Lead Opinion
[¶ 1.] Charles and Ann Gleason (Gleasons) on behalf of their son, Michael Gleason (Michael), appeal the grant of summary judgment in favor of Deputies Dave Smith (Smith) and Brian Dean (Dean) (often collectively referred to as officers), and Lawrence County. We affirm.
FACTS AND PROCEDURE
[¶ 2.] On December 31, 1994, Wayne Huck received permission from his father, David Huck (Huck), to have an underage drinking party on their leased premises located a few miles north of Whitewood, South Dakota. Kegs of beer were purchased and various students from Brown High School in Sturgis, South Dakota, were invited. As the students arrived, they were charged an entrance fee if they intended to drink thе beer supplied by the Hucks.
[¶ 3.] It is undisputed that two Lawrence County police officers received an anonymous tip of a potential juvenile party near White-wood. Deputy Smith was the first officer to arrive at the scene after noticing a bonfire. He drove through an unlocked gate on the Huck premises. At that time, Huck approached Smith’s vehicle and the two conversed about the party. Smith then left the scene and met with other officers to discuss options regarding further investigation of the party. Smith initially spoke with Dean and then the two contacted the chief deputy for guidance. The chief deputy suggested using a sрotting scope to assist with the identifica
[¶4.] Meanwhile, Michael arrived at the Huck residence. He did not drink alcoholic beverages before or during the party. While there, Michael was attacked by Trevor Peters (Peters), Eric Johnson (Johnson), and Christopher Schleuning (Schleuning), other students attending the party. After being hit and kicked repeatedly, Michael was driven by a friend to his parents’ residence. From there, he was taken to the еmergency room at a hospital in Sturgis. As a result of the beating, Michael received two reconstructive surgeries on his face and incurred medical expenses in excess of $40,000.
[¶ 5.] Gleasons, on behalf of Michael, sued Peters, Johnson, and Schleuning for assault; Huck for faffing to supervise the activity involved and for furnishing alcoholic beverages to minors; the owner of the premises for allowing Huck to host such a party; Deputies Smith and Dean, and Lawrence County for faffing to stop the party. The trial court granted summary judgment in favor of Smith, Dean, and Lawrence County based on the special duty test established in Tipton v. Town of Tabor,
I. Whether the public duty rule should be abrogated.
II, Whether the trial court erred when it applied the factors relevant to imposition of liability on a government entity, and concluded that there was no genuine issue of material fact.
STANDARD OF REVIEW
[¶ 6.] We addressed the standard of review to be applied under similar facts in Tipton I:
Summary judgment shall be granted “... 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 judgment as a matter of law.” SDCL 15—6—56(c). On appeal, our task is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. Whether a duty exists is a question of law for the court to determine.
DECISION
[¶ 7.] I. Public-Duty Rule.
[¶ 8.] Gleasons argue that the public-duty rule should be abrogated, because it “has no place in South Dakota jurisprudence[.]” We disagree. We recently upheld the application of the public-duty rule in Tipton v. Town of Tabor,
[¶ 9.] Gleasons are essentially urging this Court to allow a cause of action against the county undеr a theory of strict liability. The facts in this case certainly do not warrant such a result. Therefore, we again decline the opportunity to open the floodgates of litigation and abrogate the public duty rule in South Dakota.
[¶ 11.] Not having abrogated the public-duty doctrine, we address Gleasons’ second argument on appeal. They argue that the trial court erred in determining there was no genuine issue of material fact as to whether Smith, Dean, and Lawrence County possess a special relationship with Gleasons.
[¶ 12.] The special duty rule provides that a plaintiff must show a breach of a duty owed to him/her as an individual rather than to the community at large in order to establish liability. Id. at ¶ 13,
[¶ 13.] Other jurisdictions have addressed whether a special duty is imposed upon law enforcement officers which serves as a basis for damages incurred to a specific class of individuals. A summary of those decisions follows:
Ordinarily, a breach of the general duty to prevent criminal acts which police owe to the public does not impose liability upon the employing governmental unit for damages which particular citizens suffer as a result of the breach. Instead, only where a special duty, i.e., a duty particularized as to an individual, is breached by the police will the municipality be held liable for damages.... When the reliance element is either not present at all or if present, is not causally related to the ultimate harm, this underlying concern is inapplicable and the invocation of the special duty exception is then no longer justified.
Eugene McQuillin, Municipal Corporations § 53.04.50, at 179 (3rd Ed.1993) (footnotes omitted); see also Taylor v. Phelan,
[¶ 14.] We then examine the relevant precedent in South Dakota. In Tipton I, this Court recognized that there may be certain circumstances in which a government entity possesses a special duty that results in liability. In order to properly examine those circumstances, we adopted four factors to be applied when determining whether a county “assumes to act for the protection of individuals”:
“1) the state’s aсtual knowledge of the dangerous condition;
2) reasonable reliance by persons on the state’s representations and conduct;
3) an ordinance or statute that sets forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole; and
4) failure by the state to use due care to avoid increasing the risk of harm.”
Tipton I,
[¶ 15.] A. Actual Knowledge
[¶ 16.] According to Tipton II, “ ‘[actual knowledge’ means knowledge of ‘a violation of law constituting a dangerous condition.’ Constructive knowledge is insufficient: a public entity must be uniquely aware of the particular danger or risk to which a plaintiff is exposed. It means knowing inaction could lead to harm.” Id. at ¶ 17,
[¶ 17.] Gleasons, however, merely argue there was substantial evidence that Smith was aware of juveniles consuming alcohol on the Huck premises.
[¶ 18.] Gleasons argument to the trial court defending the grant of a motion for summary judgment relies on the theory that negligence cases are not usually appropriate for summary judgment motions. There were no references to specific disputed facts concerning the knowledge possessed by the officers as to a potential assault.
[¶ 19.] B. Reasonable Reliance
[¶ 20.] Gleasons fail to include an argument or cite authority in their brief concerning the second factor, reliance on the police officers’ conduct. “Failure to cite.authority violates SDCL 15-26A-60(6) and constitutes a waiver of that issue.” State v. Phillips,
[¶ 21.] C. Ordinance for Protection of Particular Class
[¶ 22.] As stated in Tipton II, “[t]his element ‘permits recovery against a government entity for negligent failure to enforce its laws only when there is language in a statute or ordinance which shows an intent to protect a particular and circumscribed class of persons.’ ”
[¶ 23.] In their brief to this Court, Gleasons contend SDCL 7-12-4 applies to this element, which states:
It shall be the duty of the sheriff to comply with all orders оf the attorney general or his agents and at all times, whether on duty under the call of the attorney generalor his agents or not, to see to it as far as may be possible that all the laws of this state and especially all laws relating to alcoholic beverages are faithfully executed and enforced.
The language in this statute alone illustrates its broadness, e.g., “all the laws of this state” and “all laws relating to alcoholic beverages[.]” “When a statute’s language is clear, certain and unambiguous, our function confines us to declare its meaning as plainly expressed.” Wiersma v. Maple Leaf Farms,
[¶ 24.] D. Failure To Avoid Increasing Risk of Harm
[¶ 25.] This factor means the action of the officers must cause harm or expose Gleasons to a greater risk. Tipton II,
Conclusion
[¶ 26.] We affirm the trial court’s grant of summary judgment in favor of Smith, Dean, and Lawrence County on the basis that a special duty does not exist on behalf of those parties as a matter of law.
Notes
. Gleasons’ brief states: "[Tjhere is substantial evidence that Deputy Smith knew that the party at the Hucks involved consumption of alcohol by minors, both from the tip and from his conversation with Huck, if not Smith's own observations of the activities around The bonfire.” It is undisputed that an anonymous tip was received by the police that underage drinking was occurring near Whitewood. Further, Smith admits to locating a party and having a discussion with Huck. However, there is no evidence in the record indicating that the police officers undeniably knew there were minors drinking alcoholic beverages, and that the officers were capable of alleviating the danger involved with the situation. As Smith testified, he felt he did not have probable cause to enter the Huck premises. Dean also testified that the two officers contacted the chief deputy for guidance, and he agreed that probable cause was lacking. He suggested using a spotting scope in order to identify an individual as a juvenile, thereby obtaining probable cause. However, Dean mentioned that the officers never had the opportunity to use the scope because a priority call was received. Shortly thereafter, the officers were notified as to Michael’s injuries.
Dissenting Opinion
(dissenting).
[¶ 29.] There are genuine issues of material fact concerning the exceptions to the public duty doctrine and the trial court should have allowed this case to go to a jury. “The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” State Dep’t of Revenue v. Thiewes,
[¶ 30.] 1. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS HAD ACTUAL KNOWLEDGE OF THE POTENTIAL FOR VIOLENCE BY DRINKING MINORS.
[¶ 31.] Deputies Smith and Dean were both in close proximity to this underage drinking party which they both believed to be the juvenile gathering mentioned in the anonymous telephone call. Smith was actually on the premises, saw the bonfire surrounded by “a large gathering of people,” and was told by Huck that “The kids are drinking, and they’re stayin’ here.” Smith and Dean repeatedly testified in their depositions that they had a “gut feeling” and were suspicious that underage drinking was going on. Furthermore, Huck told Smith there was “parental supervision”
[¶ 32.] Smith now claims he lacked “probable cause” to investigate further to determine whether juveniles were consuming alcohol; however, in his deposition he admitted to believing that “a reasonable suspicion that a crime is being committed” is the standard for whether an officer can investigate a potential criminal situation.
Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less rehable than that required to show probable cause. Alabama v. White,496 U.S. 325 , 330,110 S.Ct. 2412 , 2416,110 L.Ed.2d 301 , 309 (1990).
Id. at 899. The information available to the defendants was easily enough to establish reasonable suspicion inviting further investigation: 1) On New Year’s Eve, they received an anonymous tip of an underage drinking party in progress; 2) they observed a bonfire surrounded by “a large gathering of people”; 3) Huck told Smith “The kids are drinking, and they’re stayin’ here”; 4) Huck also told Smith that there was “parental supervision,” an obviously improbable element of an adult party.
[¶ 33.] As a matter of law, the defendants possessed adequate information to establish reasonаble suspicion. It is up to a jury to decide whether the defendants were derelict in their duty in failing to conduct further investigation. It is also for the jury to determine whether violence by an intoxicated minor was reasonably foreseeable based upon the defendants’ observations of the party and further, whether that constitutes actual knowledge of the likelihood of violence. Whether there is factual justification for finding that Michael’s injury was foreseeable presents a jury question. Westover v. East River Elec. Power Coop., Inc.,
It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expеrt instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.
Fajardo v. Cammack,
[¶ 35.] As noted by the conference opinion, Gleasons do not attеmpt to allege reliance. However, a plaintiffs inability to prove reliance is not a bar to suit. See Andrade v. Ellefson,
[¶ 36.] 3. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER MICHAEL WAS A MEMBER OF THE CLASS PROTECTED BY THE STATUTES.
[¶ 37.] The plain language in Tipton I instructs that the language of a statute is not dispositive of whether there is a duty to any particular class of persons:
Sole reliance on statutory language in determining whether a duty exists is needlessly restrictive and arbitrary. A statutory reference to a particular class of persons could very well bе inadvertent rather than the result of any reasoned analysis of municipal or county responsibility. We require an analytical framework that more accurately measures a public entity’s culpability for the harm suffered.
[¶ 38.] Defendants were empowered to stop this party. SDCL 7-12-4 provides:
It shall be the duty of the sheriff to comply with all orders of the attorney general or his agents and at all times, whether on duty under the call of the аttorney general or his agents or not, to see to it as far as may be possible that all the laws of this state and especially all laws relating to alcoholic beverages are faithfully executed and enforced.
(Emphasis added). Smith testified that, once he knows of underage drinking, he has no option but to stop the party.
It is a Class 1 misdemeanor to sell or give for use as a beverage any alcoholic beverage to any person under the age of eighteen years unless it is done in the immediate presence of a parent or guardian or sрouse over twenty-one years of age of by prescription or direction of a duly licensed practitioner or nurse of the healing arts for medicinal purposes.
See also SDCL 35-9-1.1 (Class 2 misdemean- or when the minor is between eighteen and twenty-one years).
[¶ 39.] The defendants had the power and the duty to abate the nuisance of an underage drinking party. The situation on the Huck property constituted a nuisance as a matter of law. See SDCL 35-10-17:
Any structure, conveyance, or place where alcoholic beverages are manufactured, sold, kept, bartered, given away, found, consumed or used in violation of the laws of the statе, relating to alcoholic beverages, and all alcoholic beverages and property kept and used in maintaining the same, is hereby declared to be a common nuisance, and any person who maintains such a common nuisance is guilty of a Class 1 misdemeanor.
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private.
[¶ 40.] Failure to act when оne has a duty to do so also constitutes a nuisance. SDCL 21-10-1 defines what acts and omissions constitute nuisances:
A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the ... health, or safety of others;
[[Image here]]
(4) In any way renders other persons insecure in life, or in the use of property-
(Emphasis added).
[¶ 41.] One present at an underage drinking party is included in the class of persons intended to be protected by the nuisance statutes.
[¶42.] Moreover, persons at the party came within the “ambit of the risk” created by any negligent failure to act on the knowledge of an illegal party. See Livingston v. City of Everett,
When statutes intend to insure the safety of the public highways, a governmental officer’s knowledge of an actual violation creates a duty of care to all persons and property who come within the ambit of the risk created by the officer’s negligent conduct.
(Emphasis added) (citations omitted). It is usually a matter of timе before violence
[¶ 43.] Based on the knowledge the defendants possessed after visiting the underage drinking party, there are genuine issues of material fact: 1) whether Michael and others similarly situated were within the class protected under the statutes; 2) whether Michael was a foreseeable plaintiff. As the court noted in Champagne v. Spokane Humane Society,
[¶ 44.] 4. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS’ FAILURE TO ACT CONSTITUTED A BREACH OF DUTY.
[¶45.] As noted, the defendants had the authority to stop the party. “[P]ersons are generally not liable for failure to act, but once having acted, [they] must proceed without negligence.” Tipton v. Tabor,
[¶ 46.] Whether stopping the party would have diminished the risk of harm to Michael and other partygoers is yet another jury question. The conference opinion states that “[fjailure to diminish harm is not enough.” Supra ¶ 21 (citing Tipton II, supra). It is true that Andrade stands for the proposition that failure to decrease the risk of harm can
[¶47.] The essence of Gleasons’ сlaim is that violence should have been reasonably anticipated by the defendants, that it became their duty to protect Michael against it, and that their failure to perform that duty was negligence. There is “strong evidence” on three of the four factors, which is more than Tipton I,
. In his deposition, Smith testified that he was aware of thе law allowing a minor to drink
. Dean also testified by deposition that he did not investigate further because of lack of probable cause, but later admitted that was the standard for arrest, not investigation. See State v. Soft,
. One of the concerns associated with underage drinking is the danger of driving in an impaired condition. The defendants may have felt this risk was alleviated by 1) Huck’s stаtement that the gate would be locked to any person who was drinking and trying to leave the premises, and 2) the highway patrol officers who agreed to monitor traffic near the party. However, those "precautions” obviously did not eliminate other persons such as Michael from coming into contact with intoxicated minors. The defendants' reliance on this assurance was questionable because 1) they had never before met Huck, and 2) the gate was unlocked upon Smith's arrival. Additionally, when they returned to investigate the assault on Michael, Huck was asleep, yet the party had not ended.
. The significance of this party constituting a public nuisance is that the statute narrows the class of persons intended to be protected by its provisions. If it were meant to extend a duty of protection to the public as a whole, it would not make sense to list the three categories of persons to whom it is directed. "[Tlhis court must assume that the Legislature meant what the statute says and therefore give its words and phrases a plain meaning and effect.” In re Estate of Gossman,
. Cf. SDCL 9-29-13: "Every municipality shall have power to declare what shall constitute a nuisance and prevent, abate, and remove the same.” See also Wynkoop v. Mayor & City Council of Hagerstown,
.See Runkel v. City of New York,
. See Muhlenkort v. Union County Land Trust,
. The jury can also consider the defendants’ resources and its resource allocation policy in answering the question whether the defendants owed a duty to Michael and others similarly situated. However, this is really a non-issue under the nuisance statutes because the defendants had the opportunity to stop the party at no cost by assessing the real estate or suing the owner. SDCL 21-10-6. The public duty rule stems, at least in part, from a concern that individuals could affect the manner in which limited public resources are utilized. As this statute makes clear, the defendants are afforded an opportunity to carry out their duty without depleting any resources. Therefore, this concern is not present in a suit brought under the nuisance statutes, and should be considered by the jury, not withheld from the jury as done by the trial court.
.Ordinarily, the question of whether a duty exists is a question of law for the court. Here, the answer to that question rests upon substantial issues of material fact that are rightfully jury questions. Swiden Appliance & Furniture, Inc. v. National Bank of SD,