Burgi v. E. Winds Court Inc.

• Decision Date: 26 January 2022
• Docket Number: 29443-a-MES
• Citation: 2022 S.D. 6
• Parties: TERESA BURGI, INDIVIDUALLYAND TERESA BURGI, AS GUARDIAN AD LITEM FOR K.B., Plaintiffs and Appellants, v. EAST WINDS COURT, INC., Defendant, Third-Party Plaintiff, and Appellee, v. RONALD PASMAN, Third-Party Defendant.
• Court: South Dakota Supreme Court

2022 S.D. 6

TERESA BURGI, INDIVIDUALLYAND TERESA BURGI, AS GUARDIAN AD LITEM FOR K.B., Plaintiffs and Appellants, v. EAST WINDS COURT, INC., Defendant, Third-Party Plaintiff, and Appellee, v. RONALD PASMAN, Third-Party Defendant.

No. 29443-a-MES

Supreme Court of South Dakota

January 26, 2022

ARGUED OCTOBER 6, 2021

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT YANKTON COUNTY, SOUTH DAKOTA THE HONORABLE DAVID KNOFF Judge

DAVID J. KING KIRK D. RALLIS of King Law Firm, P.C. Sioux Falls South Dakota

Attorneys for plaintiffs and appellants.

MARK J. ARNDT RYAN W.W. REDD of Evans, Haigh & Hinton, LLP Sioux Falls, South Dakota

Attorneys for defendant and appellee.

SALTER, JUSTICE

[¶1.] Teresa Burgi's minor son, K.B., was attacked by a neighbor's dog near their home in a trailer court owned by her landlord. Teresa commenced this action against the landlord, alleging two negligence theories and a breach of contract claim. The circuit court granted the landlord's motion for summary judgment on each claim. Teresa appeals the court's decision solely as to her general negligence claim. We affirm.

Facts and Procedural History

[¶2.] East Winds Court is a mobile home community in Yankton owned by the similarly named corporation, East Winds Court, Inc. Teresa Burgi rented a lot from East Winds and lived in East Winds Court with her three children, including K.B. Ronald Pasman was a neighbor of Teresa's and also leased a mobile home lot from East Winds. During the time relevant to this appeal, Pasman lived four lots away from Teresa and K.B.

[¶3.] Pasman owned a pit bull named Marco. The dog originally belonged to Pasman's daughter, but she gave Marco to her father after realizing Marco's size made him unsuited to live in her apartment.^[1] Pasman's daughter described Marco as a well-behaved, playful dog.

[¶4.] Pasman's experience with Marco was much the same. He characterized Marco as a friendly dog who never barked or exhibited any behavioral problems. Although Pasman stated he decided to adopt Marco primarily for personal protection, the dog had no record of dangerous altercations with humans while under Pasman's care. Pasman's minor grandson claimed Marco had previously been involved in a fight with another dog, although his recollection of the altercation was vague and otherwise unconfirmed.

[¶5.] When Marco was not inside Pasman's trailer home, he was tethered to the front hitch of the trailer using a body-harness attached to a chain. The chain allowed Marco roughly a ten-to-twelve-foot radius within which he could roam on Pasman's lot. On the day Marco arrived, Pasman affixed two "Beware of Dog" signs to the front of his trailer, one on either side of the hitch.

[¶6.] Near the edge of Pasman's lot was a free-standing basketball hoop. The base of the hoop was located on Pasman's lot, while the hoop itself extended out over the paved street where neighborhood children would occasionally play.^[2] The street was owned and maintained by East Winds.

[¶7.] On the afternoon of September 3, 2017, K.B. was playing basketball with Pasman's two young grandchildren in front of Pasman's lot. Marco was outside at the time, chained to the trailer hitch. The exact sequence of events that followed is unclear from the record, but at some point K.B. attempted to retrieve a basketball from Pasman's driveway inside the perimeter of Marco's chain. When K.B. reached for the ball Marco attacked him, biting his face in several places. K.B. ultimately required multiple corrective surgeries. Both parties agree K.B. did nothing to provoke the attack.

[¶8.] John Blackburn is the sole shareholder of the East Winds corporation. He purchased East Winds Court in 2005 and owns several other rental properties in the Yankton area. Ronald Galvan worked as the property manager of East Winds Court and was tasked with maintaining the property, collecting rent, communicating with tenants, and drafting leases. The written leases for Teresa's lot and Pasman's lot treated dog ownership differently-Teresa's lease prohibited dogs, Pasman's did not.

[¶9.] Section thirteen of Pasman's lease was titled "Pets" and allowed Pasman to have certain "non-vicious" animals, like domestic dogs, on the lot. In a separate section, the lease also included a general remedial enforcement provision stating that a "violation of any one of the terms of this lease, without limitation of its other rights, shall entitle [the] landlord to terminate this lease, re-enter and take over possession forthwith."

[¶10.] As the property manager, Galvan was charged with keeping an eye on East Winds Court and watching for "violation[s] of the [trailer court] rules." Galvan estimated he drove through the trailer court nearly every day during his time as manager. Blackburn also surveyed the property, though far less frequently, stating he drove through the trailer court approximately twice a year, often riding along with Galvan during his inspections. However, neither Blackburn nor Galvan remembered noticing the "Beware of Dog" signs hung on Pasman's trailer. Galvan did recall seeing Marco chained up outside Pasman's trailer on one occasion but stated that Marco remained "at the end of [Pasman's] lot" and "didn't even bark when [Galvan] came up to the house." Blackburn claimed he was unaware of Marco's existence.

[¶11.] After Marco attacked K.B., one of Pasman's neighbors revealed that she remembered the dog's temperament differently. Though she had apparently not reported Marco's behavior previously, she claimed the dog often exhibited aggressive tendencies and would lunge toward her on the end of his chain as she passed by with her lawn mower. In her affidavit, the neighbor stated she remembered seeing the "Beware of Dog" signs posted on Pasman's trailer and further believed that East Winds knew Marco was a danger to the neighborhood, though she offered no explanation as to how or why East Winds knew that Marco was dangerous.

[¶12.] Acting individually and as K.B.'s guardian ad litem, Teresa commenced this action against East Winds seeking damages for K.B.'s injuries. Her complaint alleged common law negligence, negligence per se, and breach of contract. Teresa did not sue Pasman. However, East Winds filed a third-party complaint against Pasman, seeking indemnification from him in the event it was found liable. Pasman did not answer the third-party complaint and has appeared only as a witness in this action.

[¶13.] In her general negligence claim, Teresa alleged that East Winds owed a duty as a landlord to protect K.B. from the attack or to warn him of Marco's potential for violence. She further alleged that East Winds knew of Marco's dangerous propensities and failed to exercise reasonable care by not removing him from the premises or otherwise terminating Pasman's lease. The breach of contract claim alleged Marco's presence in the trailer court was a violation of Teresa's lease, which prohibited pets altogether. However, it appears that after the parties conducted additional discovery and examined Pasman's lease (which allowed non-vicious pets), the claim evolved into an allegation that East Winds allowed Pasman to keep Marco in violation of the non-vicious pets clause in his lease.

[¶14.] East Winds moved for summary judgment as to all of Teresa's claims, which the circuit court granted. As is relevant to the general negligence claim at issue in this appeal, the court concluded that East Winds owed no legal duty to K.B. while he was present on Pasman's leased premises outside of a common area, and, in any event, East Winds had no knowledge of Marco's alleged dangerous propensities. Teresa appeals, alleging East Winds owed a duty to protect K.B. from Pasman's dog and that there are disputed issues of material fact as to whether East Winds was aware of Marco's dangerous propensities.^[3]

Standard of Review

[¶15.] "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." Ridley v. Sioux Empire Pit Bull Rescue, Inc., 2019 S.D. 48, ¶ 11, 932 N.W.2d 576, 580. "We view the evidence most favorably to the nonmoving party and resolve reasonable doubts against the moving party." Id. (citation omitted). The procedural issue presented by a circuit court's decision to grant a motion for summary judgment is a question of law that we review de novo. See Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 18, 921 N.W.2d 479, 486 (citation omitted) ("We review a circuit court's entry of summary judgment under the de novo standard of review.").

[¶16.] The substantive question at issue in this case-the existence of a legal duty as a necessary element of a plaintiff's negligence claim-is also a question of law that is reviewed de novo. Sheard v. Hattum, 2021 S.D. 55, ¶ 23, 965 N.W.2d 134, 141 (citing Kirlin v. Halverson, 2008 S.D. 107, ¶ 28, 758 N.W.2d 436, 448).

Analysis and Decision

Landlord's Reserved Control

[¶17.] As an overarching legal principle, "[t]he law of premises liability is based on possession and control." Clauson v. Kempffer, 477 N.W.2d 257, 259 (S.D. 1991) (citing W. Page Keeton, D. Dobbs, R. Keeton, D. Owen Prosser and Keeton on the Law of Torts § 57, at 386). Viewed in the specific context of landlord liability we have applied the Restatement (Second) of Torts and stated the general rule as follows: "a landlord, having parted with full possession of the premises to the tenant is not liable for injury to third persons caused by the tenant's negligence." Id.; see Restatement (Second) of Torts § 355 (Am. L. Inst. 2021) ("Except as stated in §§ 357 and 360-362, a lessor of...