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Blaha v. Stuard2/6/2002
Appeal from the Circuit Court of The First Judicial Circuit Charles Mix County, South Dakota Hon. Lee A. Tappe, Judge
Considered on Briefs August 28, 2001
[ .] This is an appeal from an order granting Stuards' motion for summary judgment. We affirm.
FACTS
[ .] On December 17, 1998 Chad and Dustin Blaha traveled to Gary and Anna Stuard's home to inquire about a labrador dog advertised in the Rapid City Journal. The advertisement stated:
Beautiful male Yellow Labrador, good Retriever, 5 years old, $50 with AKC papers and pedigree or free without. Call.
[ .] At the Stuard home, Gary showed Chad and Dustin the dog's retrieving skills and they discussed what Chad planned to do with the dog. Chad told Gary that he wanted the dog for a Christmas gift for his father and that the dog would be used for hunting.
[ .] The Blahas and Stuards discussed the characteristics of the dog and the type of environment the dog would be in under the Blaha's care. Both Chad and Dustin Blaha stated that the Stuards told them the dog had jumped up on one of their children a long time ago and that the dog was protective of the porch area of the home.
[ .] At the end of the meeting, Chad purchased the dog from the Stuards for $50 and received the AKC papers. He and Dustin took the dog back to Rapid City before heading home to Wagner. During the time the dog was in Rapid City, the dog growled at Chad and Dustin's ten- to twelve-year-old cousin.
[ .] While in Wagner, the dog was around the Blaha family and behaved very well. The dog had not exhibited any bad behavior prior to December 26 when it bit Jessica Blaha, Chad's sister and the daughter of the dog's ultimate owner. A personal injury lawsuit against the Stuards followed, alleging negligence, breach of warranties, negligent infliction of emotional distress, and strict liability.
[ .] Gary and Anna Stuard moved for summary judgment, which was granted by the trial court. Sharon Blaha, as Guardian Ad Litem for the Person and Estate of Jessica Blaha, appeals the trial court's order.
STANDARD OF REVIEW
[ .] The standard of review for summary judgment is well established:
In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis, which supports the ruling of the trial court, affirmance of summary judgment is proper. Pettry v. Rapid City Area School Dist., 2001 SD 88, , 630 NW2d 705, 708 (quoting Milligan v. Waldo, 2001 SD 2, , 620 NW2d 377, 379).
The party opposing summary judgment "may not rest on the mere allegations . . . in his pleading. He must present evidentiary matter showing that there is a genuine issue of material fact that is worth bringing to trial." Peterson v. Spink Elec. Co-op., Inc. 1998 SD 60, n3, 578 NW2d 589, 591 n3.
ANALYSIS AND DECISION
[ .] It is common knowledge that horses buck, cattle roam, cats stray and dogs bite. It seems that when man and other animals interact, it is usually man that gets the short end of the stick. Perhaps the Illinois Appellate Cour
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