Clauson v. Kempffer, No. 17384

CourtSouth Dakota Supreme Court
Writing for the CourtWUEST; MILLER; MILLER
Citation477 N.W.2d 257
PartiesDonald and Barbara CLAUSON for Themselves and as Guardians Ad Litem for Shaun Clauson, a Minor, Plaintiffs and Appellants, v. Lee A. KEMPFFER, Defendant and Appellee, and Peggy Ann Smith and Randy Knox, Defendants. . Considered on Briefs
Docket NumberNo. 17384
Decision Date10 September 1991

Page 257

477 N.W.2d 257
Donald and Barbara CLAUSON for Themselves and as Guardians
Ad Litem for Shaun Clauson, a Minor, Plaintiffs
and Appellants,
v.
Lee A. KEMPFFER, Defendant and Appellee,
and
Peggy Ann Smith and Randy Knox, Defendants.
No. 17384.
Supreme Court of South Dakota.
Considered on Briefs Sept. 10, 1991.
Decided Nov. 6, 1991.

Wynn A. Gunderson and Daniel E. Ashmore, Gunderson, Palmer, Goodsell & Nelson, Rapid City, for plaintiffs and appellants.

Jay C. Shultz, Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee, Kempffer.

WUEST, Justice.

This is an appeal from a grant of Summary Judgment. We affirm.

Shaun Clauson (Shaun), a fifteen-year-old high school student, after returning home on October 10, 1987, found one of his family's horses missing. While looking for that animal, Shaun rode his motorcycle along a private road which provided access to a group of acreages in the area. The road in question was previously a forest service road used by the public to gain access to public land. The United States Forest Service conveyed the road and the land on which the road was located. The Appellee, Lee Kempffer (Kempffer) purchased a portion of this land which included a portion of the roadway on which Shaun was riding. As Shaun approached Kempffer's land, he

Page 258

was distracted by running horses. When he again focused on the road, he noticed what appeared to be a beer can lying on the roadway. He did not realize until too late the can was attached to a single smooth strand of wire strung across the road. He tried to stop, but could not. Instead, he lost control of the motorcycle and sustained substantial injury to one knee.

In September 1987, Kempffer began negotiating with Peggy M. Smith (Smith) and Randy Knox (Knox) to lease the property. Knox and Smith wanted to keep horses on the property. That was a common activity in the area. Kempffer agreed provided they took steps to keep the animals from wandering off the property. Knox, an experienced farrier, was knowledgeable about horses. He told Kempffer he would construct a smooth wire fence along the north side of the property using tree trunks as fence posts (the other sides of the property were already fenced). To facilitate construction of the fence, Kempffer paced off the property to locate its northern border. Kempffer stated in his deposition he had no knowledge as to the type of gate Knox intended to install, although he believed Knox would install a cattle guard (as some of the neighbors had done). Kempffer stated he left the fence and gate's construction to Knox's discretion and told Knox to use his "common sense."

The property was, in fact, leased to Knox and Smith on October 1, 1987 and they took possession. Kempffer moved to San Diego, California prior to construction of the gate and fence. Instead of a cattle guard, the tenants, Knox and Smith, erected a gate consisting of a single strand of wire strung between two posts with one or three beer cans as markers (Clauson claimed there was one beer can, while Smith stated there were three beer cans.) Kempffer stated he did not know of the gate until approximately one month after the accident.

After Shaun's accident, Donald and Barbara Clauson, for themselves and as Guardians ad Litem for Shaun (the Clausons), sued Kempffer, Knox and Smith alleging the gate across the private driveway owned by Kempffer was negligently constructed. Kempffer moved for summary judgment. The motion was granted. The Clausons voluntarily dismissed, with prejudice, their suit against Knox and Smith to facilitate the appeal of this case.

On appeal, we address whether the trial court erred in granting summary judgment in favor of the lessor, Kempffer. We first note our standard of review of orders granting summary judgment:

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 non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts which demonstrate a genuine, material issue for trial. When no genuine issue of fact exists, summary judgment is looked upon with favor and is particularly adaptable to expose sham claims and defenses. 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 a trial court, affirmance of a summary judgment is proper.

Taggart v. Ford Motor Credit Co., 462 N.W.2d 493, 498 (S.D.1990) (quoting Wang v. Wang, 447 N.W.2d 519, 521 (S.D.1989)). In Taggart, we stated that summary judgment is "usually not appropriate in negligence actions because the standard of a reasonable [person] must be applied to conflicting testimony. If, however, the facts are undisputed, the issue becomes one of law for the court to decide." Id. (quoting Gasper v. Freidel, 450 N.W.2d 226, 229 (S.D.1990)). More significantly, "the determination of whether a defendant owes a duty to a plaintiff does not require an examination of the facts; it is a question of law and summary judgment is appropriate when the trial judge resolves the duty question in the defendant's favor." Erickson

Page 259

v. Lavielle, 368 N.W.2d 624, 627 (S.D.1985).

The law of premises liability is based on possession and control. 1 W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts Sec. 57, at 386 (hereinafter Prosser & Keeton). The general rule regarding a landlord's liability is: 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. Wiggins v. Pay's Art Store, 47 S.D. 443, 447, 199 N.W. 122, 123 (1924); Byers v. Evans, 436 N.W.2d 654, 655 (Iowa Ct.App.1988); Updegraff v. City of Ottumwa, 210 Iowa 382, 226 N.W. 928, 929 (1929) (citing cases). See also, Johnson v. Kurn, 95 F.2d 629 (8th Cir.1938). This rule is reflected in the Second Restatement of Torts:

Section 355. Conditions Arising After Lessor Transfers Possession: General Rule

Except as stated in Secs. 357 & 360-362, a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee ... for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.

Restatement (Second) of Torts Sec. 355 (1965). 2

Some exceptions to the general rule do exist, such as: (1) where a lessor contracts to repair the premises, Restatement (Second) of Torts Sec. 357; (2) where an undisclosed, dangerous condition exists at the time the lease is entered into which the lessor knew or should have known about; Id., Sec. 358; Waterhouse v. Jos. Schlitz Brewing Co., 16 S.D. 592, 94 N.W. 587 (1903); Patterson v. Jos. Schlitz Brewing Co., 16 S.D. 33, 91 N.W. 336 (1902); (3) where the lessor retains in his control a common area of the premises which the lessee is entitled to use as appurtenant to the leased portion, Restatement (Second) of Torts Sec. 360; Boe v. Healy, 84 S.D....

To continue reading

Request your trial
17 practice notes
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 March 2016
    ...landowner's motion to dismiss because court lacked knowledge about landowner's involvement with escaped animal); Clauson v. Kempffer, 477 N.W.2d 257, 261 (S.D.1991) (affirming summary judgment in negligence action to noncustodial landowner where tenant owned horses that precipitated acciden......
  • Berry v. Risdall, Nos. 20071
    • United States
    • Supreme Court of South Dakota
    • 25 February 1998
    ...Elec. Power Coop., 1996 SD 36, p 9, 545 N.W.2d 823, 825; Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993); Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991); Gilbert v. United Nat'l Bank, 436 N.W.2d 23, 27 (S.D.1989); Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D.1987) (citing Ba......
  • Peterson v. Spink Elec. Co-op., Inc., No. 20156
    • United States
    • Supreme Court of South Dakota
    • 10 June 1998
    ...in negligence cases if it is determined as a matter of law that no duty exists. Mark, 518 N.W.2d at 229 (citing Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991)); Erickson v. Lavielle, 368 N.W.2d 624, 627 ¶13 This is not the first occasion we have had to apply the doctrine of negligence ......
  • Hendrix v. Schulte, No. 23973.
    • United States
    • Supreme Court of South Dakota
    • 18 July 2007
    ...the general rule is that the landlord is not liable for injury to third persons caused by the tenant's negligence. Clauson v. Kempffer, 477 N.W.2d 257 (S.D.1991). When setting forth that general rule in Clauson, this Court quoted approvingly from the Restatement (Second) of Torts § 355. Thi......
  • Request a trial to view additional results
18 cases
  • Deveneau v. Wielt, No. 14–330.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 4 March 2016
    ...landowner's motion to dismiss because court lacked knowledge about landowner's involvement with escaped animal); Clauson v. Kempffer, 477 N.W.2d 257, 261 (S.D.1991) (affirming summary judgment in negligence action to noncustodial landowner where tenant owned horses that precipitated acciden......
  • Berry v. Risdall, Nos. 20071
    • United States
    • Supreme Court of South Dakota
    • 25 February 1998
    ...Elec. Power Coop., 1996 SD 36, p 9, 545 N.W.2d 823, 825; Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993); Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991); Gilbert v. United Nat'l Bank, 436 N.W.2d 23, 27 (S.D.1989); Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D.1987) (citing Ba......
  • Peterson v. Spink Elec. Co-op., Inc., No. 20156
    • United States
    • Supreme Court of South Dakota
    • 10 June 1998
    ...in negligence cases if it is determined as a matter of law that no duty exists. Mark, 518 N.W.2d at 229 (citing Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991)); Erickson v. Lavielle, 368 N.W.2d 624, 627 ¶13 This is not the first occasion we have had to apply the doctrine of negligence ......
  • Davies v. GPHC, LLC, 29688-a-MES
    • United States
    • Supreme Court of South Dakota
    • 14 September 2022
    ...of the premises to the tenant is not liable for injury to third persons caused by the tenant's negligence." Clauson v. Kempffer, 477 N.W.2d 257, 259 (emphasis added) (citation omitted); see also Burgi, 2022 S.D. 6, ¶ 17, 969 N.W.2d at 923; Restatement (Second) of Torts § 355 (1965). [¶24.] ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT