Blaha v. Stuard

• Decision Date: 06 February 2002
• Docket Number: No. 21758.,21758.
• Citation: 2002 SD 19,640 N.W.2d 85
• Parties: Sharon BLAHA, As Guardian Ad Litem for the Person and Estate of Jessica Blaha, a minor, Plaintiff and Appellant, v. Gary STUARD and Anna Stuard, Defendants and Appellees.
• Court: South Dakota Supreme Court

640 N.W.2d 85

2002 SD 19

Sharon BLAHA, As Guardian Ad Litem for the Person and Estate of Jessica Blaha, a minor, Plaintiff and Appellant, v. Gary STUARD and Anna Stuard, Defendants and Appellees.

No. 21758.

Supreme Court of South Dakota.

Considered on Briefs August 28, 2001.

Decided February 6, 2002.

Timothy L. James of James & Associates, Yankton, South Dakota, Attorneys for plaintiff and appellant.

Jack Theeler of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for defendant and appellee.

TIMM, Circuit Judge

[¶ 1.] This is an appeal from an order granting Stuards' motion for summary judgment. We affirm.

FACTS

[¶ 2.] On December 17, 1998 Chad and Dustin Blaha traveled to Gary and Anna Stuard's home to inquire about a labrador dog advertised in the Rapid City Journal. The advertisement stated:

Beautiful male Yellow Labrador, good Retriever, 5 years old, $50 with AKC papers and pedigree or free without. Call.

[¶ 3.] At the Stuard home, Gary showed Chad and Dustin the dog's retrieving skills and they discussed what Chad planned to do with the dog. Chad told Gary that he wanted the dog for a Christmas gift for his father and that the dog would be used for hunting.

[¶ 4.] The Blahas and Stuards discussed the characteristics of the dog and the type of environment the dog would be in under the Blaha's care. Both Chad and Dustin Blaha stated that the Stuards told them the dog had jumped up on one of their children a long time ago and that the dog was protective of the porch area of the home.

[¶ 5.] At the end of the meeting, Chad purchased the dog from the Stuards for $50 and received the AKC papers. He and Dustin took the dog back to Rapid City before heading home to Wagner. During the time the dog was in Rapid City, the dog growled at Chad and Dustin's ten- to twelve-year-old cousin.

[¶ 6.] While in Wagner, the dog was around the Blaha family and behaved very well. The dog had not exhibited any bad behavior prior to December 26 when it bit Jessica Blaha, Chad's sister and the daughter of the dog's ultimate owner. A personal injury lawsuit against the Stuards followed, alleging negligence, breach of warranties, negligent infliction of emotional distress, and strict liability. [¶ 7.] Gary and Anna Stuard moved for summary judgment, which was granted by the trial court. Sharon Blaha, as Guardian Ad Litem for the Person and Estate of Jessica Blaha, appeals the trial court's order.

STANDARD OF REVIEW

[¶ 8.] The standard of review for summary judgment is well established:

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits 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. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis, which supports the ruling of the trial court, affirmance of summary judgment is proper.

Pettry v. Rapid City Area School Dist., 2001 SD 88, ¶ 7, 630 N.W.2d 705, 708 (quoting Milligan v. Waldo, 2001 SD 2, ¶ 8, 620 N.W.2d 377, 379). The party opposing summary judgment "may not rest on the mere allegations ... in his pleading. He must present evidentiary matter showing that there is a genuine issue of material fact that is worth bringing to trial." Peterson v. Spink Elec. Co-op., Inc., 1998 SD 60, ¶ 10 n. 3, 578 N.W.2d 589, 591 n. 3.

ANALYSIS AND DECISION

[¶ 9.] It is common knowledge that horses buck, cattle roam, cats stray and dogs bite. It seems that when man and other animals interact, it is usually man that gets the short end of the stick. Perhaps the Illinois Appellate Court in Whitmer v. Schneble, 29 Ill.App.3d 659, 331 N.E.2d 115, 118 (1975), said it most precisely when it quoted Isaac Watts in his Divine Songs in a similar case:

'Let dogs delight to bark and bite

For God hath made them so;

Let bears and lions growl and fight

For `tis their nature too.'

Or, as remarked by John B. Bogart and quoted by Frank O'Brien in the Story of the Sun: "when a dog bites a man, that is not news because it happens so often. But if a man bites a dog, that is news."

[¶ 10.] In order to conduct the proper analysis, the legal relationship between these parties must be clear. Jessica is the daughter of the dog's ultimate owner. Jessica's father is the dog's owner. See SDCL 43-2-1. The dog was given to Jessica's father from the buyer of the dog, Chad Blaha. See SDCL 57A-2-103(a). The Stuards were the sellers of the dog. See SDCL 57A-2-103(d).

[¶ 11.] Finally, dogs are "goods" and not "products." Courts that have considered this issue align themselves in two different positions either with the position of the New York courts, holding animals are products, or the Illinois courts, holding animals are goods. We adopt the holding of the courts of Illinois, Colorado, and Missouri which have all held that animals cannot be "products" under the Restatement of Torts.

[¶ 12.] The New York Supreme Court in Beyer v. Aquarium Supply Co., 94 Misc.2d 336, 404 N.Y.S.2d 778 (Sup.Ct.1977) held that a diseased hamster was a product within the meaning of the Restatement. The court stated that "there is no reason why a breeder, distributor or vendor who places a diseased animal in the stream of commerce should be less accountable for his actions than one who markets a defective manufactured product." Id. at 779. Connecticut and Oregon also follow the position that animals should be considered "products" under the Restatement. See Worrell v. Sachs, 41 Conn.Supp. 179, 563 A.2d 1387 (1989); Sease v. Taylor's Pets, Inc., 74 Or.App. 110, 700 P.2d 1054 (1985).

[¶ 13.] This Court adopts the Illinois position, which provides that:

living creatures ... are by their nature in a constant process of internal development and growth and they are also participants in a constant interaction with the environment around them as part of their development. Thus, living creatures have no fixed nature and cannot be products as a matter of law.

Latham v. Wal-Mart Stores, Inc., 818 S.W.2d 673, 676 (Mo.App.Ct.1991) (citing Anderson v. Farmers Hybrid Cos., Inc., 87 Ill.App.3d 493, 42 Ill.Dec. 485, 408 N.E.2d 1194 (1980)

).

[¶ 14.] Under South Dakota law, a cause of action by someone injured by a domestic animal can arise under a theory of strict liability or negligence. Sybesma v. Sybesma, 534 N.W.2d 355, 357 (S.D.1995). We address the theory of strict liability first.

[¶ 15.] Blaha argues that the trial court erred when it failed to hold Stuards liable under a theory of strict liability. All parties classified as such, we hold, as the courts in Latham and Anderson held, that recovery under a strict liability theory is disallowed. South Dakota adopted the rule of strict liability in tort as expressed in Restatement (Second) Torts § 402A (1965) in Engberg v. Ford Motor Co., 87 S.D. 196, 205, 205 N.W.2d 104, 109 (1973). Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D.1987). This rule states that "[o]ne who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer...." Engberg, 205 N.W.2d at 109. However, these are product liability cases and because the dog in this case is not a "product," according to the Restatement, no liability exists under a theory of strict liability.

[¶ 16.] The negligence and negligent infliction of emotional distress claims also fail. According to this Court's opinion in Sybesma:

Liability in negligence for domestic animals is found in § 518 of the Restatement (Second). It provides:

Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal, if, but only if ...

(b) he is negligent in failing to prevent the harm.

Sybesma, 534 N.W.2d at 357-58 (quoting Restatement (Second) of Torts § 518).

[¶ 17.] Blaha failed to allege facts sufficient to support the contention that this was an abnormally dangerous animal. The facts, viewed in light of the non-moving party, indicate that the dog showed none of the signs this Court has recognized as being sufficient to establish dangerous propensities, absent an actual attack. There is no evidence in the record to indicate that the dog "constantly barked, bared its teeth, and strained at its leash." Gehrts v. Batteen, 2001 SD 10, ¶ 8, 620 N.W.2d 775, 778.

[¶ 18.] This theory holds the possessor liable if he is negligent in failing to prevent the harm. In order to establish liability under this Restatement section, this Court would have to put the seller in the shoes of the possessor of the dog. Blaha has cited nothing and this Court has found nothing to support the contention that possessor's liability may be superimposed upon a seller. Blaha's claim must fail under this theory because the dog was not "possessed," as required by the language in the Restatement, by the Stuards.

[¶ 19.] This Court next addresses the issue of liability under a theory of negligent infliction of emotional distress. The first element in a claim for this cause of action is that the defendant engaged in the negligent conduct. SD Pattern Jury Instr. (Civil) 145-09. "Negligence is the breach of a legal duty imposed by statute or common law." Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988) (citing Walz v. City of Hudson, 327 N.W.2d 120, 122 (S.D.1982)). "The three necessary elements of actionable negligence are: (1) A duty on the part of the defendant; (2) a failure to...