Tipton v. Town Of Tabor

567 N.W.2d 351 (1997)

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Nature of the Case

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Facts

Holland purchased two Wolf-German Shepherd hybrids (Canis lupus crossed with Canis familiaris). They were reputedly close to ninety-five percent wolf, the product of six or seven generations of crossbreeding. From their appearance and behavior, it was evident they had wolf-like characteristics. For almost three years, Holland kept them in his backyard in the town of D in a secure, fenced enclosure. The dogs never ran free, and Holland recommended to persons interested in seeing them that they visit only when he was present. Openings in the fencing were wide enough to allow the wolfdogs to stick at least part of their heads out in some places and fully out in others. Holland believed his wolfdogs would never attack anyone unless provoked. He kept them in the secure cage for 'bonding' purposes. The animals were male and female; their pups lived in an adjoining cage. While many were concerned, none complained to law enforcement authorities about anything other than being disturbed by howling. D issued licenses for the 'wolf hybrids.' Holland looked into state and local enactments covering possession of such animals but felt no laws precluded keeping wolfdogs, especially as they were securely controlled in their pen. P were visiting relatives who lived near the Hollands. Crystal, four years old at the time, wandered over to the hybrids' pen. She was severely mauled. Ps incurred over $33,000 in medical expenses for Crystal's care. The Hollands discharged their liability through bankruptcy. P then sued D asserting that (1) Tabor was negligent in licensing the hybrids, violating town ordinances, which increased the risk of harm to others and created a nuisance; (2) Tabor was negligent in allowing the hybrids to remain in town knowing of the danger; and (3) the county was negligent in not abating the nuisance the hybrids presented as witnessed by Sheriff O'Donnell who had actual knowledge of the hybrids' vicious proclivities. The circuit court, granted summary judgment, concluding as a matter of law no special duty affixed. Ps appealed. The court replaced the bright-line test in Hagen v. City of Sioux Falls, 464 N.W.2d 396, 399 (SD 1990), which relied solely upon statutory language to ascertain the existence of a special duty to protect a person or class of persons was replaced by the four-part test found in Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn 1979), making 'any combination' of the following four factors determinative in assessing the existence of a special duty: (1) actual knowledge of the dangerous condition; (2) reasonable reliance by persons on official representations and conduct; (3) an ordinance or statute setting forth mandatory acts clearly for the protection of a particular class of persons rather than the general public; and (4) failure to use due care to avoid increasing the risk of harm. The trial court again granted summary judgment to the defendants and Ps appealed again.