980 N.W.2d 251
S.D.2022Background
- Kevin Davies and Jay Black were tenants in a six-unit apartment building owned/managed by GPHC; both leases prohibited pets absent permission.
- Black kept a Rottweiler (Tequila) on the property with GPHC’s permission; Tequila was generally kenneled in a garage or tethered in the common backyard.
- Davies was bitten by Tequila in a common-area sidewalk adjacent to the backyard; the bite required emergency surgery.
- Davies sued GPHC for general negligence (failure to maintain common areas) and negligence per se under SDCL 40-34-13 (owning/keeping a vicious dog); GPHC sought summary judgment and asserted third-party claims against Black and Wilson.
- The circuit court granted summary judgment for GPHC, finding no evidence GPHC knew of Tequila’s dangerous propensities (no breach) and that GPHC was not the dog’s owner or keeper under the statute; it also denied Davies’ Rule 56(f) continuance request to depose Black and Wilson.
- Davies appealed; the Supreme Court of South Dakota affirmed the grant of summary judgment and denial of the continuance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether GPHC breached a duty of care for general negligence (common-area maintenance) | Davies: landlord had duty regarding common areas and should have known/remedied danger from Tequila; GPHC had constructive knowledge or could discover risk | GPHC: no actual or constructive knowledge of dangerous propensities; exercised reasonable care; no basis for liability | Court: GPHC owed duty for common areas but undisputed facts show no breach—no evidence GPHC knew or should have discovered dangerous propensities; summary judgment affirmed |
| Whether GPHC is liable under negligence per se (SDCL 40-34-13 owning/keeping a vicious dog) | Davies: by permitting Tequila on premises, GPHC was a "keeper" and thus violated statute, establishing negligence per se | GPHC: not owner or keeper; did not have custody, care, or management of dog; statute targets owners/keepers (and certain workers), not landlord who merely permitted dog | Court: GPHC was not keeper/owner; negligence per se fails; statute’s protected class does not clearly include tenants like Davies; summary judgment affirmed |
| Whether the trial court abused discretion by denying Rule 56(f) continuance to depose third parties | Davies: needed depositions of Black and Wilson to oppose summary judgment; affidavit supported continuance | GPHC: Davies’ Rule 56(f) affidavit was conclusory and failed to identify specific facts to be discovered or how depositions would defeat motion | Court: affidavit was non-particularized and did not meet Rule 56(f) requirements; denial was not an abuse of discretion |
Key Cases Cited
- Burgi v. East Winds Court, Inc., 969 N.W.2d 919 (2022 S.D. 6) (discusses landlord liability principles and reasonable-person standard)
- Ridley v. Sioux Empire Pit Bull Rescue, Inc., 932 N.W.2d 576 (2019 S.D. 48) (standards for negligence and summary judgment review)
- Rowland v. Log Cabin, Inc., 658 N.W.2d 76 (2003 S.D. 20) (landlord/business duty analysis for dog-related injuries)
- Gehrts v. Batteen, 620 N.W.2d 775 (2001 S.D. 10) (dangerous propensities evidence may include consistent aggressive behavior short of an actual attack)
- Hendrix v. Schulte, 736 N.W.2d 845 (2007 S.D. 73) (negligence per se requires statutory standard to protect plaintiff’s position)
- Stern Oil Co. v. Brown, 817 N.W.2d 395 (2012 S.D. 56) (summary judgment factual showing standards and Rule 56 application)
- Zochert v. Protective Life Ins. Co., 921 N.W.2d 479 (2018 S.D. 84) (appellate standard: affirm if any basis supports trial court ruling)