Tipton v. Town of Tabor

1997 SD TIPTON, the Es Conservator of

Daniel G. Crystal Minor; Tipton, Dan A R.

tate Tipton, Estate

iel Conservator G. Minor; Tipton, A Daniel G.

of Daniel E. Tipton, Individually,

Tipton, and M. Lisa Appellants, and

Plaintiffs TABOR, and OF South Dakota

TOWN County, South Dakota

Bon Homme Employees; Officers, Agents

Their Mach; Cimpl; Leonard Donald

N.L. Koranda;

Fejfar; Alvin Sternha Donald Muller;

gen; Eugene F. Sutera Doris O’Donnell, Ap Lyle Defendants

pellees. 19631.

No.

Supreme of South Dakota. Court

Argued Dec. 1996. July

Decided

Rehearing Aug. Denied Reade, Brady Yank- Reade of

Gerald L. & ton, Appellants. for Plaintiffs and Woods, Simko, reputedly ninety-five R. Shattuck percent John Tim close to Smith, wolf, Fuller, Falls, product generations of six or seven Shultz & Sioux De- Tabor, crossbreeding. appearance From their Town of Appellees fendants and N.L. behavior, Mach, and was evident had wolf- Cimpl, Fejfar, Donald Donald Leonard years, like characteristics. For almost three Koranda, Sternhagen, Alvin Doris F. Muller kept yard them in back Holland his Tabor Eugene Sutera. secure, in a pen fenced enclosure. This Cadwell, Sanford, Douglas M. Deibert of chain constructed link fence on two sides Falls, Garry, Deibert & Sioux Defendants panels livestock on the two sides. Lyle Appellees County Bon Homme It wire pre- had buried under surface to O’Donnell. digging vent the animals from out. Three top prevented feet of wire all the around KONENKAMP, Justice. jumping climbing them from over. As again question We are faced with [¶ 1] the they disposition, hybrids had “nervous” the county city whether owed a and officials free, never were allowed to run and Holland “special duty” four-year-old Crys- protect persons seeing recommended to interested in severely tal Tipton who was mauled when they only them that pres- visit when he was strayed yard an nearby ap- she into Openings fencing ent. in the were wide proached holding hybrids. cage wolfdog two enough wolfdogs to allow the to stick at least in Following the appeal, remand earlier part their places heads out in some court, standard, applying circuit our new fully in out others. Holland his believed granted judgment, summary concluding as a wolfdogs anyone would never attack unless special duty provoked. matter of law no affixed. Al- kept He in the cage them secure though a special duty ques- “bonding” existence of for purposes. The animals were law, ordinarily female; tion breach pups is a male and their in lived question Nonetheless, jury. adjoining cage. fact for we summary judgment conclude proper as people community Some in the [¶4] had none required factors safety children, concerns about the of their were here. established reasons, variety but no one com- Background

Procedural plained authorities, to law enforcement in- cluding Eugene Chief of Police Sutera or wife, Tipton, Tip- his [¶ 2] Daniel G. Lisa O’Donnell, County Lyle Sheriff any- about ton, children, Crystal and their E. and Daniel thing than being howling.1 disturbed Tabor, Tipton, sued Town of Bon Homme February Muller, In Doris the town County, government employees and certain Officer, hy- Finance issued licenses for “wolf Crystal after was mauled Hol Kenneth Holland, wife, brids” to Teresa Kenneth’s Summary land’s wolfdogs. judgment was with a accordance town ordinance and based granted to the defendants on the issue of on a veterinarian’s receipt rabies vaccination liability. appeal, we On reversed and re dogs.” for six animals: “3 wolf & Muller manded “for further consideration the Town informed Board the licensure. trial court” in of our view revised test. expired, and, At the end the licenses Tabor, Town 538 N.W.2d appeared Kenneth Holland before (S.D.1995)(Tipton I). the Board to declare would longer he no Facts his license animals because he believed the Kenneth purchased Holland licensing being ordinances were not en- (Canis two Shepherd hybrids wolf-German Both forced.2 Sutera O’Donnell exam- lupus familiaris). They pen crossed with Canis wolfdogs ined the and the point some neighbors 1. Some of complaint were new to town and had Holland made a written about a complaining. Deposi- felt about uncomfortable running large, nothing he believed tions from town residents and officials reveal had been done about it. complain residents would to the Board regarding hybrids about their fears because they "rocking were about concerned the boat" or being known as troublemakers. 611, 616, in re- 457 N.E.2d only did N.Y.S.2d mauling, so before again granted howling. Both The trial court sum- about to concerns sponse mary judgment cover- to the defendants and the local enactments into state and looked animals, Tiptons appeal. no but felt ing possession of such keeping wolfdogs, especially precluded laws Review Standard of pen. securely in their were controlled grant reviewing “In of sum 12, 1990, Tiptons On November mary judgment, we must decide whether visiting who lived in Tabor relatives party there is moving genuine has shown Crystal, years old at the Hollands. four near judg issue of material fact and entitled to time, yard, over wandered into Hollands’ law; must ment as matter of evidence hybrids’ apparently The pen. animals favorably nonmoving most be viewed her enclo- grabbed as she stood near their re party and reasonable doubts should be severely Tip- She was mauled. sure. against moving party.” solved Great uninsured, tons, incurred over who were ¶73, 5, Bergeson, Co. v. West Cas. SD Crystal’s $33,000 expenses medical (citing Nelson v. WEB incident, the Hollands care. Soon after Inc., Ass’n., Development Water bankrupt- discharged through their (S.D.1993); Pickering 693-94 v. Picker (1) suit, Tiptons cy. In their the assert 758, (S.D.1989)); Klatt ing, 434 N.W.2d 760 hybrids, negligent licensing was in the Tabor Co., 366, 409 v. Continental Ins. N.W.2d 368 ordinances, violating increased town which (S.D.1987); Ry., Wilson v. Great Northern a of created the risk harm to others and (1968). 207, 212, 157 N.W.2d 21 83 S.D. (2) nuisance; allowing negligent in Tabor was summary judgment a motion for is “When hybrids knowing in town the to remain supported § provided and 15—6— made (3) county negligent in danger; and the was may not the party upon an adverse rest hybrids present- the abating the nuisance allegations pleadings, in the mere or denials” who as witnessed Sheriff O’Donnell ed present specifics showing genuine, must but hybrids’ vicious knowledge actual of had fact trial. 15-6- material issues for SDCL proclivities. 56(e). appeal task is to Our determine I, we 6] In modified only material fact exist and whether issues of Hagen City v. Sioux bright-line test of correctly applied. the law Moss whether Falls, (S.D.1990), 399 N.W.2d ¶ Guttormson, 76, 5, 1996 SD 551 N.W.2d v. solely statutory as upon language to relied Lockhart, 16; Flynn v. duty to special of certain existence (S.D.1995). any legal emerges basis If person persons. Tipton class of protect we affirm. summary judgment, must support I, Hagen analy For the 538 N.W.2d Publishers, Sparagon v. Native American sis, four-part found in we substituted the test ¶ Inc., 3, 33, 125, 133. 1996 SD Park, St. Louis Cracraft of (Minn.1979),making “any combi N.W.2d 801 Analysis and Decision following of four factors determi nation” Duty Doctrine —Ratio- Public [¶ 8] assessing the existence of a native nale (1) duty: actual (2) condition; a need redress by persons Recognizing for [¶ 9] reliance reasonable (3) conduct; injury, government torts result in local representations and when on official conditionally Legislature waived sover manda our setting an ordinance or statute forth immunity. par eign “To the extent tory clearly protection acts for the state, entity, partici gen public other than persons ticular class rather than the (4) sharing pool purchases care to in a risk public; pates failure use due eral entity liability public shall (citing insurance ... increasing the risk of harm. Id. avoid 806-07). law common Cracraft, “Whether deemed have waived immunity....” sovereign SDCL generally doctrine special duty has been breached however, waiver, Long Despite this jury to De 21-32A-1. question for the decide.” Erie, public County Dakota continues observe 60 N.Y.2d South rule, jurisdictions offenders, abrogating bility police most than as do rather who immunity. Medberry, 555 A.2d Catone through mistake fail to thwart offenses. cases). (R.I.1989)(citing Otherwise, culpability lawbreaker becomes increasingly irrelevant with focused Essentially, gov- the rule declares malefactors, not on the true but on local protection ernment owes governments. duty” persons “public conception A public, or classes.3 ac- not to support knowledges many this doctrine. Fur- reg- Sound reasons “enactments and nishing safety always allocat- involves are only purpose ulations intended for the ing Law limited resources. enforcement en- securing enjoyment to individuals the violations; simply reacting tails more than rights privileges to which are enti- encompasses keeping peace. the art of members of public, tled as rather than Deploying resources to achieve finite these purpose protecting any for the individual goals legislative policy and executive (Second) from harm.” Restatement Torts function. To allow individuals to influence cmt. b litigation through private how resources Some have criticized this doctrine disposed would government must be render perpetuating formerly repealed immunit administration chaotic and Unre- enfeebled. y.5 few A courts have taken it them liability might discourage stricted communi- repudiate sure, selves the rule.6 To encourage at all acting ties from action suit, policy merely competing without considerations are at regard to avoid stake.7 promotes rule, however, good.4 common The rule accounta- Upholding this involves mat rule, public duty seemingly 3. The doctrine (Colo.l986)(abolishing public duty has its ori gin Supreme in the United States Court decision finding negligence); see also Catone v. Med (18 396, 403, How) Maryland, South v. U.S. beny, 555 (R.I.1989)(quoting A.2d 1n. (1855)(powers 15 L.Ed. duties sheriff Lambert, Immunity Liability— Governmental public neglect are nature duties "for of which Liability Negligent Police Failure to Prevent for public, pun [the sheriff] is amenable to the Crime, 386, (Nov 1984)). LRep 27 ATLA 387 only”). ishable indictment See Shearer v. also Shores, 978, (Ala. Town 454 979 So.2d of Gulf See, State, 308, e.g., Ryan 6. v. Ariz. 134 656 P.2d 1984); Toledo, Industry Commerce & Ins. v. 45 597, (1982); Leake, 160; 599 720 P.2d at Com 1188, 96, (1989); Ohio St.3d 543 N.E.2d 1194 Corp. Cty., mercial Carrier v. River Indian 371 York, 461, City v. New Sorichetti 65 N.Y.2d 492 of 1010, (Fla.l979)(public duty So.2d 1016 rule 591, 596, 70, (1985); N.Y.S.2d 482 N.E.2d 75 legislative abrogation does not survive York, 579, of sover City Riss v. New 22 N.Y.2d 293 of Commonwealth, eign immunity); 897, 898-99, 860, Jean W. v. 414 N.Y.S.2d 240 N.E.2d 861 496, (1968); Braswell, 363, 305, (1993)(announc- Mass. 610 N.E.2d 307 v. Braswell 330 N.C. 410 897, (1991); Derrick, future); ing abrogated S.E.2d John 901 H. Anno doctrine to be in the Dou tation, Bristol, Excusing 205, Modem Rule Status Govern cette v. Town N.H. 138 635 A.2d of of Liability Theoiy mental 1387, Unit Tort on (1993)(abolishing 1390 the defense for cit General, Particular, Only Duty not Was Owed ies); 401, City Eugene, Brennen v. 285 Or. 591 of Circumstances, (1985). Under 38 A.L.R.4th 1194 719, duty (1979)(public P.2d 725 rule falls with public duty public "[A] is owed official's to abrogation immunity). juris of Some of these any specific society.” and not to individual in right dictions nonetheless have on the limits to Park, City Makris v. Grosse Pointe 180 Mich. Kutsch, 1, of sue. Benson v. 36, W.Va. 181 380 S.E.2d 545, 352, (1989). App. 448 N.W.2d 358 This is cases). (1989)(citing 38 not to be confused with "run of the mill” officer negligence. Village Chicago Ridge, Arnold v. of Stonington, Shore v. See Town 187 Conn. of 778, 494, Ill.App.3d 181 130 Ill.Dec. 537 N.E.2d 147, 1379, (1982)(public private 444 A.2d 1382 — (1989)(child injured by police 823 car involved in duty many policy borne rule of considerations violator; high speed stop sign chase leading law to decide if certain are interests duty municipal need not shown to be establish protection conduct). against to entitled official A State, 558, liability); Boyer v. 323 Md. 594 A.2d countervailing policy consideration holds: (1991)(no private duty exception ap 121 driver, prehending public duty drunk but rule [I]mposing liability merely police provides on inapplicable operating negli motor vehicle an incentive for law enforcement officers to gently). perform job responsibilities preexisting their adequately.... By modifying practices their Cockrell, 394, 4. See v. 398 902 S.W.2d Ezell necessary, police public where will increase (Tenn.1995). agencies. confidence in law enforcement Note, state, Liability Duty duty Critics of Government the rule "A all ... is a Public Doctrine, Cain, 152, 530, duty 505, (1987). to none.” v. Leake 32 VillLRev P.2d 538-40 Jamestown, City litiga v. altogether from a mere cial branch.” Kircher different ters 995, 1000, Leg analysis, a our 74 N.Y.2d N.Y.S.2d cost-benefit function tion (1989). by N.E.2d apparently has resolved islature now coverage waiving immunity where insurance legislative Though some preemption, Yet consider

exists. absent immunity, duty, as it a form of view the still decide the existence of doctrine we courts law, “entirely principally deter the framework of question rule within statutes, exists, liability may body duty none then mined reference —if rules, precedents Legislature make affix.9 our waived immu principles and When al., entities, Keeton, Page nity et for no new up the law....” W. created action, only imposed § Law Torts causes of those Prosser & Keeton on the but (5th 1984); basically liability entities the same in tort ed Colton Schwe ¶ 771; bach, 4, 8, governments will not 1997 SD individuals bear. Local (Second) ordinarily § for the third Torts 328B liable conduct of Restatement carrying responsibility parties private persons out our where are not.10 Generally, “no duty, ponder imposes duty pre nature of the law ascertain we must person.” to its and ask vent the misconduct of a third Cra- government’s relation citizens liability Tort craft, tolerate at 804. de to what extent it should and can duty, accountability negligence pends upon and mis and breach of existence specific legal Logically, without and unless statute persons.8 deeds of third creates ascertaining defining scope responsibility, obligation, lo restriction limitations, said, exposed governments poten could be its as we remain cal every duty, negli “A appropriately tial failure function courts. eases, may obligation, as an gence some Law enforcement be defined enforce enactment. put position guar give recognition in the to which the will would be law officials effect, community anteeing protection to each mem to conform to a standard al., Keeton su expansion conduct toward another.” et “[S]o ber. vast judi- pra, not emanate from the 356.11 protection should (1996); po- ley,] rule that a 453 Mich. Saw 8. "The embodies conclusion Hills, department's negligence oversights, Village lice Ohio St.3d icki Ottawa —its blunders, State, (1988); proximate le- not the see omissions—is N.E.2d 468 Adams (Alaska 1976)(doctrine gal cause of committed others. Proxi- harms is a 555 P.2d 241 may duty's concept mate cause is twin: each immunity). form of other, expressing the restated in terms of the duty problem policy in of terms underscores rule, duty general a one no to As owes underlying a decision to find issues whether another, of nor to warn control conduct duty duty. ultimately depends The of a existence endangered by such conduct. Such a those competing upon policies.” 2 S. choices between however, '(a) arise, duty may special if a rela- Speiser, § et American Law Torts 6:11 al.. of exists the actor and the third tion between (1985 (citations Supp) & internal n45 1997 duty person imposes a the actor to which omitted). citations conduct, (b) person's a or control special third between actor and relation exists duty particularly “Absence is a useful of right gives the to the other which where, satisfactory conceptually more rationale 315; (Rest. (1965) § protection.' 2d Torts any ‘special relationship’ offi between the absent (1980) County Thompson 27 v. Alameda alleged of plaintiff, consists cers and tort 741, 70, 751-752, Cal.Rptr. 167 614 Cal.3d City merely police v. in nonfeasance.” Davidson 728; Regents University P.2d v. 197, 252, Westminster, Cal.Rptr. of of Tarasoff 32 Cal.3d 185 of 425, (1976) Cal.Rptr. 17 Cal.3d 131 254, 894, (1982). duty public P.2d 896 California 649 "The 14, 334.). 551 P.2d technically grounded government not in rule is 255, Davidson, Cal.Rptr. at 897. 649 P.2d immunity, though the same it achieves much immunity, protects a mu results. Unlike concept duty is 11. Yet Prosser concedes not liability nicipality other for breach of an general precise capable "No better of definition: duty plaintiff, public to the wise enforceable will can than the courts statement be made duty rule asks whether there was an enforceable where, persons duty general, plaintiff reasonable duty McQuillin, place.” E. find a to the in the first recognize agree Municipal W. Corporations it and it exists.” would The Law of Benson, al., 53.04.25, (3d Page et on the 1993)(citing § Keeton Prosser Keeton ed at 165 1984). 53, (5th Davidson, § ed supra.) Torts at 359 supra; [See Whitev. Beas Law of also 35.8 Application accepted corollary widely A to the the Rule “special duty” is the public duty doctrine remand, circuit applied 15] court [¶ On “special relationship” rule.12 See Restate analysis our from Tipton four-element I— (1965). (Second) § ment Torts To reliance, knowledge, actual ordinance enacted liability temp establish under this restrictive protection particular for the of a class late, plaintiffs show a of some must breach persons, aggravation of harm —and conclud- duty owed to them as The rea individuals. Tiptons satisfy any ed the to failed factor justifying exception that when son holds requisite “strong with evidence.” See entity particular acts on behalf of a public I, (“Strong at 787 con- N.W.2d evidence actively causing injury, may person the law cerning any combination these ] [Cracraft impose government liability has because impose liability to factors sufficient already policy its conduct made a decision government entity”). on a We now examine deploy protect to such its resources indiv light each of four elements most exception peculiar is not

idual.13 This plaintiffs. favorable rule; public duty principle, it follows the tort respect rendering most with suitable ser Knowledge Danger- 16] 1. Actual [¶ another, persons generally vice to are ous Condition act, having liable for but once failure acted, knowledge” “Actual proceed negligence. without means must See (Second) knowledge of constituting “a of law generally violation Restatement Torts (1965); dangerous Hage Stade, 324A v. condition.” v. Davidson West minster, 197, 283, (Minn.1981). 252, 288 n. 2 Cal.Rptr. 32 Cal.3d N.W.2d Construc (1982). knowledge entity many plaintiffs public 649 P.2d 894 While tive is insufficient: a support uniquely have special invoked the rule must be aware of the entities, against public danger plaintiff claims or risk exposed. most courts to which a Village Chicago found matters such as Ridge, Arnold 181 Ill. inspect 494, adequately failure to App.3d structure for 130 Ill.Dec. 537 N.E.2d (1989). building codes, violations of fire and Benson knowing It means inaction Kutsch, 181 W.Va. 380 S.E.2d lead Lorshbough could to harm. See cases); crime, Buzzle, (1989)(citing Township failure to solve 99-102 Co., (Minn.l977)(decided Von Batsch v. Telegraph American Dist. before pres Minnesota’s Cal.App.3d 222 Cal.Rptr. espoused 239 ent rule Cracraft; as (1985); apprehend county’s failure to drunk drivers actual knowledge con Isham, injure who later others. James government-operated L. dition in dump created Annotation, Failure Restrain Drunk Driv relationship city between and in Liability owners). jured er Ground property State or Local Actual Officer, goes beyond Government Unit simple perceive 48 A.L.R.4th failure a vio York, lation. Runkel v. New 282 A.D. tests, many Different analysis tests have been formulated to deter like the allows con Cracraft special duty. jurisdictions mine Several follow flexibility, predictability, by siderable if less not four-part analysis Cuffy City the in v. New requiring all four in order of factors to sustain York, 255, 374-75, 372, 69 513 N.Y.2d N.Y.S.2d n factors create private duty liability. Cracraft 937, (1987)(all 505 N.E.2d 940 four elements line,” bright requires "no as situation its each met); Jordan, City must be Rome v. 263 Ga. of analysis may 836, own “other relevant and factors” 26, 861, (1993)(modified Cuffy 426 S.E.2d 863 Ellefson, helpful. be Andrade v. White, met); test where three elements must be (Minn. 1986). 841 Bellevue, test); supra (Cuffy Campbell City v. 1, (1975)(four separate 85 Wash.2d 234 530 P.2d principle: 13. Cardozo enunciated a similar "If rule, exceptions public duty liability may arise gone stage conduct has forward such a in single knowledge; under a such as factor actual result, commonly negative- [sic] would not action ly only responsible agents enforcing but where for benefit, merely withholding positively in a but statutory possess requirements knowledge actual actively violation, working injury, a an there exists statutory of a fail to take corrective so, duty go out despite statutory duty relation of which arises a action for- Co., a to do and plaintiff H.R. is class ward.” Moch Co. v. Rensselaer within the the statute is intended Water ("failure 160, 896, protect (1928). exception)). to enforce” Un 247 N.Y. 159 N.E. 898

359 dog “Only 485, premises). on leased (1953)(pre-Oitj^ 488 vicious N.Y.S.2d rule 123 knowledge: specific defining actual where the circumstances are such that the case knowledge and failure code violations have and not defendant ‘must known’ ‘should open rotted structure “so abandoned abate known’ will an inference actual have danger it “imminent dilapidated” was in and knowledge permitted.” Id. See also Min be forming trap “dangerous or a collapse,” 79, 73, Englert, 167 ick v. 84 S.D. N.W.2d in the class instrumentality” which “same is (1969)(detour 551, signs, warning 555 barri substance, mate explosive inflammable as gave knowledge: and actual cades flares rial, spring gun”— a live wire or electric impairment no obstruction or “There was mandatory duty for created also ordinance visibility for and no reasonable excuse defen class). benefit signs ap see the and the dant’s failure to hazard.”). sum, In actual knowl proaching foreseeability a nec As is formulation, edge imports “knowing” rather than “reason actu essary in the element plaintiff knowing.” a foreseeable for knowledge al denotes injury. Mid-Western with foreseeable Reckert,

Elec., Inc. 500 v. DeWild Grant found, The circuit court as (S.D.1993). 250, Public officers 254 law, defendants had actual matter subjective knowledge of the viola must knowledge hybrids’ dangerous pro the about tion, “knowledge constituting the of facts I, pensities. As we noted in violation, statutory knowledge than rather knowledge “sharp is existence actual itself, is all that statutory violation dispute” perhaps overarching and con County, 58 required.” v. Clallam Coffel here, by most bolstered evidentia- sideration 513, Wash.App. (1990)(po- 794 P.2d ry Tiptons allege several cir support. The law). penal presumed to lice are know apparent to Sutera and cumstances became Everett, Livingston v. 50 Wash. In investigations, gen through their O’Donnell (1988), four-year- 751 P.2d 1199 App. knowledge wolfdogs’ erating actual about boy bitten and scratched Dober old was Solidly and over sev viciousness. reinforced reversing summary judg man Pinschers. tall, very pen structure en feet city, genuine the court ment found with creatures it held suggested contact city fact on whether the issues material Steindon, dangerous.14 Ford protect the breached had (1962)(eit- N.Y.S.2d Misc.2d Animal child based on evidence the Control cases)(manner dog up tied and ing complaints Department received about had to restrain it evince knowl precautions taken persons and dogs biting lunging propensities). its See also edge of vicious city running reports, With loose. these Hunter, Cal.App.2d Radoff dangerous, notice at least one had (1958)(animal in a confined P.2d may have thus its animal control officers beast); appropriate manner statutory knowledge of a “actual possessed Jimerson, P.2d Barger v. 130 Colo. ac failed “to take corrective violation” and Atwood, (1954); Ind.App. Layman so, despite duty to statutory do tion all cases 370 N.E.2d 933 These plaintiff was within the class the statute part of knowledge on the owners. refer Id., protect_” 751 P.2d intended to we actual Yet can advance (citations omitted). Although actual They cage, did not build defendants? knowledge may be shown both direct of it and other than their observations evidence, may estab circumstantial within, subjective infor had no the animals Uccello v. Lau through speculation. lished cage constructed. why on the was so mation Cal.App.3d Cal.Rptr. denslayer, 44 raising in previous experience knowledge Holland had (1975)(referring to 748 n. to represented them be safe. necessary wolfdogs of a and put to on notice landlord York, "Danger physical New N.Y.S.2d are neces- Misc.2d and harm not of Shep- sity presence (N.Y.Sup.Ct.l975)(German if out the a barrier screened 979-80 way herd). or barrier is in some surmountable that permits danger.” threat of Machacado the hybrids pressed The never to any were allowed to the Town Board concern loose, they although run their could stick safety. Although controversy persists about cage through heads out the livestock subjectively what prompted over O’Donnell panels. They somewhat looked like wolves investigate hybrids, and Sutera to they the extent, and, a certain to behaved as wolves. only response complaints insist was to verbally Neighbors from discouraged howling.16 about approaching pens, although the there was no yard rail guard pen fence or around the Tabor [¶ 22] To and Bon Homme’s preventing Neighborhood close contact. and knowledge, hybrids the had never bitten or community discussion about the animals cen- anyone at snapped approached who had the keeping away pen, tered on children from the cage. Crystal, Before the attack on the ani complaint ever any one made about were nothing community mals more than a danger posed. the animals curiosity annoyance. ancestry and If their viciousness, engendered concerns about the [¶21] Tabor’s licenses described history record reflects no of problems with hybrids,” yet the animals as “wolf the rabies “Warning these animals. flags,” receipt witnessed Muller referred to each noted, Supreme as the Minnesota Court has as a “wolf.” Muller understood the animals enough not knowledge are for actual under wolves, hybrids, to be wolf she so and v. Ellefson, Andrade the just informed Town Board: “I told Cracraft. them (Minn.1986). 836, 842 At the at time of least what They had told [Mrs. Holland] me. attack, the no support there is in the record hybrids.” were called wolf Shortly before for the assertion there was knowledge actual attack, sought change Tabor to its licens wolfdog hybrids were more than ing specifically to ordinance ani address wild Nonetheless, dogs. Tiptons mals, of contradictory but there is evidence on fered information response special dangers about the whether this was in wolf- Nonetheless, hybrids dogs.15 of wolf such of those who from sources as News said the week, Leader, new part Argus ordinance was in The Sioux Falls reaction and wolfdogs, only Wolfiracks, concern a publication raised of Wolf Haven annoyance howling. No one ex- America.17 These articles raise serious con- read, part, 15. The new ordinance "It shall be attach for “failure to enforce” unless the officer " raise, any person keep unlawful for tain, or main- failed take action ‘commensurate with the ” permit large, any at or to run ... wild Campbell, risk involved.’ 530 P.2d at 240 animals, any city animal or within area of ... Runkel, (quoting supra). City county and offi- notwithstanding any the fact animals such "only cials would have a limited of care to poultry may or be maintained in an enclosed reasonably [gov- act within framework of the private property." area on Town of Tabor Ordi- erning and ordinances] the economic resources ordinance, § nance 8-1101. old The the one determining available.... whether munici- Tipton which we determined in I at was in force unreasonable, pality’s act or failure to act was attack, read, fierce, time "No the trier of fact can take into account munici- dangerous not, propensities, or vicious licensed pality’s available resources and its resource allo- kept be harbored shall within town.” Forks, policy.” Bailey cation v. Town I, § Ordinance 8-1108. See Wash.2d 737 P.2d "Every municipal- at and 786 n2 SDCL 9-29-12: ity power regulate prohibit shall 29, 1991, April quoted 17.The Newsweek article animals, large running dogs, at poultry, and Kuntz, expert, saying wolfdogs wolf Steve "make pounds, poundmasters, appoint establish regulate pets," "schizophrenic horrible often —sometimes animals, impounding to im- Lassie, Cujo. Getting sometimes close too to one pose dogs running large.” a tax or license on gamble. going pit is a This animal is make the I, Tipton (1) present As we "These noted laws two puppy.” August bull seem like a Newsweek on spe- related issues: whether Town assumed Lockwood, reported that Randall prohibition dogs cial to enforce its 'of hybrids expert, wolf behavior stated wolf are fierce, dangerous (2) propensities’ or vicious "predators reported heart.” same article County special duty whether assumed a to 'take prior years, that in the three six children had possession suspected being animal dan- ” by wolfdog pets many killed been more were I, gerous.’ Tipton (consid- 538 N.W.2d at 786 1991), (Spring publication mauled. 8-1108). ering Wolftracks SDCL 7-12-29 and Ordinance America, nonprofit of Wolf Haven educational actual organization promoting With of a violation consti- and scientific wolf sur- condition, vival, tuting dangerous liability a not will stated: part dog, partic- “[a]ny propensity on the wolfdogs pets, as keeping cerns about However, likely quandary injury is cause under the our with in town. ularly person (1) in which the control- pub- all circumstances the articles were is twofold: ... ling dog a vicious Crystal places the attack on sometime after lished only propensity type not mean of (2) does showing is no there Tipton; by a malignancy biting dog, that O’Donnell, Ta- exhibited Sutera, employees of or other is, propensity beings.” a attack human ever of this Bon Homme were aware or bor (1973); 199, page § at truth, 3A CJS Animals only years in recent information. Gelb, v. 16-17 Dansker 352 S.W.2d public awareness been raised about has “ (Mo.Sup.1961). a nat- It ‘includes as well hybrids, especial- maintaining of wolf hazards disposition ural fierceness or to mischief as irresponsible owners. ly by him hu- might occasionally lead to attack in effect 23] Tabor’s ordinance [¶ ” (Cita- beings provocation.’ man without fierce, keeping dogs dan the time forbade omitted.) Stone, v. [515 tion Frazier Owning or propensities. or gerous vicious 766,] (Mo.App.1974) S.W.2d 768 [ ]. dogs vicious also constitutes keeping Payton, 57 Haw. 562 P.2d Farrior under law. SDCL 40-34-13. nuisance state Some courts even allow following defi provides Dakota law South jury posteriori, to reason a decide nition: the nature result attack on §§ 40-34- purposes For the 40-34-13 to pro animal had plaintiff, whether an vicious inclusive, dog is: a vicious Nacewicz, Lynch by Lynch v. pensities. (1) which, unprovoked, in a Any dog when 121, 122 N.Y.S.2d A.D.2d terrorizing ap- manner vicious or cases); (N.Y.App.Div.l987)(citing Carlisle attack, proaches apparent attitude Cassasa, 221, 226 234 A.D. 254 N.Y.S. bites, injury, assaults or other- or inflicts very (N.Y.App.Div.l931)(“The viciousness being upon a human wise attacks upon clearly ... plaintiff attack demon streets, any public grounds or sidewalks of a dog the defendant’s was strates places; or or ”). disposition.... This vicious and ferocious (2) which, Any dog private property, on law in Dakota. Bauman not the South is terrify- unprovoked, in a when vicious or (S.D.1995). Auch, 539 N.W.2d 320 apparent atti- ing approaches manner bites, attack, injury, or inflicts tude or regard animals If we these mailman, attacks meter or otherwise “dogs,” until the simply then least as reader, serviceman, journeyman, deliv- Crystal, they would fit within attack on man, employed who ery person or other problem The here category. the vicious private per- property reason is these though trying is to define whether occupant of such mission the owner or wild. An owner’s wolfdogs were domestic private property is on property or who depends often the distinction. dealing by reason of a course with domesticated, must an animal is the owner If property. private owner of such strict of its tendencies to be know 40-34-14. But see SDCL 40-34-15 SDCL necessary “But to hold ly liable: the notice (“No may injury if an strictly be declared vicious for an animal liable an owner damage person who sustained being that the on a human notice attack ”). trespass.... a willful committing human propensity to attack animal had jurisdictions at similar have arrived Other it had a ferocious beings, and notice definitions: not be disposition other animals toward al., Harper et The Law “dan- 3 F. propensities” terms sufficient.” “vicious (2d 14.11, Re 1986)(citing ed at 274 propensities” have been defined Torts gerous known), dogs can all how thing we have as a animal to unsafe There is such "safe” generation, expect wolf and fore- one anyone several, cross with wolf. The is first to undo predator, even years and if not spent most formidable what millions of nature years domestication have made thousands perfecting. (as many thoroughly him evidenced safe 362 Torts, (Second) (Second) § 509 cmt animal. g Restatement

statement Torts (1977)). hand, “It § the other is well On 507 in captivity animals born known that wild are distinguishes What a wild [¶26] from a and, untrustworthy although seemingly gen animal crossbreeding domesticated when tle, savage will on occasion revert their (Second) two occurs? Consider Restatement al., propensities.” Harper supra, 3 et (1977): § Torts 506 14.11, however, § Dogs, pre at 270. are (1) A animal ... animal wild is an that is sumed and docile tame burden is on not custom devoted to the service of plaintiffs show See otherwise. Lucas v. mankind the time and in the place Kriska, 317, 74, Ill.App.3d 119 Ill.Dec. 168 kept. where it is (1988); al., Speiser 522 736 7 et N.E.2d su 21:46, pra, (2) § at A animal domestic ... is an animal custom devoted the service wolfdogs part These Ger in place mankind the time and man Shepherd. suggested Some courts have kept. where it is Shepherds in dicta German are a vicious “customary Traditional propensi signifies breed as a matter of law: or “vicious service” may implied dog species, may ties” be from the fact domestication of a be of Shepherd, was a German said have inher little in categorizing particular assistance ited “wild and untamed” al, tendencies from its Harper supra, 14.11, § 3 crossbreed. et “wolf v. Kelley Hitzig, 40-1-1(5): ancestors.” 71 at 266. See also SDCL 122, 329, Misc.2d 336 N.Y.S.2d 126 animal,” any “Domestic animal (N.Y.NassauCt.1972) (citations omitted); Cty. contra long man, through with association has Lundy Realty, v. 170 Cal.App.3d California degree been bred to a which has resulted (1985)(vieiousness Cal.Rptr. 216 580 genetic changes in affecting the tempera- Shepherds of German an appropriate color, ment, conformation or attrib- notice).18 Here, subject judicial course, species utes of the to an extent that makes we is more attenuated as are meas (cid:127) unique it and different from wild individu- uring accountability for law enforcement offi als of its kind.... cials purportedly who failed control the recognize Some category: courts third wild animals or their owner. Even owners are capable animals Spring domestication. ordinarily injury not liable for caused Edgar, Company v. U.S. 25 L.Ed. 487 dog unless the owner knows should have (1878)(buck deer plaintiff; attacked deer particular dog’s known of the vicious tenden though may domesticated, naturae be (Second) ferae cies. Restatement Torts and if so must owner have notice animal was (definition (1965); SDCL 40-34-14 of “vi vicious); Yeager, v. Pate 552 S.W.2d 513 dog”). cious See v. Whytas, also Arcara (Tex.App.l977)(four-year-old’s finger bitten (1995)(sum- A.D.2d 632 N.Y.S.2d 349 after sticking pet monkey’s cage). mary judgment granted should have been obviously Wolves would not in this catego- fit of undisputed proof case had dog never be ry as are considered unsafe no matter anyone growled fore bitten and had never how “domesticated” their owners consid- approached). bared its teeth when someone Miller, er them. Hays Ala. animal, An 43 So. owner of wild on the other (1907); hand, Otto, damage Collins 149 Colo. resulting liable dangerous (1962)(coyote, wolf,” P.2d propensities “prairie characteristic of its latrans). class, even when the Canis wolfdogs owner is unaware of Can included specific vicious tendencies of the “capable category? domestication” Gonzalez, virtually 18. We now know that all domesticated deed....” Nardi 165 Misc.2d breeds,are (Younkers descended from the wolf. How- N.Y.S.2d ever, dogs cases). Ct.l995)(citing Shepherd can "[s]ome be more vicious and various German example, others. than For German and, Shepherds large, states, intelligent strong are wolfdog hybrids In some are classified properly, guard if trained can private ownership serve trusted as wild animals is either dogs however, dogs. police proper training, prohibited required per- Without or owners are to obtain vicious, Shepherds possess appears German can in- mits to them. This now to be public any thought complaint Per- a about Certainly, the owner here so. ever voiced of haps posed. assuming can be said is that the results animals Even danger all that these dogs is un- carry with domesticated breeding public wild awareness of officers more acute the brings violations, This us back to predictable. them with dangerous to imbue How “actual knowl- question at hand: much cognizance potentially have known” “must edge” possess? did defendants spe- dangerous of crossbred characteristics goes beyond expectations. rational Dan- cies knowledge in Compare actual [¶ escape would a foremost ger of have been In Corridon private other situations: concern; however, cage them was so secure Bayonne, N.J.Super. 324 unlikely, inspec- escape was the officers’ as off-duty (App.Div.1974), police A.2d in The As reflected tion verified. Holmes required carry a revolv was service officer Law, con- punished law which “[A] Common known had fre er. It was well the officer blameworthy in the which would not be duct quent public places. of intoxication in bouts community be average in member the would plain duty has a of care municipality “[A] community for that those it arms.” Id. too severe bear.” supervision its whom 1991) (Dover Bellevue, Holmes, The Campbell City In 85 Wash.2d Common Law 50 (1975), a electrical Rumors of of mix- danger 530 P.2d 234 landowner and fears ly running through property. actual, his lit a creek con- ing dog species creates no but inspector wiring knew knowledge. electrical knowl- Constructive structive nonconforming, raccoon was and dead duty. special remote to edge is too sustain creek, presumably electrocuted. in the found wolfdogs gener- know What we now about condition, in Knowing this al, particular, these animals in was not and spector system as failed to disconnect city county un- and officials available required by cases the ordinance. In both scrutiny the aid of Only here. with der entity certain of a dan public had “they justly say, can one should hindsight police gerous frequently drunk violation —a known,” enough. but that not We is city required to be armed officer who strong actual knowl- conclude evidence off-duty wiring and a viola even while lethal edge has been shown.20 electrical which directed tion of the code us for a moment proceed 28] Let those in disconnection. How can immediate assumption Tiptons have suffi compare with officials faced with stances support the actual knowl potential danger of a cient evidence assessing with proof satisfying factor. Is this element pet? person edge Not one in Tabor crossbred Dakota, (Michie 3541(8) § the extent a tit. the law in South at least to Stat.Ann. hybrid Supp)(“Wolf which is permit required. jurisdictions, means an animal In these dog progeny hybrids regulated dogs, or of a domestic apparently need- descendant are as familiaris) (Canis (Canis lupus or a wolf ing only proper At vaccinations and licenses. rufus).") (right pet § to kill or hybrids Canis eight sixteen oth- states outlaw least human); See, hybrid necessary it assaults wolf if if ownership permit. require restrict ers (Michie 3.1-796.93:1(B) § 1990)(re- (Harrison Va.CodeAnn. e.g., 27-5-5 Ga.CodeAnn.i 1994)(defines "dangerous dog” subject to mu- animals); quiring wild license for 7, Me.Rev.Stat. authority nicipal canine cross- as "canine or (West Supp)(license § nec- Ann. tit breed”). (defin- hybrid) essary dog § or wolf and 3907 for canine, "any regardless hybrid” ing "wolf generation, dealing has the interbreed- experience resulted from have had little 20. Courts wolf’); Supp. ing Mass.Ann. hybridization. and a legal aspects animal A with the (Law Co-op)(bans possession "beefalo,” many § 77A example, ch. 131 Laws for is considered (buffalo) hybrid" certain a "wild canid after and sale of date; a Bison a successful cross between laws); breed, subject blending N.H.Rev. to wild animal any domestic or exotic cattle (Michie Likewise, seq. § qualities 466-A:l et outstanding Stat.Ann. with of both. hybrids SuppXbans un- wolfdogs, hoped wolf after June breeders to combine feral neutered; qualities spayed congenial confinement beauty mandates with less of wolves ought prevent dogs. escape”); Perhaps N.D.Cent.Code owners "sufficient domesticated (Michie person na- Supp)("Any responsibility experimenting with 36-01-08.2 bear ture, lion, wolf, govern- hybrid thing local keeps wolf it is another to hold a mountain who person’s experi- a third captivity must obtain an number ments accountable when identification health].”); awry. goes Vt. board of animal ment [state from the test). states, “‘duty’ enough special duty? ques- An- As Prosser is a to establish noted, drade, Supreme Minnesota Court tion of whether the defendant under add, too, might as to the four obligation “We the benefit Cracraft factors, al, should all be consid- that while plaintiff....” supra, § Keeton et ered, necessarily all met for four need government carry 356. No should a burden exist.” at 841. protection foreseeability; purely based restated the same obser- Chief Justice Miller way, it with foreseeability to state another “any writing I vation in when combi- standard, public duty as sole the the rule may nation” of factors sufficient. 538 Tiptons if vanishes. Even the established It for N.W.2d at 787. be conceivable knowledge, actual this element must be cou- liability; some other itself to create factor pled with another of four the factors.21 We today. question we need not decide that No proceed remaining the factors. knowledge, on proof matter the actual how- ever, inadequate alone it is to establish 30] Reasonable Reliance [¶ private duty. impose upon tort To Tiptons they The state protect 31] local for re law enforcement failure to solely keep the “to upon knowledge upon actual lied defendants the Town an individual directly dangerous with safe from danger imminent conflicts the Tabor conditions [be principal public duty behind people] rationale cause should be able to visit relatives judicially allo- exposed dangers rule: intrudes resource in a town and not be such belonging policy wolf-hybrids.” cation decisions makers. rudimentary point, For a illustration on this primary purpose The ordinances only imagine variety one simulta- need protection statutes is public emergencies. Only neous when actual injury damage [D]ogs ... because knowledge coupled with one more of is are, propensities of their and from time factors, uphold spirit other we can both ... peculiarly immemorial have been sub- private exception. and substance of the rigorous ject police regulation. Consider, example, knowledge actual of a Dogs have been as constituting viewed protect- of an violation enactment nuisances, they at least where are fero- class, ing a special knowledge or such accom- jumping or have the cious habit

panied reliance, entity reasonable or local biting people. Indeed, at children or other danger. aggravating conduct In each of a dog such is a nuisance the worst sort. combinations, these appears the rationale remain intact. McQuillin, Municipal E. The Law Cor of (3d 1989). any duty” 24.284, “public porations [¶ We are unaware of at 195 ed. jurisdiction pins special duty liability licensing which enactment was here created for the solely upon knowledge. general being actual Minnesota well community, of the not for yet question. courts persons decide this or classes. Even if Washington knowledge plaintiffs cases link actual with wolfdogs’ pres could assume the special violation protecting legally of an enactment Tabor through ence in sanctioned supra; Campbell, Livingston, licensing, adequate class. See it would not be to create bite, (although liberally P.2d at Washington personal Dogs reliance. licensed or not. class). see, special occur, defines e.g., But Mullin v. Tiptons For reasonable reliance to Bend, Municipal City South depended “specific 639 N.E.2d must have actions or (Ind.l994)(foreseeability only representations forgo not [caused them] private duty protecting consideration under Indiana’s other alternatives of themselves.” factors, specify many weight given 21. "The court did not how to be each of four Cracraft proven plaintiff of the must be four factors reading Lorshbough close indi- Cracraft motion, summary judgment to survive a nor did single important cates that most factor is that importance the court the relative state part municipal- of actual on the factors. Elucidation of the use of the four made Note, ity.” Municipal Liability Tort and the Pub- greatly facing factors would aid trial courts sum- Duty Statutory Analysis, Rule: A lic Matter 391, mary judgment motions in similar cases.... Al- 404-05, WmMitchellLRev n95 though specify court did not Cracraft only war- Cracraft, penned. Licensing the animals Andrade, (citing at 842 806-07). they perhaps Lorsh vaccinations and See also ranted had (noting reliance obliquely at 99 would not be allowed bough, 258 N.W.2d assured sort of contact between “some occurs from to roam free. plaintiff which unit and the governmental “special At of most of the heart these by the reliance usually induces detrimental duty” is the unfairness cases individual”). only licensing is insuffi Not perceived precluding recov- courts have reliance, fact that law en but the cient for ery municipality’s voluntary when a under- investigated pens officials forcement injured party into taking has lulled the reli inadequate type for the also an basis security thereby false sense of and has duty. Cracraft, ance that creates injured to relax party induced the either (“[Rjeliance inspec on the vigilance forego or to his or her own sufficient.”); see also general tion in protection. available avenues (“The

Andrade, regulato at 53.04.50, § McQuillin, supra, at 179. presence of the state and its ry licensing suggests that Nothing in the affairs of the in the record political [¶ 33] subdivisions town, they If there blanket knew public pervasive. Tiptons is were when the arrived where liability, practices regard- it would be a rare lawsuit of the local enactments or not be government only unit of would They some arrived min- ing animal licensure. sued”). representations attack. No utes before the safety were made to them about must be based on Reliance neighbor’s yard. wolfdogs caged in the axi Instructive of this personal assurances. feeling they Trusting upon some would be Humane Champagne Spokane Soci om is perhaps safe went Tabor wherever (1987), Wash.App. 737 P.2d 1279 ety, 47 however, it does not rise to comprehensible; bulldogs. by pit where a child was attacked forgo causing them to the level of reliance people complained period, a five-month Over sup- self-precaution.22 detect no facts to We dogs “running loose and threat these about reliance within this record. port reasonable Id., neighborhood.” 737 P.2d ening the Society, re response, In the Humane Protection of for government agency a under Enactment garded as rule, Particular Class [complainants it] “assured public any apprehend patrol the area and would only Here we consider as day before stray dogs.” Id. at 1284. On test in what once was the entire one factor attack, Society parent of assured the Hagen. injured would be later that the area the child pur- ... enactment whose legislative [A] Consequently, a material issue patrolled. (a) exclusively pro- pose found to be Society breached arose over whether the fact any subdi- interests of the state tect the creating after reliance private (b) such, to secure of it as vision Id.; Meaney see protection. assurances rights priv- enjoyment of individuals the Dodd, P.2d 455 111 Wash.2d only as they are entitled ileges to which holding a (1988)(overruling cases and earlier not cre- public, ... [does members of the implied duty cannot arise from governmental conduct to be used ate a standard of assurances). types of direct assur Similar liability]. impose tort See, reliance. created reasonable ances have (1965). (Second) Torts (911 Restatement e.g., Long, supra caller assured of De recovery against “permits contrast, This element away”). In no coming “right help negligent failure to entity for government Not even promises given were here. direct language only when there is Tabor, its laws townsfolk, enforce much less visitors which shows in a or ordinance wolfdogs, statute from the protection assured circum protect particular á always intent they were except in so much as notation, Liability Failure ob- Governmental Tort violence who have 22. Victims of domestic Specifically cate- Protection to Threat- protection may within this to Provide Police tained orders fit Victim, Miller, Sorichetti, 46 A.L.R.4& 948 An- gory. Caroll J. supra; ened Crime See I, persons.” Tipton doctrine, scribed class of concept public duty myri- “its 786; Wilson v. Nepstad, exceptions may N.W.2d ad excep- reveal that the well (Iowa 1979)(“Duty can be virtually tions have consumed the rule.” Legislature if pur created statute Forks, Bailey v. Town 108 Wash.2d posed protect per or intended class of 1257,1260 (1987). 737 P.2d belongs against to which the victim sons 7-12-29, [¶ 36] Does SDCL which particular victim harm has suf empowers possession a sheriff to take fered.”). I, recognized we animals, special duty?23 create test, illogie using single as a factor statute This delineates class to in an class denoted ordinance protected, nor does it mandatory create a by happenstance. purely Tip been inserted obligation. general law, nuisance SDCL I, ton at 787. But see Campbell, 21-10-1, Tiptons raise, another statute the (allowing 530 P.2d at 241 broad definition special mandatory duty, creates no class or a class, special including person killed after either.24 “particu SDCL 21-10-3 names no inspector failed to disconnect blatant electri class,” lar and general circumscribed violation; safety safety cal ordinance was for classes, only purpose for the defining class, persons residing the benefit of difference between private involved); danger within the ambit nuisances. Tabor’s vicious ordinance Dahl, Halvorson v. Wash.2d P.2d no particular mentions class. We believe the (1978)(hotel death; fire declara generality of these enactments is determina purpose Housing tion of in Seattle Code Simply tive. because give certain laws Tabor it was “enacted for the benefit of a specified and Bon authority Homme to act does not specifically group persons identified of mean a special class is created and as, to, general pub well and in addition the protected. needs to be These enactments lic”). Although Washington recognizes a particular applicability children, no to class, broad definition of we follow the town, visitors anyone to particular. standard, narrowly which includes Cracraft only The record support fails to this element. particular “a and circumscribed class of I, persons.” Tipton 786. See Increasing 4. Failure [¶37] To Avoid (ordinance Andrade, also 391 N.W.2d at 842 Risk of Harm wholly protection enacted of small chil facilities). daycare dren in Under If we this factor official licensed action adopt Washington’s were to either cause definition—“all must harm itself or ex persons pose property plaintiffs risks, and who come to greater within the new or leav ing ought candidly position ambit of the risk” —then we them in a they worse than I, to announce the of demise as it before official action. ag Could Tabor have Notably, nothing. gravated would control the Wash the risk of licensing harm ington Supreme hybrids?'25 Court admits under its Failure to diminish harm is not provides: livestock, injurious 23.SDCL 7-12-29 poultry, game, are land and the health. may possession any The take of animal sheriff suspected being dangerous. The sheriff are, out, points 24. There as the dissent a host of hold such animal until a formal determination holding government outdated nuisance decisions danger can be made of the extent of the such private entities liable to individuals for failure to poses. If the animal animal has attacked pre-date abate nuisances. All these cases pet, bitten a human or an animal the formal emergence public duty rule and are thus determination shall include consultation with inapplicable. department purposes of health for the State, may dispose any Ryan rabies control. The Dep’t Transp., sheriff 25. See 420 A.2d dangerous. animal (R.I.1980)(licensing so determined to be multiple driver who had See also liability 40-36-1: SDCL violations created no to individuals later department game, parks rule); The injured; applying public duty fish and shall but see Ol State, cooperate cooperative agree- and enter into 124 Ariz. 604 P.2d eszczuk ments (1979)(imposing liability with United States fish negligently and wildlife on state for any agency service issuing epileptic in the control and driver's license unsafe driver fox, disposition coyotes, dogs, prairie designed feral protect as statute was dogs, users). and other wild highway animals in this state that class: (coun Andrade, enough. Sampson Lynn, 391 N.W.2d at 843 In (1989), ty’s negligent licensing, inspecting super Mass. 537 N.E.2d chief of day police vising pistol care home sufficient create issued to a so-called permit factor, “unfit,” “disreputable person,” third ordinance for a who was “im- under (children), satisfy proper,” competent” carry gun. but it did not “not special class factor). Id., Though federally permittee fourth wolves are 537 N.E.2d at 588. The later protected, specifically finding spe- no South Dakota law shot and killed someone. them, duty, prohibits keeping hy much less wolf cial the court wrote: private ownership of animals is brids: wild plaintiff pointed any The has not us to statutorily “Ani sanctioned. SDCL 43-2-3: statutes or ordinances which establish mals, nature, subjects wild are the decedent, city owed the aas member ownership when tamed or taken and held in subclass, special duty of an identifiable immediately pur possession, or disabled and care.... [permit] The statute does not (regulations sued.” But see SDCL 40-3-26 legislative protect par- evince a intent to permits captive nondomestic mam Rather, group ticular of individuals. (last mals); § 12:68:18:03 amendment ARSD beneficiaries of the statute are members of 31,1993)(permit required effective December general public.'... any possess nondomestic mammal or plaintiff alleged any The has not foresee- Canidae). hybrids family its risks, able of which would licensing great risk after the animals was no city prevent have enabled the harm they er than the risk before were licensed. ultimately occurred.... The alle- kept dogs in The Hollands town two gations in support this ease do not a claim years before were licensed city’s purported negligence that the creat- Crystal, attack time thé the licenses ed risk of immediate and foreseeable expired. inspection pen had Nor can injury. support law enforcement officials this ele (citations omitted). Id. at 589 Failure to Cracraft, ment. See N.W.2d at 808 potential diminish harm is insufficient. De- (“[W]e impose duty refuse to of care mere fendants cannot bear under ele- undertaken, ly inspection an because is for it ment. tort.”). would create a new summary, In a mat- [¶ 41] we conclude as licensing wolfdogs Neither [¶39] nor private duty liability of law no ter exists inspecting pens their were affirmative acts here, as none of the four elements Cracraft increasing ap the risk of harm to those have been met. Batsch, proaching hybrids. See Von su [¶ 42] Affirmed. pra, investigating in which officers failed to intruders, and, find evidence after the MILLER, C.J., [¶ 43] and AMUNDSON left, police businessper the intruders killed a GILBERTSON, JJ., concur. peril son. “The officers did not create the They decedent. took no affirmative action SABERS, J., dissents. [¶ to, increased, changed which contributed SABERS, (dissenting). Justice the risk which would have otherwise existed. they merely

At most failed to eliminate the Genuine issues of material fact re [¶ 45] danger garding public duty of unknown exceptions intruders.” Cal. Rptr. Lopez City permeate at 246-47. See also this case and the trial doctrine Diego, Cal.App.3d Cal.Rptr. go jury. San court should have allowed (1987)(McDonald’s proof upon restaurant mas “The burden of the movant to way police charged clearly genuine sacre: “The can in no show that there is no issue of lulling judg with victims into a false material fact and that he is entitled to [the killer’s] State, security, Dep’t alleged sense of nor can the inaction ment as a matter of law.” Thiewes, (S.D. by police reasonably in be said to have Revenue (citation omitted). 1989) harm creased the risk of to which the victims Since defen burden, subject.”). summary were their dants did not meet pens. the animals from their He granted and we leased improperly judgment was extraordinary pre- precautions also took should reverse. escape. constructing In the ani- vent their ARE 1. THERE GENUINE IS- which was pen, mals’ Holland used fence MATERIAL FACT OF SUES tall, eight with an additional seven to feet HAD AC- DEFENDANTS WHETHER way feet of wire all the around the three THE PO- KNOWLEDGE OF TUAL wire under the surface pen. He installed AN ATTACK BY TENTIAL FOR ground, approximately four feet into of the THE WOLVES. pen, dig that the animals could not so along edge pen. Sutera and Bon of the escape Tabor Police Chief hole County neighbors O’Donnell both visit- Homme Sheriff He also asked to refrain personally unless, ob- pen present. ed the Holland residence visiting he was cage. ani- fence, and their served the wolves having yard addition to there may genetic makeup include a small mals’ secondary rail fence guard no exterior by Shepherd, all percentage of German surrounding cage prevented visi- appearance26 their and behavior accounts with coming physical tors from into contact wolves, undeniably characteristic of were animals. Additionally, employee Town re- dogs.27 Tabor, Tipton v. Town licensing the wolves classi- sponsible for (S.D.1995) I) (emphasis origi- (Tipton solely hybrids” upon fied them as “wolf based nal). Holland; provided Mrs. how- information ever, rabies certificate the veterinarian’s caged 49] The manner which Holland clearly employee iden- upon which the relied his animals was observed Sutera and tified animals as “wolves.” may un escape While have been O’Donnell. likely, to stick their the wolves were able opinion, the conference

[¶ 48] As noted pane through openings heads in the livestock kept “sug- were pen in which the wolves ls,28 ultimately attack. gested with the createes it held facilitated this contact ¶ Supra jury, It for the not the trial court or this dangerous.” court, to decide whether an attack could be Furthermore, the owner’s treatment of the anticipated ob based the defendants’ interpreted proof dogs wolf could be cage and whether that con dangerous, servations wild animals. potential never re- stitutes actual Evidence showed Holland summary photographs Copies of the animals are at- our well-established standards judgment. writing. tached to this so, Tiptons produced Even information reversed and remanded this When this court publications concerning various the dan- stated, case, suggestion by that a we "The Town gers hybrids. Compounding of wolf the trial percent Shepherd mix of German four to five majority’s that court’s error is the statement the animals' innate dan would have diminished showing any there is no of the defendants gerous propensity must be exam claim that Again, aware of this information. were ever fully v. ined more Tabor, on remand.” Town defendants; they argued the burden is on the 783, (S.D.1995) (Tipton 787 dangerous the wolves were less because of remand, I). proof On the defendants offered no ancestry. Shepherd Tip- their German 4-5% support to ed, this contention. The trial court stat Therefore, argument. it is a tons refuted their n judgment granting summary to the defen- disputed fact whether the issue of material dants, ... that Defendants "[W]hile it is true hybrids defendants knew that anything produced in answer to the "schizophren- pets” "make horrible and are Supreme query, Lassie, have Plaintiffs Court’s neither Cujo. sometimes Get- ic.—sometimes legal, any argument, furnished which ting gamble. factual This too close one is inquiry would make this relevant.” The burden going pit animal is to make the bull seem 'summary judgment 17). party requesting puppy.” (Supra is on the like a note any genuine issue demonstrate the absence of fact, judgment photographs material fact and entitled to that he is 28.In in the record show one cage. on the merits as a matter of law. v. Fire head outside the Two wolf with its entire Walz Co., 135, 6, cage panels, V are man’s Fund Ins. 1996 SD 556 sides of the were livestock which 68, rectangular consisting of continuous 70. For the trial court to shift the fences contrary openings size. Tiptons and of substantial burden to the was unfair

369 See, Jimerson, danger. e.g., Barger v. 130 mal has attacked or bitten a human or an (1954) 459, 744, (“[T]he Colo. 276 P.2d pet, animal the formal determination shall proof disposition offered as to the nature and include consultation department with the dog appearing savage be and of health for purposes of rabies control. equivalent express ferocious was notice. The may dispose any sheriff animal so Moreover, the fact that kept defendants determined to dangerous. dog persuasive confined in concluding 8-1108, See also Town of Tabor Ordinance it dog considered unsafe for the provides: fierce, “No dangerous York, large.”); Machacado v. New propensities, not, or vicious licensed or shall Misc.2d 365 N.Y.S.2d (N.Y.Sup. be harbored or kept within the town.” As Ct.1975) (“Danger physical harm are not noted in Champagne Spokane Humane necessity screened presence out Society, Wash.App. 737 P.2d a barrier if that way barrier is in some (1987), protection “The permits surmountable or the threat of dan against animals, marauding whether wild or ger.”); Laudenslayer, Uccello Cal. cf. domestic, is similar (1975) protec- in nature to App.3d Cal.Rptr. (listing tion by police furnished department against reasons dog’s landlord should have known of dangerous propensities the lawless including depraved among “Be elements (Citation omitted). Dog” signs). ware of men.” The opinion conference states that As for the ordinance which became previous had experience raising “Holland day Crystal effective the after the attack on wolfdogs represented them to be safe.” Tipton, reproduced supra at note even ¶ Supra 19. It is unclear to whom he made opinion acknowledges conference representations. such neighbors He told the “there is contradictory evidence” as to approach never cage unless he was whether it response was enacted in to Hol present. Even if he told Sutera and O’Don- Obviously, land’s wolves. if it were enacted safe, nell that the wolves were it is essential- reason, for that strong constitutes evidence ly irrelevant. An owner of a ani- that the Town of Tabor had actual mal can expected objective not be to be about the likelihood of an attack the wolves. dangerousness. its ... “Wolves are consid- “Contradictory evidence” on a material factu ered unsafe no matter how ‘domesticated’ al precludes summary issue judgment.29 may their owners consider them.” Supra Sorting jury’s out the truth is the function. ¶ Miller, (citing Hays 150 Ala. (S.D. Auch, Bauman v. (1907)). objective, So. 818 If an owner were 1995). there would be no need for ordinances and statutes such as the ones at issue here. See jury, court, It is the not the which is the SDCL 7-12-29: fact-finding body. weighs It the contradic- inferences, may tory

The possession judges sheriff take evidence and witnesses, suspected credibility animal being dangerous. expert receives in- structions, sheriff hold such animal until a formal and draws the ultimate conclu- determination can be made of the extent of sion as to very the facts. The essence of danger poses. such animal If the ani- among its function is to select from con- I; Tipton granting 29. The trial court misread factors than were addressed under the Ha- craft stated, summary judgment, test, the court "The Su gen including significance, any, if preme obviously Court did not issues of extraordinary defendants’ observations of the find so, they material facts. If had done would caging measures taken Holland in the wolves. (Empha not have remanded for further review.” (Erickson, Judge, See also at id. Circuit con original). plain language opin sis in The of our ("[T]he curring part dissenting part) questions ion indicates there were unresolved majority argues that there is a material issue as County "[W]hether fact: knowledge Town or had actual to these officials' actual of a dangerous aof created condition condition!.]"). trial For the court presence hybrids subject of the wolf is a grant assume we would reverse and remand a I, sharp dispute.” Tipton 538 N.W.2d at 787 summary judgment genuine where there added). (emphasis pointed-out many We illogical. issues of material fact is somewhat more facts could be considered under the Cra- 7-12-29 and Tabor’s disputed that SDCL and conclusions inferences flicting and the gave 8-1108 the Town most reasonable. ordinance it considers which County authority to act. Cammack, 322 N.W.2d Fajardo v. (S.D.1982) (Wollman, C.J., concurring spe- were satisfied Sutera and O’Donnell [¶ 57] omitted). (citations cially) cage that the animals after their visit Therefore, only per- escape. could not RELIANCE. 2. REASONABLE foreseeably injured by sons who could any there is no evidence Although [¶ 53] who not com- persons wolves were those did Crystal Tipton, one representation direct cage. danger approaching prehend the similarly situ- that she and argue could Machacado, at Compare 365 N.Y.S.2d reasonably should be able ated children noted, “Experience court and com- where the evidence, government on au- rely, without person, believing mon dictate that a sense free from attrac- maintain towns thorities to danger attack herself to be in imminent tive, viciously attack which public nuisances animal, preci- a will take immediate and feral noted, As this attack children. unsuspecting injury.” pitous action to avoid Children are community of the Town within the occurred not and can not be held to level Tabor, area. in a rural or secluded sense: experience and common rate, inability any plaintiffs At [¶ 54] Generally, same a minor is not held to the Andrade prove is not a bar suit. reliance standard of conduct as that of adult (Minn.1986) 836, 843 Ellefson, v. 391 N.W.2d engages activity normally in an unless he only factor special duty when first (finding only by adults. v. undertaken Wittmeier conclusively factor partially met and third (1960). Post, 78 S.D. 105 N.W.2d I, established); objective reasonable The standard concerning any (“Strong combina- evidence minor, prudent person apply does not to a sufficient to tion of these factors (subjective) rather a standard entity.”). government impose which takes into account his of care is used age, intelligence, experience capacity. THERE ARE GENUINE IS- [¶ 55] Christensen, 420, 172 84 S.D. Finch FACT OF MATERIAL SUES N.W.2d CRYSTAL TIPTON WAS WHETHER 670, 674, 214 Alley Siepman, 87 S.D. THE CLASS PRO- A MEMBER OF (1974); Meyer, N.W.2d BY THE STATUTES. Hofer TECTED cf. (attractive (S.D.1980) nui- Tipton I in- plain language in case) (“A three, child of indeed even sance language of a is not that the statute structs children, perceive the horse older would not any there is a dispositive of whether imminently dangerous.”). being persons: particular class of Additionally, Tiptons raise statutory language in de- reliance on Sole 21-10-1, which defines what acts and SDCL exists is need- termining whether omissions constitute nuisances: arbitrary. A lessly statu- restrictive class of tory reference to unlawfully doing an A nuisance consists in very well be inadvertent persons could act, duty, omitting perform or the result of reasoned rather than act or omission either: county responsi- analysis municipal (1) Annoys, injures, endangers analytical bility. require an frame- We health, comfort, safety repose, of oth- accurately that more measures work ers; the harm public entity’s culpability for suffered. (4) any way persons renders other language, Despite life, property. in or in the use of insecure that, since opinion the conference concludes opinion, supra As noted the conference at issue do not statutes and ordinances ¶ 31, class, biting dogs are “a nuisance ferocious or they mention a were not Crystal It of the worst sort.” protect Tipton. intended to is

371 power says give The Town of Tabor had the statute [¶ 59] and therefore its words and phrases plain meaning remove the wolves under this statute. See a and effect.” In re ¶ Gossman, “Every municipality 6, shall 124, SDCL 9-29-13: Estate 1996 SD 555 power 102, to declare what shall constitute a (citing Clay N.W.2d 104 Nilson v. Coun abate, prevent, 598, (S.D.1995)). nuisance and and remove the ty, 534 N.W.2d SDCL Wynkoop Mayor City same.” See also & provides 2-14-1 construing that when 194, Hagerstown, Council 159 Md. 150 A. statutes, giving effect to our “words used are (1930) (“[W]here 447, municipality is be understood in their ordinary sense_” Legislature authorized to abate nui plain language As the of SDCL sances, authority duty carries with it the states, persons protected 21-10-3 to be it, it to exercise and where either fails to “community,” are a “neighborhood,” a or adopt may necessary such ordinances as be “any persons.” considerable number of performance duty, to the reasonable of that Clearly, duty to declare some- diligence or to exercise reasonable enforc thing a nuisance and to then remove it is ing adopted, them when it will be answerable owed, public generally not to the but rather any private injured a individual as result neighbors adjoining landowners.30 default.”). of its Surely a visiting neighbor adjoin- child a or A nuisance such as Holland’s wolves ing landowner is included in the class of “public” constitutes nuisance. See SDCL persons protected by intended to be the nui- 21-10-3: sance It undisputed statutes.31 that defen- public A nuisance is one which affects at power dants had the to remove the animals. community the same time entire liability may imposed Nuisance be on non- neighborhood, considerable number owners if have control over “the instru- persons, although the extent of an- mentality alleged to constitute the nuisance.” noyance damage inflicted the indi- 117, § 58 AmJur2d Nuisances may unequal. Every viduals other nui- person “The whose it is to abate private. sance is consequences nuisance should answer for the 118; (failure resulting § from its continuance.” Id. keep dogs SDCL 40-34-4 one’s Cf. Mayor City Frostburgh, Cochrane v. public confined is nuisance when more than cf. (1895) involved). 703, city A. (holding 81 Md. dogs significance five running liable for to control constituting public failure animals wolves nuisance is that large, stating that when a statute persons the statute narrows the class of in power upon corporation confers a protected provisions. tended to be its If public good, protection were meant to extend a exercised “the exercise of whole, public power merely discretionary, aas it would not make is not categories sense to list the persons imperative, ‘power three and the words and author- ity’ ‘duty to whom it is directed. court “[T]his must such case be construed ”). Legislature obligation’ assume that the what meant See, Wellman, e.g., City polluted Aberdeen v. whether defendant their and thus water (S.D. 1984) (noting nuisance). that one of public constituted determining the considerations in a nui whether present sance must be abated "the use and York, City 31. See Runkel v. New A.D. ") surrounding property (empha trends of use of (1953), 123 N.Y.S.2d where the added) (citation omitted); sis see also Union failing New York was held liable for to abate a (S.D. County Hoffman, 512 N.W.2d neighborhood known nuisance when children 1994) (analyzing park whether mobile home injured playing dangerous, while aban- by examining nuisance on its effect building. doned The children were found to Scholl, park); residents of the Town of Winfred persons come within the class of intended to be (S.D. 1991) (affirming trial protected by the nuisance statutes. The court junk appellant's prop court's conclusion that erty relied Dwell. Law on N.Y. Mult. noting constituted nuisance and that the part any public defines "nuisance” in nui- by taking testimony conclusion was reached landowners); sance known at common law and "whatever is adjoining Watson v. Great Lakes Co., 310, 314-15, dangerous to human life or detrimental Pipeline 85 S.D. (1970) (testing neighboring health.” 316-17 land jury question wells owners' sufficient to establish 372 the de- noted, by attacked the wolves.33 Whether employee the Town who 62] As knowledge protect Crystal actual to wolves had fendants should have acted

licensed the by testified de- neighbor- wolves. She in the that and other children relayed this information to position jury. that she question for the hood is granting The ordinance the Town Board. genuine of material There are issues [¶ 64] dogs not power to license did the Town the Crystal similarly situated fact whether power to license wild animals. include the object the of the children should have been municipality political “A or other subdivision duty potential to act on the dan- defendants’ authorizing the creation or main- licensing or noted, by of an attack these wolves. As ger resulting is liable for tenance of a nuisance reasonably Crystal may have been a foresee- Municipal, damages[.]” AmJur2d Coun- 57 light the the plaintiff of able 165, School, Liability § ty, Tort & State possessed visiting cage. after the defendants (1988).32 177 Champagne, (noting P.2d at 1283 See 737 neighborhood in the cer Children exceptions, entity per- “an that under these tainly came within the “ambit of the risk” governmental forming functions be held act by any negligent failure to on the created plaintiff where the demonstrates liable an attack the wolves. potential danger of general duty has an otherwise Everett, City 50 Wash. Livingston v. See of particular plaintiff on the and the focused (cita (1988) 1199, 655, 1201 App. 751 P.2d Furthermore, entity duty”). breaches omitted): tions clearly the nuisance statutes delineate safety to insure the When statutes intend duty, general public not to the but to three governmental public highways, of,persons. classes knowledge of an actual violation officer’s duty persons opinion, supra note of care to all conference creates 16, property jury the ambit can who come within states that consider the negligent by the con- risk created resources and its resource alloca- defendants’ officer's duct. policy answering question whether tion duty Crystal the defendants owed added) (finding that en- (Emphasis persons However, similarly children. situated dangerous dogs tering apartment where really this is a non-issue under the nuisance by City Animal were released to owner Con- op- statutes because the defendants had of the risk” created trol came “ambit within portunity to remove these wolves at no cost only It a matter dogs). release of the was 21-10-6, municipality. See SDCL wandering into the of time before a child provides, part: yard cage would be which in relevant unfenced and near York, See, City party injured e.g., N.Y. foreseeable that a would be Landau v. New 180 48, 631, (1904) (city discharge duty.”); 72 N.E. could be held defendant's failure (fire consenting Mark, Inc., liable for in advance to nuisance Maguire Agency, v. Inc. Ins. works); issuing placed permit it under same 227, (S.D.1994) ("Whether a N.W.2d 229-30 itself); Speir liability City Brooklyn, v. as if it created nuisance depends foreseeability inju exists on the 727, 6, 139 N.Y. N.E. Elec., ry.”); Inc. v. DeWild see also Mid-Western (1893) (city issuing permit fireworks held liable Co., 250, Grant Reckert & Assocs. Knoxville, fire); resulting Mayor v. for Kolb (S.D.1993) ("We instruct trial courts use (1903) (city 76 S.W. 824 pollution 111 Tenn. legal concept foreseeability to determine resulting liable for illness did—it exists.”); Champagne, whether a 737 P.2d pollution, but it licensed individual create (noting "privity" necessary at 1283 that the did); Smith, City v. Va. who Richmond impose liability despite public duty doctrine (1903) (noting that since it 43 S.E. relationship entity and refers to the between the nuisance, city's duty to abate sin of “[T]he reasonably plaintiff); Wytupeck foreseeable granting permit commission in cannot less Camden, 25 N.J. 136 A.2d failing discharge than the sin of omission in its (1957) (holding city responsible injuries Annotation, Liability duty”); generally see Mu noting relationship between minor and that the nicipality Injury Damage Explosion From by foreseeability parties is founded Burning Substance Stored Third Person Permit, injured) (paraphrasing person harm to the in fact Municipal 17 A.L.R.2d Under writing Palsgraf Long Judge Cardozo's Is Trust, County Land See Muhlenkort Union Co., (1928)). land 248 N.Y. 162 N.E. 99 R.R. (S.D.1995) (“To 530 N.W.2d duty establish a defendant, part it must be on the may public complaints concerning A nuisance be abated without howling.34 the How ever, by any public body by civil action or officer as stated opinion, the conference ¶ 13, by Every supra “persons thereto law.... mu- generally authorized are not liable act, may defray acted, for nicipality abating having the cost of failure to but once [they] public by taxing proceed must negligence." nuisance the cost thereof without added). (Emphasis jury If by special against assessment the real the finds that the possessed defendants knowledge actual property on which the nuisance occurred. wolves, the an by likelihood of attack the When the nuisance abated is an unsafe or they whether obligated were to act is another trash, dilapidated building, junk, debris or question Andrade, jury. for the See arising similar nuisance from the condition (“Actual N.W.2d at 841 knowledge of a dan property, municipality may com- gerous condition impose tends to against mence a civil action the owner of duty condition.”); to do something about that property the real for its costs of abatement (Wahl, Justice, see at also id. concurring taxing by special in lieu of the cost assess- (“[Defendants] specially) had actual knowl ment. edge dangerous of a condition ... such that a stems, duty public part, rule least special duty imposed on them to do from a concern that individuals could affect condition.”). something about the Whether a the manner in which limited resources defendant duty breached a and whether his ¶ supra are utilized. See 10. As this statute injury breach resulted in plaintiff are clear, makes the defendants are afforded questions Koch, jury. for the Laber v. opportunity carry duty out their without (S.D.1986).35 N.W.2d Therefore, depleting any resources. Whether [¶ 68] the removal of the wolves present concern in a brought is suit would have diminished the risk of harm to statutes, under the nuisance and should be Crystal yet and other children is another jury by considered stated —as jury question. opinion The conference states majority' jury withheld from the as —not “[fjailure that to diminish harm is not by the trial court. done ¶ Andrade, enough.” Supra (citing 4. THERE ARE GENUINE IS- 843). N.W.2d at It is true that Andrade SUES OF MATERIAL ACT WHETH- proposition stands for the failure to ER DEFENDANTS’ FAILURE TO decrease the risk of harm can not ACT A CONSTITUTED BREACH OF grounds upon duty imposed. which How- DUTY. ever, goes Andrade on to state failure to noted, As whether, the Defendants had the “goes decrease the risk of harm authority exists, remove the wolves from the assuming legal duty it was breach- They added). apparently residence. under no (emphasis ed." 391 duty states, to visit duty Holland’s home on the basis of As Andrade can be estab- le) Regardless, once undertook to visit the the harm is suffered because of reliance cage, they may duty wolves' have assumed a person upon of the other or the third See, Crystal Tipton. example, for Schultz undertaking. Group, Mills Mutual Insurance (S.D.1991), &524 n. 1 where this court noted Ordinarily, question of whether a may premised upon that a cause of action Here, question exists is a of law court. (Second) (1965), Restatement of Torts 324A question to that answer rests substan provides: rightfully jury tial issues of material fact that are undertakes, gratuitously One who or for con- Furniture, questions. Appliance Swiden & Inc. v. sideration, to render services to another which (S.D. of SD, National Bank recognize necessary pro- he should for the 1984); Odie, City Gary accord 638 N.E.2d person things, tection of a third or his is sub- ("Factual (Ind.Ct.App.1994) ques 1329-30 ject person physical to the third tions be interwoven with the determination resulting harm from his failure to exercise relationship, rendering of the existence of protect undertaking, reasonable care to his if question existence of a a mixed of law and (a) his failure to exercise reasonable care fact, ultimately to be resolved the fact-find harm, increases the risk of such er.”) (citation omitted). (b) perform duty he has undertaken to person, owed to the third permitted knowingly he-cannot be stand by the

lished questions axiomatic It is aside shown that he condition. where has the cause, breach, and damages are proximate power to remove the animal in all jury but the rarest of by the resolved premises incurring liability without cases. his failure to act. liability for a fail- Imposing person’s Uccello, 746, 747-48; Cal.Rptr. at accord person knowledge ure act when has Guerrero, Cal.App.4th Donchin v. animal, an coupled with dangerousness (1995); Cal.Rptr.2d Linebaugh Hynd remove the animal from the power man, N.J.Super. (App. 516 A.2d 638 concept. Analogous premises not a novel Div.1986). imposed are the cases where was knowledge danger- of the

when a landlord’s Tipton’s 70] The essence of claim is that a tenant’s com- propensity ous was reasonably an attack antici should been prevent power his the animal’s bined with defendants, pated that it became their presence premises: on it, duty protect Crystal against and that a degree a landlord has such of control duty [I]f perform negli their failure to was premises fairly may be over the gence. “strong There is evidence” on three he can presence concluded that obviate the factors, of the is more Tip four than dangerous animal and knowl- he has I, ton 538 N.W.2d at 787 or Cracraft thereof, enlightened edge public policy an (Minn. Park, St. Louis 279 N.W.2d 801 of a imposition of ordi- requires 1979),require. Since resolution of action nary permit To in such a care. landlord hinges jury’s sharply determination of idly by in to sit the face of the situation issues, i.e., disputed whether the defendants danger to others deemed known must be had actual likelihood of legally socially unacceptable. attack, so, whether breached a if. acting, summary judgment improper. reverse There is a moral blame attached to land- We should and remand circumstances; these trial conduct under on the merits. lord’s #43

EXHIBIT EXHIBIT #62

Case Details

Case Name: Tipton v. Town of Tabor

Court Name: South Dakota Supreme Court

Date Published: Jul 23, 1997

Citation: 567 N.W.2d 351

Docket Number: 19631

Court Abbreviation: S.D.