CONSIDERED ON BRIEFS ON MARCH 19, 2018
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA THE HONORABLE JOHN R. PEKAS
R. DAMGAARD JAMI J. BISHOP of Johnson, Janklow, Abdallah
& Reiter, LLP Sioux Falls, South Dakota Attorneys for
plaintiff and appellant.
WILLIAM C. GARRY MELISSA R. JELEN of Caldwell, Sanford,
Deibert & Garry, LLP Sioux Falls, South Dakota Attorneys
for defendant and appellee.
GILBERTSON, CHIEF JUSTICE.
Robert Fischer sustained serious injuries while riding a
bicycle through a public park in Sioux Falls. Fischer sued
the City of Sioux Falls for negligence, but the circuit court
granted the City's request for summary judgment,
concluding that the City is immune from liability for such
negligence claims. Fischer appeals, arguing there is a
genuine issue of material fact as to whether the City's
conduct amounts to gross negligence or willful or wanton
misconduct. We affirm.
and Procedural History
On June 29, 2014, Fischer and his grandson were riding their
bicycles along a paved path in Kuehn Park, which is owned by
the City of Sioux Falls. Kuehn Park offers a golf course,
playground, softball diamonds, swimming pool, and tennis
courts. For parkgoers entering via the paved path, the most
direct route to the tennis courts and swimming pool is
through the northern gate of the tennis courts. Noticing that
the tennis courts' northern gate was open, Fischer
diverted from the path and rode through the grass, intending
to access the tennis courts and swimming pool. While riding
into a depressed area, the front tire of Fischer's
bicycle became lodged in a natural drainage ditch that had
been concealed by grass. Fischer was thrown from his bicycle
and sustained serious injuries, including fractures in his
back, neck, and sternum.
Fischer filed an action against the City on May 3, 2016,
alleging a single claim of "negligence." In the
complaint, Fischer alleged that the City owed him a duty to
make the park reasonably safe or to warn him of concealed
dangers like the drainage ditch. He also alleged that the
City "failed to use reasonable care or diligence to
design, construct, maintain in good repair, inspect and
upgrade the area where [Fischer] was injured or to warn [him]
of the concealed danger."
On November 14, 2016, the City filed a motion requesting
summary judgment. The City argued that it was immune from
liability for negligence under SDCL 20-9-20, which generally
states that a political subdivision of South Dakota owes no
duty of care to keep land used for outdoor recreational
purposes safe or to warn of dangerous conditions. Although
Fischer had not alleged gross negligence or willful or wanton
misconduct in his complaint, he responded that SDCL 20-9-20
did not immunize the City from liability for such claims. The
parties deposed several of the City's employees, who
generally testified that they were aware of the natural
drainage ditch, that the ditch was often concealed by grass,
and that they believed a bicyclist attempting to ride over
the ditch could be injured. After holding a hearing on
September 11, 2017, the circuit court granted the City's
Fischer appeals, raising the following issue: Whether the
circuit court erred by granting the City's motion for
Summary judgment is appropriate "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 a judgment as a matter of
law." SDCL 15-6-56(c). This Court "view[s] the
evidence 'most favorably to the nonmoving party and
resolve[s] reasonable doubts against the moving party[,
]'" Gades v. Meyer Modernizing Co., 2015
S.D. 42, ¶ 7, 865 N.W.2d 155, 158 (quoting Peters v.
Great W. Bank, Inc., 2015 S.D. 4, ¶ 5, 859 N.W.2d
618, 621), but a plaintiff must "substantiate [his]
allegations with sufficient probative evidence that would
permit a finding in [his] favor on more than mere
speculation, conjecture, or fantasy[, ]" Schaefer v.
Sioux Spine & Sport, PLLC, 2018 S.D. 5, ¶ 9,
906 N.W.2d 427, 431 (quoting Peters, 2015 S.D. 4,
¶ 13, 859 N.W.2d at 624). Questions of law are reviewed
de novo. Mont.-Dakota Utils. Co. v. Parkshill Farms,
LLC, 2017 S.D. 88, ¶ 9, 905 N.W.2d 334, 338.
Fischer argues the circuit court erred by granting the City
summary judgment. Fischer's complaint identifies a single
cause of action: "negligence." The court granted
summary judgment based on SDCL 20-9-20 and -21, which
immunize a municipality from liability for negligence in
connection with land open to the public for recreational
As Fischer points out, however, a municipality remains liable
for an injury caused on such land that results from the
"gross negligence or willful or wanton misconduct"
of a municipality employee. SDCL 20-9-22(1). The City points
out that the phrases gross negligence and
willful or wanton misconduct are noticeably absent
from Fischer's complaint. But Fischer maintains that the
question whether the conduct alleged transcends ordinary
negligence is a factual question to be resolved by a jury.
In South Dakota, the phrases gross negligence and
willful or wanton misconduct mean the same
thing. E.g., Holscher v. Valley Queen Cheese
Factory, 2006 S.D. 35, ¶ 48 n.2, 713 N.W.2d 555,
568 n.2 (quoting Granflaten v. Rohde, 66 S.D. 335,
339, 283 N.W.2d 153, 155 (1938)) ("The words 'gross
negligence' are, for practical purposes, substantially
synonymous with the phrase 'willful and wanton
misconduct.'"); Melby v. Anderson, 64 S.D.
249, 252-53, 266 N.W.2d 135, 137 (1936) (holding that the
phrase gross negligence "is really a
misnomer" and that "the conduct described by those
words . . . amounts to willful, wanton, or reckless
misconduct"). These phrases refer to a category of tort
that is "different in kind and characteristics"
than negligence. E.g., Tranby v. Brodock,
348 N.W.2d 458, 461 (S.D. 1984). Both categories involve an
assessment of the risk that a defendant's conduct poses
to others. State v. Larson, 1998 S.D. 80, ¶ 14,
582 N.W.2d 15, 18. Negligence involves an "unreasonable
risk of harm to another[.]" W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts § 34, at
212 (5th ed. 1984); see also Englund v. Vital, 2013
S.D. 71, ¶ 21 n.6, 838 N.W.2d 621, 629 n.6. But for
conduct to be willful or wanton, the risk involved must be
"substantially greater than that which is necessary to
make [the] conduct negligent." Holzer v. Dakota
Speedway Inc., 2000 S.D. 65, ¶ 17, 610 N.W.2d 787,
793 (quoting Restatement (Second) of Torts § 500 (Am.
Law Inst. 1965)). And the harm threatened must be "an
easily perceptible danger of death or substantial physical
harm[.]" Restatement (Second) of Torts § 500 cmt.
a; see also Holzer, 2000 S.D. 65, ¶ 17, 610
N.W.2d at 793.
Additionally, establishing willful or wanton misconduct
requires proof of an element not present in a negligence
claim. "The central issue in the ordinary negligence
case is whether the defendant has deviated from the required
standard of reasonable care, not his mental state at the time
of the conduct." Papke v. Harbert, 2007 S.D.
87, ¶ 17, 738 N.W.2d 510, 516 (quoting Shamburger v.
Behrens, 380 N.W.2d 659, 663 (S.D. 1986)). In contrast,
"courts have often said that reckless, willful[, ] or
wanton misconduct . . . entails a mental element. The
defendant must know or have reason to know of the
risk and must in addition proceed without concern for the
safety of others . . . ." Dan B. Dobbs et al., The
Law of Torts § 140 (2d ed.), Westlaw (database
updated June 2018) (emphasis added). Or as this Court has
said, the "defendant must have 'an affirmatively
reckless state of mind.'" Gabriel v.
Bauman, 2014 S.D. 30, ¶ 11, 847 N.W.2d 537, 541
(quoting Allen v. McLain, 74 S.D. 646, 649, 58
N.W.2d 232, 234 (1953)). So while "[w]illful and wanton
misconduct is not identical to intentional conduct,"
Kelly v. Kelly, 89 S.D. 58, 61, 228 N.W.2d 332, 333
(1975), willful and wanton misconduct does "partake to
some appreciable extent . . . of the nature of a deliberate
and intentional wrong." Tranby, 348 N.W.2d at
In light of the foregoing, the requirements for alleging
willful or wanton misconduct (i.e., gross negligence) are
different than those for alleging negligence. While a
plaintiff alleging negligence must prove merely that some
harm is possible, a plaintiff alleging willful or wanton
misconduct must prove a substantial probability of serious
physical harm. Moreover, a plaintiff alleging willful or
wanton misconduct must prove the defendant acted with a
culpable mental state. Thus, while alleging willful or wanton
misconduct can raise a jury question as to whether a
defendant's conduct has been negligent, Antonen v.
Swanson, 74 S.D. 1, 11, 48 N.W.2d 161, 166-67 (1951),
alleging negligence is insufficient to raise a jury question
as to whether a defendant's conduct has been willful or
wanton, Olesen v. Snyder, 249 N.W.2d 266, 270 (S.D.
1976). Because Fischer "did not allege willful [or]
wanton misconduct specifically or generally" in his
complaint, the question is whether Fischer alleged "any
facts which might [imply] such conduct on the part of"
the City. Id.
As noted above, the phrases gross negligence and
willful or wantonmisconduct do not appear
in Fischer's complaint. Nor does the evidence submitted
on the motion for summary judgment (i.e., the pleadings,
depositions, answers to interrogatories, admissions, and
affidavits, pursuant to SDCL 15-6-56(c)) distinguish his
cause of action from one for ordinary negligence. The
evidence in the record does not suggest that the rut posed an
easily perceptible danger of death or other serious physical
harm; indeed, Fischer's complaint asserts that the rut
simply "poses danger to citizens at the
park[.]" (Emphasis added.) Nor does the evidence in the
record suggest that the probability of such
"danger" is substantially greater than that
required for ordinary negligence-Fischer's complaint does
not address the question of probability at all. Even on
appeal, Fischer's summary of the City's
employees' deposition testimony suggests that harm was
merely possible rather than substantially probable; he
asserts that the employees testified that "the front
tire [of a bicycle] could sink into the rut,"
that "the front tire could get stuck,"
that "the bike could flip," and that
"a member of the public could be seriously
injured." (Emphasis added.) So while the evidence in the
record suggests that the City knew its conduct posed an
unreasonable risk of harm to the public (i.e., that the City
was negligent) that evidence does not ...