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Rose Pray v. Willis T. Whiteskunk

July 27, 2011

ROSE PRAY,
PLAINTIFF AND APPELLANT,
v.
WILLIS T. WHITESKUNK,
DEFENDANT, AND CITY OF FLANDREAU,
DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT MOODY COUNTY, SOUTH DAKOTA HONORABLE TIM D. TUCKER Judge

The opinion of the court was delivered by: Konenkamp, Justice

CONSIDERED ON BRIEFS ON MAY 23, 2011

[¶1.] Plaintiff fell and was injured when a Rottweiler broke loose from its owner and dashed across the street toward her. She brought an action for damages against the dog owner and the city. As against the city, she asserted that it knew the dog was dangerous and failed to enforce its vicious animal ordinance. In granting summary judgment for the city, the circuit court ruled that the city owed plaintiff no special duty. We affirm because plaintiff has failed to establish that the city acted to protect plaintiff individually or as a member of a specific class, induced her specific reliance on the city's protection, or failed to use due care to avoid increasing the risk of harm to her.

Background

[¶2.] On December 12, 2009, Rose Pray was walking her dog on a sidewalk in the City of Flandreau across the street from Willis Whiteskunk's home. As she walked by, Whiteskunk and his girlfriend, Kristen Stearns, were outside hanging Christmas lights on Whiteskunk's home. Whiteskunk was on a ladder, and Stearns was holding Whiteskunk's Rottweiler on a leash. Suddenly, the Rottweiler broke free and bolted across the street toward Pray and her dog. Whiteskunk yelled for his dog to return, and it did, but not before Pray fell, either because of Whiteskunk's dog or because she tripped over her dog's leash. Whiteskunk ran over to Pray and asked if she was alright. Pray was crying: she had hurt her knee and could not stand on her own. Whiteskunk drove her to the hospital. She had a broken knee. [¶3.] Pray brought a negligence suit against the city and Whiteskunk. Pray alleged that the city knew Whiteskunk's dog was dangerous and negligently failed to enforce its vicious animal ordinance. In arguing for summary judgment, the city contended that it owed no duty to Pray, relying on Tipton v. Town of Tabor (Tipton I) , 538 N.W.2d 783, 785 (S.D. 1995). One generally owes no duty to control the conduct of third persons. Id.

But in Tipton I

, this Court held that "a government entity is liable for failure to enforce its laws . . . when it assumes a special, rather than a public, duty." Id. (citing Hagen v. City of Sioux Falls , 464 N.W.2d 396, 399 (S.D. 1990)). To determine whether a special duty exists, four elements must be considered: (1) whether the city had actual knowledge of the dangerous condition;

(2) whether persons reasonably relied on the city's representations and conduct; (3) whether an ordinance or statute is clearly for the protection of a particular class of persons rather than the public as a whole; and (4) whether the city failed to use due care to avoid increasing the risk of harm. Id. at 787 (citing Cracraft v. City of St. Louis Park , 279 N.W.2d 801, 806-07 (Minn. 1979)). [¶4.] At a hearing on the city's motion for summary judgment, Pray agreed that Tipton I applied, but argued that summary judgment was inappropriate because there were material issues of fact in dispute on whether the city had actual knowledge that the dog was vicious, on whether she relied on the city's ordinance to protect her from vicious animals, and on whether the city increased the risk of harm to Pray when it failed to ensure that Whiteskunk complied with City of Flandreau Ordinance, Title 6, chapter 6.4 (Ordinance 6.4). In opposition to the city's motion for summary judgment, Pray presented evidence that eight months before her injury, on April 14, 2009, Whiteskunk's dog bit a city employee while the employee attempted to read the gas meter at Whiteskunk's home. After the attack, the city declared Whiteskunk's dog a vicious animal as described in Ordinance 6.4. The city issued Whiteskunk a letter informing him of the designation and advising him of the restrictions and requirements applicable to owning a vicious animal. In particular, Whiteskunk was informed:

If the animal is kept indoors, the animal must be under the control of a person over 18 years of age.

If the animal is outdoors and attended, the animal shall be muzzled, on a leash no longer than six (6) feet and under the control of a person over 18 years of age.

If the animal is outdoors and unattended, the animal must be locked in an escape proof kennel approved by the Chief of Police or his representative.

The fencing material used in the kennel must not have openings with a diameter of more than two (2) inches, and in the case of a wooden fence the gaps shall not be more than two (2) inches;

Any gates within such pen or structure shall be lockable and of such design to prevent the entry of children ...


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