Clauson v. Kempffer

• Decision Date: 10 September 1991
• Docket Number: No. 17384,17384
• Citation: 477 N.W.2d 257
• Parties: 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. . Considered on Briefs
• Court: South Dakota Supreme Court

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 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 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. 155, 168 N.W.2d 710 (1969); West v. Hanley, 73 S.D. 540, 45 N.W.2d 455 (1950), or is necessary for the safe use of lessee's portion, Restatement (Second) of Torts Sec. 361; or (4) where the lessor, in fact, makes repairs on the land while it is in the lessee's possession and the lessor completes the repairs negligently, Id. Sec. 362. In the case before us, none of these exceptions apply. The entire premises was leased to Knox and Smith. The lease provided for a minimum six-month term. The tenants, Knox and Smith, were responsible for making repairs, although Kempffer agreed to reimburse them for their expenses. Finally, the dangerous condition did not come into existence until after Kempffer transferred possession.

Following the general rule, Kempffer could not be held liable for construction of the dangerous gate which occurred after he had given up possession. The Clausons acknowledge the general rule of non-liability for dangerous conditions which arise on the property after possession and control is transferred to the tenant. ³ The Clausons urge that an exception to the general rule of lessor non-liability should be recognized here because Kempffer, while still in possession of the property, assisted Knox in locating the north boundary of the property; knew that Knox intended to erect a smooth wire fence; and should have realized that, in all likelihood, his tenants would not spend a great deal of money on the gate. Thus, Clausons argue, Kempffer should have known that Knox and Smith would erect a single strand wire gate and that Kempffer owed a duty to Shaun to take steps to warn him of the gate or to insure that it was safely constructed.

In support of their argument, the Clausons cite Restatement (Second) of Torts Sec. 379A. ⁴ The New York Court of Appeals has invoked section 379A by analogy to impose landlord liability based on public policy considerations, where the landlord "prior to leasing the premises, has knowledge that the tenant may be expected to carry on activities on the premises in such a manner as unreasonably to expose third persons to risk of physical injury." Strunk v. Zoltanski, 62 N.Y.2d 572, 468 N.E.2d 13, 15, 479 N.Y.S.2d 175, 177 (1984) (tenants owned vicious dogs of which landlord was aware). ⁵ Other New York courts have limited landlord liability to situations where the landlord had actual knowledge of the dangerous activity prior to entering into the lease, or where the landlord retained substantial control over the leased premises when he learned of the activity. Payne v. Pavese, 98 A.D.2d 879, 470 N.Y.S.2d 860 (1983); Georgianna v. Gizzy, 126 Misc.2d 766, 483 N.Y.S.2d 892 (N.Y.Sup.Ct.1984). Other jurisdictions have similarly...