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Rowland v. Log Cabin2/19/2003
Considered on Briefs October 8, 2002
[ .] Ronald Rowland (Rowland) appeals the trial court's grant of summary judgment in favor of Log Cabin, Inc. (Log Cabin). We reverse and remand.
FACTS
[ .] On January 7, 2001, Rowland was at the Log Cabin bar in Sioux Falls. Rowland had been drinking throughout the evening and was under the influence of alcohol. The same evening, Dennis Howard, Sr., (Howard) was also at the Log Cabin bar. Howard had been drinking that evening, and by all accounts, he was also intoxicated.
[ .] Howard allowed his dog Tyson to enter the Log Cabin. Tyson is an Akita and stands three feet high to the top of its back. Scott Jansen (Jansen), the bartender, asked Howard several times to remove the dog from the bar, but ultimately Jansen allowed the dog to stay. At some point after Tyson was allowed into the bar, Tyson bit Rowland's face.
[ .] In explanation of the event, Log Cabin offered the eyewitness testimony of Jansen. Jansen testified that Rowland sat down and was looking at the dog and petting it and that the dog's head was probably face high with Rowland. At that time, Rowland stuck his thumb in the dog's mouth and the dog lunged forward and bit him. Jansen further testified that Rowland had pulled upward on the dog, checking the dog's teeth or the inside of his mouth, stuck his thumb inside of the dog's mouth and that it was at that point the dog lunged forward.
[ .] Rowland asserted, however, that before petting or making physical contact with Tyson, he asked Howard if Tyson bit and Howard assured him that Tyson would not bite. Rowland then began petting Tyson and, without provocation or warning, Tyson viciously attacked him, biting him in the face.
[ .] The parties dispute the level and intensity of the interaction between Rowland and Tyson.
STANDARD OF REVIEW
When reviewing a trial court's decision to grant summary judgment, we will affirm only if all legal questions have been decided correctly and there are no genuine issues of material fact. The nonmoving party will receive the benefit of all reasonable inferences that can be drawn from the facts. It is the responsibility of the moving party to demonstrate the absence of genuine issues of material fact. Only if that burden is met will the moving party be entitled to judgment as a matter of law. Gehrts v. Batteen, 2001 SD 10, , 620 NW2d 775, 777 (internal citations omitted).
ISSUE ONE
[ .] Whether the trial court erred in finding that Log Cabin did not breach a duty of care to Rowland as a matter of law.
[ .] In Gehrts, this Court held that even when an owner does not know of an animal's dangerous propensities the ordinary negligence standard of foreseeability will still be applied. Thus, in such a case against a dog owner, the plaintiff must establish that as an ordinary, prudent person, the owner should have foreseen the event that caused the injury and taken steps to prevent the injury. "Such liability may arise 'depending upon the kind and character of the particular animal concerned, the circumstances in which it is placed, and the purposes for which it is employed or kept.'" Gehrts, 2001 SD 10 at , 620 NW2d at 778 (citing 4 AmJur2d, Animals ยง102 (1995). In rejecting strict adherence to the "prior similar acts" rule, this Court determined that this test to determine foreseeability is unduly restrictive, that it places too great a burden on a plaintiff and that "' he duty to foresee a risk of harm is dependent upon all the surrounding facts and circumstances and may require further investigation or inquiry before action is taken.'" Small v. McKennan Hosp., 403 NW2d 41
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