#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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