Estate of Shuck v. Perkins County

• Decision Date: 06 May 1998
• Docket Number: No. 20147,20147
• Citation: 1998 SD 32,577 N.W.2d 584
• Parties: ESTATE OF Leon O. SHUCK, deceased, Teresa A. Shuck, and Teresa A. Shuck, as Guardian of Cody C. Shuck, Kayla M. Shuck, and Otis N. Shuck, Minors, Plaintiffs and Appellants, v. PERKINS COUNTY, South Dakota a political subdivision of the State of South Dakota, and William M. Simpson, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 584

577 N.W.2d 584

1998 SD 32

ESTATE OF Leon O. SHUCK, deceased, Teresa A. Shuck, and

Teresa A. Shuck, as Guardian of Cody C. Shuck, Kayla M. Shuck, and Otis N. Shuck, Minors, Plaintiffs and Appellants, v. PERKINS COUNTY, South Dakota a political subdivision of the

State of South Dakota, and William M. Simpson,

Defendants and Appellees.

No. 20147.

Supreme Court of South Dakota.

Argued Jan. 15, 1998.

Decided April 1, 1998.

Rehearing Denied May 6, 1998.

Leroy Hill, Belle Fourche, Timothy J. Rensch, Rapid City, for plaintiff and appellant.

Paul S. Swedlund & G. Verne Goodsell of Gunderson, Palmer, Goodsell and Nelson, Rapid City, for defendant and appellee County.

Mary A. Gubbrud & Thomas G. Fritz of Lynn, Jackson, Shultz & Lebrun, Rapid City, for defendant and appellee Simpson.

GILBERTSON, Justice.

¶1 This appeal arises out of a single vehicle automobile accident in which Leon Shuck (Leon) was severely injured on a rural gravel road in Perkins County, South Dakota. Leon died approximately one year after the accident due to complications related to his injuries. Summary judgment was granted in favor of defendants. Leon's estate and his heirs now appeal. We affirm.

FACTS AND PROCEDURE

¶2 On September 26, 1994, Leon, a rural mail carrier in Perkins County, was traveling north on Perkins County Road C-1 (road) when he lost control of his vehicle. The vehicle slid off the shoulder of the gravel road and rolled once, ejecting him from the vehicle. Leon suffered serious injuries, including a broken neck, that rendered him a quadriplegic prior to his death. Leon claimed that he was trying to avoid cattle that were straying in the middle of the gravel road. Other than Leon, there were no witnesses to the accident.

¶3 William M. Simpson (Simpson) owned the grazing land on both sides of the road where the accident occurred. A fence existed on the western side of the roadway, but the eastern side was not fenced. Fencing is present on both sides of the road in certain places to the north and south of Simpson's land. The road going through Simpson's pasture is owned and maintained by Perkins County.

¶4 Leon brought suit on April 5, 1995, alleging that Perkins County (County) was negligent in failing to properly and adequately maintain the gravel road under SDCL 31-12-19, that both the County and Simpson were negligent in creation of a dangerous condition by permitting cattle to stray onto the road, and for failure to warn. Leon's wife, Teresa, joined in Leon's suit claiming loss of consortium. Both the County and Simpson claimed that Leon was contributorily negligent, more than slight, and had assumed the risk.

¶5 Leon died approximately one year after the accident due to complications related to the quadriplegia. On January 12, 1996, after Leon's death, Teresa, as personal representative of Leon's estate and guardian of the three minor children (collectively referred to as the Shucks), amended the initial complaint to include a wrongful death claim. On June 13, 1997, the circuit court granted summary judgment in favor of defendants Simpson and Perkins County. The Shucks appeal.

STANDARD OF REVIEW

¶6 The standard of review applied to the grant or denial of a summary judgment motion in lawsuits involving tort claims is well settled. At we stated in Julson v. Federated Mutual Insurance Company:

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 that the moving party is entitled to judgment as a matter of law." SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon, 407 N.W.2d 801, 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990). The burden is on 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. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968).

1997 SD 43, p 5, 562 N.W.2d 117, 119 (quoting Ford v. Moore, 1996 SD 112, p 7, 552 N.W.2d 850, 852); accord VerBouwens v. Hamm Wood Prods., 334 N.W.2d 874, 876 (S.D.1983).

ANALYSIS AND DECISION

¶7 1. Whether summary judgment in favor of Simpson was proper.

¶8 While negligence actions are generally not suited for summary judgment, such a result is proper when the duty question is resolved in the defendant's favor. Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993) (citations omitted). The existence of such a duty is a question of law subject to de novo review. Id. (citing Brown v. Egan Consol. Sch. Dist. 50-2, 449 N.W.2d 259 (S.D.1989)). Therefore, "we must determine if 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." Id. (citations omitted).

¶9 Initially, we observe that in reviewing summary judgment decisions, we accept all reasonable inferences that may be drawn from the facts in favor of the nonmoving party. Morgan, 450 N.W.2d at 785. While the evidence is questionable whether cattle were in the road at the time of the accident, for summary judgment purposes we factually assume this to be true and given the fact that Simpson's land bordered both sides of the road, a portion of which contained no fence, it is a fair inference the cattle were his.

¶10 Nevertheless, under the present facts, we hold summary judgment proper. Shuck's contend that Simpson was negligent in allowing his cattle to enter upon the gravel road which created a dangerous condition to travelers and in failing to use reasonable care to warn travelers of the danger. There exists no statute in South Dakota which imposes civil liability upon landowners who permit their cattle to run at large upon our highways. ¹ Therefore, we look to the common-law. ²

¶11 Early English common-law held that owners of livestock were "immune from liability as a practical matter for casual trespasses on land abutting the highway." Carrow Co. v. Lusby, 167 Ariz. 18, 804 P.2d 747, 752 (1990) (citing Prosser and Keeton on Torts § 76, at 540 (5th ed. 1984)). While a few jurisdictions have maintained this early rule of near absolute immunity, others have adopted a "modern" common-law view which has taken into account changed conditions and imposed a duty of ordinary care upon owners of livestock towards motorists traveling on the public highway. 4 Am.Jur.2d Animals § 128 (collecting cases).

¶12 In Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 5, 58 N.W.2d 235, 237 (1953), this Court adopted the modern common-law rule imposing a duty of ordinary care upon landowners for their roaming animals:

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.

(quoting 2 Am.Jur. Animals § 60) (emphasis added). In Hitzel v. Clark, 334 N.W.2d 37, 39 (S.D.1983), we reiterated that in the absence of a specific statute, Eixenberger and its progeny provide the usual rules governing the responsibility of livestock owners. Thus, we look to the facts of each case and consider "[t]he 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. Eixenberger, 75 S.D. at 6, 58 N.W.2d at 238.

¶13 Simpson argues that he owed no duty to Shuck because the accident occurred on his "open range" grazing area. ³ Although there exists no statutory definition of "open range," this Court recognized in Eixenberger, 75 S.D. at 6, 58 N.W.2d at 237, that open range is an area in which livestock are kept at large, unrestrained and unattended. ⁴

¶14 The circuit court properly considered the relevant characteristics of the road and Simpson's adjoining land. A cattle guard is located in the road at the entry to the Simpson land, placing travelers on notice that cattle are likely to be roaming across the road that runs through the grazing land. ⁵ There are signs along the road which serve to alert approaching motorists to the cattle guards. Only the land on the western side of the road is fenced in. In addition to the cattle guards and signs, Leon's wife testified that prior to the accident Leon and she had seen cattle in the exact area of the road where the accident occurred. See 4 Am.Jur.2 Animals § 48 (the right to allow horses and cattle to roam at large has been established by custom in some jurisdictions that have not enacted statutory provisions on the matter).

¶15 In concluding that Leon's injury did not arise from a breach of duty by Simpson, the circuit court noted that the road is an "infrequently traveled, rural, gravel road." ⁶ Furthermore, the accident occurred during daylight hours and there is no indication that Leon's vision was impaired prior to the accident. As the innumerable variables concerning highways, from interstate highways to what would be viewed as paths, preclude a bright-line all encompassing standard of statutory conduct, likewise the same conditions preclude adoption of the same type of "universal" rule by this Court. Eixenberger, 75 S.D. at 6, 58 N.W.2d at 238. We agree with the circuit court's conclusion that Simpson could not have reasonably foreseen that his cattle could cause injury in this open range country and therefore Simpson did not breach a duty of reasonable care towards Leon.

¶16 2. Whether summary judgment in favor of ...