969 N.W.2d 919
S.D.2022Background
- Minor K.B. was bitten in the face by Marco, a pit bull owned by neighbor Ronald Pasman, while playing near Pasman’s trailer; K.B. required multiple corrective surgeries.
- Marco was tethered to Pasman’s trailer hitch (10–12 foot radius) and Pasman had posted two “Beware of Dog” signs; some neighbors later attested Marco had shown aggressive behavior while chained.
- Teresa Burgi rented a lot in East Winds Court (owned by East Winds Court, Inc.); her lease prohibited dogs, but Pasman’s lease allowed “non-vicious” pets and included an enforcement/termination remedy for lease violations.
- Teresa sued East Winds for general negligence (also raised negligence per se and breach of contract but those were abandoned on appeal); East Winds moved for summary judgment, which the circuit court granted.
- The circuit court held East Winds owed no legal duty to K.B. because the landlord had parted with possession of Pasman’s lot (no retained control) and the attack occurred on the tenant’s lot (not a common-area dangerous condition); it also found no demonstrated knowledge by East Winds of Marco’s vicious propensities.
- The South Dakota Supreme Court affirmed, holding no duty existed as a matter of law and therefore no landlord liability to K.B. for the tenant’s dog.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether East Winds reserved sufficient control of Pasman’s lot to create a landlord duty for tenant’s dog | Burgi: lease terms (pet clause, enforcement/termination right) show landlord retained control and thus a duty to protect/inspect/enforce | East Winds: lease places pet responsibilities on tenant; enforcement clause is a remedy, not ongoing control; landlord parted with possession | Held: No. Lease language did not reserve control; landlord relinquished possession and no duty arose |
| Whether the common‑area exception applies because K.B. was playing by a hoop that extended into the street owned by East Winds | Burgi: K.B. was in/common to a common area (street) when playing basketball and injury arose from placement/use of hoop and dog | East Winds: Injury occurred on tenant’s lot by a dog that did not come from the common area; no dangerous condition on common area shown | Held: No. Undisputed evidence shows attack occurred on tenant’s lot and not caused by a dangerous condition of the common area |
| Whether East Winds had knowledge of Marco’s dangerous propensities so as to render the attack foreseeable | Burgi: neighbor affidavits and facts about the dog show East Winds knew or should have known and failed to act | East Winds: No actual knowledge; manager and owner did not observe signs or dangerous behavior; even if imputed, no legal duty arises absent control or a special relationship | Held: Court did not reach knowledge question because no duty exists; absent reserved control or special relationship, dangerous‑propensity rule inapplicable |
Key Cases Cited
- Clauson v. Kempffer, 477 N.W.2d 257 (S.D. 1991) (landlord not liable for dangerous conditions arising after lessee takes possession absent retained control)
- Englund v. Vital, 838 N.W.2d 621 (S.D. 2013) (common‑area exception requires injury caused by a dangerous condition of the part retained by lessor)
- Rowland v. Log Cabin, Inc., 658 N.W.2d 76 (S.D. 2003) (dangerous‑propensity rule applied to business owners for invitee protection)
- Ridley v. Sioux Empire Pit Bull Rescue, Inc., 932 N.W.2d 576 (S.D. 2019) (dog‑bite cases turn on owner knowledge or foreseeability)
- Walther v. KPKA Meadowlands Ltd. P’ship, 581 N.W.2d 527 (S.D. 1998) (no special‑relationship duty from landlord to tenant akin to business‑invitee context)
- Gehrts v. Batteen, 620 N.W.2d 775 (S.D. 2001) (failure to act on knowledge of an animal’s dangerous propensities breaches duty of care)