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. [¶3.] 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.” [¶4.] 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 motion. [¶5.] Fischer appeals, raising the following issue: Whether the circuit court erred by granting the City’s motion for summary judgment. Standard of Review [¶6.] 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. Analysis and Decision [¶7.] 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 use.1 As Fischer points out, however, a municipality remains
1. SDCL 20-9-20 removes a municipality’s duty of reasonable care: Except as provided in § 20-9-22, any political subdivision of South Dakota, and its employees acting within the scope of their duties owe no duty of care to keep the land safe for entry or use by others for outdoor recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the land to persons entering the land for outdoor recreational purposes. (Emphasis added.) And SDCL 20-9-21 removes a public-park goer’s status as an invitee: Except as provided in § 20-9-22, any political subdivision of South Dakota, and its employees, by either directly or indirectly inviting or permitting the person to use the land described for outdoor recreational purposes or by charging a fee for admittance to parks, campgrounds, or other recreational areas, do not thereby: (continued . . .)
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. [¶8.] 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 ______________ (. . . continued) (1) Extend any assurance that the land is safe for any purpose; or (2) Confer upon any person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for, or incur liability for, any injury to persons or property caused by an act of omission of the political subdivision of South Dakota, and its employees as to maintenance of the land. (Emphasis added.)
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. [¶9.] 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 461. [¶10.] 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. [¶11.] As noted above, the phrases gross negligence and willful or wanton misconduct 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 suggest that the City acted “with a conscious realization that [a serious physical] injury [was] a probable, as distinguished from a possible (ordinary negligence), result of such conduct.” Gabriel, 2014 S.D. 30, ¶ 11, 847 N.W.2d at 541 (emphasis added) (quoting Holzer, 2000 S.D. 65, ¶ 17, 610 N.W.2d at 793). [¶12.] Considering the evidence in the record in light of the differences between negligence and willful or wanton misconduct, the circuit court did not err by granting summary judgment. “[T]his Court warned long ago that if we draw the line of willful, wanton, or reckless conduct too near to that constituting negligent conduct, we risk ‘opening a door leading to impossible confusion and eventual disregard of the legislative intent to give relief from liability for negligence.’”
Gabriel, 2014 S.D. 30, ¶ 16, 847 N.W.2d at 543 (quoting Espeland v. Green, 74 S.D. 484, 490-91, 54 N.W.2d 465, 468 (1952)). Thus, when a plaintiff’s cause of action simply resembles ordinary negligence, summary judgment is appropriate. See, e.g., Gabriel, 2014 S.D. 30, ¶¶ 17-19, 847 N.W.2d at 543 (affirming summary judgment for defendant, holding that defendant’s failure to slow his vehicle from a speed exceeding the legal limit even when an oncoming vehicle signaled a turn across the defendant’s lane of traffic was not willful or wanton misconduct);2 Tranby, 348 N.W.2d at 461-62 (affirming summary judgment for defendant, holding that defendant’s operation of a motor vehicle with bald tires at a speed exceeding the legal limit on a gravel road at night and after consuming seven alcoholic beverages was not willful or wanton misconduct). Conclusion [¶13.] When faced with immunity to liability for ordinary negligence under statutes like SDCL 20-9-20 and -21, a plaintiff cannot survive summary judgment by simply alleging negligence as a cause of action. In this case, Fischer did just 2. In Gabriel, the Court concluded: Reasonable persons may understand that they should not exceed the speed limit and that by exceeding the speed limit, they are undertaking a risk of causing an accident. Under our case law, however, reasonable persons under the same or similar circumstances present in this case would not have consciously realized that speeding would—in all probability—result in the accident that occurred. 2014 S.D. 30, ¶ 19, 847 N.W.2d at 543. Likewise, in this case, while reasonable people may understand that failing to mark the drainage rut created an unreasonable risk of harm (i.e., negligence), reasonable people under circumstances similar to those in this case would not consciously realize that failing to mark the rut would create a substantial probability of death or serious physical injury.
that. And Fischer failed to provide “sufficient probative evidence that would permit a finding [of willful or wanton misconduct] on more than mere speculation, conjecture, or fantasy.” Schaefer, 2018 S.D. 5, ¶ 9, 906 N.W.2d at 431 (quoting Peters, 2015 S.D. 4, ¶ 13, 859 N.W.2d at 624). Thus, summary judgment was appropriate.