Lead Opinion
[¶ 1] We are again faced with the question whether city and county officials owed a “special duty” to protect four-year-old Crystal Tipton who was severely mauled when she strayed into an nearby yard and approached a cage holding two wolfdog hybrids. Following remand in the earlier appeal, the circuit court, applying our new standard, granted summary judgment, concluding as a matter of law no special duty affixed. Although existence of a special duty is a question of law, ordinarily breach of duty is a question of fact for a jury. Nonetheless, we conclude summary judgment was proper as none of the required special duty factors were established here.
Procedural Background
[¶ 2] Daniel G. Tipton, his wife, Lisa Tip-ton, and their children, Crystal and Daniel E. Tipton, sued the Town of Tabor, Bon Homme County, and certain government employees after Crystal was mauled by Kenneth Holland’s wolfdogs. Summary judgment was granted to the defendants on the issue of liability. On appeal, we reversed and remanded “for further consideration by the trial court” in view of our revised test. Tipton v. Town of Tabor,
Facts
[¶ 3] In 1987, Kenneth Holland purchased two wolf-German Shepherd hybrids (Canis lupus crossed with Canis familiaris). They were reputedly close to ninety-five percent wolf, the product of six or seven generations of crossbreeding. From their appearance and behavior, it was evident they had wolf-like characteristics. For almost three years, Holland kept them in his back yard in Tabor in a secure, fenced enclosure. This pen was constructed of chain link fence on two sides and livestock panels on the other two sides. It had wire buried under the surface to prevent the animals from digging out. Three feet of wire all around the top prevented them from jumping or climbing over. As they had a “nervous” disposition, the hybrids were never allowed to run free, and Holland recommended to persons interested in seeing them that they visit only when he was present. Openings in the fencing were wide enough to allow the wolfdogs to stick at least part of their heads out in some places and fully out in others. Holland believed his wolfdogs would never attack anyone unless provoked. He kept them in the secure cage for “bonding” purposes. The animals were male and female; their pups lived in an adjoining cage.
[¶4] Some people in the community had concerns about the safety of their children, but for a variety of reasons, no one complained to law enforcement authorities, including Chief of Police Eugene Sutera or County Sheriff Lyle O’Donnell, about anything other than being disturbed by howling.
[¶ 5] On November 12, 1990, the Tiptons were in Tabor visiting relatives who lived near the Hollands. Crystal, four years old at the time, wandered into Hollands’ yard, over to the hybrids’ pen. The animals apparently grabbed her as she stood near their enclosure. She was severely mauled. The Tip-tons, who were uninsured, incurred over $33,000 in medical expenses for Crystal’s care. Soon after the incident, the Hollands discharged their liability through bankruptcy. In their suit, the Tiptons assert (1) Tabor was negligent in licensing the hybrids, violating town ordinances, which increased the risk of harm to others and created a nuisance; (2) Tabor was negligent in allowing the hybrids to remain in town knowing of the danger; and (3) the county was negligent in not abating the nuisance the hybrids presented as witnessed by Sheriff O’Donnell who had actual knowledge of the hybrids’ vicious proclivities.
[¶ 6] In Tipton I, we modified the bright-line test in Hagen v. City of Sioux Falls,
Standard of Review
[¶ 7] “In reviewing a grant of summary judgment, we must decide whether the moving party has shown there is no genuine issue of material fact and is entitled to judgment as a matter of law; the evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party.” Great West Cas. Co. v. Bergeson,
Analysis and Decision
[¶ 8] The Public Duty Doctrine — Rationale
[¶ 9] Recognizing a need for redress when local government torts result in injury, our Legislature conditionally waived sovereign immunity. “To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance ... the public entity shall be deemed to have waived the common law doctrine of sovereign immunity....” SDCL 21-32A-1. Despite this waiver, however, South Dakota continues to observe the public
[¶ 10] Essentially, the rule declares government owes a duty of protection to the public, not to particular persons or classes.
[¶ 11] Some have criticized this doctrine for perpetuating formerly repealed immunity.
cial branch.” Kircher v. City of Jamestown,
[¶ 12] Though some consider this doctrine a form of immunity, we view the rule principally within the framework of duty — if none exists, then no liability may affix.
[¶ 14] Application of the Rule
[¶ 15] On remand, the circuit court applied our four-element analysis from Tipton I— actual knowledge, reliance, ordinance enacted for the protection of a particular class of persons, aggravation of harm — and concluded the Tiptons failed to satisfy any factor with requisite “strong evidence.” See Tipton I,
[¶ 16] 1. Actual Knowledge of Dangerous Condition
[¶ 17] “Actual knowledge” means knowledge of “a violation of law constituting a dangerous condition.” Hage v. Stade,
[¶ 18] As foreseeability is a necessary element in the duty formulation, actual knowledge denotes a foreseeable plaintiff with a foreseeable injury. Mid-Western Elec., Inc. v. DeWild Grant Reckert,
[¶ 19] The circuit court found, as a matter of law, defendants had no actual knowledge about the hybrids’ dangerous propensities. As we noted in Tipton I, the existence of actual knowledge is in “sharp dispute” and is perhaps the overarching consideration here, most bolstered by evidentia-ry support. The Tiptons allege several circumstances became apparent to Sutera and O’Donnell through their investigations, generating actual knowledge about the wolfdogs’ viciousness. Solidly reinforced and over seven feet tall, the very structure of the pen suggested contact with the creatures it held may be dangerous.
[¶21] Tabor’s licenses described the animals as “wolf hybrids,” yet the rabies receipt witnessed by Muller referred to each as a “wolf.” Muller understood the animals to be wolf hybrids, not wolves, and she so informed the Town Board: “I told them just what [Mrs. Holland] had told me. They were called wolf hybrids.” Shortly before the attack, Tabor sought to change its licensing ordinance to specifically address wild animals, but there is contradictory evidence on whether this was in response to the wolf-dogs.
[¶ 22] To Tabor and Bon Homme’s knowledge, the hybrids had never bitten or snapped at anyone who had approached the cage. Before the attack on Crystal, the animals were nothing more than a community curiosity and annoyance. If their ancestry engendered concerns about viciousness, the record reflects no history of problems with these particular animals. “Warning flags,” as the Minnesota Supreme Court has noted, are not enough for actual knowledge under Cracraft. Andrade v. Ellefson,
[¶ 23] Tabor’s ordinance in effect at the time forbade keeping dogs of fierce, dangerous or vicious propensities. Owning or keeping vicious dogs also constitutes a public nuisance under state law. SDCL 40-34-13. South Dakota law provides the following definition:
For the purposes of §§ 40-34-13 to 40-34-15, inclusive, a vicious dog is:
(1) Any dog which, when unprovoked, in a vicious or terrorizing manner approaches in apparent attitude of attack, or bites, inflicts injury, assaults or otherwise attacks a human being upon the streets, sidewalks or any public grounds or places; or
(2) Any dog which, on private property, when unprovoked, in a vicious or terrifying manner approaches in apparent attitude of attack, or bites, or inflicts injury, or otherwise attacks a mailman, meter reader, serviceman, journeyman, delivery man, or other employed person who is on private property by reason of permission of the owner or occupant of such property or who is on private property by reason of a course of dealing with the owner of such private property.
SDCL 40-34-14. But see SDCL 40-34-15 (“No dog may be declared vicious if an injury or damage is sustained to any person who was committing a willful trespass.... ”). Other jurisdictions have arrived at similar definitions:
The terms “vicious propensities” and “dangerous propensities” have been defined as “[a]ny propensity on the part of the dog, which is likely to cause injury under the circumstances in which the person controlling the dog places it ... and a vicious propensity does not mean only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings.” 3A CJS Animals § 199, at page 701 (1973); Dansker v. Gelb,352 S.W.2d 12 , 16-17 (Mo.Sup.1961). It “ ‘includes as well a natural fierceness or disposition to mischief as might occasionally lead him to attack human beings without provocation.’ ” (Citation omitted.) Frazier v. Stone, [515 S.W.2d 766 ,] 768 [ (Mo.App.1974) ].
Farrior v. Payton,
[¶ 24] If we regard these animals as simply “dogs,” then at least until the attack on Crystal, they would not fit within the vicious category. The problem here though is trying to define whether these wolfdogs were domestic or wild. An owner’s liability often depends upon the distinction. If an animal is domesticated, the owner must know of its dangerous tendencies to be strictly liable: “But the notice necessary to hold an owner of an animal strictly liable for an attack on a human being is notice that the animal had a propensity to attack human beings, and notice that it had a ferocious disposition toward other animals may not be sufficient.” 3 F. Harper et al., The Law of Torts § 14.11, at 274 (2d ed 1986)(citing Re
[¶ 25] These wolfdogs were part German Shepherd. Some courts have suggested in dicta that German Shepherds are a vicious breed as a matter of law: “vicious propensities” may be implied from the fact the dog was a German Shepherd, said to have inherited “wild and untamed” tendencies from its “wolf ancestors.” Kelley v. Hitzig,
[¶26] What distinguishes a wild from a domesticated animal when crossbreeding the two occurs? Consider Restatement (Second) of Torts § 506 (1977):
(1) A wild animal ... is an animal that is not by custom devoted to the service of mankind at the time and in the place where it is kept.
(2) A domestic animal ... is an animal that is by custom devoted to the service of mankind at the time and in the place where it is kept.
Traditional or “customary service” signifies domestication of a species, but this may be of little assistance in categorizing a particular crossbreed. 3 Harper et al, supra, § 14.11, at 266. See also SDCL 40-1-1(5):
“Domestic animal,” any animal that through long association with man, has been bred to a degree which has resulted in genetic changes affecting the temperament, color, conformation or other attributes of the species to an extent that makes it unique and different from wild individu- • als of its kind....
Some courts recognize a third category: wild animals capable of domestication. Spring Company v. Edgar,
[¶ 27] Compare actual knowledge in other private duty situations: In Corridon v. City of Bayonne,
[¶ 28] Let us proceed for a moment with the assumption the Tiptons have sufficient evidence to support the actual knowledge factor. Is proof satisfying this element
[¶ 29] We are unaware of any “public duty” jurisdiction which pins special duty liability solely upon actual knowledge. Minnesota courts have yet to decide this question. Washington cases link actual knowledge with violation of an enactment protecting a special class. See Campbell, supra; Livingston,
[¶ 30] 2. Reasonable Reliance
[¶ 31] The Tiptons state they relied upon the defendants “to keep the Town of Tabor safe from dangerous conditions [because people] should be able to visit relatives in a town and not be exposed to dangers such as wolf-hybrids.”
The primary purpose of dog ordinances and statutes is protection of the public from injury or damage ... [D]ogs because of their propensities are, and from time immemorial have been ... peculiarly subject to rigorous police regulation.
Dogs have been viewed as constituting nuisances, at least where they are ferocious or have the habit of jumping and biting at children or other people. Indeed, such a dog is a nuisance of the worst sort.
7 E. McQuillin, The Law of Municipal Corporations § 24.284, at 195 (3d ed. 1989). The licensing enactment here was created for the general well being of the community, not for any particular persons or classes. Even if plaintiffs could assume the wolfdogs’ presence in Tabor was legally sanctioned through licensing, it would not be adequate to create personal reliance. Dogs bite, licensed or not. For reasonable reliance to occur, the Tiptons must have depended on “specific actions or representations which [caused them] to forgo other alternatives of protecting themselves.”
[¶ 32] Reliance must be based on personal assurances. Instructive of this axiom is Champagne v. Spokane Humane Society,
At the heart of most of these “special duty” cases is the unfairness that the courts have perceived in precluding recovery when a municipality’s voluntary undertaking has lulled the injured party into a false sense of security and has thereby induced the injured party either to relax his or her own vigilance or to forego other available avenues of protection.
18 McQuillin, supra, § 53.04.50, at 179.
[¶ 33] Nothing in the record suggests that when the Tiptons arrived in town, they knew of the local enactments or practices regarding animal licensure. They arrived only minutes before the attack. No representations were made to them about the safety of the wolfdogs caged in the neighbor’s yard. Trusting upon some feeling they would be safe wherever they went in Tabor is perhaps comprehensible; however, it does not rise to the level of reliance causing them to forgo self-precaution.
[¶ 34] 3. Enactment for Protection of Particular Class
[¶ 35] Here we consider as only one factor what once was the entire test in Hagen.
[A] legislative enactment ... whose purpose is found to be exclusively (a) to protect the interests of the state or any subdivision of it as such, or (b) to secure to individuals the enjoyment of rights or privileges to which they are entitled only as members of the public, ... [does not create a standard of conduct to be used to impose tort liability].
Restatement (Second) of Torts § 288 (1965). This 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 á particular and circum
[¶ 36] Does SDCL 7-12-29, which empowers a sheriff to take possession of dangerous animals, create a special duty?
[¶37] 4. Failure To Avoid Increasing Risk of Harm
[¶ 38] Under this factor official action must either cause harm itself or expose plaintiffs to new or greater risks, leaving them in a worse position than they were before official action. Could Tabor have aggravated the risk of harm by licensing the hybrids?'
[¶39] Neither licensing the wolfdogs nor inspecting their pens were affirmative acts increasing the risk of harm to those approaching the hybrids. See Von Batsch, supra, in which investigating officers failed to find evidence of intruders, and, after the police left, the intruders killed a businessperson. “The officers did not create the peril to decedent. They took no affirmative action which contributed to, increased, or changed the risk which would have otherwise existed. At most they merely failed to eliminate the danger of unknown intruders.”
[¶ 40] In Sampson v. City of Lynn,
The plaintiff has not pointed us to any statutes or ordinances which establish that the city owed the decedent, as a member of an identifiable subclass, a special duty of care.... The [permit] statute does not evince a legislative intent to protect a particular group of individuals. Rather, the beneficiaries of the statute are members of the general public.'...
The plaintiff has not alleged any foreseeable risks, the knowledge of which would have enabled the city to prevent the harm which ultimately occurred.... The allegations in this ease do not support a claim that the city’s purported negligence created a risk of immediate and foreseeable injury.
Id. at 589 (citations omitted). Failure to diminish potential harm is insufficient. Defendants cannot bear liability under this element.
[¶ 41] In summary, we conclude as a matter of law no private duty liability exists here, as none of the four Cracraft elements have been met.
[¶ 42] Affirmed.
Notes
. Some of the neighbors were new to town and felt uncomfortable about complaining. Depositions from town residents and officials reveal that residents would not complain to the Board about their fears regarding the hybrids because they were concerned about "rocking the boat" or being known as troublemakers.
. Holland had made a written complaint about a dog running at large, and he believed nothing had been done about it.
. The public duty doctrine seemingly has its origin in the United States Supreme Court decision of South v. Maryland, 59 U.S. (18 How) 396, 403,
. See Ezell v. Cockrell,
. Critics of the rule state, "A duty to all ... is a duty to none.” Leake v. Cain,
. See, e.g., Ryan v. State,
. See Shore v. Town of Stonington,
[I]mposing liability on police merely provides an incentive for law enforcement officers to perform their preexisting job responsibilities adequately.... By modifying their practices where necessary, police will increase public confidence in law enforcement agencies.
Note, Government Liability and the Public Duty Doctrine, 32 VillLRev 505, 530, 538-40 (1987).
. "The rule embodies the conclusion that a police department's negligence — its oversights, blunders, omissions — is not the proximate or legal cause of harms committed by others. Proximate cause is duty's twin: each concept may be restated in terms of the other, and expressing the problem in terms of duty underscores the policy issues underlying the decision whether to find a duty. The existence of a duty ultimately depends upon choices between competing policies.” 2 S. Speiser, et al.. The American Law of Torts § 6:11 n45 (1985 & 1997 Supp) (citations and internal citations omitted).
. “Absence of duty is a particularly useful and conceptually more satisfactory rationale where, absent any ‘special relationship’ between the officers and the plaintiff, the alleged tort consists merely in police nonfeasance.” Davidson v. City of Westminster,
. As a general rule, one owes no duty to control the conduct of another, nor to warn those endangered by such conduct. Such a duty may arise, however, if '(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives the other a right to protection.' (Rest. 2d Torts (1965) § 315; Thompson v. County of Alameda (1980)
Davidson,
. Yet Prosser concedes duty is not a concept capable of precise definition: "No better general statement can be made than that the courts will find a duty where, in general, reasonable persons would recognize it and agree that it exists.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53, at 359 (5th ed 1984).
. Different tests have been formulated to determine special duty. Several jurisdictions follow the four-part analysis in Cuffy v. City of New York,
. Cardozo enunciated a similar principle: "If conduct has gone forward to such a stage that in action [sic] would commonly result, not negatively merely in withholding a benefit, but positively or actively in working an injury, there exists a relation out of which arises a duty to go forward.” H.R. Moch Co. v. Rensselaer Water Co.,
. "Danger and physical harm are not of necessity screened out by the presence of a barrier if that barrier is in some way surmountable or permits the threat of danger.” Machacado v. City of New York,
. The new ordinance read, in part, "It shall be unlawful for any person to raise, keep or maintain, or permit to run at large, ... any wild animal or animals, within any area of the city ... notwithstanding the fact that any such animals or poultry may be maintained in an enclosed area on private property." Town of Tabor Ordinance § 8-1101. The old ordinance, the one which we determined in Tipton I was in force at the time of the attack, read, "No dog of fierce, dangerous or vicious propensities, licensed or not, shall be harbored or kept within the town.” Ordinance § 8-1108. See Tipton I,
. With actual knowledge of a violation constituting a dangerous condition, liability will not attach for “failure to enforce” unless the officer failed to take action " ‘commensurate with the risk involved.’ ” Campbell,
.The April 29, 1991, Newsweek article quoted wolf expert, Steve Kuntz, saying wolfdogs "make horrible pets," often "schizophrenic — sometimes Lassie, sometimes Cujo. Getting too close to one is a gamble. This animal is going to make the pit bull seem like a puppy.” Newsweek on August 12, 1991, reported that Randall Lockwood, a wolf behavior expert, stated wolf hybrids are "predators at heart.” The same article reported that in the three prior years, six children had been killed by wolfdog pets and many more were mauled. Wolftracks (Spring 1991), a publication of Wolf Haven America, a nonprofit educational and scientific organization promoting wolf survival, stated:
There is no such thing as a "safe” animal to cross with a wolf. The wolf is first and foremost a formidable predator, and if not even thousands of years of domestication have made him thoroughly safe (as evidenced by the many unsafe dogs we have all known), how can anyone expect to undo in one generation, or several, what nature spent millions of years perfecting.
. We now know that virtually all domesticated dog breeds,are descended from the wolf. However, "[s]ome dogs can be more vicious and dangerous than others. For example, German Shepherds are large, intelligent and strong and, if trained properly, can serve as trusted guard dogs and police dogs. Without proper training, however, German Shepherds can be vicious, indeed....” Nardi v. Gonzalez,
. In some states, wolfdog hybrids are classified as wild animals and private ownership is either prohibited or owners are required to obtain permits to possess them. This now appears to be
. Courts have had little experience in dealing with the legal aspects of animal hybridization. A "beefalo,” for example, is considered by many to be a successful cross between a Bison (buffalo) and any domestic or exotic cattle breed, blending the outstanding qualities of both. Likewise, with wolfdogs, breeders hoped to combine the feral beauty of wolves with the congenial qualities of domesticated dogs. Perhaps owners ought to bear responsibility for experimenting with nature, but it is another thing to hold local governments accountable when a third person’s experiment goes awry.
. "The Cracraft court did not specify how many of the four factors must be proven for a plaintiff to survive a summary judgment motion, nor did the court state the relative importance of the factors. Elucidation of the use made of the four factors would greatly aid trial courts facing summary judgment motions in similar cases.... Although the Cracraft court did not specify the weight to be given each of the four factors, a close reading of Lorshbough and Cracraft indicates that the single most important factor is that of actual knowledge on the part of the municipality.” Note, Municipal Tort Liability and the Public Duty Rule: A Matter of Statutory Analysis, 6 WmMitchellLRev 391, 404-05, n95 (1980).
. Victims of domestic violence who have obtained protection orders may fit within this category. See Sorichetti, supra; Caroll J. Miller, Annotation, Governmental Tort Liability for Failure to Provide Police Protection to Specifically Threatened Crime Victim, 46 A.L.R.4& 948 (1986).
.SDCL 7-12-29 provides:
The sheriff may take possession of any animal suspected of being dangerous. The sheriff may hold such animal until a formal determination can be made of the extent of the danger such animal poses. If the animal has attacked or bitten a human or an animal pet, the formal determination shall include consultation with the department of health for the purposes of rabies control. The sheriff may dispose of any animal so determined to be dangerous.
See also SDCL 40-36-1:
The department of game, fish and parks shall cooperate and enter into cooperative agreements with the United States fish and wildlife service or any other agency in the control and disposition of coyotes, feral dogs, fox, prairie dogs, and other wild animals in this state that are injurious to livestock, poultry, game, land and the public health.
. There are, as the dissent points out, a host of outdated nuisance decisions holding government entities liable to private individuals for failure to abate nuisances. All these cases pre-date the emergence of the public duty rule and are thus inapplicable.
. See Ryan v. State, Dep’t of Transp.,
Dissenting Opinion
(dissenting).
[¶ 45] Genuine issues of material fact regarding the exceptions to the public duty doctrine permeate this case and the trial court should have allowed it 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,
[¶ 46] 1. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS HAD ACTUAL KNOWLEDGE OF THE POTENTIAL FOR AN ATTACK BY THE WOLVES.
[¶ 47] Tabor Police Chief Sutera and Bon Homme County Sheriff O’Donnell both visited the Holland residence and personally observed the wolves and their cage. The animals’ genetic makeup may include a small percentage of German Shepherd, but by all accounts their appearance
[¶ 48] As noted by the conference opinion, the pen in which the wolves were kept “suggested contact with the createes it held may be dangerous.” Supra ¶ 19.
Furthermore, the owner’s treatment of the wolf dogs could be interpreted as proof that they were dangerous, wild animals. Evidence showed that Holland never released the animals from their pens. He also took extraordinary precautions to prevent their escape. In constructing the animals’ pen, Holland used fence which was seven to eight feet tall, with an additional three feet of wire all the way around the pen. He installed wire under the surface of the ground, approximately four feet into the pen, so that the animals could not dig an escape hole along the edge of the pen. He also asked neighbors to refrain from visiting the pen unless, he was present. In addition to having no yard fence, there was no exterior guard rail or secondary fence surrounding the cage that prevented visitors from coming into physical contact with the animals.
Tipton v. Town of Tabor,
[¶ 49] The manner in which Holland caged his animals was observed by Sutera and O’Donnell. While escape may have been unlikely, the wolves were able to stick their heads through openings in the livestock panels,
[¶ 50] The conference opinion states that “Holland had previous experience in raising wolfdogs and represented them to be safe.” Supra ¶ 19. It is unclear to whom he made such representations. He told the neighbors never to approach the cage unless he was present. Even if he told Sutera and O’Donnell that the wolves were safe, it is essentially irrelevant. An owner of a dangerous animal can not be expected to be objective about its dangerousness. “Wolves ... are considered unsafe no matter how ‘domesticated’ their owners may consider them.” Supra ¶ 26 (citing Hays v. Miller,
The sheriff may take possession of any animal suspected of being dangerous. The sheriff may hold such animal until a formal determination can be made of the extent of the danger such animal poses. If the animal has attacked or bitten a human or an animal pet, the formal determination shall include consultation with the department of health for the purposes of rabies control. The sheriff may dispose of any animal so determined to be dangerous.
See also Town of Tabor Ordinance § 8-1108, which provides: “No dog of fierce, dangerous or vicious propensities, licensed or not, shall be harbored or kept within the town.” As noted in Champagne v. Spokane Humane Society,
[¶ 51] As for the ordinance which became effective the day after the attack on Crystal Tipton, reproduced supra at note 15, even the conference opinion acknowledges that “there is contradictory evidence” as to whether it was enacted in response to Holland’s wolves. Obviously, if it were enacted for that reason, it constitutes strong evidence that the Town of Tabor had actual knowledge of the likelihood of an attack by the wolves. “Contradictory evidence” on a material factual issue precludes summary judgment.
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 expert 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,
[¶ 52] 2. REASONABLE RELIANCE.
[¶ 53] Although there is no evidence of any direct representation to Crystal Tipton, one could argue that she and other similarly situated children should be able to reasonably rely, without evidence, on government authorities to maintain towns free from attractive, public nuisances which viciously attack unsuspecting children. As noted, this attack occurred within the community of the Town of Tabor, not in a rural or secluded area.
[¶ 54] At any rate, a plaintiffs inability to prove reliance is not a bar to suit. Andrade v. Ellefson,
[¶ 55] 3. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER CRYSTAL TIPTON WAS A MEMBER OF THE CLASS PROTECTED BY THE STATUTES.
[¶ 56] 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 be 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.
[¶ 57] Sutera and O’Donnell were satisfied after their visit to the cage that the animals could not escape. Therefore, the only persons who could foreseeably be injured by the wolves were those persons who did not comprehend the danger of approaching the cage. Compare Machacado,
Generally, a minor is not held to the same standard of conduct as that of an adult unless he engages in an activity normally only undertaken by adults. Wittmeier v. Post,78 S.D. 520 ,105 N.W.2d 65 (1960). The objective standard of the reasonable prudent person does not apply to a minor, but rather a special (subjective) standard of care is used which takes into account his age, intelligence, experience and capacity. Finch v. Christensen,84 S.D. 420 ,172 N.W.2d 571 (1969).
Alley v. Siepman,
[¶ 58] Additionally, the Tiptons raise SDCL 21-10-1, which 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 comfort, repose, health, or safety of others;
(4) In any way renders other persons insecure in life, or in the use of property.
As noted by the conference opinion, supra ¶ 31, ferocious or biting dogs are “a nuisance of the worst sort.”
[¶ 60] A nuisance such as Holland’s wolves constitutes a “public” nuisance. See SDCL 21-10-3:
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.
Cf. SDCL 40-34-4 (failure to keep one’s dogs confined is public nuisance when more than five dogs involved). The significance of the wolves 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. “[T]his 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,
[¶ 61] Clearly, the duty to declare something a nuisance and to then remove it is owed, not to the public generally but rather to neighbors and adjoining landowners.
[¶ 63] Children in the neighborhood certainly came within the “ambit of the risk” created by any negligent failure to act on the potential danger of an attack by the wolves. 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) (finding that persons entering an apartment where dangerous dogs were released to owner by City Animal Control came within “ambit of the risk” created by release of the dogs). It was only a matter of time before a child wandering into the unfenced yard and near the cage would be attacked by the wolves.
[¶ 64] There are genuine issues of material fact whether Crystal and similarly situated children should have been the object of the defendants’ duty to act on the potential danger of an attack by these wolves. As noted, Crystal may have been a reasonably foreseeable plaintiff in light of the knowledge the defendants possessed after visiting the cage. See Champagne,
[¶ 65] The conference opinion, supra note 16, states that the jury can consider the defendants’ resources and its resource allocation policy in answering the question whether the defendants owed a duty to Crystal and other similarly situated children. However, this is really a non-issue under the nuisance statutes because the defendants had the opportunity to remove these wolves at no cost to the municipality. See SDCL 21-10-6, which provides, in relevant part:
A public nuisance may be abated without civil action by any public body or officer authorized thereto by law.... Every municipality may defray the cost of abating a public nuisance by taxing the cost thereof by special assessment against the real property on which the nuisance occurred. When the nuisance abated is an unsafe or dilapidated building, junk, trash, debris or similar nuisance arising from the condition of the property, the municipality may commence a civil action against the owner of the real property for its costs of abatement in lieu of taxing the cost by special assessment.
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. See supra ¶ 10. 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 — as stated by the majority' — not withheld from the jury as done by the trial court.
[¶ 66] 4. THERE ARE GENUINE ISSUES OF MATERIAL ACT WHETHER DEFENDANTS’ FAILURE TO ACT CONSTITUTED A BREACH OF DUTY.
[¶ 67] As noted, the Defendants had the authority to remove the wolves from the residence. They were apparently under no duty to visit Holland’s home on the basis of complaints concerning the howling.
[¶ 68] Whether the removal of the wolves would have diminished the risk of harm to Crystal and other children is yet another jury question. The conference opinion states that “[fjailure to diminish harm is not enough.” Supra ¶ 38 (citing Andrade,
[¶ 69] Imposing liability for a person’s failure to act when that person has knowledge of the dangerousness of an animal, coupled with the power to remove the animal from the premises is not a novel concept. Analogous are the cases where liability was imposed when a landlord’s knowledge of the dangerous propensity of a tenant’s dog was combined with his power to prevent the animal’s presence on the premises:
[I]f a landlord has such a degree of control over the premises that it fairly may be concluded that he can obviate the presence of the dangerous animal and he has knowledge thereof, an enlightened public policy requires the imposition of a duty of ordinary care. To permit a landlord in such a situation to sit idly by in the face of the known danger to others must be deemed to be socially and legally unacceptable.
There is a moral blame attached to a landlord’s conduct under these circumstances; he-cannot be permitted to knowingly stand aside where it is shown that he has the power to remove the animal from the premises without incurring a liability for his failure to act.
Uccello,
[¶ 70] The essence of Tipton’s claim is that an attack should have been reasonably anticipated by the defendants, that it became their duty to protect Crystal 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,
EXHIBIT #43
EXHIBIT #62
. Copies of photographs of the animals are attached to this writing.
. When this court reversed and remanded this case, we stated, "The suggestion by Town that a four to five percent mix of German Shepherd would have diminished the animals' innate dangerous propensity is a claim that must be examined more fully on remand.” Tipton v. Town of Tabor,
Even so, the Tiptons produced information from various publications concerning the dangers of wolf hybrids. Compounding the trial court’s error is the majority’s statement that there is no showing that any of the defendants were ever aware of this information. Again, the burden is on the defendants; they argued the wolves were less dangerous because of their 4-5% German Shepherd ancestry. Tip-tons refuted their argument. Therefore, it is a disputed issue of material fact whether the defendants knew that hybrids
"make horrible pets” and are "schizophrenic. — sometimes Lassie, sometimes Cujo. Getting too close to one is a gamble. This animal is going to make the pit bull seem like a puppy.” (Supra note 17).
.In fact, photographs in the record show one wolf with its entire head outside the cage. Two sides of the cage were livestock panels, which are fences consisting of continuous rectangular openings of substantial size.
. The trial court misread Tipton I; in granting summary judgment, the court stated, "The Supreme Court obviously did not find issues of material facts. If they had done so, they would not have remanded for further review.” (Emphasis in original). The plain language of our opinion indicates there were unresolved questions of fact: "[W]hether Town or County had actual knowledge of a dangerous condition created by the presence of the wolf hybrids is a subject of sharp dispute.” Tipton I,
. See, e.g., City of Aberdeen v. Wellman,
. See Runkel v. City of New York,
. See, e.g., Landau v. City of New York,
. See Muhlenkort v. Union County Land Trust,
. Regardless, once they undertook to visit the wolves' cage, they may have assumed a duty to Crystal Tipton. See, for example, Schultz v. Mills Mutual Insurance Group,
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
le) the harm is suffered because of reliance of the other or the third person upon the undertaking.
. 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,