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REAFFIRMING THE ROLE OF THE JURY: THE PROBLEM OF SUMMARY JUDGMENT, DUTY, AND ROADKILL IN ZERFAS V. AMCO INSURANCE COMPANY.

I. INTRODUCTION

United States Supreme Court Justice Benjamin N. Cardozo cautioned: "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." (1) South Dakota carries on the legacy of Justice Cardozo in Palsgraf v. long Island Railroad Co. that established the definition of "duty." (2) In South Dakota, a person has a duty to uphold a legally recognized standard of care to others. (3) This duty is determined by the relationship of the parties and the foreseeability of the harm. (4)

The famous dissent in Palsgraf, authored by Judge William Andrews of the New York Court of Appeals, disagrees with South Dakota's stance. (5) In his dissenting opinion, Judge Andrews argued that the negligence analyses should focus on the defendant's actions and whether or not the defendant's actions caused harm. (6) He stated that "[e]very one [sic] owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." (7) Today, Judge Andrews' view is represented in the Restatement (Third) of Torts ("Restatement"). (8) The Restatement recognizes that the foreseeability-based duty analysis encourages the court to grant summary judgment when factual disputes for jury deliberation remain. (9)

This casenote addresses the varying analyses first established in Palsgraf by focusing on South Dakota's common law duty in negligence actions. (10) To accomplish this, the casenote highlights Zerfas v. AMCO Insurance Co., a recent South Dakota case where an unidentified driver collided with a deer, left the deer carcass in the middle of the interstate, and a fatal accident ensued. (11) First, the facts and procedures of Zerfas are introduced. (12) Next, the author discusses the historical background of duty in negligence actions in South Dakota. (13) The background emphasizes the varying rulings that result when South Dakota courts apply a common law duty based on relationship and foreseeability. (14) The author then introduces the Restatement's reformation of negligence law. (15) Finally, this casenote analyzes Zerfas under the Restatement. (16) The conclusion emphasizes that courts should apply the Restatement to all negligence actions in an effort to prevent premature adjudication through summary judgment. (17)

II. FACTS AND PROCEDURE

In the early morning hours of December 2, 2011, an unidentified driver hit and killed a deer. (18) The driver left the carcass in the southbound lanes of Interstate 29 between Brookings, South Dakota and Sioux Falls, South Dakota. (19) The driver took no effort to move the carcass, warn other drivers, or notify officials that the deer was obstructing a lane of travel on a busy stretch of highway. (20) While it was still dark that morning, David Zerfas ("David") encountered the deer carcass. (21) He swerved to avoid the carcass, lost control of his vehicle, crossed the median, and collided with oncoming traffic. (22) David was fatally injured in the collision. (23)

Following the accident, David's wife, Stacey Zerfas ("Stacey"), filed a claim with their automobile insurance company, AMCO Insurance Company. (24) The Zerfas' policy stated that AMCO would cover any bodily injury David or Stacey sustained from a collision caused by an uninsured driver. (25) The policy expressly included any vehicle that is a hit-and-run vehicle in the definition of "uninsured motor vehicle." (26) Stacey claimed the accident qualified as damage caused by a hit-and-run driver. (27) She explained to AMCO that the driver created a hazard in the road and took no action to prevent injury to others. (28) Thus, Stacey argued, the accident qualified for coverage under the policy. (29)

AMCO interviewed two witnesses, including the other driver involved in the collision. (30) Neither driver saw David swerve to avoid the deer carcass, but both drivers observed other cars swerve to avoid the obstruction after the accident. (31) AMCO never inspected David's car. (32) Instead, it relied solely on the accident report to reach its conclusions. (33) AMCO's investigations did not produce evidence of how the deer came to be in the southbound lanes of the interstate. (34) AMCO's report assumed that the deer carcass was lying in the middle of the road at the time David lost control of his vehicle. (35) AMCO suggested that its definition of "uninsured vehicle" was implicated, but stated that policy coverage depended on whether the accident was caused by the negligence of the unidentified motorist or David's inability to maintain control of his vehicle. (36)

AMCO denied Stacey's claim for coverage for bodily injury resulting from a collision with an uninsured driver. (37) AMCO asserted that Stacey failed to produce any conclusive evidence that the accident was caused by an unidentified driver rather than David, himself, hitting the deer. (38) Furthermore, AMCO argued that even if there was an unidentified driver, an individual who strikes and kills a deer in South Dakota has no duty to remove the deer, and no duty to warn other drivers of the obstruction. (39)

In October 2012, Stacey brought a breach of contract action in circuit court against AMCO for its refusal to pay uninsured motorist benefits. (40) Stacey asserted that the unidentified driver left the deer carcass in the road and, because of the driver's negligent act, Stacey was entitled to damages. (41) AMCO moved for summary judgment. (42) The circuit court granted the motion and held that there was no basis to support Stacey's assertion that the unidentified driver had a legal duty to David to remove the carcass or warn of its existence. (43) The circuit court held that to place a duty on any driver in this situation would only create extreme danger for that driver charged with the removal of the deer carcass upon a busy roadway. (44)

Following the circuit court's grant of summary judgment to AMCO, Stacey appealed to the South Dakota Supreme Court, arguing the unidentified driver owed her husband a legal duty of care. (45) AMCO argued the unidentified driver did not owe a duty of care to David, precluding coverage. (46)

On appeal Stacey first argued the circuit court erred when it held the unidentified driver did not owe her husband a legal duty to use ordinary care at all times and avoid placing other drivers in danger. (47) Second, she contended that every driver owes a duty to avoid injury to others because of their shared relationship on the road. (48) Thus, Stacey asserted that when the unidentified driver left a deer carcass in the road, it was foreseeable it could cause injury to another person. (49)

Finally, Stacey argued that whether or not the unidentified driver breached his duty of care was a disputed, material fact for the jury to decide. (50) She insisted jurors were more equipped to determine what duty of ordinary care was required. (51) She argued that a reasonable jury could have drawn the conclusion that the hit-and-run driver breached its legal duty of care. (52) Stacey claimed that AMCO's argument that the issue of the case hinged on whether an absolute legal duty existed, created a high burden for plaintiffs to meet to avoid summary judgment. (53) She did not assert that a driver is required to move a deer from the roadway in all instances, but asked whether, in this specific instance, the driver in the case exercised ordinary care to avoid injury to others. (54)

AMCO argued that no evidence existed that an unidentified driver hit the deer. (55) It further asserted that, due to a lack of evidence, a favorable inference could not be reached in support of Stacey. (56) Without definitive proof of the unidentified driver, the policy precluded coverage. (57) AMCO reasoned that because the claim was rooted in the existence of a "phantom" driver, the law required the plaintiff first establish the existence of that driver in order to determine whether he or she committed a negligent act. (58)

Citing the circuit court's rationale, AMCO argued that demanding a duty in this situation created extreme danger for the driver because it required the driver to move the deer carcass from a busy roadway. (59) AMCO relied upon the lack of evidence that the unidentified driver existed, as part of its rationale for denying coverage. (60) Furthermore, AMCO argued that, all drivers fit within a class of persons that do not have a duty to move wild animals they strike from the roadway for reasons of health and safety. (61)

Writing for the majority, Justice Wilbur affirmed the lower court's ruling and held that the unidentified driver owed no common law or statutory duty to David. (62) The court stated the issue was "whether the act of leaving a carcass on the driving lane of the interstate created a foreseeable risk of injury" that imposed upon the defendant a duty of reasonable care to the plaintiff. (63) The court described "duty" as a standard of conduct that requires a defendant to avoid unreasonable risks that may injure the plaintiff, whether the duty arises under common law or statutory law. (64) According to the court, duty depends on a relationship between parties where the law recognizes a standard of reasonable conduct as between each party. (65) The court reasoned that the existence of a duty requires the potential harm to be foreseeable. (66) In other words, the defendant should have or could have anticipated harm if he did not engage in reasonable conduct. (67) Ultimately, the court held that foreseeability, in the context of a duty, is a question of law that is examined at the time the act or omission occurred. (68) The court specified that foreseeability, as it relates to a duty, differs from foreseeability in the context of causation, which is a question of fact examined at the time the plaintiff was harmed. (69)

The court's holding suggested that while the presence of the deer was a threat, other drivers upon the highway had the duty to avoid the deer. (70) While the unidentified driver created a degree of danger, "this does not perforce mean that it was foreseeable that a driver would not be able to avoid striking the carcass." (71) The court stated that adopting Stacey's argument would mean imposing strict liability on drivers who collide with wild animals. (72) Therefore, because a duty in this context did not exist as a matter of law, the court affirmed summary judgment for AMCO. (73)

III. BACKGROUND

A. HISTORICAL DEVELOPMENT OF DUTY

In a negligence action, the plaintiff must prove several elements to recover damages. (74) The plaintiff must prove: (1) the defendant owed a common law or statutory duty to the plaintiff; (2) the defendant breached this duty because of his or her unreasonable conduct; (3) the plaintiff suffered harm that otherwise would not have occurred "but for" the defendant's unreasonable conduct; and (4) the unreasonable conduct was a near enough, or "proximate," cause of the harm to the plaintiff. (75) The first element, duty, developed over time from the reasonable person standard to the groundbreaking opinion of Palsgraf. (76)

1. Development Toward a "Reasonable Person " Standard

Negligence actions developed in the English court system as early as the 14th century, just as social relationships became more complex. (77) This complexity led to new types of customs between individuals. (78) The duty in negligence actions derived from these social customs and community standards. (79) For example, in early English law, a guest at an inn could not recover from an innkeeper for damage to or loss of the guest's luggage. (80) As time progressed, it became socially recognized that an innkeeper had a duty to protect the luggage of his guests. (81) This meant that the guest could recover damages from the innkeeper if his luggage was lost or stolen. (82)

With the dawn of the Industrial Age, when society grew increasingly diverse, the "reasonable person" standard developed. (83) This new standard blossomed because it became difficult to state duty in terms of community standards that everyone could recognize. (84) The reasonable person standard--requiring every person act with reasonable care so not to injure another--became the basic principal that guides the duty analysis today. (85) It is a flexible standard that is applicable to a myriad of complex relationships in modern-day society. (86)

2. The Tale of Ms. Helen Palsgraf

While the duty to act "reasonably" may, on its face, seem straightforward, it has historically been problematic for courts to reconcile whether one party owes a legal duty to another. (87) One central point of controversy is whether duty is relational and personal or universal and act-centered. (88) This debate is best illustrated in the tale of Ms. Helen Palsgraf. (89) The tale of Ms. Palsgraf is well-known for its contrasting visions of duty, as authored by Justice Cardozo, writing for the majority, and Judge Andrews, in his dissent. (90)

Ms. Palsgraf was a passenger on the defendant's railroad. (91) As she awaited the arrival of her train, another train pulled into the station. (92) A man, holding a package covered in newspaper, unsteadily jumped aboard this train. (93) As one guard inside the train car pulled the man forward, another guard on the platform pushed the man inside the train car, causing the man to drop his package. (94) The package, which contained fireworks, exploded as the man fell from the train car. (95) The explosion caused scales on the other side of the platform to loosen and fall. (96) Ms. Palsgraf was injured by one of these loosened scales. (97)

Based on the facts, Justice Cardozo determined that the railroad owed no duty to Ms. Palsgraf. (98) For Justice Cardozo, duty was determined by the closeness of the relationship between the parties and whether that relationship made it sufficiently foreseeable to the defendant that the plaintiff could be injured. (99) To determine whether the harm the plaintiff sustained was within the scope of the defendant's duty to the plaintiff, the court must determine whether the plaintiff's injury could be anticipated. (100) Palsgraf warns that individuals are not called upon to protect against every possible type of injury. (101) To Justice Cardozo, it is nearly impossible to protect against unlikely or improbable harms such as the injury suffered by Ms. Palsgraf. (102)

In his dissent, Judge Andrews argued that the analysis in Palsgraf should have centered on the act itself and whether that act caused harm to the plaintiff. (103) For Judge Andrews, the relationship between the parties and the foreseeability of harm should be determined at the causation element of the negligence analysis. (104) His dissenting opinion suggests that while duty remains within the province of the court, the jury is the primary arbiter of whether the harm was foreseeable in the context of causation. (105) Judge Andrews' analysis does not include the question of foreseeability in duty. (106)

After the Palsgraf decision, the Restatement (First) almost immediately adopted Justice Cardozo's majority view of the case. (107) While for many years the trend in negligence law was in favor of the Palsgraf rule, some cases accepted the dissenting view, particularly those that placed greater emphasis on causation, rather than duty. (108) This dispute culminated with the publication of the Restatement (Third) of Torts. (109)

B. EARLY NEGLIGENCE LAW IN SOUTH DAKOTA

1. A Focus on the (Negligent) Actions of the Plaintiff

Early 20th century negligence cases involving automobile accidents in South Dakota often focused less on the duty to act reasonably and more on the balance between the negligence of the plaintiff and of the defendant. (110) This enabled early courts to determine whether the plaintiff failed to take proper precautions amidst the risk of harm the defendant created. (111) Plaintiffs, in early negligence law, were held to a high standard of diligence. (112)

For example, in Taecker v. Pickus, the defendants placed gravel piles at the crest of a hill along a road that was under construction. (113) The plaintiff, driving with her young son and husband, collided with one of the gravel piles, overturned her car and caused injuries. (114) The court reasoned:
But, in the exercise of due care, she [, the plaintiff,] must at all
times see, or know from having before seen, that the road is clear, or
apparently clear, and safe for travel, a sufficient distance ahead to
make it apparently safe to advance at the speed employed. Where an
accident may be avoided by looking, one is bound in the exercise of
due care to look. (115)


The court held the plaintiff was contributorily negligent due to her failure to drive more cautiously upon a roadway that was being resurfaced. (116)

Another example of the high standard placed upon plaintiffs in early negligence cases is Grosz v. Bone. (117) In Grosz, the plaintiff alleged that the defendants were negligent when they resurfaced a road and placed a pile of gravel too close to a busy roadway without posting any warnings as to the pile's existence. (118) The plaintiff, driving just before dawn, was blinded by the glare of lights from oncoming traffic and ran into the gravel pile. (119) The court concluded that the plaintiff's negligence in failing to pass the gravel pile safely precluded his recovery of any damages. (120)

Similarly, in Bruening v. Miller, the court found that the plaintiff-driver's negligence exceeded any possible wrongdoing by the defendant. (121) The defendants in Bruening were driving a tractor when it broke down in the middle of the highway. (122) As the plaintiff-driver attempted to pass the tractor, he collided with an oncoming car. (123) The court, as in Grosz, held that the plaintiff's negligence--his failure to account for the obstruction in the roadway as he attempted to pass the tractor--outweighed any danger the defendant may have created as his tractor obstructed traffic. (124)

2. The Codification of Negligence Actions

Since 1939, negligence law has been codified broadly: "Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence." (125) Thereafter, the South Dakota Supreme Court limited the statute's application when it stated that "[South Dakota Codified Law section 20-9-1] simply recognizes the right of injured persons to recover from wrongdoers who fail to exercise ordinary care. It does not define the circumstances under which the law imposes a duty on an alleged tort-feasor...." (126)

3. Foreseeability Becomes an Element of Duty

The foreseeability of injury element of duty was not discussed in depth in negligence actions until 1962. (127) In Rikansrud v. City of Canton, the court determined that foreseeability is an element of duty when it held the city was negligent for causing a flood on the plaintiff's property. (128) It reasoned that the flooding could have been a foreseeable consequence from the city's poor maintenance of its sewer systems or the flooding could have been the result of contributory negligence of the plaintiffs. (129) The court concluded that these questions should be addressed by a jury. (130)

The conclusion that foreseeability was a question for the jury transformed in 1974. (131) In Cuppy v. Bunch, the court held that whether a relationship exists which imposes a legal duty between parties was a question for the court. (132) The court did not explicitly address the role of foreseeability in its duty analysis in Cuppy. (133) Nevertheless, from that point on, the duty determination was exclusively a question for the court, even when duty largely depended on the foreseeability of the injury. (134)

C. CONTEMPORARY NEGLIGENCE LAW IN SOUTH DAKOTA

Today, South Dakota case law focuses on the relationship between the parties and the foreseeability of harm as the primary factors in the analysis of duty. (135) The analysis of duty remains a question of law for the court to determine before any factual issues are addressed by the jury. (136) In its seminal "duty" case, Casillas v. Schubauer, (137) the South Dakota Supreme Court established a standard for summary judgment in negligence actions. (138) In Casillas, a bull escaped its corral and wandered onto a nearby highway. (139) Once on the highway, the plaintiff's vehicle hit the bull and caused injury to the vehicle's occupants. (140) The South Dakota Supreme Court reversed the lower court's granting of summary judgment. (141) The court stated that summary judgment is inapposite in negligence actions because it is rare that reasonable individuals could reach but one conclusion in these types of cases. (142)

Today, South Dakota recognizes that definitions of duty respond to the "ever-changing movement of social, political, and economic forces." (143) As a result, the court analyzes duty in a variety of ways which creates varied outcomes that depend upon the court's focus in any given negligence case, including relationship and foreseeability. (144)

1. Duty Based on Relationship

On some occasions, the South Dakota Supreme Court states that whether a duty exists or not depends on the closeness of the relationship between the defendant and the plaintiff. (145) For example, Department of Social Services employees have a duty to take into custody foster children over whom they have been granted authority. (146) Therefore, these social services employees must be aware of any dangerous behavioral propensities foster children have and take reasonable steps to prevent the children from harming others. (147) Likewise, if an individual volunteers to supervise a child, that person creates a relationship and, thus, owes a duty to the child to safeguard him or her against injury--especially if undertaking a hazardous activity. (148) Similarly, premises owners have a duty to use reasonable care to ensure the premises are safe and warn any business invitees of potential hazards, based on the owner-invitee relationship. (149)

2. Duty Based on Foreseeability

If a sufficiently close relationship does not exist, the courts may determine a duty still exists if the defendant's conduct could reasonably lead to harm. (150) The South Dakota Supreme Court has stated that a non-existent relationship between parties is not dispositive of whether or not a duty exists. (151) The court affirmed this position in Thompson v. Summers. (152) In Thompson, the defendant piloted a hot air balloon. (153) The plaintiff, who was also a hot air balloon pilot and was watching from the ground, witnessed the defendant descend in the direction of nearby power lines. (154) In an effort to prevent the defendant's balloon from contacting the wires, the plaintiff grabbed the defendant's balloon basket. (155) While the plaintiff saved the defendant from harm, the plaintiff, himself, was electrocuted. (156) The plaintiff suffered severe burns on over 60% of his body. (157)

The plaintiff in Thompson brought an action against the defendant for his negligent operation of the hot air balloon. (158) On appeal, the defendant argued that a relationship between the plaintiff and defendant did not exist, and, therefore, there was no duty between the parties. (159) The court rejected the defendant's argument and held that foreseeability--rather than relationship--was the prerequisite to duty. (160) The court determined that the circuit court should not have granted summary judgment because sufficient facts existed to sustain a claim of negligence. (161)

For the issue of whether a premises owner owes a duty to protect its business invitees from criminal acts--a duty that premises owners do not typically have--the court determines duty based on the totality of circumstances. (162) In Small v. McKennan Hospital, the plaintiff's wife was abducted from a hospital parking ramp in Sioux Falls, South Dakota and subsequently raped and killed. (163) The hospital argued that the abduction was unforeseeable because nothing like this occurred in the ramp prior to the event. (164) On appeal, the South Dakota Supreme Court reversed summary judgment because certain facts suggested the hospital could have foreseen the event. (165) The court highlighted facts suggesting, based on the totality of the circumstances, the event was foreseeable. (166) These facts included known criminal activity in the area, previous criminal activity in the ramp, reported incidents of nurses being followed to their cars in the ramp, and requests by the chief security officer to improve the security of the ramp--a request that was consistently denied. (167)

Typically a landlord owes no duty to protect tenants from criminal activity because that activity is generally unforeseeable to the landlord. (168) Certain situations, however, may make the criminal activity foreseeable to the landlord. (169) In Smith ex rel. Ross v. Lagow Construction & Developing Co., the South Dakota Supreme Court held that criminal activity is foreseeable if the tenant requests his or her locks changed after the tenant's key is lost and the landlord fails to change the lock. (170) In its holding, the court suggested that the landlord's failure to act made it probable that the tenant could be the victim of a crime; yet, it was necessary for a jury to consider all factual issues to reach this conclusion. (171)

The failure to prevent domestic animals an owner could reasonably anticipate causing injury to others by wandering onto a highway can also violate a general duty of care, although owners of domestic animals generally do not have a duty to restrain their animals. (172) In such circumstances, the owner must consider the character of the road, the kind of traffic present, and other pertinent factors. (173) In Casillas v. Schubauer, the plaintiffs, while driving on South Dakota Highway 83 at approximately 11:00 p.m., struck the defendant's bull, which had wandered onto the highway. (174) The accident totaled the plaintiff's car and caused extensive injuries. (175) The court determined genuine issues of material fact existed in order to determine whether the defendant could have reasonably anticipated the bull would escape its corral and wander onto the highway. (176) The court also reasoned that the bull's prior escape, after it was challenged by another bull in the same enclosure, made it foreseeable that the bull could escape again. (177) Yet, the owner continued to enclose the bull with other animals. (178) Moreover, the defendant never checked on his livestock the afternoon before the accident. (179)

Finally, the South Dakota Supreme Court held employers owe a duty to everyone on the highway to maintain safe company vehicles, despite the distant relationship drivers have to each other. (180) A violation of a duty need not be an affirmative act, but it can be an omission that exposes others--even those distant in relationship--to greater harm. (181) In Harris v. Best Business Products, Inc., a 16-year-old girl named Jennifer Harris ("Jennifer") accompanied her father, Marvin Harris ("Marvin"), on a delivery for his employer in the employer's van. (182) Marvin grew tired during the drive and asked Jennifer to take over driving. (183) While Jennifer was driving, the van's right rear tire blew out, and she lost control of the van. (184) Jennifer was severely injured, and Marvin died as a result of the accident. (185) An examination of the tire after the accident revealed the tread was completely worn smooth in some areas and had no treads greater than 1/16 of an inch. (186)

Marvin's employer argued that Jennifer was not authorized to ride in, and certainly not drive, the van. (187) Therefore, Marvin's employer argued that no relationship existed between Jennifer and the employer that could impose a duty. (188) On appeal, the South Dakota Supreme Court held the employer's failure to equip its van with safe tires violated its duty to all others on the road, including pedestrians, other vehicles, and anyone inside the van whether or not they were trespassers. (189) The court based its holding on the foreseeability of the high risk of harm that was present. (190) The court stated, "[t]here is no reason why [the employer] should owe a duty of reasonable care to its own employee in its van, but not to a person riding with the employee's permission. The duty to exercise reasonable care is as appropriate in one situation as it is in the other." (191)

The court remanded the case so the jury could make a determination. (192) In so holding, the court rejected the employer's reliance on precedent indicating that employers owe no duty to trespassers. (193) Instead, the court chose a view that focused on the "act or omission" that "exposes another to greater harm" rather than the relationship. (194)

3. No-Duty Determinations

The South Dakota Supreme Court makes no-duty determinations when it finds that a relationship does not establish a duty or foreseeability of the injury is too remote. (195) In Iverson v. NPC International, Inc., (196) Williams, a convicted felon, was hired to work at a Pizza Hut in Sioux Falls, South Dakota. (197) He became friends with a fellow employee, Iverson, and remained friends after Iverson was fired. (198) When Iverson visited Williams one day at work, however, the two were involved in an altercation over money. (199) Williams injured Iverson and took cash from his pockets. (200) Iverson sued Pizza Hut under several theories arguing that the employer should have exerted greater control over its employee. (201) The court held that restaurant owners are under no duty to prevent their employees from assaulting third parties on their premises because employers are not called upon to control their employees in this manner. (202) The injury to the third party was also not foreseeable to the employer. (203)

In Millea v. Erickson, a ten-month-old child died while in the care of a babysitter. (204) The babysitter, Jolyn Erickson ("Erickson"), was a high school graduate living with her mother, Paula Myers ("Myers"), and her mother's boyfriend, John Laughlin ("Laughlin"). (205) Erickson babysat the child in the apartment of Myers and Laughlin. (206) Laughlin's son, Kelly Laughlin ("Kelly"), was present in the apartment while Erickson babysat. (207) When the child became upset and tired, Kelly told Erickson to place the child in her car seat so she could nap. (208) Kelly suggested Erickson place the child in a separate room. (209) Erickson buckled the child into her car seat and left her alone in the separate bedroom. (210) While asleep, the child fell forward in her car seat and asphyxiated with no one around to revive her. (211) The plaintiff argued that Kelly bore partial responsibility for the child's death because he told Erickson how to care for the child and, thus, exerted influence over Erickson. (212) The court held Kelly did not owe a duty of care to the child since he had no relationship with the child and did not undertake a gratuitous duty to care for the child. (213)

Analogous to Millea, the majority made a no-duty determination in Andruschenko v. Silchuk. (214) The social-guest plaintiffs, the Andruschenkos, visited the home of the Silchuks. (215) During the visit, the Andruschenkos' three-year-old son was left upstairs unattended. (216) The boy badly burned himself with scalding water in the Silchuk's bathtub. (217) The court affirmed summary judgment as to the Silchuks. (218) In so holding, the court found that the Silchuks owed no duty to the boy because the Silchuks were unaware the water in the bathtub was excessively hot. (219) The Andruschenkos, as parents, were responsible for the supervision of their child. (220) The dissent, however, noted that the boy caused flooding in the Silchuks' bathroom on a prior occasion. (221) Additionally, the boy was known to be an aggressive child and was alone for an extended period of time just before the scalding incident. (222) Therefore, genuine issues of material fact existed that warranted a remand as to the Silchuk's negligence. (223) Dissenting opinions in other South Dakota cases indicate a trend of affirming summary judgment when important factual issues remain regarding the defendant's knowledge or conduct. (224)

D. RESTATEMENT (THIRD) OF TORTS' APPROACH TO DUTY

South Dakota relies upon the Restatements frequently as persuasive guidance in its decision making in negligence actions. (225) The American Law Institute produced three Restatements of Torts, the most recent Restatement (Third) of Torts released in two volumes in 2010 and 2012. (226) The Restatement removed foreseeability from the duty inquiry altogether, and instead created a presumption of duty in all contexts: (227)
a. An actor ordinarily has a duty to exercise reasonable care when the
actor's conduct creates a risk of physical harm;
b. In exceptional cases, when an articulated countervailing principle
or policy warrants denying or limiting liability in a particular class
of cases, a court may decide that the defendant has no duty or that
the ordinary duty of reasonable care requires modification. (228)


Under the Restatement, the question of what duty is owed remains a legal question. (229) The Restatement does not require plaintiffs to prove duty in their prima facie case. (230) Rather, the defendant must show that a public policy exception applies and, thus, no duty exists. (231) No-duty exceptions for public policy reasons include a defendant who lacks control over the mechanism of the injury or a plaintiff who voluntarily participates in an inherently dangerous activity, such as contact sports. (232)

The Restatement illustrates how too often negligence cases are removed from the province of the jury after a court determines that no duty existed. (233) Under the Restatement, a duty is assumed in nearly every case. (234) Courts that include foreseeability in a duty analysis are forced to decide the case based on the facts when juries are normally called upon to consider fact-based questions. (235) Alternatively, the court may try to estimate an average of the foreseeability of risk based on the duty in question. (236) Reliance on these averages, however, ignores the specific circumstances of the present case, a problem the Restatement seeks to remedy. (237)

Foreseeability under the Restatement is a factor the jury considers as part of the other elements of negligence, especially breach. (238) Foreseeability is utilized in the breach analysis to determine whether the defendant's lack of reasonable care could foreseeably lead to harm. (239) The Restatement's approach to causation does not utilize foreseeability, but rather states that causation is determined by a "scope of liability" standard. (240)

Several jurisdictions have adopted this new approach to duty set forth in the Restatement. (241) One notable case that illustrates this approach is Thompson v. Kaczinski. (242) The defendants, who lived in a rural area along a gravel road, disassembled a trampoline and left the pieces unsecured in their yard alongside the road. (243) Several weeks later, a storm passed through during the night, blowing the trampoline pieces onto the gravel road. (244) Early the next day, a driver encountered the trampoline and swerved to avoid it. (245) The driver's vehicle rolled and came to rest in a ditch. (246)

The district court granted summary judgment for the defendants and held that they owed no duty to the plaintiff-driver. (247) The Iowa Supreme Court reversed the lower court's holding. (248) The court adopted the Restatement and held that property owners have a duty to exercise reasonable care to avoid creating obstructions upon the road. (249) It remanded the case for the jury to determine whether the injury the driver suffered was within the range of harm caused by the property owner's failure to secure their trampoline. (250) Such an inquiry precluded summary judgment. (251) In adopting the Restatement, the court noted the overwhelming public interest in "ensuring roadways are safe and clear of dangerous obstructions for travelers." (252)

IV. ANALYSIS

The Restatement's framework of duty should be adopted in South Dakota because negligence cases are inherently fact-intensive and subject to multiple conclusions by reasonable people. (253) The highly contextual nature of negligence cases requires juries, rather than courts, to review the facts, unless the case falls within a public policy exception. (254) When courts utilize foreseeability in the duty analysis, this promotes the misapplication of summary judgment in negligence actions and prevents plaintiffs from the possibility of recovering damages. (255) Zerfas, in several ways, indicates major problems with the current framework for duty in South Dakota, including the misguided and misplaced focus of the court, the problematic precedent on duty, the need to affirm the legislature's codification of duty, and the need to affirm standards of summary judgment. (256)

A. MISGUIDED AND MISPLACED: THE COURT'S FORESEEABILITY FOCUS IN ZERFAS

The Zerfas Court placed inappropriate focus on several points of analysis, leading it to incorrectly affirm summary judgment in favor of AMCO. (257) The court neglected glaring genuine issues of material fact that were unresloved. (258) Fearful of imposing a rule of strict liability, the court refused to accept that cases such as this should be determined according to each unique set of facts. (259) Finally, the court improperly focused on the actions of the plaintiff in its duty analysis, when at this stage actions by the defendant are the sole concern. (260)

1. Genuine Issues of Material Fact Remained Unresolved

Genuine material issues of fact existed in Zerfas that precluded summary judgment, yet the lower court applied foreseeability and granted summary judgment. (261) When the court acknowledged that "some degree of danger" was created, this concession alone warranted a jury's factual determination of whether this degree of danger created liability. (262) Moreover, the broader issue of whether an unidentified driver existed remained unresolved. (263) The parties in Zerfas also disputed how the deer ended up in the middle of the road. (264) AMCO's investigation assumed the existence of a hit-and-run driver, yet AMCO denied the plaintiff's claim, citing the existence of the driver was not absolutely certain. (265) Because foreseeability was discussed before the case proceeded to trial, these unresolved issues in dispute will never be fully addressed. (266)

Courts that have abandoned the foreseeability analysis in duty determinations have recognized that important issues of fact remain that require a remand to determine if the defendant's actions caused the plaintiff's harm. (267) In cases abandoning foreseeability in the duty analysis, full adjudication of a case in which a plaintiff suffered an injury is seen as more important than proceeding with an unworkable common law formulation of duty. (268) While the facts of Zerfas are unique, the plaintiff's injury was definite. (269) The Zerfas Court should have looked to other cases, such as Thompson, as persuasive authority and further explored how drivers should be required to protect other travelers, particularly on a busy stretch of roadway. (270) Instead, the court declined to take this further step. (271) In turn, material issues went unresolved and a jury was never given the opportunity to examine the facts. (272)

2. The Court's Concern with Strict Liability

AMCO approached the issue narrowly, reasoning that no one should be required to move large, possibly still alive or diseased, wild animals from a busy roadway. (273) AMCO argued that the Restatement supported a no-duty determination and these facts fell within a public policy exception. (274) This strict liability argument, which the court found persuasive, skews a proper negligence analysis. (275)

The Zerfas Court adopted AMCO's argument, expressing fear over creating an absolute duty to move road kill from the road. (276) The court reasoned that doing so would result in an unreasonable expectation of all drivers. (277) If the Restatement was applied, the Zerfas Court could have approached the case with a broad focus, giving time for all the facts of the case to be considered. (278) Yet, in its adoption of AMCO's argument, the court misapplied duty to avoid the imposition of strict liability on a class of drivers, and to avoid the imposition of conducting a complete analysis. (279)

Without applying the Restatement, the court bypassed the real issue, which was not whether there was an absolute duty to move road kill from the middle of the road. (280) Rather, the issue was whether the unidentified driver breached his or her duty of care to others based on the unique facts of the case. (281) In the Zerfas case, the unidentified driver could have met his or her duty if he or she informed officials of the carcass or placed warning signals in the road. (282) A jury, in Zerfas and other cases, could determine whether a driver met his or her duty of care to others on the road on a case-by-case basis--not on the standard of an absolute duty. (283) Had the court in Zerfas remanded the case to trial for a jury to consider, the jury would have had a chance to weigh all the evidence. (284)

Alternatively, a court may consider whether it would want to create a public policy exemption for drivers who strike wild animals, but the burden would be on the defendant to prove an exemption applies. (285) The court, if this were the case, would be forced to clearly articulate why this exemption should apply as a bright line category of cases in which the defendant would be free from liability. (286) Thus, Stacey Zerfas could have received an opportunity to establish why AMCO was required to fulfill its contractual obligations if the court applied the Restatement. (287)

3. Mistaken Focus on the Plaintiff in the Court's Duty Analysis

The court in Zerfas mistakenly focused its analysis on the plaintiff's actions, rather than on the defendant's, when analyzing duty. (288) The court noted that other drivers on the interstate successfully avoided the carcass by swerving, suggesting that if other drivers could avoid the obstruction then all should be able to avoid it. (289) By misstating the foreseeability rule in Zerfas, the court reverted to the days of early negligence cases when plaintiffs were easily labeled contributorily negligent and "should have" acted differently--despite obstructions left in the roadway. (290) The Zerfas Court stated that while the unidentified driver created a degree of danger, it focused the rule of the case on the plaintiff's duty to avoid obstructions: "[T]his does not perforce mean that it was foreseeable that a driver would not be able to avoid striking the carcass." (291) The court's holding indicates a regression in negligence law, when the common law should be moving forward to better adapt with current needs for individuals to ensure their actions do not pose an unreasonable risk of harm to others. (292)

The plaintiff's conduct, and other superseding factors that may remove the defendant from liability, are issues that should be reviewed when causation is addressed--issues unaddressed by the Zerfas Court. (293) At the duty stage, the court can ensure the duty of the defendant's obligations to the plaintiff is not overlooked. (294) The Zerfas Court should have applied the Restatement. (295) A Restatement approach would begin with the basic assumption that all persons owe a duty to protect one another when a person undertakes risky behavior. (296) All other considerations are then addressed in a review of the specific facts of the case, including the plaintiff's actions. (297) The duty analysis in South Dakota has never before focused on the necessary actions taken by the plaintiff to avoid a "degree of danger" created by the defendant, but rather on the standard of conduct owed by the defendant to the plaintiff. (298)

B. PROBLEMATIC PRECEDENT

Precedent in South Dakota regarding duty is confusing and contradictory. (299) In some cases, great emphasis is placed on the relationship between the parties; in other cases, great emphasis is placed on foreseeability. (300) On some occasions, the court spends no time analyzing foreseeability of the accident and focuses exclusively on relationship as determinative of duty. (301)

At other times, foreseeability is key. (302) It is difficult to determine exactly how foreseeability in the duty framework even came to be a question of law in South Dakota because of the court's limited analysis in reaching such a conclusion. (303) The court has even gone so far as to hold that foreseeability alone is the primary requisite of duty, rather than a relationship. (304) In addition, the court has determined a duty exists based on foreseeability in some extreme and unique situations, such as a landlord failing to change a tenant's locks after her request. (305) In other cases, the court has not imposed duty in situations where injury seemed reasonably foreseeable. (306) Dissenting opinions criticize the majority of the court for jumping to summary judgment when factual issues remain. (307)

It follows that the outcome of Zerfas largely results from the difficulty courts face when applying this highly abstract concept of "duty" to a unique set of facts. (308) The court must accept that all individuals owe a duty of reasonable care to each other and place a greater emphasis on the facts of each unique case to resolve the inconsistent precedent in duty determinations. (309) This inconsistency is further demonstrated when the court shows it is capable of holding individuals accountable for unreasonably dangerous activities regardless of who is injured. (310)

When a plaintiff suffers an injury, it is undoubtedly important to redress that injury if the defendant's actions are egregiously risky, even if the injured party is possibly a trespasser in the eyes of the defendant. (311) A driver who creates an obstruction in the road when he hits a deer and thereafter fails to take any steps to avoid harm to other drivers is in violation of the general duty of due care. (312) In the words of Judge Andrews in Palsgraf. "[D]ue care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone." (313)

South Dakota has accepted that even in cases where a duty is not normally recognized, it is important to hear the facts of the case to determine if an exception applies. (314) The court has emphasized the need to examine the "totality of the circumstances" to determine foreseeability, thereby emphasizing the role of the jury as the fact finder. (315) Recall that owners of domestic animals are not typically responsible for fencing their animals. (316) Yet, the court has determined that facts may be present that indicate an animal is at real risk of causing harm to others, which would create a duty for the owner to fence his animal. (317) Based on the court's current precedent, an accident involving a live bull is more meritorious than an accident that involves a dead deer. (318) Adoption of the Restatement would promote a complete review of the facts before courts abruptly grant summary judgment. (319)

C. AFFIRMING CODIFIED LAW AND STANDARDS FOR SUMMARY JUDGMENT

Based on a plain reading, the South Dakota Legislature adopted a broad approach to the duty of care to an actor's responsibility for injury or willful act of negligence. (320) This broad approach is akin to Judge Andrews' Palsgraf dissent and the Restatement. (321) The statute reads: "Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill." (322) The South Dakota Supreme Court, in Zerfas, however, stated that foreseeability is a prerequisite for liability. (323) The Zerfas Court rejected the broad standard established by the legislature when it stated:
One's broad duty to exercise ordinary care at all times to avoid
placing another at risk of physical injury "does not define the
circumstances under which the law imposes a duty on an alleged
tort-feasor." It simply recognizes the right of an injured person to
recover for another's negligence. The existence, scope, and range of a
duty, on the other hand, depend upon the foreseeability of the risk of
harm. (324)


The court asserted that a relationship must exist between the parties for the law to impose a legal obligation of responsible conduct upon the defendant. (325) Despite this assertion that a relationship was required, the court in Zerfas rejected the notion that sharing a public highway creates a legal duty that all drivers exercise ordinary care. (326) In prior decisions, the court has used the plain language of South Dakota Codified Law section 20-9-1 as support for the expansive duty employers owe to others. (327) It follows that the court can rely upon the statute once more to support its adoption of a duty formulation that recognizes the importance of redressing injury suffered as the result of the defendant's negligence. (328)

Additionally, South Dakota's stated standard for summary judgment suggests that this mechanism should rarely be used in negligence cases because these cases require deliberation of facts. (329) Facts are most important in the breach and causation stages of the duty analysis. (330) Facts cannot be given the weight they are due if the case is prematurely dismissed at the duty stage. (331) If this is the true standard of the court then cases such as Zerfas--which are unique and fact-intensive--must be heard by a jury. (332) The current formulation of duty does not encourage following this standard. (333) The best way to promote the stated standard of the court and affirm the legislature's plain language it adopted to protect individuals from unreasonable danger is to adopt the Restatement. (334)

V. CONCLUSION

Broadly speaking, Zerfas is just one more in a series of negligence cases that displays inconsistency in the application of the foreseeability approach to duty. The best way to remedy this problem is to abandon foreseeability in the duty analysis altogether. The purpose of the Restatement is to represent the current common law as it stands. The Restatement represents the proper next step in negligence law that recognizes a need for a reformation in the way negligence claims are analyzed and adjudicated. Premature adjudication has occurred within South Dakota negligence law, and Zerfas adds to the list of cases where issues of fact about the scope of the defendant's harmful conduct were never addressed because of the current analytical framework for duty.

Reliance on a foreseeability-driven analysis to determine whether a duty exists only confuses the issues of legal causation. To assert a heavy-handed analysis couched in foreseeability risks premature adjudication of cases before the range of harms created by the defendant's conduct is even considered. This type of analysis converts foreseeability into an abstract question of law. When foreseeability is used abstractly as a question of law, it too often leads to quick determinations without full consideration of the facts. In the case of Zerfas, a jury, therefore, should have considered foreseeability.

If there is an accepted presumption that individuals are liable for all harms generated by their risky conduct, the door is opened to the required factual analysis that is necessary to decide negligence claims fully and fairly. Important factual issues remained in Zerfas that were well-suited for jury deliberation, but were never given a chance to be addressed. Instead, the foreseeability rule was skewed in Zerfas, which is an additional indication that foreseeability in duty causes analytical problems. The analysis in duty should not focus on the plaintiff's ability to foreseeably avoid harm, but on the general duty the defendant owes to everyone when engaging in risky conduct. This does not mean that the plaintiff's actions will never be addressed. Instead, it is properly addressed in the scope of all facts and circumstances surrounding the case.

There is a need for South Dakota case law to evolve and represent how individuals interact with each other. This includes individuals who share a busy and high-speed stretch of roadway. Moreover, there is a need to resolve the inconsistent application of foreseeability in the duty determination. The stated standard of South Dakota courts--to reserve summary judgment for only the most clear-cut cases--must be carried out. At this time the South Dakota courts are failing to adhere to this standard. It is time for the law to change to adapt to current social forces and represent how individuals interact with each other, and the risks that flow from those interactions. After all, a case that involves a dead deer is as meritorious as a case that involves a live bull or a flying trampoline.

BRIGID C. HOFFMAN ([dagger])

Copyright [c] 2017. All rights reserved by Brigid Hoffman and the South Dakota Law Review.

([dagger]) J.D. Candidate, 2018, University of South Dakota School of Law; M.A. in Communication Studies, 2014, University of South Dakota; B.A. in Communication Studies, 2012, University of South Dakota. Thank you to my family for their patience and support, particularly my father who convinced me to attend law school. Thank you to my friends and colleagues for their endless encouragement. Finally, thank you to the editors of South Dakota Law Review, particularly Kimberly McNulty, Anna Limoges, Nicholas Koontz, and Shad Christman for their help during this process. Excelsior!

(1.) Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 100 (N.Y. 1928). Justice Cardozo authored the famous Palsgraf opinion while serving on the New York Court of Appeals. Judith S. Kaye, Benjamin Nathan Cardozo (1870-1938) Court of Appeals 1914-1932 Chief Judge 1927-1932, 6 JUD. NOTICE 3, 6 (2009). In 1932, he was appointed to the United States Supreme Court. Id. at 11.

(2.) Compare Zerfas v. AMCO Ins. Co., 2015 SD 99, [pargraph][pargraph] 10, 12, 873 N.W.2d 65, 69-70 (stating that relationship and foreseeability are the factors of duty), with Palsgraf 162 N.E. at 100 (emphasizing importance of relationship and duty within the negligence analysis).

(3.) Zerfas, 2015 SD 99, [pargraph][pargraph] 10, 12, 873 N.W.2d at 69-70.

(4.) Id.

(5.) Compare Palsgraf, 162 N.Y at 102 (Andrews, J., dissenting) (emphasizing the defendant's actions as the focus of analysis), with Zerfas, 2015 SD 99, [paragraph][paragraph] 10, 12, 873 N.W.2d at 69-70 (stating that relationship and foreseeability are the factors of duty).

(6.) Palsgraf, 162 N.Y at 102 (Andrews, J., dissenting).

(7.) Id. at 103.

(8.) See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7 (AM. LAW INST. 2010) ("An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm.").

(9.) Id. [section] 7 cmts. i-j.

(10.) See infra Part III.C (describing the development of South Dakota common law on duty).

(11.) Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 1, 873 N.W.2d 65, 67.

(12.) See infra Part II (discussing the underlying facts and procedure of Zerfas).

(13.) See infra Part III.A-C (discussing a brief overview of the history of negligence actions, the famous Palsgraf decision and its influence on negligence law, and the development of negligence law in South Dakota).

(14.) See infra Part III.C (discussing the different ways courts analyze duty and the results that follow).

(15.) See infra Part III.D (discussing the Restatement's approach to duty and why several jurisdictions have adopted it).

(16.) See infra Part IV (discussing the issues that the adoption of the Restatement would resolve).

(17.) See Symposium, Flying Trampolines and Falling Bookcases: Understanding the Third Restatement of Torts, 37 WM. MITCHELL L. REV. 1025, 1032-33 (2011) (describing the court's reasoning in Thompson v. Kaczinski when it remanded the case and declaring reasonable jurors could disagree on whether the plaintiff's harm fell within the range of harms produced by the defendant when a lower court granted summary judgment to the defendant based on a no-duty determination).

(18.) Brief for Appellant at 2, Zerfas v. AMCO Ins. Co., 2015 SD 99, 873 N.W.2d 65 (No. 27317) [hereinafter Appellant's Brief].

(19.) Id. at 2-3.

(20.) Id.

(21.) Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 2, 873 N.W.2d 65, 67-68 (stating that the time David encountered the deer was approximately 6:23 A.M.).

(22.) Id.

(23.) Id. [paragraph] 2, 873 N.W.2d at 67. Forty-four-year-old David Zerfas was an air guardsman who worked in Brookings, South Dakota. Appellant's Brief, supra note 18, at 3. He was driving home to Sioux Falls, South Dakota at the time of the accident. Id. He was survived by his wife of 21 years, Stacey, and three children ages 12, 16, and 19. Id.

(24.) Zerfas, 2015 SD 99, [paragraph] 3, 873 N.W.2d at 68.

(25.) Appellant's Brief, supra note 18, at 3.

(26.) Id. at 3-4 (defining "uninsured motor vehicle" in the policy pursuant to South Dakota Codified Law section 58-11-9).

(27.) Zerfas, 2015 SD 99, 13, 873 N.W.2d at 68.

(28.) Id.

(29.) Id.

(30.) Id. [paragraph] 4, 873 N.W.2d at 68.

(31.) Id.

(32.) Id.

(33.) Id.

(34.) Id. [paragraph] 5,873 N.W.2d at 68.

(35.) Id.

(36.) Id.

(37.) Id. [paragraph] 6, 873 N.W.2d at 68.

(38.) Id.

(39.) Id. Additionally, AMCO speculated about David's contributory negligence in failing to maintain control of his vehicle as a bar to recovery. Appellant's Brief, supra note 18, at 6. This was not, however, included as a basis for denying the claim. Id.

(40.) Zerfas, 2015 SD 99, 17, 873 N.W.2d at 68.

(41.) Id. "The policy provides that AMCO will pay compensatory damages an insured is legally entitled to recover from the operator of an uninsured motor vehicle because of bodily injury sustained by an insured motorist and caused by an accident." Appellant's Brief, supra note 18, at 3. Stacey did not argue that the uninsured driver benefit was implicated because the unidentified driver hit the deer. Id. at 4 n.2. She claimed that the unidentified driver became a negligent hit-and-run driver when the motorist left the carcass in the roadway without taking any measures to lessen the risk of injury to other drivers, thus creating a serious hazard upon the road. Id.

(42.) Zerfas, 2015 SD 99, [paragraph] 1, 873 N.W.2d at 68.

(43.) Id.

(44.) Brief of Appellee at 18, Zerfas v. AMCO Ins. Co., 2015 SD 99, 873 N.W.2d 65 (No. 27317) [hereinafter Appellee's Brief].

(45.) See infra Part II.C.1 (discussing Stacey's arguments for a legal duty of care).

(46.) See infra Part II.C.2 (discussing AMCO's arguments against a legal duty of care).

(47.) Appellant's Brief, supra note 18, at 8.

(48.) Id. at 9.

(49.) Id. Stacey emphasized that those "who through their conduct create a risk of physical harm to others, are assigned the legal duty to exercise reasonable care." Id. at 11. Such an example of risky conduct is the affirmative act of driving an automobile. Id. at 10.

(50.) Id. at 15. Stacey also argued that in hit-and-run cases, "there may be more questions than answers about who the identified driver was, exactly what he was doing, and why." Id. at 14. It would therefore be unfair for uninsured motorist claimants to provide concrete facts about an unidentified driver at the outset of the case to survive summary judgment. Id.

(51.) Id. at 14-15.

(52.) Id. at 18.

(53.) Id. at 19. AMCO framed this issue as whether there was an absolute legal duty to remove a deer carcass from the roadway in all accidents similar to the type in Zerfas. Id. Under AMCO's argument, this absolute duty placed the issue solely in the hands of a court to decide the case, rather than a jury. Id.

(54.) Id. at 21.

(55.) Appellee's Brief, supra note 44, at 13.

(56.) Id. at 14.

(57.) Id. at 25. The policy states that "[i]f there is no physical contact with the hit-and-run vehicle the facts of the accident must be proved. We will only accept competent evidence other than the testimony of a person making a claim under this or any similar coverage." Id.

(58.) Id. at 16 (explaining that AMCO sometimes used the term "phantom" driver to label the driver that struck and killed the deer, while Stacey used the term "unidentified"). In her reply brief, Stacey countered this argument and explained that the existence of the driver was a factual dispute to be resolved by the jury. Reply Brief for Appellant at 11-12, Zerfas v. AMCO Ins. Co., 2015 SD 99, 873 N.W.2d 65 (No. 27317) [hereinafter Appellant's Reply Brief]. Stacey supported this counter-argument with the fact that AMCO accepted that the case implicated the "uninsured vehicle" provision earlier in its arguments. Id. at 13-15.

(59.) Appellee's Brief, supra note 44, at 18.

(60.) Id. at 30-31.

(61.) Id. at 31. "An actor ordinarily has a duty to exercise reasonable care when the actor's conduct creates a risk of physical harm." RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7(a) (AM. LAW INST. 2010). "In exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification." Id. [section] 7(b).

(62.) Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 1, 873 N.W.2d 65, 67.

(63.) Id. [paragraph] 15,873 N.W.2d at 70.

(64.) Id. [paragraph] 10, 873 N.W.2d at 69.

(65.) Id.

(66.) Id. [paragraph] 12, 873 N.W.2d at 70.

(67.) See id. (stating the plaintiff can only recover if the defendant could have reasonably foreseen the harm).

(68.) Id. [paragraph] 14, 873 N.W.2d at 70 (citations omitted).

(69.) Id. (citations omitted).

(70.) Id. [paragraph] 15, 873 N.W.2d at 70-71.

(71.) Id. [paragraph] 15, 873 N.W.2d at 70.

(72.) Id. [paragraph] 16, 873 N.W.2d at 71. The court did not want to impose strict liability because, in prior case law, the court held that "[n]o one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen." Id. (quoting Wildeboer v. S.D. Junior Chamber of Com., Inc., 1997 SD 33, [paragraph] 18, 561 N.W.2d 666, 670).

(73.) Id.

(74.) Rory Bahadur, Almost a Century and Three Restatements After Green It's Time to Admit and Remedy the Nonsense of Negligence, 38 N. KY. L. REV. 61, 61 (2011).

(75.) Id.

(76.) See infra Part III.A.1-2 (describing the early development of duty law up until the Palsgraf decision).

(77.) Bahadur, supra note 74, at 64-65.

(78.) Id. at 65.

(79.) Id.

(80.) Id.

(81.) Id.

(82.) Id.

(83.) Id. at 67-68. One theory for this expansion of duty into the reasonable person standard was the danger that the new machines of the Industrial Age posed to individuals. Id. at 67.

(84.) Id. at 68.

(85.) Id.

(86.) Id.

(87.) Tory A. Weigand, Duty, Causation and Palsgraf: Massachusetts and the Restatement (Third) of Torts, 96 MASS. L. REV. 55, 57-58 (2015) (citing W. Jonathan Cardi, The Hidden Legacy of Palsgraf: Modern Duty Law in Microcosm, 91 B.U. L. REV. 1873, 1873-90 (2011)) ("In a recent survey, it was determined that: (a) no state relied upon relation as a central or dispositive factor in duty determinations; (b) most states employ some version of a multi-factored policy approach to duty determinations; (c) very few [courts] have adopted solely act-risk creating (no foreseeability) duty formulation; (d) most courts include foreseeability into duty determinations; and (e) a majority of courts leave duty-foreseeability determinations to the jury.").

(88.) Id. at 57.

(89.) Id.

(90.) Id.

(91.) Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928).

(92.) Id.

(93.) Id.

(94.) Id.

(95.) Id.

(96.) Id.

(97.) Id.

(98.) Id. at 99-100.

(99.) Id. at 100.

(100.) Id.

(101.) Id.

(102.) Id. at 101.

(103.) Id. at 102 (Andrews, J., dissenting). Judge Andrews explained, "Due care is a duty imposed on each one of us to protect society from unnecessary danger, not to protect A, B, or C alone." Id.

(104.) See id. at 103-04 (emphasizing that causation should be analyzed in light of the facts of the case).

(105.) See id. at 105 (suggesting that because of the facts of Palsgraf, the case was for the jury to decide).

(106.) See Weigand, supra note 87, at 57 (stating Judge Andrews' view asserted that negligence was a question of fact for the jury based on causation, while Justice Cardozo's view stated duty was a question of law for the court depending on foreseeability of the injury).

(107.) w. PAGE KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS [section] 43, at 285 (5th ed. 1984).

(108.) Id. at 285-86.

(109.) See infra Part III.D (discussing the Restatement's reformation of duty and the reasons why several jurisdictions have adopted it).

(110.) See Grosz v. Bone, 201 N.W. 871, 872 (S.D. 1924) (balancing the negligence of the plaintiff against the negligence of the defendant); Bruening v. Miller, 230 N.W. 754, 759 (S.D. 1930) (same); Taecker v. Pickus, 235 N.W. 504, 506 (S.D. 1931) (same).

(111.) See, e.g., Grosz, 201 N.W. at 872 (illustrating that the testimony of the plaintiff showed he was aware of the obstructions the defendant created upon the road, showing plaintiff failed to properly account for those obstructions).

(112.) See, e.g., Taecker, 235 N.W. at 505-06 (describing actions plaintiff should have taken to avoid injury).

(113.) Id. at 505.

(114.) Id.

(115.) Id. at 506.

(116.) Id.

(117.) 201 N.W. at 872.

(118.) Id. at 871.

(119.) Id.

(120.) Id. at 871-72.

(121.) Bruening v. Miller, 230 N.W. 754, 759 (S.D. 1930).

(122.) Id. at 756.

(123.) Id.

(124.) Id. at 759.

(125.) S.D.C.L. [section] 20-9-1 (2016).

(126.) Poelstra v. Basin Elec. Power Coop., 1996 SD 36, [paragraph] 13, 545 N.W.2d 823, 826; see also Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 12, 873 N.W.2d 65, 70 (limiting the language of the statute to support its holding that the statute did not create a duty to remove the deer carcass from the road).

(127.) See Rikansrud v. City of Canton, 116 N.W.2d 234, 239-40 (S.D. 1962) (discussing the element of foreseeability as a prerequisite to a person's duty of care in negligence actions).

(128.) Id. at 240-41.

(129.) Id. at 240-42.

(130.) Id. at 242. Foreseeability remained exclusively a jury issue. See, e.g., Nicholas v. Tri-State Fair & Sales Ass'n, 148 N.W.2d 183, 186 (S.D. 1967) (holding the element of foreseeability was best left for the jury's determination).

(131.) See Cuppy v. Bunch, 214 N.W.2d 786, 789 (S.D. 1974) (holding that duty was a question for the court) (citations omitted).

(132.) Id.

(133.) See id. at 788-89 (placing emphasis on relationship between the parties in its analysis).

(134.) Poelstra v. Basin Elec. Power Coop., 1996 SD 36, [paragraph][paragraph] 9, 16, 545 N.W.2d 823, 825-26.

(135.) See, e.g., Millea v. Erickson, 2014 SD 34, [paragraph] 12, 849 N.W.2d 272, 276 (citations omitted) (stating a legally recognized relationship must exist between the parties that could impose a standard of conduct on the defendant towards the plaintiff); Johnson v. Hayman & Assocs., Inc., 2015 SD 63, [paragraph] 13, 867 N.W.2d 698, 702 (citations omitted) (stating a lack of a relationship does not necessarily lead to a no-duty determination if foreseeability of harm is sufficient).

(136.) See, e.g., First Am. Bank & Trust, N.A. v. Farmers State Bank of Canton, 2008 SD 83, [paragraph] 16, 756 N.W.2d 19, 26 (stating foreseeability in the duty context is always a question of law).

(137.) 2006 SD 42, 714 N.W.2d 84.

(138.) Id. [paragraph] 13, 714 N.W.2d at 88.

(139.) Id. [paragraph] 3,714 N.W.2d at 86-87.

(140.) Id. [paragraph] 3,714 N.W.2d at 87.

(141.) Id. [paragraph] 1,714 N.W.2d at 86.

(142.) See id. [paragraph] 13, 714 N.W.2d at 88 (citing Satterlee v. Johnson, 526 N.W.2d 256, 257-58 (S.D. 1995)); Zeeb v. Handel, 401 N.W.2d 536, 537 (S.D. 1987); Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139, 140 (S.D. 1985) (discussing how summary judgment is not the best remedy in negligence actions because more than one conclusion may follow from a reasonable person standard).

(143.) Fisher v. Kahler, 2002 SD 30, [paragraph] 6, 641 N.W.2d 122, 125.

(144.) See infra Part III.C. 1-3 (describing the outcome of cases when the focus of analysis is foreseeability, relationship, or both).

(145.) See, e.g., Erickson v. Lavielle, 368 N.W.2d 624, 627 (S.D. 1985) (illustrating that while individuals do not generally owe one another a duty to prevent harm from others, certain relationships may impose a duty of care, such as when one voluntarily assumes custody of another).

(146.) E.P. v.Riley, 1999 SD 163, [paragraph] 28, 604 N.W.2d 7, 15.

(147.) Id. [paragraph] 29, 604 N.W.2d at 15.

(148.) See Lavielle, 358 N.W.2d at 627 (holding that individuals unrelated to children undertook a duty of care to supervise them on a pontoon boat while the children's parents remained on the shore).

(149.) See Janis v. Nash Finch Co., 2010 SD 27, [paragraph] 22, 780 N.W.2d 497, 504 (holding that store owed duty of care to patron who slipped at its entrance).

(150.) See Small v. McKennan Hosp., 403 N.W.2d 410, 412-13 (S.D. 1987) (holding totality of the circumstances determines the foreseeability of harm, although landowners generally do not owe a duty to protect their invitees from criminal acts). Also note that an actor does not necessarily need to realize that his conduct is leading to harm, but that
the actor should realize that the circumstances surrounding him are
such as to make his conduct likely to cause harm to another. It is
enough that he should realize that his perception of the surrounding
circumstances is so imperfect that the safety or danger of his act
depends upon circumstances which at the moment he neither does nor can
perceive.


Ward v. LaCreek Elec. Ass'n, 163 N.W.2d 344, 346 (SD 1968) (quoting RESTATEMENT (SECOND) OF TORTS [section] 289 cmt. j (AM. LAW INST. 1965)).

(151.) Johnson v. Hayman & Assocs., Inc., 2015 SD 63, [paragraph] 13, 867 N.W.2d 698, 702 (citing Mid-Western Elec, Inc. v. DeWild Grant Reckert & Assocs., Co., 500 N.W.2d 250, 254 (S.D. 1993))

(152.) Thompson v. Summers, 1997 SD 103, [paragraph] 13, 567 N.W.2d 387, 392.

(153.) Id. [paragraph] 2,567 N.W.2d at 389.

(154.) Id.

(155.) Id.

(156.) Id.

(157.) Id.

(158.) Id. [paragraph] 3, 567 N.W.2d at 389 (arguing that the defendant's negligent descent of his balloon caused the plaintiff's injuries).

(159.) Id. [paragraph] 13, 567 N.W.2d at 392.

(160.) Id.

(161.) Id. [paragraph] 26, 567 N.W.2d at 396.

(162.) Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D. 1987).

(163.) Id. at 411.

(164.) See id. at 412 (stating that the hospital relied upon the prior similar acts rule to determine foreseeability).

(165.) Id. at 411-12,415.

(166.) Id. at 411-12.

(167.) Id. at 411-12.

(168.) Walther v. KPKA Meadowlands Ltd. P'ship, 1998 SD 78, [paragraph] 52, 581 N.W.2d 527, 537.

(169.) See Smith ex rel. Ross v. Lagow Constr. & Developing Co., 2002 SD 37, [paragraph] 21, 642 N.W.2d 187, 193.
A fact finder must decide whether Ross requested that her lock be
changed. If she did not, then that would end the matter, because she
was not obliged to change her lock, and defendants had no affirmative
duty to protect her. If she did request a lock change, then the court
must decide whether, based on all the circumstances, there was
sufficient evidence to make it reasonably foreseeable that defendants'
failure to act on her request put her at probable high risk of harm
from an imminent criminal act.


Id.

(170.) Id.

(171.) Id.

(172.) Casillas v. Schubauer, 2006 SD 42, [paragraph][paragraph] 15-17, 714 N.W.2d 84, 88-89.

(173.) Id. [paragraph] 16, 714 N.W.2d at 89 (quoting Atkins v. Stratmeyer, 1999 SD 131, [paragraph] 23, 600 N.W.2d 891, 898).

(174.) Id. [paragraph][paragraph] 2-3, 714 N.W.2d at 86-87.

(175.) Id. [paragraph] 3, 714 N.W.2d at 87.

(176.) Id. [paragraph] 22,714 N.W.2d at 90.

(177.) Id.

(178.) Id. [paragraph] 21,714 N.W.2d at 90.

(179.) Id.

(180.) Harris v. Best Bus. Prods., Inc., 2002 SD 115, [paragraph] 19, 651 N.W.2d 875, 880.

(181.) Id. (quoting Smith ex rel. Ross v. Lagow Constr. & Developing Co., 2002 SD 37, [paragraph] 16, 642 N.W.2d 187, 191).

(182.) Harris, 2002 SD 115, [paragraph] 2,651 N.W.2d at 877.

(183.) Id. [paragraph] 3, 651 N.W.2d at 877.

(184.) Id.

(185.) Id.

(186.) Id. [paragraph] 4, 651 N.W.2d at 877. The court explained that this low tread was in violation of South Dakota Codified Law section 32-19-3, which requires drivers to maintain a safe tread depth on their tires. Id. [paragraph] 10, 651 N.W.2d at 878. Expert testimony also indicated that even an experienced driver travelling at a much slower speed would still not have time to react in this situation. Id. [paragraph] 5 n.l, 651 N.W. 2d at 877-78 n.l.

(187.) Id. [paragraph] 6,651 N.W.2d at 878.

(188.) Id.

(189.) Id. [paragraph] 19, 651 N.W.2d at 880.

(190.) Id.

(191.) Id. [paragraph] 17, 651 N.W.2d at 879 (utilizing South Dakota Codified Law section 20-9-1 as support for its broad framework of duty in this case). Analogous to the duty an employer owes to others, lumberyard employees who fail to safely load a patron's trailer may be held liable to anyone injured in an automobile accident that results from an overloaded trailer. See Kuehl v. Horner (J.W.) Lumber Co., 2004 SD 48, [paragraph][paragraph] 2-7, 16, 678 N.W.2d 809, 811, 813 (holding that genuine issues of material fact remained as to defendant's safe loading of a trailer). This is the conclusion even when the injured third party may be distant in relation from the lumberyard employee. See id. [paragraph] 16, 678 N.W.2d at 813 (stating that defendant's possible failure to exercise reasonable care may have posed a risk to the general public).

(192.) Harris. 2002 SD 115, [paragraph] 20, 651 N.W.2d at 880.

(193.) Id. [paragraph][paragraph] 17-18, 651 N.W.2d at 879 (citing Antonen v. Swanson, 48 N.W.2d 161, 167 (S.D. 1951)). The Harris Court clarified that respondeat superior cases such as Antonen did not hold in this situation. Id. [paragraph] 18, 651 N.W.2d at 879. In Antonen, the employee was at fault causing injury to his passenger, while here the employer's negligence caused the injury. Id. The court has also placed emphasis on foreseeability as a fact for the jury on other occasions. See Rowland v. Log Cabin, Inc., 2003 SD 20, [paragraph][paragraph] 13-14, 658 N.W.2d 76, 79-80 (holding that "[w]hether a reasonable person would have realized that a large, unknown dog roaming free in a small bar with drunken patrons involved an unreasonable risk of harm is a question for a jury").

(194.) Harris, 2002 SD 115, [paragraph] 19, 651 N.W.2d at 880 (quoting Smith ex rel. Ross v. Lagow Constr. & Developing Co., 2002 SD 37, [paragraph] 16, 642 N.W.2d 187, 191). Such an act or omission could even be accidentally leaving a door unlocked, allowing a relative to access and damage one's property. State Auto Ins. Cos. v. B.N.C., 2005 SD 89, [paragraph][paragraph] 2, 25, 702 N.W.2d 379, 381, 389-90 (holding that failure to re-secure a home could foreseeably result in damage to property). The court has reached this conclusion because "wrongful activity can be foreseeable upon common experience." Id. [paragraph] 25, 702 N.W.2d at 388.

(195.) See. e.g., Erickson v. Lavielle, 368 N.W.2d 624, 627 (S.D. 1985) (illustrating that while individuals do not generally owe one another a duty to prevent harm from others, certain relationships may impose a duty of care, such as when one voluntarily assumes custody of another); Peterson v. Spink Elec. Coop., Inc., 1998 SD 60, [paragraph] 19, 578 N.W.2d 589, 593 (stating that a person is not liable for an accident that the person could not reasonably anticipate).

(196.) 2011 SD 40, 801 N.W.2d 275.

(197.) Id. [paragraph] 2, 801 N.W.2d at 277-78.

(198.) Id.

(199.) Id. [paragraph] 3-4, 801 N.W.2d at 278.

(200.) Id. [paragraph] 4, 801 N.W.2d at 278.

(201.) Id. [paragraph] 6,801 N.W.2d at 278.

(202.) Id. [paragraph] 28, 801 N.W.2d at 284.

(203.) Id. [paragraph] 21, 801 N.W.2d at 282 (stating that the employee's status as a parolee convicted of a violent crime did not make this incident foreseeable to the employer).

(204.) Millea v. Erickson, 2014 SD 34, [paragraph][paragraph] 3, 7, 849 N.W.2d. 272, 274, 275.

(205.) Id. [paragraph]2, 849 N.W.2d at 274.

(206.) Id. [paragraph] 3,849 N.W.2d at 274.

(207.) Id.

(208.) Id. [paragraph][paragraph] 3-4, 849 N.W.2d at 274.

(209.) Id. [paragraph] 5, 849 N.W.2d at 274.

(210.) Id.

(211.) Id. [paragraph] 7, 849 N.W.2d at 275.

(212.) Id. [paragraph] 10, 849 N.W.2d at 275.

(213.) Id. [paragraph][paragraph] 16-20, 849 N.W.2d at 277-79.

(214.) Andruschenko v. Silchuk, 2008 SD 8, [paragraph] 28, 744 N.W.2d 850, 859.

(215.) Id. [paragraph] 2, 744 N.W.2d at 853.

(216.) Id.

(217.) Id.

(218.) Id. [paragraph] 28, 744 N.W.2d at 859.

(219.) Id. [paragraph] 23, 744 N.W.2d at 858.

(220.) Id. [paragraph] 25, 744 N.W.2d at 859.

(221.) Id. [paragraph] 33, 744 N.W.2d at 859 (Sabers, J., dissenting).

(222.) Id.

(223.) Id. [paragraph] 35, 744 N.W.2d at 860.

(224.) See. e.g., Wildeboer v. South Dakota Junior Chamber of Coram., 1997 SD 33, [paragraph][paragraph] 38-39, 561 N.W.2d 666, 672 (Sabers, J., dissenting) (arguing that the foreseeable result of combining motorcycles and stops at multiple bars in southeast South Dakota at a charity event necessitated a further factual inquiry when a collision between a motorcyclist and a vehicle took place); Tipton v. Town of Tabor, 1997 SD 96, [paragraph] 51, 567 N.W.2d 351, 369 (Sabers, J., dissenting) (arguing that the knowledge the town of Tabor had regarding the danger posed by wolf-dog hybrids privately owned, but licensed by the town was an issue to be addressed by a jury when one of the animals injured a child); Gleason v. Peters, 1997 SD 102, [paragraph] 29, 568 N.W.2d 482 487 (Sabers, J., dissenting) (arguing that in a case in which a plaintiff was beat up at a party in which underage drinking was taking place, the knowledge the police had regarding the party's existence and their failure to come to the plaintiff's aid needed to be addressed by a jury).

(225.) Chem-Age Indus., Inc. v. Glover, 2002 SD 122, [paragraph] 33, 652 N.W.2d 756, 770.

(226.) Weigand, supra note 87, at 56-57.

(227.) RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7 (AM. LAW INST. 2010). American Law Institute (ALI) was founded in 1923, and its mission is to clarify and simplify the law to better adapt to social needs, secure better administration of justice, and to encourage scholarly and scientific work. Weigand, supra note 87, at 56. The ALI publishes many Restatements of the Law in various practice areas. Id. These are clarifications of current common law. Id.

(228.) RESTATEMENT (THIRD) OF TORTS; LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7. This approach to duty may also be compared to Judge Learned Hand's negligence formula: liability is created when the burden of undertaking precautions is outweighed by the probability and gravity of harm. See United States v. Caroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947) (holding that relief from the defendant's negligence should be determined by the following equation: "if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B less than PL").

(229.) Weigand, supra note 87, at 59. Relationships between parties should not be determinative of duty, except with certain special relationships that give rise to a duty to act or control. Larry S. Stewart, Clarifications on the Duty to Exercise Care, 37 WM. MITCHELL L. REV. 1492, 1502-03 (2011).

(230.) Weigand, supra note 87, at 59.

(231.) Id. No-duty determinations mean that no liability should be imposed in certain categories of cases involving specific classes of persons, a court should be clear in articulating the policy reasons that justify their decisions, thereby increasing the transparency of their decision making. Tyler Brewer, The Restatement (Third) of Torts: Combating Sexual Assaults on College Campuses by Recognizing the College-Student Relationship, 44 J. L. & EDUC. 345, 379 (2015).

(232.) Louis S. Sloven, Who Could Have Seen This Coming? The Impact of Delegating Foreseeability Analysis to the Finder of Fact in Iowa Negligence Actions, 63 DRAKE L. REV. 667, 692 (2015). An example of a defendant who lacks control over a mechanism is found in Van Fossen v. MidAmerican Energy Co., 11 N.W.2d 689, 696 (Iowa 2009). In this case, MidAmerican contracted construction services out to Ebasco Services. Id. at 692. An employee of Ebasco was exposed to asbestos during the construction. Id. His wife laundered his contaminated clothes, and later developed cancer from exposure to his clothing. Id. The court held that MidAmerican owed to duty to Ebasco's employee's wife because MidAmerican had relinquished control of the job site to Ebasco. Id. at 696. The Iowa Supreme Court has also held that a player injured during a slow-pitch softball game could not recover for an injury sustained by a flying aluminum bat because the player accepted the risk of injury by playing. Feld v. Borkowski, 790 N.W.2d 72, 76-77 (Iowa 2010). The Restatement itself outlines specific contexts in which the defendant's duty should be limited:
(1) where a duty of care conflicts with social norms such as when
courts have held that "commercial establishments that serve alcohol
have a duty to use reasonable care [sic] to avoid injury to others who
might be injured by an intoxicated customer, but that social hosts do
not have a similar duty to those who might be injured by their
guests;" (2) where a duty conflicts with another domain of law, such
as when courts have relied upon the First Amendment concerns to limit
liability of media publishers where plaintiffs allege physical harm
caused by the content of a publication; (3) where a duty should be
limited by a relational limitation, such as when the court may hold a
landowner liable for harm to a guest but not a trespasser; (4) where a
category of negligence claims would be difficult to adjudicate, such
as where the [sic] "the plaintiff asserts that it is negligent to make
motor vehicles at all;" and (5) where deference to another branch of
government may be appropriate, such as courts limiting the duty owed
by the government in deciding how best to allocate police protection.


Brenna Gaytan, The Palsgraf "Duty " Debate Resolved: Rodriguez v. Del Sol Moves to A Foreseeability Free Duty Analysis, 45 N.M. L. REV. 753, 772-73 (2015) (citing RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7 cmts. c-g. (AM. LAW INST. 2010); DAN B. DOBBS, PAUL T. HAYDEN & ELLEN M. BUBLICK, THE LAW OF TORTS [section] 255 (2014)).

(233.) Weigand, supra note 87, at 60; see also RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j (citing numerous cases that deal with the confusion that results when the language of duty is confused with the negligence standard).

(234.) RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, cmt. a.

(235.) Brewer, supra note 231, at 351 (quoting RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j).

(236.) Id. (quoting RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j).

(237.) Id. (quoting RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j).

(238.) Weigand, supra note 87, at 61-62.

(239.) Id. at 61 (quoting RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 3).

(240.) Id. at 62. "An actor's liability is limited to those harms that result from the risks that made the actor's conduct tortious." RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 29.

(241.) See. e.g., A.W. v. Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d 907, 911, 917 (Neb. 2010) (abrogating cases that held that foreseeability is a determination in the duty analysis in a case that involved a student and the school district; the student was sexually assaulted by a trespasser during the school day, and the court held that whether or not the school district breached its duty of care to protect its students was a question for the jury); Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, [paragraph][paragraph] 2, 19, 326 P.3d 465 (abandoning the foreseeability analysis of duty in a case in which plaintiffs brought suit against a shopping center when a runaway vehicle crashed into the building and caused both death and injury; the court remanded the case for a determination of whether the owners of the shopping center breached their standard of care to take reasonable precautions against this type of harm); Gipson v. Kasey, 150 P.3d 228, 231 (Ariz. 2007) (holding that foreseeability is not a factor in the duty analysis and a close relationship between the parties is not essential while not explicitly adopting the Restatement); Tesar v. Anderson, 2010 WI App 116, [paragraph] 8, 329 Wis. 2d 240, 789 N.W.2d 351 (holding that an individual has "a duty to the world at large to use ordinary care in operating her motor vehicle" and remanding the case involving a motor vehicle accident that killed an unborn child for a determination of whether the duty of care to the unborn child was breached).

(242.) Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009) (adopting the Restatement in the case); see generally Flying Trampolines, supra note 17 (explaining how the Iowa Supreme Court reached its holding in Thompson, as described by Justice Daryl Hect, the author of the opinion).

(243.) Thompson, 774 N.W.2d at 831.

(244.) Id.

(245.) Id. at 831-32.

(246.) Id. at 832.

(247.) Id.

(248.) Id. at 836.

(249.) Id. at 835.

(250.) Id. at 840.

(251.) Id. The Eighth Circuit has also had occasion to recognize the need for full adjudication of the facts, but through strong emphasis on the causation element of duty. Heatherly v. Alexander, 421 F.3d 638, 644 (8th Cir. 2005) ("[w]e believe that there was sufficient evidence to create a jury question regarding causation. Given the evidence in the record, we cannot say that it would be unreasonable for a jury to determine that it was foreseeable that the parking of the MST truck on the shoulder of the exit ramp could result in a collision and injuries of the type suffered by the Heatherlys.").

(252.) See Thompson, 774 N.W.2d at 835 (suggesting that juries are the proper arbiters of cases in which facts could be subject to multiple interpretations). The court also noted that the public policy exception should not apply to property owners because of the overwhelming need to exercise reasonable care to avoid obstructions from flying onto the roadway. Id.

(253.) See Casillas v. Schubauer, 2006 SD 42, [paragraph] 13, 714 N.W.2d 84, 88 (stating it is rare in negligence cases that reasonable people can only draw one conclusion).

(254.) Weigand, supra note 87, at 60.

(255.) See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j (AM. LAW INST. 2010) ("[c]ourts sometimes rely on the unforeseeability of risk as a ground for concluding that the defendant has no duty.").

(256.) See infra Part IV.A-C (discussing issues that the adoption of the Restatement would resolve in South Dakota).

(257.) See infra Part IV.A-C (discussing issues that the adoption of the Restatement would resolve in South Dakota).

(258.) See infra Part IV.A.1 (arguing that genuine issues of material fact remained).

(259.) See infra Part IV.A.2 (arguing that the court's concern with strict liability was inappropriate in this case).

(260.) See infra Part IV.A.3 (arguing that the court inappropriately focused on the plaintiffs actions).

(261.) Appellant's Reply Brief, supra note 58, at 12.

(262.) Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 15, 873 N.W.2d 65, 70; see also Nicholas v. TriState Fair & Sales Ass'n, 148 N.W.2d 183, 186 (S.D. 1967) (stating that a jury would be warranted to find "the range of defendant's apprehension that a risk of injury to plaintiff existed and could have been avoided by the exercise of reasonable care"); Rowland v. Log Cabin, Inc., 2003 SD 20, [paragraph] 14, 658 N.W.2d 76, 80 (holding that whether or not "a reasonable person would have realized that a large, unknown dog roaming free in a small bar with drunken patrons involved an unreasonable risk of harm is a question for a jury").

(263.) Appellant's Reply Brief, supra note 58, at 12.

(264.) Id. at 13-14.

(265.) Id. at 13-14.

(266.) Zerfas, 2015 SD 99, [paragraph] 20, 873 N.W.2d at 72 ("There being no duty, we need not address AMCO's alternative argument that Stacey failed to present competent evidence of the accident."). Yet, the Zerfas Court assumed that the driver existed in order to determine a possible duty. Id. [paragraph] 9, 873 N.W.2d at 69.

(267.) See, e.g., Thompson v. Kaczinski, 774 N.W.2d 829, 839-40 (Iowa 2009) (holding that a reasonable fact-finder could find that the defendants created a zone of risk in their placement of the trampoline parts); A.W. v. Lancaster Cty. Sch. Dist. 0001, 784 N.W.2d 907, 911, 918 (Neb. 2010) (abrogating cases that held that foreseeability is a determination in the duty analysis in a case that involved a student and the school district; the student was sexually assaulted by a trespasser during the school day, and the court held that whether or not the school district breached its duty of care to protect its students was a question for the jury); Rodriguez v. Del Sol Shopping Ctr. Assocs., 2014-NMSC-014, [paragraph][paragraph] 2, 19, 326 P.3d 465 (abandoning the foreseeability analysis of duty in a case in which plaintiffs brought suit against a shopping center when a runaway vehicle crashed into the building and caused both death and injury; the court remanded the case for a determination of whether the owners of the shopping center breached their standard of care to take reasonable precautions against this type of harm); Tesar v. Anderson, 2010 WI App 116, [paragraph] 8, 329 Wis.2d 240, 789 N.W.2d 351 (holding that an individual has "a duty to the world at large to use ordinary care in operating her motor vehicle" and remanding the case involving a motor vehicle accident that killed an unborn child for a determination of whether the duty of care to the unborn child was breached).

(268.) See, e.g., Thompson, 774 N.W.2d at 835 (finding "the drafters' clarification of the duty analysis in the Restatement (Third) compelling").

(269.) See Zerfas, 2015 SD 99, [paragraph] 2, 873 N.W.2d at 67 (describing the facts of the accident and the fatal injury to David Zerfas).

(270.) See Kaczinski, 744 N.W.2d at 835 (describing the public's interest in keeping roadways safe and clear).

(271.) See Zerfas, 2015 SD 99, [paragraph] 20, 873 N.W.2d at 72 (affirming the lower court's grant of summary judgment).

(272.) See id. (affirming the circuit court's granting of summary judgment).

(273.) Id. [paragraph] 6, 873 N.W.2d at 68.

(274.) Appellee's Brief, supra note 44, at 31.

(275.) See Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71 (refusing to accept Stacey's view out of concern for imposing strict liability upon drivers who strike wild animals); Appellant's Reply Brief, supra note 58, at 8 (arguing that the focus of the case should not be an absolute duty, but whether duty was breached in this context).

(276.) Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71; Appellee's Brief, supra note 44, at 31.

(277.) Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71.

(278.) See Weigand, supra note 87, at 60 (describing how utilizing foreseeability in the duty analysis "too often take[s] cases away from a jury" and the Restatement attempts to fix that problem).

(279.) See Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71 (seeking to avoid creating strict liability when the harm was not foreseeable); Appellee's Brief, supra note 44, at 31 (arguing that a public policy exception should apply because of the danger posed to drivers who may be forced to move wild animals from the road).

(280.) See Thompson v. Kaczinski, 774 N.W.2d 829, 835-36 (Iowa 2009) (holding that property owners have a general duty of care to others; it was an issue of material fact whether the owners in this case failed in that duty when their trampoline blew into the road); Appellant's Reply Brief, supra note 58, at 8 (arguing that AMCO's framing of the legal duties was overly narrow).

(281.) See Appellant's Reply Brief, supra note 58, at 8 (arguing that AMCO's framing of the legal duties was overly narrow).

(282.) Appellant's Brief, supra note 18, at 19.

(283.) See id. at 15 (arguing that whether the unidentified driver breached his duty of care was a factual issue for the jury).

(284.) See id, at 14-15 (suggesting that reasonable minds could differ on the issue which means that the question was well suited for jury deliberation).

(285.) See Weigand, supra note 87, at 59 (stating that duty is assumed in nearly every case, unless a defendant can show that an exemption applies based on a public policy exemption).

(286.) Brewer, supra note 231, at 379.

(287.) See Appellant's Brief, supra note 18, at 14-15 (suggesting that reasonable minds could differ on the issue which means that the question was well suited for jury deliberation).

(288.) See Zerfas, 2015 SD 99. [paragraph] 15, 873 N.W.2d at 70-71 (stating the rule in terms of foreseeable precautions a plaintiff could have taken to prevent harm).

(289.) Id. A witness saw other drivers "maneuver to avoid" the deer carcass following the accident. Id. [paragraph]4, 873 N.W.2d at 68.

(290.) See Zerfas, 2015 SD 99. [paragraph] 15, 873 N.W.2d at 70-71 (stating that despite the "degree of danger" created by the deer, it did "not perforce mean that it was foreseeable that a driver would not be able to avoid striking the carcass"); see also Grosz v. Bone, 201 N.W. 871, 871-72 (S.D. 1924) (balancing the harms of the plaintiff and defendant); Bruening v. Miller, 230 N.W. 754, 759 (S.D. 1930) (same); Taecker v. Pickus, 235 N.W. 504, 506 (S.D. 1931) (same). Not all courts so readily accept this view. See, e.g., Istre v. Fid. Fire & Cas. Ins. Co., 628 So. 2d 1229, 1232 (La. Ct. App. 1993) (suggesting that even though people may argue that it is possible to avoid harm, it does not mean that all people are able to because "the fact that most drivers discovered the light was out in time to adapt and avoid accidents was no assurance that all would").

(291.) Zerfas, 2015 SD 99. [paragraph] 15, 873 N.W.2d at 70.

(292.) See Weigand, supra note 87, at 56 (describing the Restatement's purpose to clarify common law and adapt to social needs).

(293.) See id. at 61-62 (emphasizing that duty is assumed in almost every case and that the specific facts are analyzed in the breach and causation elements of negligence); Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71 (holding that the unidentified driver did not owe a duty of care to Zerfas and failing to consider breach and causation).

(294.) See Sloven, supra note 232, at 680-81 (stating that superseding causes of harm that may remove the defendant from liability are analyzed in later elements of the negligence analysis).

(295.) See Zerfas, 2015 SD 99, [paragraph] 16, 873 N.W.2d at 71 (affirming summary judgment without fully considering the defendant's obligations to the plaintiff).

(296.) RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7 (AM. LAW INST. 2010).

(297.) See id. [section][section] 3, 6 (describing the basic negligence doctrine and how liability for negligence is determined).

(298.) See Zerfas, 2015 SD 99. U 15, 873 N.W.2d at 70 (focusing on the plaintiff's actions in the duty analysis); Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D. 1985) (citations omitted) (stating that "[a] duty on the part of the defendant to protect the plaintiff from injury, a failure to perform that duty, and an injury to the plaintiff resulting from such failure are the elements of actionable negligence").

(299.) Compare Millea v. Erickson, 2014 SD 34, [paragraph] 16-20, 849 N.W.2d 272, 277-79 (focusing solely on relationship and gratuitous duty in its analysis), with Rickansrud v. City of Canton, 116 N.W.2d 234, 239 (S.D. 1962) (holding that foreseeability is an element of duty), Cuppy v. Bunch, 214 N.W.2d 786, 789 (S.D. 1974) (holding that duty is a legal question for the court), and Thompson v. Summers, 1997 SD 103, [paragraph] 13, 567 N.W.2d 387, 392 (holding that foreseeability alone is a prerequisite to duty).

(300.) See supra Part III.C.1-2 (discussing situations in which relationship or foreseeability is a key factor of duty).

(301.) Millea, 2014 SD 34, [paragraph] 16-20, 849 N.W.2d at 277-79.

(302.) See supra Part III.C.2 (discussing cases in which foreseeability is the key factor of duty).

(303.) See Rickansrud, 116 N.W.2d at 239 (holding that foreseeability is an element of duty); Cuppy, 214 N.W.2d at 789 (holding that duty is a question for the court but not explicitly stating that foreseeability is a factor of duty).

(304.) Thompson, 1997 SD 103, [paragraph] 13, 567 N.W.2d at 392.

(305.) Smith ex rel. Ross v. Lagow Const. & Developing Co., 2002 SD 37, [paragraph] 21, 642 N.W.2d 187, 193.

(306.) See, e.g., Wildeboer v. South Dakota Junior Chamber of Com., Inc., 1997 SD 33, [paragraph][paragraph] 38-39, 561 N.W.2d 666, 672-73 (Sabers, J., dissenting) (arguing that an accident was foreseeable in an event that combined motorcycles and driving long distances between bars).

(307.) See. e.g., Andruschenko v. Silchuck, 2008 SD 8, [paragraph] 36, 744 N.W.2d 850, 860 (Sabers, J., dissenting) (stating that under Casillas, summary judgment was improperly granted).

(308.) See Flying Trampolines, supra note 17, at 1033 (stating that adoption of the Restatement (Third) makes a duty analysis "easier for courts, attorneys, and jurors").

(309.) Id. at 1029 (stating that a duty is not found in only the most exceptional cases).

(310.) See Harris v. Best Bus. Prods., Inc., 2002 SD 115, [paragraph] 17, 651 N.W.2d 875, 879 (holding that a company owes a duty of reasonable care to an employee in its van as well as another person riding in the van with the employee's permission).

(311.) See id. (rejecting the defendant's argument that the company did not owe a duty to those trespassing within its vehicles).

(312.) See id. (stating there is no reason to limit the class of protected persons to only employees within a company van and not individuals within a van with the employee's permission, suggesting that the focus should be upon the act or omission of the defendant, rather on the relationship between the parties).

(313.) Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 102 (N.Y. 1928) (Andrews, J., dissenting).

(314.) Casillas v. Schubauer, 2006 SD 42, [paragraph] 17, 714 N.W.2d 84, 89.

(315.) Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D. 1987).

(316.) Casillas, 2002 SD 42, [paragraph][paragraph] 15-17, 714 N.W.2d at 88-89 (explaining that liability for injury caused by a collision with a domestic animal is based on the conditions of nearby roads and the nature of the animal).

(317.) Id. at [paragraph] 22, 714 N.W.2d at 90.

(318.) Compare id. (holding that genuine issues of material fact remained in a case involving a collision with a domestic bull) with Zerfas v. AMCO Ins. Co., 2015 SD 99, [paragraph] 20, 873 N.W.2d 65, 72 (finding the unidentified driver who struck a dead deer and left it in the middle of the road did not owe a duty to Zerfas).

(319.) Weigand, supra note 87, at 60; see also RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j (AM. LAW INST. 2010) (stating that "[c]ourts sometimes rely on the unforeseeability of risk as a ground for concluding that the defendant has no duty").

(320.) See S.D.C.L. [section] 20-9-1 (2016) (using broad language indicating that "every person" owes a duty of care to others).

(321.) Compare id. (stating that "every person" owes each other a duty to exercise reasonable care), with Palsgraf v. Long Island RR. Co., 162 N.E. 99, 102 (N.Y. 1928) (Andrews, J., dissenting) (focusing the negligence analysis upon the act or omission), and RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7 (stating that all actors must exercise reasonable care).

(322.) S.D.C.L. [section] 20-9-1 (emphasis added).

(323.) Zerfas, 2015 SD 99, [paragraph] 12, 873 N.W.2d at 70.

(324.) Id. (citations omitted).

(325.) Id. [paragraph] 10, 873 N.W.2d at 69 (citations omitted).

(326.) Id. [paragraph][paragraph] 10-12, 873 N.W.2d at 69-70 (disagreeing with Stacey's argument that a shared highway creates a relationship that establishes a legal duty).

(327.) Harris v. Best Bus. Prods., Inc., 2002 SD [paragraph] 15, [paragraph] 17, 651 N.W.2d 875, 879.

(328.) See id. (stating that a company's liability to an injured party is not foreclosed on the basis of relationship).

(329.) Casillas v. Schubauer, 2006 SD 42, [paragraph] 13, 714 N.W.2d 84, 88.

(330.) Weigand, supra note 87, at 62-63.

(331.) See Brewer, supra note 231, at 351-52 (describing the analytical problems that result from the court attempting to use facts in its consideration of summary judgment in negligence cases).

(332.) See RESTATEMENT (THIRD) OF TORTS: LIAB. FOR PHYSICAL & EMOTIONAL HARM [section] 7, Reporters' Note cmt. j (AM. LAW INST. 2010) (stating that "[c]ourts sometimes rely on the unforeseeability of risk as a ground for concluding that the defendant has no duty").

(333.) See Thompson v. Kaczinski, 774 N.W.2d 829, 835 (Iowa 2009) (explaining as support for reversing the lower court's granting of summary judgment that foreseeable risks should be analyzed by the fact-finder and that courts should leave these determinations to the jury unless reasonable people could only reach one conclusion).

(334.) See id. (determining it was important to consider the public's interest in having safe roadways and be protected from unreasonable danger).
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