873 N.W.2d 65
S.D.2015Background
- On Dec. 2, 2011, David Zerfas swerved on southbound I-29 to avoid a deer carcass, crossed the median, and was struck by oncoming traffic; he died.
- Stacey Zerfas claimed UM (uninsured motorist) benefits from AMCO, asserting an unidentified driver hit the deer and negligently left the carcass in the lane, causing the crash.
- AMCO investigated, assumed for purposes of the claim the carcass was present and caused the swerve, but denied coverage because it concluded Stacey could not legally recover from the unidentified driver.
- AMCO relied on authority that hitting a deer does not, by itself, create a duty to remove remains or warn following motorists; it also noted no evidence identifying a negligent act by a hit-and-run driver.
- Stacey sued AMCO for breach of contract; the circuit court granted AMCO summary judgment, finding no common-law or statutory duty owed by the unidentified driver to Zerfas. Stacey appealed and the Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an unidentified hit-and-run driver who allegedly left a deer carcass in a travel lane owes a legal duty to following motorists | Zerfas: any driver using a public highway owes ordinary care to avoid putting others at risk; the hit-and-run driver’s act of leaving a carcass was foreseeable and created a duty | AMCO: foreseeable risk from a carcass does not automatically create a legal duty; without facts showing unusual or unreasonable use, no common-law duty exists | Court held no common-law duty existed because foreseeability here does not extend to imposing a duty to remove or warn under these facts |
| Whether SDCL 31-32-6 or SDCL 32-24-8 create a statutory duty on a driver who hits a deer to warn or remove the carcass | Zerfas: SDCL 31-32-6 requires a person who injures or obstructs a highway to warn and notify authorities; SDCL 32-24-8 (careless driving) supports negligence per se | AMCO: SDCL 31-32-6 targets unusual or unreasonable use that obstructs the highway; ordinary, reasonable use (including accidental collision with deer) does not trigger the statute; no evidence of statutory violation | Court held statute does not impose a duty under these facts and no statutory duty established |
| Whether summary judgment was appropriate given lack of duty | Zerfas: factual issues (e.g., whether carcass caused the crash, whether driver was negligent) should go to a jury | AMCO: duty is a question of law; where no duty exists, summary judgment is proper | Court held duty is a question of law and, because no duty exists, summary judgment was proper |
| Whether AMCO’s alternative evidence arguments (insufficient proof accident caused by unidentified driver) needed resolution | Zerfas: disputed causation facts preclude summary judgment | AMCO: even assuming facts in plaintiff’s favor, lack of duty is dispositive | Court did not address alternative evidentiary arguments because absence of duty was dispositive |
Key Cases Cited
- Millea v. Erickson, 849 N.W.2d 272 (2014) (existence of duty is question of law for summary judgment analysis)
- Johnson v. Hayman & Assocs., Inc., 867 N.W.2d 698 (2015) (foreseeability informs the scope of duty)
- Poelstra v. Basin Elec. Power Coop., 545 N.W.2d 823 (1996) (distinguishing foreseeability for duty from foreseeability for causation)
- Norman v. Cummings, 45 N.W.2d 839 (1951) (statute interpreted to apply to unusual or unreasonable highway use that obstructs or renders it dangerous)
- Cooper v. Rang, 794 N.W.2d 757 (2011) (drivers owe duty to maintain control and avoid accidents within range of vision)