Casillas v. Schubauer, 23773.

• Decision Date: 26 April 2006
• Docket Number: No. 23773.,23773.
• Citation: 714 N.W.2d 84,2006 SD 42
• Parties: Ramona CASILLAS and Delora Stickelman, Plaintiffs and Appellants, v. Ted SCHUBAUER, Defendant and Appellee.
• Court: South Dakota Supreme Court

714 N.W.2d 84

2006 SD 42

Ramona CASILLAS and Delora Stickelman, Plaintiffs and Appellants, v. Ted SCHUBAUER, Defendant and Appellee.

No. 23773.

Supreme Court of South Dakota.

Considered on Briefs March 20, 2006.

Decided April 26, 2006.

COPYRIGHT MATERIAL OMITTED

Charles Abourezk of Abourezk & Zephier Rapid City, SD, for plaintiffs and appellants.

Sara L. Larson, Michael M. Hickey of Bangs, McCullen, Butler, Foye and Simmons, Rapid City, SD, for defendant and appellee.

SABERS, Justice.

[¶ 1.] Ramona Casillas (Casillas) and Delora Stickelman (Stickelman) were injured when Casillas' vehicle collided with an eighteen-hundred pound Black Angus bull (the black bull) owned by Ted Schubauer (Schubauer). Casillas and Stickelman brought a negligence action against Schubauer. After discovery, Schubauer filed a motion for summary judgment. The circuit court granted the motion. Casillas and Stickelman appeal. We reverse and remand for trial.

FACTS

[¶ 2.] Casillas and Stickelman reside in North Platte, Nebraska. On May 30, 2002, they drove to Mission, South Dakota, to attend the graduation of Casillas' grandson. Later that evening, Casillas and Stickelman left Mission and began traveling south on South Dakota Highway 83 towards North Platte. Stickelman was driving Casillas' vehicle.

[¶ 3.] At approximately 11:00 p.m., they suddenly came upon the black bull which was standing on the highway. Stickelman attempted to swerve but was unable to avoid hitting the black bull. The vehicle was totally destroyed and Casillas and Stickelman suffered extensive personal injuries.

[¶ 4.] Sometime between 7:30 and 8:00 the following morning, Schubauer noticed that the black bull was missing from the corral outside of his home. He searched his property and came upon the accident scene where he saw blood on the highway. Schubauer found the black bull lying on the ground. The black bull had skin missing from one of its legs, but was able to walk back to the corral.

[¶ 5.] Casillas and Stickelman brought a negligence action against Schubauer seeking to recover damages for the injuries sustained. Schubauer denied any negligence.

[¶ 6.] Claris Young (Young) submitted an affidavit on behalf of Casillas and Stickelman. Young stated that at approximately 6:30 p.m. on the evening of the accident, she saw the black bull on Highway 83. Specifically, Young stated that several cars had to slow down and swerve to avoid hitting the black bull. Then, while driving home from work, Young witnessed Casillas and Stickelman's accident and assisted them until the paramedics arrived at the scene.

[¶ 7.] Schubauer testified via deposition. He testified that on the day of the accident he placed the black bull with another bull and some cattle in a small corral. The corral was located near Schubauer's residence. The fence surrounding the corral was an assortment of stockade panels, wood, and barbed wire. Schubauer testified that he and his son diligently maintain the fences and gates and that they were not in a state of disrepair on the day of the accident.

[¶ 8.] Schubauer did not recall whether he checked on the black bull after it had been put in the corral. He did not find any damaged fence or open gates the following morning. However, this was not the first occasion the black bull escaped from one of Schubauer's corrals. A few years earlier, Schubauer put the black bull and another bull in one of his corrals. The two bulls started fighting and the black bull broke through the fence, but apparently did not reach the highway.

[¶ 9.] After discovery was complete, Schubauer made a motion for summary judgment. A hearing was held on May 27, 2005. The circuit court granted Schubauer's motion. The court ruled that there was no direct or circumstantial evidence that the escape of the bull "was occasioned by any acts of negligence" on the part of Schubauer.

[¶ 10.] Schubauer made a motion requesting the circuit court award disbursements under SDCL 15-17-37. The disbursements requested included fees for computerized legal research. Casillas' counsel objected to the motion, stating, "I have never been able to get [computerized legal research expenses] in any court in South Dakota, because it is not specifically in the statute." The court taxed disbursements in favor of Schubauer in the amount of $905.67, including the computerized legal research expenses.

[¶ 11.] Casillas and Stickelman raise the following issues:

1. Whether the circuit court erred in granting summary judgment in favor of Schubauer on the negligence claim.

2. Whether the doctrine of res ipsa loquitur precluded the circuit court from granting summary judgment in favor of Schubauer.

3. Whether the circuit court erred in taxing disbursements in favor of Schubauer.

Standard of Review

[¶ 12.] "Summary judgment is authorized if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Krier v. Dell Rapids Township, 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-45 (citing SDCL 15-6-56(c)). We view all reasonable inferences derived from the facts in the light most favorable to the nonmoving party. Id. The moving party must clearly show the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. In re Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586. "Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied." Krier, 2006 SD 10, ¶ 12, 709 N.W.2d at 845 (citing Schulte v. Progressive N. Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438).

1. Summary Judgment

[¶ 13.] Summary judgment is generally not feasible in negligence cases. Satterlee v. Johnson, 526 N.W.2d 256, 258 (S.D.1995); Zeeb v. Handel, 401 N.W.2d 536, 537 (S.D.1987); Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985). "It is only when the evidence is such that reasonable [persons] can draw but one conclusion from the facts and inferences that they become a matter of law and this occurs rarely." Id. (quoting Lamp v. First Nat'l Bank of Garretson, 496 N.W.2d 581 (S.D.1993)); see also Wilson v. Great N. Railway Co., 83 S.D. 207, 157 N.W.2d 19, 22 (1968) (noting that summary judgment should not be granted on claims of contributory negligence except in "extraordinary, unusual, or rare case[s] where the facts are conceded or demonstrated beyond reasonable question and show a right to summary judgment with such clarity as to leave no room for controversy"). The burden remains with the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. State Dept. Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D. 1989).

[¶ 14.] Even though summary judgment is rare in negligence cases, we have held that the determination of whether a duty exists is a question of law for the courts. Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. The inquiry involves whether "a relationship exists between the parties such that the law will impose upon the defendant a legal obligation of reasonable conduct for the benefit of the plaintiff." Estate of Shuck, 1998 SD 32, ¶ 8, 577 N.W.2d at 586. "Landowners have a duty of care regarding their roaming animals." Atkins v. Stratmeyer, 1999 SD 131, ¶ 23, 600 N.W.2d 891, 898. Once the duty is determined, whether a breach of that duty occurred is for the finder of fact, not this Court.

[¶ 15.] In personal injury cases arising out of collisions between vehicles and domestic animals, this Court has explained:

At common law an owner of a domestic animal is under no legal obligation to restrain it from being at large on the highway unattended, and he is not liable for damages for an injury resulting from its being so at large unless he has knowledge of vicious propensities of the animal or unless he should reasonably have anticipated that injury would result from its being so at large on the highway.

Id. (citing Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 5, 58 N.W.2d 235, 237 (1953) (emphasis in original)). In the absence of a specific statute, the rule set forth in Eixenberger and its progeny continues to control these types of cases. Originally, the rule only applied to cattle that were permitted to roam at large. Id. However, the rule has subsequently been applied to cases involving negligent maintenance of fences or other forms of confinement. Pexa v. Clark, 85 S.D. 37, 40, 176 N.W.2d 497, 498 (1970); Zeeb, 401 N.W.2d at 537; Atkins, 1999 SD 131, 600 N.W.2d 891.

[¶ 16.] In this case, the inquiry is whether the owner could have reasonably anticipated that the animal would stray onto the highway. In answering this inquiry, we look to

[t]he facts of [the] case and consider the character of the road, the kind of traffic thereon, the time of day, and all other pertinent facts and the surrounding conditions to determine whether the defendant should have reasonably anticipated the danger.

Atkins, 1999 SD 131, ¶ 23, 600 N.W.2d at 898 (citing Estate of Shuck, 1998 SD 32, at ¶ 12, 577 N.W.2d at 587). This Court has held that the inquiry is a factual one and should be left to the jury. Id.^*

[¶ 17.] In summary, landowners have a duty of care regarding their animals. Id. Whether a breach of that duty occurred depends upon whether the landowner could have reasonably anticipated the danger in light of all the facts and circumstances. This inquiry is a factual one and should be decided by the jury.

[¶ 18.] The determination is whether Schubauer should have reasonably anticipated that his black bull would stray onto Highway 83. All facts and reasonable inferences must be viewed in the light most favorable to Casillas and Stickelman. The burden is on Schubauer to clearly show no genuine issue of material fact exists in...