Hofer Ex Rel. Hofer v. Meyer
295 N.W.2d 333, 1980 S.D. LEXIS 343 (1980)
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Rule of Law:
A domestic animal may be classified as an "artificial condition" under the attractive nuisance doctrine as defined in the Restatement (Second) of Torts § 339. Liability is determined by a fact-specific inquiry into whether a landowner could foresee an unreasonable risk of harm to trespassing children who, due to their youth, would not appreciate the danger.
Facts:
- Richard and Dorothy Kiefer owned property within the city limits of Rapid City, South Dakota.
- Clifford and Evelyn Meyer kept their seven-year-old gelding, known to be gentle, on the Kiefers' property.
- The horse was contained within an enclosure fenced with only one or two strands of barbed wire.
- The property was adjacent to residential areas where a number of children lived.
- On January 16, 1974, three-year-old Jason Hofer, who lived a few blocks away, was playing outside his home with his dog.
- Jason wandered from his yard and entered the enclosure on the Kiefer property.
- Jason was subsequently found injured and semi-conscious inside the enclosure, with evidence suggesting he had been kicked by the horse.
- Mr. Meyer was aware that the presence of dogs could disturb horses.
Procedural Posture:
- Myron and Doreen Hofer, on behalf of their son Jason, filed a complaint against Clifford and Evelyn Meyer and Richard and Dorothy Kiefer in a state trial court.
- The complaint included multiple causes of action, including a claim based on the attractive nuisance doctrine as defined in Restatement (Second) of Torts § 339 (Count 6).
- At a pretrial conference, the trial court granted summary judgment in favor of the defendants on Count 6, ruling as a matter of law that a horse was not an 'artificial condition' under the doctrine.
- The case proceeded to trial on general negligence and licensee claims (Counts 1 and 4).
- At the close of the trial, the court granted a directed verdict for the defendants on the remaining counts, finding that Jason was a trespasser and the defendants had not engaged in willful or wanton conduct.
- The Hofers (plaintiffs-appellants) appealed the trial court's judgments to the Supreme Court of South Dakota.
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Issue:
Does a domestic horse kept in a poorly fenced enclosure in a residential area constitute an 'artificial condition' under the Restatement (Second) of Torts § 339, potentially subjecting the landowners and horse owners to liability for injuries sustained by a trespassing child?
Opinions:
Majority - Hertz, Circuit Judge
Yes. A domestic horse can constitute an 'artificial condition' under the Restatement (Second) of Torts § 339, and the facts presented were sufficient to create a jury issue regarding the defendants' liability. The determination of whether a condition is 'artificial' under the attractive nuisance doctrine depends on the specific facts of each case. When a condition is created by human action, such as placing a horse in an enclosure, it is considered 'artificial.' The court analyzed the case under the five factors of § 339, concluding that a jury could find each element was met: (a) it was foreseeable children might trespass in the residential area; (b) a horse in a poorly fenced urban yard poses an unreasonable risk; (c) a three-year-old cannot appreciate the risk, especially with a dog present; (d) the burden of making the fence more secure was slight compared to the risk; and (e) whether the defendants exercised reasonable care was a question for the jury. Therefore, the trial court's dismissal of this claim was improper.
Concurring - Wuest, Circuit Judge
Yes, the case should be reversed, but based on a different legal theory. Instead of stretching the definition of 'artificial condition' to include a horse, the court should abolish the archaic common-law classifications of 'trespasser,' 'licensee,' and 'invitee.' These feudal-era distinctions are confusing and lead to unjust results in modern society. The proper approach, adopted by numerous other states and supported by a South Dakota statute, is to impose a single duty of 'reasonable care under the circumstances' on all landowners. Under this standard, a person's status as a trespasser would be just one factor to consider in determining liability, not a dispositive bar to recovery.
Analysis:
This decision significantly broadens the scope of the attractive nuisance doctrine in South Dakota by allowing a living animal to be considered an 'artificial condition,' which traditionally applied to inanimate structures or features. It shifts the focus from rigid categories to a more flexible, fact-intensive analysis centered on the foreseeability of harm to children. The powerful special concurrence highlights a major trend in American tort law—the movement away from common-law land entrant classifications toward a unitary standard of reasonable care—and signals that the court may be poised to adopt this modern approach in a future case.
