AuthorHoffman, Brigid C.

    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)


    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...

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