Erickson v. Lavielle, No. 14726

• Court: Supreme Court of South Dakota
• Writing for the Court: MORGAN; WUEST
• Citation: 368 N.W.2d 624
• Docket Number: No. 14726
• Decision Date: 29 May 1985
• Parties: Marlyn G. ERICKSON, Individually and as Guardian of Brett Christopher Erickson, a minor, Plaintiff and Appellant, v. Ronald LAVIELLE and Jay Sadler, Defendants and Appellees.

Page 624

368 N.W.2d 624 Marlyn G. ERICKSON, Individually and as Guardian of Brett
Christopher Erickson, a minor, Plaintiff and Appellant,
v.
Ronald LAVIELLE and Jay Sadler, Defendants and Appellees. No. 14726. Supreme Court of South Dakota. Argued March 6, 1985.
Decided May 29, 1985.

Allen G. Nelson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for plaintiff and appellant; Joseph M. Butler of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, on brief.

Gene R. Bushnell of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, for defendant and appellee Ronald Lavielle; Robert L. Lewis of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, on brief.

Franklin J. Wallahan of Wallahan Law Offices, Rapid City, for defendant and appellee Jay Sadler.

MORGAN, Justice.

This appeal is from a personal injury negligence action in which Marlyn G. Erickson (Erickson), individually and as guardian of his minor son, Brett Erickson (Brett), sought damages from the defendants Ronald Lavielle (Lavielle) and Jay Sadler (Sadler) on grounds that they negligently operated and controlled a pontoon motor boat and negligently supervised the minor children on board. ¹ The trial court granted the defendants' motions for summary judgment. Plaintiff appeals. We reverse.

In the summer of 1979, the Lavielle, Sadler, Erickson and Gunwall families gathered at the Lavielle/Erickson cabin on Lake Angostura. Gene Farrens, a friend of Lavielle and Erickson, brought a pontoon boat owned by his father's corporation, Ken's Mobil Sales, Inc., to the Lavielle/Erickson cabin. The children of the four families attempted to take the boat out onto the lake by themselves. ² When some of the parents expressed concern, Sadler and Lavielle hurried to catch the children and joined them for the boat ride.

The pontoon boat was propelled by an outboard motor mounted at the back of the boat. A safety rail enclosed the operator and passenger area of the deck. While some of the other children took turns operating the boat, Brett, his brother Troy, and one of the Sadler children left the area enclosed by the safety rail and sat on the front edge of the deck between the pontoons. Lavielle and Sadler were aware that the three children were sitting on the front of the boat. The three boys sitting on the front of the deck were kicking at the pontoon's wake and Brett reached his legs too far over the edge of the deck in order to get his feet in the water and fell overboard. He was caught in the propeller at the rear of the boat and injured.

The complaint alleges that Lavielle and Sadler had control of the use and operation of the pontoon at the time of the accident and that Brett's injuries were the direct and proximate result of the defendants' negligence and conduct in that they failed to control and operate the pontoon or to supervise and control the children on board. ³ Sadler's answer denies that any careless or negligent acts on his part caused or contributed to the accident. He further denies that he breached any duty owed to Brett. Sadler alleged that Brett's negligence caused or contributed to the boy's injuries. Lavielle's answer alleges that Brett's injuries were proximately

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caused or contributed to by the boy's own negligence and by his father's negligence.

Sadler moved for summary judgment on grounds that there was no genuine issue of fact as to (1) whether Sadler owed plaintiff Erickson a duty to prevent injury to Brett, (2) whether Sadler assumed a duty to prevent injury to Brett or to decrease the risk of injury to Brett, and (3) whether, in the event Sadler did owe a duty, any negligence on his part was imputed to Brett's parents thereby precluding their claim. Lavielle also moved the court for summary judgment. The trial court heard arguments on the defendants' motions for summary judgment, considered their counsels' briefs, reviewed the file, including discovery depositions, and determined that the defendants were entitled to summary judgment.

In its memorandum decision, which was incorporated in the summary judgment order, the trial court cited Wilson v. Great Northern Railroad Co., 83 S.D. 207, 157 N.W.2d 19 (1968), for this court's statement that negligence actions are not generally suited for summary disposition. We maintained that position in Myers v. Lennox Co-op Assn, 307 N.W.2d 863 (S.D.1981). Summary judgment was granted nevertheless. The trial judge noted that the plaintiff in a negligence action must establish that a duty existed in order to show that a standard of care or conduct was breached. Johnson v. Straight's, Inc., 288 N.W.2d 325 (S.D.1980); Cuppy v. Bunch, 88 S.D. 22, 214 N.W.2d 786 (1974). The trial court quoted Restatement (Second) of Torts § 314 (1965): "The fact that the actor realizes or should realize that...