Tipton v. Town of Tabor

Citation567 N.W.2d 351,1997 SD 96
Decision Date28 August 1997
Docket NumberNo. 19631,19631
PartiesDaniel G. TIPTON, Conservator of the Estate of Crystal R. Tipton, A Minor; Daniel G. Tipton, Conservator of the Estate of Daniel E. Tipton, A Minor; Daniel G. Tipton, Individually, and Lisa M. Tipton, Plaintiffs and Appellants, v. TOWN OF TABOR, South Dakota and Bon Homme County, South Dakota and Their Officers, Agents and Employees; N.L. Mach; Leonard Cimpl; Donald Fejfar; Donald Koranda; Alvin Sternhagen; Doris F. Muller; Eugene Sutera and Lyle O'Donnell, Defendants and Appellees.
CourtSouth Dakota Supreme Court

Gerald L. Reade of Brady & Reade, Yankton, for Plaintiffs and Appellants.

John Simko, Tim R. Shattuck of Woods, Fuller, Shultz & Smith, Sioux Falls, for Defendants and Appellees Town of Tabor, N.L. Mach, Leonard Cimpl, Donald Fejfar, Donald Koranda, Alvin Sternhagen, Doris F. Muller and Eugene Sutera.

Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, Sioux Falls, for Defendants and Appellees Bon Homme County and Lyle O'Donnell.


¶1 We are again faced with the question whether city and county officials owed a "special duty" to protect four-year-old Crystal Tipton who was severely mauled when she strayed into an nearby yard and approached a cage holding two wolfdog hybrids. Following remand in the earlier appeal, the circuit court, applying our new standard, granted summary judgment, concluding as a matter of law no special duty affixed. Although existence of a special duty is a question of law, ordinarily breach of duty is a question of fact for a jury. Nonetheless, we conclude summary judgment was proper as none of the required special duty factors were established here.

Procedural Background

¶2 Daniel G. Tipton, his wife, Lisa Tipton, and their children, Crystal and Daniel E. Tipton, sued the Town of Tabor, Bon Homme County, and certain government employees after Crystal was mauled by Kenneth Holland's wolfdogs. Summary judgment was granted to the defendants on the issue of liability. On appeal, we reversed and remanded "for further consideration by the trial court" in view of our revised test. Tipton v. Town of Tabor, 538 N.W.2d 783, 788 (S.D.1995) (Tipton I ).


¶3 In 1987, Kenneth Holland purchased two wolf-German Shepherd hybrids (Canis lupus crossed with Canis familiaris ). They were reputedly close to ninety-five percent wolf, the product of six or seven generations of crossbreeding. From their appearance and behavior, it was evident they had wolf-like characteristics. For almost three years, Holland kept them in his back yard in Tabor in a secure, fenced enclosure. This pen was constructed of chain link fence on two sides and livestock panels on the other two sides. It had wire buried under the surface to prevent the animals from digging out. Three feet of wire all around the top prevented them from jumping or climbing over. As they had a "nervous" disposition, the hybrids were never allowed to run free, and Holland recommended to persons interested in seeing them that they visit only when he was present. Openings in the fencing were wide enough to allow the wolfdogs to stick at least part of their heads out in some places and fully out in others. Holland believed his wolfdogs would never attack anyone unless provoked. He kept them in the secure cage for "bonding" purposes. The animals were male and female; their pups lived in an adjoining cage.

¶4 Some people in the community had concerns about the safety of their children, but for a variety of reasons, no one complained to law enforcement authorities, including Chief of Police Eugene Sutera or County Sheriff Lyle O'Donnell, about anything other than being disturbed by howling. 1 In February 1989, Doris Muller, the town Finance Officer, issued licenses for "wolf hybrids" to Teresa Holland, Kenneth's wife, in accordance with a town ordinance and based on a veterinarian's rabies vaccination receipt for six animals: "3 wolf & 3 dogs." Muller informed the Town Board of the licensure. At the end of 1989, the licenses expired, and, in 1990, Kenneth Holland appeared before the Board to declare he would no longer license his animals because he believed the licensing ordinances were not being enforced. 2 Both Sutera and O'Donnell examined the pen and the wolfdogs at some point before the mauling, but did so only in response to concerns about howling. Both looked into state and local enactments covering possession of such animals, but felt no laws precluded keeping wolfdogs, especially as they were securely controlled in their pen.

¶5 On November 12, 1990, the Tiptons were in Tabor visiting relatives who lived near the Hollands. Crystal, four years old at the time, wandered into Hollands' yard, over to the hybrids' pen. The animals apparently grabbed her as she stood near their enclosure. She was severely mauled. The Tiptons, who were uninsured, incurred over $33,000 in medical expenses for Crystal's care. Soon after the incident, the Hollands discharged their liability through bankruptcy. In their suit, the Tiptons assert (1) Tabor was negligent in licensing the hybrids, violating town ordinances, which increased the risk of harm to others and created a nuisance; (2) Tabor was negligent in allowing the hybrids to remain in town knowing of the danger; and (3) the county was negligent in not abating the nuisance the hybrids presented as witnessed by Sheriff O'Donnell who had actual knowledge of the hybrids' vicious proclivities.

¶6 In Tipton I, we modified the bright-line test in Hagen v. City of Sioux Falls, 464 N.W.2d 396, 399 (S.D.1990), which relied solely upon statutory language to ascertain the existence of a special duty to protect a person or class of persons. Tipton I, 538 N.W.2d at 787. For the Hagen analysis, we substituted the four-part test found in Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979), making "any combination" of the following four factors determinative in assessing the existence of a special duty: (1) actual knowledge of the dangerous condition; (2) reasonable reliance by persons on official representations and conduct; (3) an ordinance or statute setting forth mandatory acts clearly for the protection of a particular class of persons rather than the general public; and (4) failure to use due care to avoid increasing the risk of harm. Id. (citing Cracraft, 279 N.W.2d at 806-07). "Whether a special duty has been breached is generally a question for the jury to decide." De Long v. County of Erie, 60 N.Y.2d 296, 469 N.Y.S.2d 611, 616, 457 N.E.2d 717, 722 (1983). The trial court again granted summary judgment to the defendants and the Tiptons appeal.

Standard of Review

¶7 "In reviewing a grant of summary judgment, we must decide whether the moving party has shown there is no genuine issue of material fact and is entitled to judgment as a matter of law; the evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party." Great West Cas. Co. v. Bergeson, 1996 SD 73, p 5, 550 N.W.2d 418, 419 (citing Nelson v. WEB Water Development Ass'n., Inc., 507 N.W.2d 691, 693-94 (S.D.1993); Pickering v. Pickering, 434 N.W.2d 758, 760 (S.D.1989)); Klatt v. Continental Ins. Co., 409 N.W.2d 366, 368 (S.D.1987); Wilson v. Great Northern Ry., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). "When a motion for summary judgment is made and supported as provided in § 15-6-56, an adverse party may not rest upon the mere allegations or denials" in the pleadings, but must present specifics showing genuine, material fact issues for trial. SDCL 15-6-56(e). Our task on appeal is to determine only whether issues of material fact exist and whether the law was correctly applied. Moss v. Guttormson, 1996 SD 76, p 5, 551 N.W.2d 14, 16; Flynn v. Lockhart, 526 N.W.2d 743, 745 (S.D.1995). If any legal basis emerges to support summary judgment, we must affirm. Sparagon v. Native American Publishers, Inc., 1996 SD 3, p 33, 542 N.W.2d 125, 133.

Analysis and Decision
¶8 The Public Duty Doctrine--Rationale

¶9 Recognizing a need for redress when local government torts result in injury, our Legislature conditionally waived sovereign immunity. "To the extent that any public entity, other than the state, participates in a risk sharing pool or purchases liability insurance ... the public entity shall be deemed to have waived the common law doctrine of sovereign immunity...." SDCL 21-32A-1. Despite this waiver, however, South Dakota continues to observe the public duty rule, as do most jurisdictions abrogating immunity. Catone v. Medberry, 555 A.2d 328, 331 (R.I.1989)(citing cases).

¶10 Essentially, the rule declares government owes a duty of protection to the public, not to particular persons or classes. 3 Sound reasons support this doctrine. Furnishing public safety always involves allocating limited resources. Law enforcement entails more than simply reacting to violations; it encompasses the art of keeping the peace. Deploying finite resources to achieve these goals is a legislative and executive policy function. To allow individuals to influence through private litigation how resources must be disposed would render government administration chaotic and enfeebled. Unrestricted liability might discourage communities from acting at all or encourage action merely to avoid suit, without regard to the common good. 4 The rule promotes accountability for offenders, rather than police who through mistake fail to thwart offenses. Otherwise, lawbreaker culpability becomes increasingly irrelevant with liability focused not on the true malefactors, but on local governments. A "public duty" conception acknowledges that many "enactments and regulations are intended only for the purpose of securing to individuals the enjoyment of rights and privileges to which they are entitled as members of the public, rather than for the purpose of protecting...

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