Davies v. GPHC, LLC, 29688-a-MES

CourtSupreme Court of South Dakota
Writing for the CourtSALTER, JUSTICE
Parties2022 S.D. 55 v. GPHC, LLC, Defendant, Third-Party Plaintiff, and Appellee, KEVIN DAVIES, Plaintiff and Appellant, v. MICHELLE L. WILSON and JAY M. BLACK, Third-Party Defendants.
Docket Number29688-a-MES
Decision Date14 September 2022

2022 S.D. 55

KEVIN DAVIES, Plaintiff and Appellant,
v.

GPHC, LLC, Defendant, Third-Party Plaintiff, and Appellee,
v.

MICHELLE L. WILSON and JAY M. BLACK, Third-Party Defendants.

No. 29688-a-MES

Supreme Court of South Dakota

September 14, 2022


CONSIDERED ON BRIEFS JANUARY 10, 2022

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE RICHARD A. SOMMERS Judge

DAVID J. KING KIRK D. RALLIS of King Law Firm, P.C. Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

PAUL H. LINDE of Schaffer Law Office, Prof. LLC Sioux Falls, South Dakota Attorneys for defendant, third- party plaintiff, and appellee.

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SALTER, JUSTICE

[¶1.] As he attempted to enter his apartment, Kevin Davies was bitten by a dog owned by another tenant. Davies commenced this action against his landlord, GPHC, LLC (GPHC), alleging general negligence and negligence per se. The circuit court granted GPHC's summary judgment motion, concluding that GPHC lacked actual knowledge of the dog's alleged dangerous propensities under a general negligence theory and that GPHC was not the owner or keeper of the dog under the relevant statute to support Davies's negligence per se claim. Davies appeals. We affirm.

Facts and Procedural History

[¶2.] Kevin Davies and Jay Black each leased separate apartments in a six- unit apartment building in Aberdeen. Davies's unit was located in the basement of the apartment building. Black and his girlfriend, Michelle Wilson, lived in an apartment located above Davies.

[¶3.] GPHC is a South Dakota limited liability company, which owns and manages the apartment building where Davies and Black resided. Both Davies and Black signed one-year lease agreements with GPHC, which contained identical provisions prohibiting pets on the leased premises absent the express permission of GPHC. The sole member of GPHC, Mark Rich, stated that he commonly allowed residents to keep dogs in their apartments upon request.

[¶4.] Black owned a female Rottweiler named Tequila. Before moving into the apartment, he informed Rich about the dog and asked to keep Tequila at the apartment. Rich consented, and, according to Rich, Black negotiated with him to

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house Tequila in an unattached garage near the rear of the rental property due to Black's concerns about Tequila's frequent barking.

[¶5.] Davies owned an American bulldog named Flek, which lived with Davies inside his apartment-also with Rich's consent. According to Davies, Tequila once "went after" Flek when the two dogs crossed paths, though he did not clarify whether the encounter actually resulted in a physical altercation between the dogs. Beyond this incident, however, Davies stated that he had no negative interactions with Tequila and had never complained to GPHC about Tequila's behavior.

[¶6.] After returning home from work on July 25, 2018, Davies parked near the rear of the apartment building and walked toward the door of his basement apartment. As Davies approached the door, he noticed Wilson standing in the backyard near the parking lot, attending to Tequila, who was tethered to a nearby tree. Davies stopped and spoke briefly with Wilson before continuing toward the building. When he reached the sidewalk abutting the building, he noticed Tequila approaching him from the yard. Davies attempted to edge closer to the building to avoid Tequila, but when he realized Tequila's leash would not prevent her from reaching the sidewalk, he held out his right hand to prevent Tequila from jumping on him. Without provocation, Tequila bit Davies's outstretched hand.

[¶7.] The bite produced significant lacerations to Davies's hand. He drove himself to a local emergency facility where medical personnel determined Davies would require corrective surgery, which was performed that evening. After being notified of the injury by hospital staff, officers from the Aberdeen Police Department

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arrived at the emergency room and spoke with Davies, who told them that his neighbors owned the dog that had bitten him.

[¶8.] The officers went to the apartment building to interview Black, who was not home at the time. Wilson was present, however, and she admitted that Tequila had inflicted the injuries to Davies's hand. Wilson also reported that it was her common practice to keep Tequila tied up in the backyard of the building when the dog was not otherwise kenneled in the garage or inside their apartment. She reported that the building's residents regularly walked through the yard without incident while Tequila was present. Wilson also claimed that Tequila had not previously bitten anyone.

[¶9.] Black called one of the investigating officers later that evening to discuss what had happened. He told the officer that he was unsure why Davies was near Tequila while Black was not present and claimed he had advised Davies not to come near the dog in the past. However, when the officer explained that Tequila's leash allowed her to reach the sidewalk where Davies was walking, Black told the officer that he understood and stated that he accepted responsibility for the dog's actions.

[¶10.] For his part, Rich claimed he had no knowledge of Tequila's temperament prior to the attack on Davies. Though he was aware that Tequila was a Rottweiler and of Black's concerns about Tequila's inclination to bark, Rich explained that he had never met the dog and had never received any complaints from Davies or other residents about Tequila's behavior. In fact, Rich lives in Phoenix, Arizona, and it is unclear whether he had visited the apartment building

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during the time Black kept Tequila in the garage. Rich testified in his deposition that GPHC did not employ a property manager to look after the apartment building in his absence. GPHC did, however, hire a local "handyman" to perform snow removal and lawn care at the building, which appears to have been done on an as-needed basis.

[¶11.] In October 2019, Davies commenced this civil action naming GPHC as a defendant. The complaint alleged that, as a landlord, GPHC was negligent for failing "to exercise ordinary care in the control, management, warning, and care of [its] property." The complaint further alleged that GPHC was negligent per se based on a statute that makes owning or keeping a "vicious dog" a public nuisance. See SDCL 40-34-13.

[¶12.] In its answer, GPHC denied all liability and asserted third-party claims against Black and Wilson seeking indemnity and contribution in the event it was found liable to Davies. Black was served with the third-party complaint, but he has not filed an answer. Wilson could not be located for service.

[¶13.] In January 2021, GPHC moved for summary judgment and a hearing on the motion was set for March 12. On March 3, Davies's counsel submitted an affidavit pursuant to SDCL 15-6-56(f) (Rule 56(f)), indicating his desire to depose Black and Wilson prior to the circuit court's ruling on the summary judgment motion.

[¶14.] Regarding the Rule 56(f) affidavit, the circuit court observed at a subsequent hearing that Davies's claim had been pending for over a year and determined it was "not going to delay to take depositions at this stage . . . ."

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[¶15.] The court ultimately granted GPHC's motion for summary judgment in a written decision. The court noted a lack of binding precedent concerning a landlord's liability for injuries inflicted by a tenant's dog and concluded that "the majority standard across myriad jurisdictions holds that a landlord is not liable for [such injuries] absent actual knowledge of the animal's dangerous propensities."[1]The court determined that the undisputed material facts established GPHC had no actual knowledge of Tequila's dangerous propensities, and, therefore, it could not be subject to liability for Davies's injuries under a general negligence theory. As for Davies's negligence per se claim, the court concluded that, "[a]s a matter of law[,]" GPHC could not be liable under the statute because it was not Tequila's owner or keeper. See SDCL 40-34-13 ("Any person owning or keeping a vicious dog . . . has committed a public nuisance . . . .").

[¶16.] Davies appeals raising three issues for our review, which we have restated as follows:

1. Whether the circuit court erred when it granted summary judgment on Davies's general negligence claim.
2. Whether the circuit court erred when it granted summary judgment on Davies's negligence per se claim.
3. Whether the circuit court abused its discretion when it denied Davies's Rule 56(f) motion.
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Standard of Review

[¶17.] "We review a [circuit court's] grant or denial of summary judgment de novo." Sheard v. Hattum, 2021 S.D. 55, ¶ 22, 965 N.W.2d 134, 141 (quoting Hamen v. Hamlin Cnty., 2021 S.D. 7, ¶ 15, 955 N.W.2d 336, 343). "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." Burgi, 2022 S.D. 6, ¶ 15, 969 N.W.2d at 923. We will affirm the circuit court's summary judgment decision "[i]f there exists any basis which supports the ruling of the trial court." Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 19, 921 N.W.2d 479, 486 (quoting Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874).

Analysis and Decision

A Landlord's Duty to Prevent Harm to Tenants

[¶18.] "Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury." Ridley, 2019 S.D. 48, ¶ 13, 932 N.W.2d at 58 (quoting Lindblom v. Sun Aviation, Inc., 2015 S.D. 20, ¶ 19, 862 N.W.2d 549,...

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