TERESA BURGI, INDIVIDUALLY AND TERESA BURGI, AS GUARDIAN AD LITEM FOR K.B. v. EAST WINDS COURT, INC. v. RONALD PASMAN, Third-Party Defendant

Pierre, South Dakota - Personal Injury lawyer represented Plaintiffs and Appellants with alleging two negligence theories and a breach of contract claim.

East Winds Court is a mobile home community in Yankton owned by

the similarly named corporation, East Winds Court, Inc. Teresa Burgi rented a lot

from East Winds and lived in East Winds Court with her three children, including

K.B. Ronald Pasman was a neighbor of Teresa's and also leased a mobile home lot

from East Winds. During the time relevant to this appeal, Pasman lived four lots

away from Teresa and K.B.

[¶3.] Pasman owned a pit bull named Marco. The dog originally belonged to

Pasman's daughter, but she gave Marco to her father after realizing Marco's size

made him unsuited to live in her apartment.1 Pasman's daughter described Marco

as a well-behaved, playful dog.

[¶4.] Pasman's experience with Marco was much the same. He

characterized Marco as a friendly dog who never barked or exhibited any behavioral

problems. Although Pasman stated he decided to adopt Marco primarily for

personal protection, the dog had no record of dangerous altercations with humans

1. Marco weighed about eighty pounds.

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while under Pasman's care. Pasman's minor grandson claimed Marco had

previously been involved in a fight with another dog, although his recollection of the

altercation was vague and otherwise unconfirmed.

[¶5.] When Marco was not inside Pasman's trailer home, he was tethered to

the front hitch of the trailer using a body-harness attached to a chain. The chain

allowed Marco roughly a ten-to-twelve-foot radius within which he could roam on

Pasman's lot. On the day Marco arrived, Pasman affixed two "Beware of Dog” signs

to the front of his trailer, one on either side of the hitch.

[¶6.] Near the edge of Pasman's lot was a free-standing basketball hoop.

The base of the hoop was located on Pasman's lot, while the hoop itself extended out

over the paved street where neighborhood children would occasionally play.2 The

street was owned and maintained by East Winds.

[¶7.] On the afternoon of September 3, 2017, K.B. was playing basketball

with Pasman's two young grandchildren in front of Pasman's lot. Marco was

outside at the time, chained to the trailer hitch. The exact sequence of events that

followed is unclear from the record, but at some point K.B. attempted to retrieve a

basketball from Pasman's driveway inside the perimeter of Marco's chain. When

K.B. reached for the ball Marco attacked him, biting his face in several places. K.B.

ultimately required multiple corrective surgeries. Both parties agree K.B. did

nothing to provoke the attack.

2. Pasman testified in his deposition that he did not know who owned the hoop

or who placed it on his lot.

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[¶8.] John Blackburn is the sole shareholder of the East Winds corporation.

He purchased East Winds Court in 2005 and owns several other rental properties in

the Yankton area. Ronald Galvan worked as the property manager of East Winds

Court and was tasked with maintaining the property, collecting rent,

communicating with tenants, and drafting leases. The written leases for Teresa's

lot and Pasman's lot treated dog ownership differently—Teresa's lease prohibited

dogs, Pasman's did not.

[¶9.] Section thirteen of Pasman's lease was titled "Pets” and allowed

Pasman to have certain "non-vicious” animals, like domestic dogs, on the lot. In a

separate section, the lease also included a general remedial enforcement provision

stating that a "violation of any one of the terms of this lease, without limitation of

its other rights, shall entitle [the] landlord to terminate this lease, re-enter and take

over possession forthwith.”

[¶10.] As the property manager, Galvan was charged with keeping an eye on

East Winds Court and watching for "violation[s] of the [trailer court] rules.” Galvan

estimated he drove through the trailer court nearly every day during his time as

manager. Blackburn also surveyed the property, though far less frequently, stating

he drove through the trailer court approximately twice a year, often riding along

with Galvan during his inspections. However, neither Blackburn nor Galvan

remembered noticing the "Beware of Dog” signs hung on Pasman's trailer. Galvan

did recall seeing Marco chained up outside Pasman's trailer on one occasion but

stated that Marco remained "at the end of [Pasman's] lot” and "didn't even bark

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when [Galvan] came up to the house.” Blackburn claimed he was unaware of

Marco's existence.

[¶11.] After Marco attacked K.B., one of Pasman's neighbors revealed that

she remembered the dog's temperament differently. Though she had apparently not

reported Marco's behavior previously, she claimed the dog often exhibited

aggressive tendencies and would lunge toward her on the end of his chain as she

passed by with her lawn mower. In her affidavit, the neighbor stated she

remembered seeing the "Beware of Dog” signs posted on Pasman's trailer and

further believed that East Winds knew Marco was a danger to the neighborhood,

though she offered no explanation as to how or why East Winds knew that Marco

was dangerous.

[¶12.] Acting individually and as K.B.'s guardian ad litem, Teresa

commenced this action against East Winds seeking damages for K.B.'s injuries. Her

complaint alleged common law negligence, negligence per se, and breach of contract.

Teresa did not sue Pasman. However, East Winds filed a third-party complaint

against Pasman, seeking indemnification from him in the event it was found liable.

Pasman did not answer the third-party complaint and has appeared only as a

witness in this action.

[¶13.] In her general negligence claim, Teresa alleged that East Winds owed

a duty as a landlord to protect K.B. from the attack or to warn him of Marco's

potential for violence. She further alleged that East Winds knew of Marco's

dangerous propensities and failed to exercise reasonable care by not removing him

from the premises or otherwise terminating Pasman's lease. The breach of contract

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claim alleged Marco's presence in the trailer court was a violation of Teresa's lease,

which prohibited pets altogether. However, it appears that after the parties

conducted additional discovery and examined Pasman's lease (which allowed nonvicious pets), the claim evolved into an allegation that East Winds allowed Pasman

to keep Marco in violation of the non-vicious pets clause in his lease.

[¶14.] East Winds moved for summary judgment as to all of Teresa's claims,

which the circuit court granted. As is relevant to the general negligence claim at

issue in this appeal, the court concluded that East Winds owed no legal duty to K.B.

while he was present on Pasman's leased premises outside of a common area, and,

in any event, East Winds had no knowledge of Marco's alleged dangerous

propensities. Teresa appeals, alleging East Winds owed a duty to protect K.B. from

Pasman's dog and that there are disputed issues of material fact as to whether East

Winds was aware of Marco's dangerous propensities.3

Standard of Review

[¶15.] "In reviewing a grant or a denial of summary judgment under SDCL

15-6-56(c), we must determine whether the moving party demonstrated the absence

of any genuine issue of material fact and showed entitlement to judgment on the

merits as a matter of law.” Ridley v. Sioux Empire Pit Bull Rescue, Inc., 2019 S.D.

48, ¶ 11, 932 N.W.2d 576, 580. "We view the evidence most favorably to the

nonmoving party and resolve reasonable doubts against the moving party.” Id.

3. From our review of Teresa's submissions on appeal, it appears she has

abandoned her claims of negligence per se and breach of contract, both of

which were also determined adversely to her in the circuit court's summary

judgment order.

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(citation omitted). The procedural issue presented by a circuit court's decision to

grant a motion for summary judgment is a question of law that we review de novo.

See Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 18, 921 N.W.2d 479, 486

(citation omitted) ("We review a circuit court's entry of summary judgment under

the de novo standard of review.”).

[¶16.] The substantive question at issue in this case—the existence of a legal

duty as a necessary element of a plaintiff's negligence claim—is also a question of

law that is reviewed de novo. Sheard v. Hattum, 2021 S.D. 55, ¶ 23, 965 N.W.2d

134, 141 (citing Kirlin v. Halverson, 2008 S.D. 107, ¶ 28, 758 N.W.2d 436, 448).

Analysis and Decision

Landlord's Reserved Control

[¶17.] As an overarching legal principle, "[t]he law of premises liability is

based on possession and control.” Clauson v. Kempffer, 477 N.W.2d 257, 259 (S.D.

1991) (citing W. Page Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on

the Law of Torts § 57, at 386). Viewed in the specific context of landlord liability, we

have applied the Restatement (Second) of Torts and stated the general rule as

follows: "a landlord, having parted with full possession of the premises to the tenant

is not liable for injury to third persons caused by the tenant's negligence.” Id.; see

Restatement (Second) of Torts § 355 (Am. L. Inst. 2021) ("Except as stated in §§ 357

and 360–362, a lessor of land is not subject to liability to his lessee or others upon

the land . . . for physical harm caused by any dangerous condition which comes into

existence after the lessee has taken possession.”); Englund v. Vital, 2013 S.D. 71, ¶

11, 838 N.W.2d 621, 627 (stating the general rule of landlord liability set out in

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Clauson); see also Walther v. KPKA Meadowlands Ltd. P'ship, 1998 S.D. 78, ¶ 42,

581 N.W.2d 527, 535 (holding that there is no "special relationship” between a

landlord and a tenant that would impose a duty upon landlords to protect a person

from the unlawful acts of another).

[¶18.] Under the terms of their lease agreement, East Winds parted with full

possession of the lot it rented to Pasman. As stated in a leading treatise:

When land is leased to a tenant, the law of property regards the

lease as equivalent to a sale of the premises for the term. The

lessee acquires an estate in land, and becomes for the time being

both owner and occupier, subject to all of the responsibilities of

one in possession, to those who enter upon the land and those

outside of its boundaries.

W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 63, at 434.

Although the written lease contained several restrictions upon Pasman's use of the

premises, such as the one regulating pets, these restrictions did not impose a duty

on East Winds to act in any particular way.

[¶19.] Teresa submits a contrary argument in which she attempts to avoid

the general rule by claiming East Winds did not part with full possession and

control of Pasman's lot. As support, she cites our decision in Clauson, and argues

that a landlord may be held liable to third parties for the negligent acts of a tenant

where the landlord reserves a right of re-entry or "any right to control what

activities were performed on the land or how they were conducted.” See 477 N.W.2d

at 261. But Teresa misreads this passage from Clauson.

[¶20.] As an initial matter, the reserved-control quote from Clauson was not

part of our holding but, rather, was included to address an unsuccessful argument

by the appellant-plaintiff. In Clauson, we applied the Restatement § 355 rule set

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out above and held that the landlord was not subject to liability for injuries

sustained by the plaintiff who drove a motorcycle into a fence constructed by the

landlord's tenant. In so doing, we rejected the plaintiff's claim that the landlord

knew the tenant would build a dangerous fence on the property and, therefore, owed

a legal duty under Restatement (Second) of Torts § 379A (Am. L. Inst. 2021).4

[¶21.] As an additional comment, we noted that the landlord "reserved no

right of re-entry, and [the landlord] did not reserve any right to control what

activities were performed on the land or how they were conducted.” Clauson, 477

N.W.2d at 261. However, this statement merely expressed a corollary to the

general rule for landlord liability. It did not delineate a legal test for assessing the

extent of a landlord's control and surely did not hold that any type of restriction on

a tenant's use of the leased premises was sufficient to render the general rule

inapplicable. Indeed, we do not believe this to be the case.

4. Section 379A requires, among other things, that the landlord have actual

knowledge of the tenant's intent to engage in dangerous activity on the leased

premises before the landlord can be subject to liability. We noted that § 379A

was also inapplicable in Clauson because it contemplates liability in

situations involving physical harm to persons "outside of the land.” 477

N.W.2d at 260 n.5. However, the plaintiff's injuries in Clauson, as in the case

currently before us, occurred on the leased premises. See id. at 258

(describing the location of the fence on the property's "northern border”). The

circumstances of Easson v. Wagner, 501 N.W.2d 348 (S.D. 1993), illustrate

the on-property/off-property distinction. In Easson, the plaintiffs sued the

landlord of a neighboring mine for property damage resulting from a tenant's

blasting activity at the mine. After the circuit court granted the landlord's

motion for summary judgment, we reversed and remanded the case to resolve

disputed factual issues based upon an application of Restatement (Second) of

Property: Landlord and Tenant § 18.4 (Am. L. Inst. 1977), which is identical

to § 379A of the Restatement (Second) of Torts.

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[¶22.] Here, the fact that East Winds' lease with Pasman included a provision

concerning pets does not mean that East Winds reserved control over dogs in its

mobile home park or that it did not part with possession of the leased premises.

The relevant section of the lease provides as follows:

PETS: TENANT assumes all responsibilities for pets. Dogs are

only allowed on TENANT'S property. Dogs are not allowed to

run free in East Winds Court. Barking of dogs, day or night is

not allowed. Only harmless, non-vicious, safe, pets such [as]

domestic dogs, housecats and indoor birds are allowed within

East Winds Court, Inc. without the prior written permission of

the LANDLORD. TENANTS are prohibited from keeping any

other type or description of pet or animal or reptile. If a

TENANT has a noisy pet such as a barking dog, the TENANT

will have to purchase at the TENANTS [sic] own expense a

muzzle and keep it on his/her dog at all times to prevent

barking.

[¶23.] Interpreting the plain language of the pet provision, we conclude that

it does not constitute a reservation of East Winds' authority to control dogs on the

tenant's leased premises. See Tri-City Assocs., L.P. v. Belmont, Inc., 2014 S.D. 23, ¶

9, 845 N.W.2d 911, 914–15 (noting that leases are contracts whose interpretation is

a question of law reviewed de novo). Instead, it imposes upon the tenant "all

responsibilities for pets” and is best read as a promise by the tenant to keep only

"non-vicious, safe” pets on the premises. Nothing in the text of this provision

imposes an obligation upon East Winds concerning pets.

[¶24.] The Appellate Court of Connecticut reached the same conclusion under

similar circumstances and rejected a plaintiff's argument that a landlord had a duty

to investigate her tenants' pet based upon a lease provision that allowed the

landlord "discretion to approve or deny the ability of [the] tenants to own or keep

pets on the property.” Raczkowski v. McFarlane, 225 A.3d 305, 311 (Conn. App. Ct.

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2020). In the court's studied view, the lease provision operated exclusively for the

benefit of the landlord and "did not impose a duty on the defendant to perform an

extraneous investigation of the dog's behavioral propensities.”5 Id.

[¶25.] The Raczkowski court also rejected the plaintiff's reserved-control

argument, holding that the plain language of the lease "g[a]ve the tenant complete

control and possession of the property[.]” Id. at 312; see also Howle v. Aqua Ill.,

Inc., 978 N.E.2d 1132, 1144, (Ill. App. Ct. 2012) ("[The landlord's] ability to

terminate [the tenant's] tenancy (and the fact that it later did so) because of the

conduct of his dogs does not constitute the requisite control that imposes a duty

. . . .”); Gilbert v. Miller, 586 S.E.2d 861, 865 (S.C. Ct. App. 2003) ("The lease

provision prohibiting pets in multifamily units was not equivalent to a promise

creating a duty on the part of [the landlord] to keep the premises free from pets or

vicious dogs.”). This rationale is consistent with the general rule for landlord

liability as stated by our precedent and "also promotes the salutary policy of placing

responsibility where it belongs, rather than fostering a search for a defendant

whose affluence is more apparent than his culpability.” See Clemmons v. Fidler,

791 P.2d 257, 260 (Wash. Ct. App. 1990).

[¶26.] Finally, Teresa's additional argument that the general enforcement

provision in Pasman's lease created a duty to enforce the pets provision is equally

unsustainable. Notwithstanding the fact that the argument begs the question of

whether East Winds was aware of any reason to terminate the lease in the first

5. These determinations were made in the context of the Raczkowski court's

analysis of the plaintiff's argument that she was a third-party beneficiary of

the pet provision. Teresa has not made a similar claim here.

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instance, the enforcement provision merely provides East Winds with the remedy of

terminating the lease and regaining possession of the premises in the event Pasman

would breach "any one of the terms of this lease[.]” Nothing compels East Winds to

elect this remedy in the event of Pasman's default, and the existence of the remedy

does not suggest a degree of lingering control beyond that which non-breaching

parties commonly possess in a variety of contexts involving written contracts.6 See

Middleton v. Klingler, 410 N.W.2d 184, 186 (S.D. 1987) (quoting 5A A. Corbin,

Corbin on Contracts § 1227, 502 (1964)).

[¶27.] We hold, therefore, that the provisions of Pasman's lease agreement do

not prevent the operation of the general rule precluding a landlord's liability for

"physical harm caused by a dangerous condition which comes into existence after

the lessee has taken possession.” See Restatement (Second) of Torts § 355.

Control of a Common Area

[¶28.] The general rule under which landlords are not subject to liability for

their tenants' negligence is tempered by certain exceptions. We have recognized

four principal exceptions, each of which is based upon specific rules set out in the

Restatement (Second) of Torts:

(1) where a lessor contracts to repair the premises,

Restatement (Second) of Torts § 357;

6. During his deposition, Blackburn testified that he had not seen the "Beware

of Dog” signs on Pasman's trailer. If he had, he stated that he would have

"taken action” and "investigated” to determine whether the "dog could be a

problem.” However, this does not mean that Blackburn was obligated by a

legal duty to do so or that his efforts to investigate further would have been

for the benefit of someone other than East Winds.

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(2) where an undisclosed, dangerous condition exists at the

time the lease is entered into which the lessor knew or

should have known about, [Id. § 358];

(3) where the lessor retains in his control a common area of

the premises which the lessee is entitled to use as

appurtenant to the leased portion, [Id. § 360,] . . . or is

necessary for the safe use of lessee's portion, [Id. § 361]; or

(4) where the lessor, in fact, makes repairs on the land while

it is in the lessee's possession and the lessor completes the

repairs negligently, [Id. § 362].

Clauson, 477 N.W.2d at 259 (internal case citations omitted).

[¶29.] Here, Teresa argues that the third of these exceptions is applicable

because K.B. was playing basketball in the "common area” street owned by East

Winds prior to Marco's attack. The type of "common area” exception implicated by

this claim relies upon Restatement (Second) of Torts § 360 (Am. L. Inst. 2021),

which provides as follows:

A possessor of land who leases a part thereof and retains in his

own control any other part which the lessee is entitled to use as

appurtenant to the part leased to him, is subject to liability to

his lessee and others lawfully upon the land with the consent of

the lessee or a sublessee for physical harm caused by a

dangerous condition upon that part of the land retained in the

lessor's control, if the lessor by the exercise of reasonable care

could have discovered the condition and the unreasonable risk

involved therein and could have made the condition safe.

[¶30.] The rule stated in § 360 requires, as a threshold matter, that a

plaintiff's injury was "caused by a dangerous condition upon” the common area over

which the landlord retains control. If the injury did not occur in a common area or

was not caused by a dangerous condition existing "upon” the common area, the

general rule of the Restatement (Second) of Torts § 355 applies, and the landlord is

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not subject to liability—i.e., the landlord owes no duty to the plaintiff. Our decision

in Englund is instructive.

[¶31.] In Englund, we affirmed the circuit court's determination that a

landlord was not liable to a third party for the negligence of a tenant under the

common area exception for two separate reasons: 1) there was no indication the

injury occurred in a common area; and 2) regardless, there was no dangerous

condition within the alleged common area. 2013 S.D. 71, ¶ 16, 838 N.W.2d at 628.

The plaintiffs in Englund were the parents of a minor child who was seriously

injured by a rock thrown at her head by the child of the landlord's tenant. In their

negligence suit against the landlord, the parents claimed that the injury took place

in a common area—the landlord's backyard—and sought to impose liability based

on the common area exception. However, the undisputed material facts established

that the landlord's backyard was not a common area, but "[e]ven if [the landlord's]

backyard did constitute a common area, the 'dangerous condition' or rock did not

come from the common area.” Id.

[¶32.] Here, a similar analysis applies, and we cannot accept Teresa's

alternative landlord-control argument based upon the common area exception. The

undisputed evidence indicates that K.B.'s injuries occurred entirely on Pasman's

leased lot and were inflicted by a dog that "did not come from the common area.”

See id. Moreover, there is no evidence that East Winds installed or maintained the

basketball hoop adjacent to the common area of the privately owned street or that

its continued use was unsafe. At most, the placement of the basketball hoop may

represent a causative link in the chain of events leading up to K.B.'s injuries, but it

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cannot be said that East Winds failed to maintain a common area over which it had

control and should therefore be subject to liability for K.B.'s injuries. Cf. Shields v.

Wagman, 714 A.2d 881, 892 (Md. 1998) (reversing summary judgment for a

landlord who was aware of the dog's vicious tendencies, and the attack occurred in a

common area).

Landlord Liability Based on Knowledge of a Dog's Propensities

[¶33.] Teresa's arguments focus principally on the question of whether

Marco's attack on K.B. was foreseeable to East Winds. We have held, in this

regard, that a plaintiff may establish a triable issue of liability with a showing that

a dog's owner knew or had reason to know of the dog's dangerous propensities. See

Ridley, 2019 S.D. 48, ¶ 14, 932 N.W.2d at 580 (quoting Rowland v. Log Cabin, Inc.,

2003 S.D. 20, ¶ 9, 658 N.W.2d 76, 79) ("[A] plaintiff in a dog bite case may either

argue to the jury that the owner knew or should have known of the dog's dangerous

propensities or that, under the totality of the circumstances, injury to the plaintiff

was reasonably foreseeable.”).

[¶34.] This rule presumes the existence of a duty to act reasonably and is

most often applied to determine liability questions for dog owners. See, e.g., Gehrts

v. Batteen, 2001 S.D. 10, ¶ 7, 620 N.W.2d 775, 778 ("[T]he failure to act upon the

knowledge of an animal's abnormally dangerous propensities establishes a breach of

the duty of care owed by the owner to those that come in contact with the animal.”)

We have extended the dangerous-propensity rule beyond dog-owner defendants in

only one instance by applying it to a business owner where an invitee was attacked

by another patron's dog. See Rowland, 2003 S.D. 20, ¶ 11, 658 N.W.2d at 79.

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[¶35.] In Rowland, we held that the reasonable person standard applies in

the same way to both the "duty owed by a business owner to a business invitee and

the duty owed by a dog owner to individuals in society[.]” 2003 S.D. 20, ¶ 11, 658

N.W.2d at 79. As support, we cited our holding in Small v. McKennan Hosp., 437

N.W.2d 194 (S.D. 1989), but the existence of common law duty (from which a breach

under the dangerous-propensity rule may follow) is different for business owners

and invitees than it is for landlords and tenants.

[¶36.] As we had previously recognized in Walther, business owners and

invitees have a "special relationship” that imposes a duty upon business owners to

act reasonably to protect invitees from foreseeable injury. 1998 S.D. 78, ¶ 44, 581

N.W.2d at 536. However, Teresa has not claimed K.B. was an invitee of East

Winds. He lived at East Winds Court, but the relationship between a landlord and

a tenant does not qualify as a special relationship that would provide a predicate

basis for a common law duty for landlords, like East Winds. See id. Therefore,

Rowland is inapposite, and the dangerous-propensity rule does not apply here

because Teresa cannot demonstrate, as an initial matter, the existence of a duty

that would subject East Winds to liability.

[¶37.] We are aware that some jurisdictions have adopted a rule that imposes

liability on a landlord where the landlord has reserved control over the presence of

dogs on the leased premises and has knowledge of the dog's vicious propensities.

See, e.g., Uccello v. Laudenslayer, 118 Cal. Rptr., 741, 743 (Cal. Ct. App. 1975); see

also Danny R. Veilleux, Annotation, Landlord's liability to third person for injury

resulting from attack on leased premises by dangerous or vicious animal kept by

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tenant, 87 A.L.R. 4th 1004 (1991) (collecting cases and distilling the general rule as

stated above). However, this narrow rule created by some courts for this class of

dog bite cases cannot be reconciled with our decisions setting out the principles

governing the broader topic of a landlord's liability for the conduct of its tenant. See

Clauson, 477 N.W.2d at 259; Englund, 2013 S.D. 71, ¶ 11, 838 N.W.2d at 627.

[¶38.] Under the circumstances, Teresa's effort to apply the dangerouspropensity rule is unsustainable because there is no underlying legal duty in the

absence of either a special relationship or the landlord's retained control over the

leased premises. Therefore, it is unnecessary to address whether East Winds had

knowledge of Marco's alleged dangerous propensities

Marco’s attack on K.B., while undoubtedly tragic, is simply not

actionable, at least as to East Winds, because there is no duty that would subject it to liability.7 We therefore affirm the circuit court’s summary judgment order in

favor of East Winds.