847 N.W.2d at 543 (quoting Espeland v. Green, 74 S.D.

484, 490-91, 54 N.W.2d 465, 468 (1952)). Thus, when a plaintiff’s cause of action

simply resembles ordinary negligence, summary judgment is appropriate. See, e.g.,

Gabriel, 2014 S.D. 30, ¶¶ 17-19, 847 N.W.2d at 543 (affirming summary judgment

for defendant, holding that defendant’s failure to slow his vehicle from a speed

exceeding the legal limit even when an oncoming vehicle signaled a turn across the

defendant’s lane of traffic was not willful or wanton misconduct); 2 Tranby,

348 N.W.2d at 461-62 (affirming summary judgment for defendant, holding that

defendant’s operation of a motor vehicle with bald tires at a speed exceeding the

legal limit on a gravel road at night and after consuming seven alcoholic beverages

was not willful or wanton misconduct).

                                       Conclusion

[¶13.]         When faced with immunity to liability for ordinary negligence under

statutes like SDCL 20-9-20 and -21, a plaintiff cannot survive summary judgment

by simply alleging negligence as a cause of action. In this case, Fischer did just


2.       In Gabriel, the Court concluded:
               Reasonable persons may understand that they should not exceed
               the speed limit and that by exceeding the speed limit, they are
               undertaking a risk of causing an accident. Under our case law,
               however, reasonable persons under the same or similar
               circumstances present in this case would not have consciously
               realized that speeding would—in all probability—result in the
               accident that occurred.
         2014 S.D. 30, ¶ 19, 847 N.W.2d at 543. Likewise, in this case, while
         reasonable people may understand that failing to mark the drainage rut
         created an unreasonable risk of harm (i.e., negligence), reasonable people
         under circumstances similar to those in this case would not consciously
         realize that failing to mark the rut would create a substantial probability of
         death or serious physical injury.

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#28406

that. And Fischer failed to provide “sufficient probative evidence that would permit

a finding [of willful or wanton misconduct] on more than mere speculation,

conjecture, or fantasy.” Schaefer, 2018 S.D. 5, ¶ 9, 906 N.W.2d at 431 (quoting

Peters, 2015 S.D. 4, ¶ 13, 859 N.W.2d at 624). Thus, summary judgment was

appropriate.

[¶14.]         We affirm.

[¶15.]         ZINTER and JENSEN, Justices, and SEVERSON, Retired Justice,

concur.

[¶16.]         KERN, Justice, dissents.

[¶17.]         SALTER, Justice, not having been a member of the Court at the time

this case was assigned to the Court, did not participate.



KERN, Justice (dissenting).

[¶18.]         The legislature set a high, but not absolute, bar to tort claims against

political subdivisions operating a park, campground, or other recreational area.

SDCL 20-9-20 provides that a political subdivision “owe[s] no duty of care to keep

the land safe for entry or use by others for outdoor recreational purposes, or to give

any warning of a dangerous condition . . . on the land to persons entering the land

for outdoor recreational purposes.” Under SDCL 20-9-22, however, such immunity

is limited. Political subdivisions are liable for acts of “gross negligence or willful or

wanton misconduct.” SDCL 20-9-22(1).

[¶19.]         As set forth in the majority opinion, gross negligence or willful or

wanton misconduct requires evidence that the political subdivision acts with a


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“conscious realization that injury is a probable, as distinguished from a possible

(ordinary negligence), result of such conduct.” Gabriel v. Bauman, 2014 S.D. 30,

¶ 11, 847 N.W.2d 537, 541 (emphasis in original). Moreover, “[t]he conduct must be

more than mere mistake, inadvertence, or inattention . . . [t]here need not be an

affirmative wish to injure another, but, instead, a willingness to injure another.”

Id. ¶ 16, 847 N.W.2d at 543.

[¶20.]       Although Fischer must establish pursuant to SDCL 20-9-22(1) that the

City’s conduct rose to the level of gross negligence, we have stated that generally

“whether a defendant’s conduct constitutes a breach of a duty is a question of fact.”

Nicolay v. Stukel, 2017 S.D. 45, ¶ 16, 900 N.W.2d 71, 78. Further, in considering

whether Fischer presented a genuine issue of material fact under the standard of

gross negligence, we must view the evidence and every reasonable inference drawn

from the facts most favorable to Fischer. Weitzel v. Sioux Valley Heart Partners,

2006 S.D. 45, ¶ 16, 714 N.W.2d 884, 891 (explaining that orders of summary

judgment require “all facts and favorable inferences from those facts must be

viewed in a light most favorable to the nonmoving party”). The question is not

whether this Court would find gross negligence, but whether the facts create a

genuine issue of material fact from which a reasonable juror could find that the City

acted with a “conscious realization that injury [was] a probable, as distinguished

from a possible . . . result” of the dangerous condition that existed in Kuehn Park.




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Gabriel, 2014 S.D. 30, ¶ 11, 847 N.W.2d at 541 (quoting Holzer v. Dakota Speedway,

Inc., 2000 S.D. 65, ¶ 17, 610 N.W.2d ,793. 3

[¶21.]         The majority opinion acknowledges that “the evidence in the record

suggests that the City knew its conduct posed an unreasonable risk of harm to the

public . . . .” Majority ¶ 11 (emphasis added). Several City employees testified that

they knew about the sizeable rut in the grassy area between the paved trail

immediately to the north of the tennis court and swimming pool areas. These

employees testified that thousands of visitors enter Kuehn Park each year and a


3.       Other courts have considered a landowner’s knowledge of a hidden danger to
         be evidence of gross negligence because it increases the probability that a
         user will not discover and avoid a dangerous condition. See, e.g., State v.
         Shumake, 199 S.W.3d 279, 289 (Tex. 2006) (Wainwright, J., concurring)
         (stating that where evidence indicated defendant knew that several persons
         had nearly drowned in a culvert designed by defendant due to a concealed
         undertow just prior to the death of plaintiff’s nine-year-old daughter,
         plaintiffs alleged sufficient facts to support a finding of gross negligence);
         Antonace v. Ferri Contracting Co., Inc., 467 A.2d 833, 837 (Pa. Super. Ct.
         1983) (holding that “it is clear that a jury could conclude that appellant knew
         that dirt bike riders such as the decedent were using the property, and that
         in view of this knowledge, erection or maintenance of a steel cable, in a
         position of limited visibility, without markings or warning signs, constituted,
         an act of unreasonable character . . . .”) (internal quotation marks omitted).

         The Illinois Court of Appeals considered a case with facts similar to Fischer’s
         accident in McDermott v. Metro. Sanitary Dist., in which a boy was severely
         injured when he rode his bike into a ditch obscured by weeds. 607 N.E.2d
         1271, 1275-76 (Ill. App. Ct. 1992). At trial, the evidence established that the
         defendant knew of the danger posed by the ditch, the ditch was located near a
         place used to gain access to a recreational area, and the ditch’s danger was
         concealed by weeds and other vegetation. Id. at 1287. The court concluded
         “[i]n light of these circumstances, the record supports the jury’s conclusion
         that the Village had actual or constructive knowledge that the concealed
         condition of Ditch A, where it crossed the dirt path, created a high probability
         that one using the dirt path could fall into the ditch and thereby sustain
         substantial physical injury, and that the Village nevertheless failed to
         undertake any measure to remedy this danger.” Id.


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City ordinance allows bicyclists to ride their bikes off the sidewalk. City employees

testified to having observed bicyclists riding in the grassy areas of the park.

Several employees testified to their personal knowledge and experience with the rut

before Fischer was seriously injured when his bike tire hit the rut, causing him to

be thrown from the bike. Such testimony included the fact that not only had

lawnmowers been stuck in the rut in the past, but the rut was large enough to

break the axle of a lawnmower if it was driven directly over the rut.

[¶22.]       The facts also show that the City employees knew that the rut was at

times hidden by grass or grass clippings. Photographic evidence indicates that the

rut became camouflaged after the area surrounding the rut was mowed. Moreover,

on the day Fischer was injured, the evidence shows that a park guest playing tennis

observed Fischer immediately after Fischer was injured. As this individual ran to

assist and approached where Fischer was lying, he testified that he observed the

grass and vegetation “completely obscured the rut to the point where it was not

visible.” The photographs of the rut and the park guest’s observations demonstrate

that the dangerous condition was obscured and could not be appreciated by

parkgoers.

[¶23.]       Additionally, a fact question exists regarding the probability of harm

created by the City’s decision to open a gate on the north end of the fenced-in tennis

courts in approximately 2013. When the gate is open, bicyclists and pedestrians

traveling on the paved trail can travel the short distance, over the grassy area

where the rut is located, to the gate to gain access to the tennis court and swimming

pool areas. As noted by the majority opinion, “[f]or parkgoers entering via the


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paved path, the most direct route to the tennis courts and swimming pool is through

the northern gate of the tennis courts.” Majority ¶ 2 (emphasis added). Indeed,

Fischer testified that the very reason he left the path was because the most direct

route toward the tennis courts and swimming pool was over the concealed rut to

reach the open gate.

[¶24.]       But this route was not always available. The evidence shows that for a

time prior to 2013 while the gate was open, the City received complaints from park

guests about skateboarders and possibly bicyclists coming into the tennis court

area. In response, the City closed the gate. For unknown reasons, the City re-

opened the gate in 2013. The gates remained open at least until 2014 when Fischer

was injured. When the gate is closed, bicyclists and pedestrians on the paved trail

must go around through the parking lot area to access the tennis courts or pool.

There would be little or no reason to expect park guests to cross over the rut when

the north gate of the tennis court is closed. But after the gate was re-opened in

2013, a reasonable juror could conclude that park guests, particularly children,

bicycling on the paved path, would see the open gate and take the shortest route

over the hidden rut to the tennis courts and swimming pool. On these facts, the

City’s state of mind as to the likelihood of serious injury are questions of fact for the

jury.

[¶25.]       The majority deems the basis of Fischer’s allegations “mere

speculation, conjecture, or fantasy.” Majority ¶ 13 (quoting Schaefer v. Sioux Spine

& Sport, Prof’l LLC, 2018 S.D. 5, ¶ 9, 906 N.W.2d 427, 431). In so concluding, the

majority claims that the evidence and deposition testimony offered by Fischer only


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suggests the possibility, rather than probability, of harm. Majority ¶¶ 10-11.

Highlighting questions posed to City employees rather than their answers, the

majority apparently arrives at its conclusion in part because the attorneys did not

couch their inquiries in stronger language. However, the majority ignores

statements by City employees affirming, without reservation, the danger the rut

posed:

             Q: And you wouldn’t take a bicycle over that rut that you
             wouldn’t take your mower over, would you?
             A: Absolutely not. (Emphasis added.)
             Q: Do you agree with me that if somebody did that, they could
             potentially be seriously injured?
             A: I would think so.
             ....
             Q: [W]ould you drive a bicycle across it, knowing what you
             know about it?
             A: No, I wouldn’t ride a bicycle across it.
             ....
             Q: [W]ould you agree with me it would be dangerous to drive a
             bicycle over there at any significant speed?
             A: Yes.

[¶26.]       Moreover, how those deposed responded to questions that failed to use

a stronger word than “could” or “would” is not dispositive. Rather, we have said

that “[b]ecause willfulness, wantonness, or recklessness ‘is almost never admitted,

and can be proved only by the conduct and the circumstances, an objective standard

must of necessity in practice be applied.’” Gabriel, 2014 S.D. 30, ¶ 16, 847 N.W.2d

at 542-43 (emphasis added) (quoting W. Page Keeton et al., Prosser and Keeton on

the Law of Torts § 34, at 212-14 (5th ed. 1984)). We must examine the case from the

perspective of a reasonable person. Id. ¶ 19, 847 N.W.2d at 543.

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[¶27.]       “Summary judgment is an extreme remedy, [and] is not intended as a

substitute for a trial.” Stern Oil Co., Inc. v. Brown, 2012 S.D. 56, ¶ 9, 817 N.W.2d

395, 399. There is evidence in the record that the rut poses an obvious danger.

Knowing that the rut is often camouflaged by clippings and other debris and that

many people cross the grass to access the tennis courts’ north gate each year—

including by bicycle—a reasonable person could conclude that the City’s acts “would

in all probability as distinguished from possibly” produce the precise result which it

did produce. Gabriel, 2014 S.D. 30, ¶ 17, 847 N.W.2d at 543 (quoting Gunderson v.

Sopiwnik, 75 S.D. 402, 408, 66 N.W.2d 510, 513 (1954)).

[¶28.]       I respectfully dissent from the majority’s opinion. The circuit court

erred in granting summary judgment to the City and this case should be reversed

and remanded for a jury trial.




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