Ross v. Hanson
Decision Date | 06 September 1972 |
Docket Number | No. 11039,11039 |
Citation | 86 S.D. 654,200 N.W.2d 255 |
Parties | Bernard ROSS, Guardian ad litem of Shane Ross, infant, Plaintiff and Respondent, v. Stanley HANSON, Defendant and Appellant. |
Court | South Dakota Supreme Court |
Martens, Goldsmith, May, Porter & Adam, Pierre, for defendant and appellant.
John Simpson, Winner, for plaintiff and respondent.
In this action for personal injuries plaintiff alleged Shane Ross, a minor child, was attacked and injured by a schepherd dog owned by the defendant, Stanley Hanson, who knew or in the exercise of reasonable care should have known the dog was mean with children, had a dangerous disposition, and was likely to cause injury to others. The jury rendered a verdict for plaintiff in the amount of $12,500 upon which judgment was entered. Defendant appeals.
The facts are not disputed. Bernard Ross and defendant, Stanley Hanson, owned ranches in the same neighborhood. They were, and are, on friendly terms and visit back and forth frequently. On May 25, 1969 Bernard Ross took his two sons, Shane and Wesley, on a trip to the Hanson ranch to pay for a horse. While there Hanson wanted to drive to a pasture to look at some other horses and invited Ross to ride along. Hanson drove his pickup truck with Bernard Ross in front, and Shane Ross, age 7, Wesley Ross, age 8, and Rodney Hanson, age 9, riding in the back of the pickup along with 'Blackie', a shepherd, and another farm dog owned by Hanson. These were described as fairly large dogs.
There was no trouble with the dogs on the way out to the pasture, however Hanson testified that when they had traveled about a mile back toward his ranch he heard a dog growling. After stopping the pickup he found Blackie astraddle Shane Ross and the dog had bitten the boy. As a result of the dog bite Shane sustained a serious injury to his right eye.
Our law relating to liability for injuries caused by dogs is somewhat incongruous. By statute SDCL 40--34--2. Strict liability is thereby imposed upon the owner or keeper of any dog which kills or causes injury to fowls or domestic animals. There is no similar statute relating to personal injuries. In such cases the common law applies. Accordingly, an owner or keeper is not liable for personal injuries inflicted by a dog unless he knew or should have known of its dangerous propensities.
Proof of negligence on the part of the owner in keeping or restraining a domestic animal is not essential to liability. Anderson v. Anderson, 41 S.D. 32, 168 N.W. 852. The gist of the action is the keeping of an animal after knowledge of its vicious propensity. Warwick v. Mulvey, 80 S.D. 511, 127 N.W.2d 433. As stated in 4 Am.Jur.2d, Animals, § 95, p. 343:
The only issue of consequence in the present action is whether or not the evidence is sufficient to show defendant knew, or should have known, of Blackie's dangerous propensity prior to its attack on Shane Ross. In this regard there is evidence Blackie previously...
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Gehrts v. Batteen
...to the victim to establish dangerous propensities. The common law "one free bite rule" was expressly rejected in Ross v. Hanson, 86 S.D. 654, 656, 200 N.W.2d 255, 256 (1972). 2. In response to Gehrts' argument that the dog should have been released from the harness, the majority opinion Whe......
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Bauman v. Auch, 18564
...to another, of which the owner knew or should have known, liability follows. Id. The rule was reiterated in Ross v. Hanson, 86 S.D. 654, 656-657, 200 N.W.2d 255, 256 (1972): Proof of negligence on the part of the owner in keeping or restraining a domestic animal is not essential to liabilit......