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2015 S.D. 99

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

STACEY ZERFAS, Plaintiff and Appellant,

v.

AMCO INSURANCE COMPANY,

a Nationwide Company, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE STUART L. TIEDE

Retired Judge

* * * *

SEAMUS W. CULHANE

NANCY J. TURBAK BERRY of

Turbak Law Office, P.C.

Watertown, South Dakota Attorneys for plaintiff 

and appellant. 

KENT R. CUTLER

KIMBERLY R. WASSINK

BRIAN DONAHOE of

Cutler & Donahoe, LLP

Sioux Falls, South Dakota Attorneys for defendant 

and appellee.

* * * *

ARGUED ON 

OCTOBER 5, 2015

OPINION FILED 12/16/15
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WILBUR, Justice

[¶1.] David Zerfas lost control of his vehicle after he swerved to avoid a deer 

carcass in his lane of travel on the interstate. His vehicle was hit by oncoming 

traffic and Zerfas died. His wife Stacey sought uninsured motorist benefits with 

AMCO Insurance Company. She claimed that an unidentified driver negligently 

left the deer carcass in the lane of travel on the interstate, which negligence caused 

Zerfas to lose control of his vehicle. AMCO denied her claim after it concluded that 

Stacey would not legally be entitled to recover damages from the unidentified 

driver. Stacey brought suit against AMCO for breach of contract, and AMCO moved 

for summary judgment. After a hearing, the circuit court granted AMCO summary 

judgment. It ruled that AMCO’s policy coverage was not implicated because, under 

the facts of this case, the unidentified driver owed no common law or statutory duty 

to Zerfas. Stacey appeals. We affirm.

Background

[¶2.] On December 2, 2011, at approximately 6:23 a.m., David Zerfas was 

traveling south on Interstate 29 from Brookings to Sioux Falls, South Dakota. He 

lost control of his vehicle, swerved, and crossed the median into oncoming traffic. 

Zerfas’s vehicle was struck by oncoming traffic and he was fatally injured. The 

South Dakota Highway Patrol issued an accident report noting that “[t]here were 

remains of a deer in the south bound lanes where tire marks show Vehicle 1 [Zerfas] 

swerved left and lost control.” The summary of the investigation detailed that 

“Vehicle 2 [driven by Mark Misar] was traveling north bound when Vehicle 1 came 

into the right lane. . . . Vehicle 2 struck Vehicle 1 in the driver’s side doors.” 
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According to the investigation report, “Vehicle 1 left tire marks from the

southbound lanes into the median where the vehicle was partially sideways. The 

tire marks go thru the median and marks show where the tires hit the paved 

median shoulder and spun the vehicle into the north bound lanes.” Misar reported 

his speed to be 70 mph prior to locking his brakes to avoid the collision. The report 

did not indicate a speed for Zerfas’s vehicle. 

[¶3.] After the accident, Zerfas’s wife Stacey filed a claim with their 

automobile insurance company, AMCO Insurance Company, for uninsured motorist 

benefits. Stacey informed AMCO that the circumstances of the accident implicated 

AMCO’s coverage for damage caused by an unidentified hit-and-run driver. In 

particular, Stacey claimed that at some point prior to the accident an unidentified 

driver hit the deer and negligently failed to ensure that the deer carcass did not 

create a hazard to other travelers on the road.

[¶4.] AMCO investigated Stacey’s claim. It interviewed two witnesses: 

Mark Misar (the driver of the vehicle that collided with Zerfas’s vehicle) and Harriet 

Greene (a passenger in a vehicle behind Misar’s vehicle). Although neither Misar 

nor Greene saw Zerfas swerve to avoid the deer carcass, Greene reported that after 

the accident she saw a deer carcass from across the median and noticed other cars 

maneuver to avoid it. AMCO did not inspect Zerfas’s vehicle, but did review the 

accident investigation report. 

[¶5.] AMCO’s investigation produced no evidence revealing how the deer 

carcass came to be in Zerfas’s lane of travel. Nonetheless, AMCO’s claim notes 

indicate that it assumed for purposes of the claim that a deer carcass was in fact 
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lying in the roadway when Zerfas lost control of his vehicle. The notes further 

suggest that the circumstances of the accident could implicate the policy definition 

of an “uninsured vehicle.” However, the claim note qualified that policy coverage 

depended on whether the accident “was caused by the negligence of the unidentified 

vehicle leaving the deer in the roadway or the [insured’s] negligence for lookout and 

failure to maintain control[.]” 

[¶6.] Ultimately, AMCO denied Stacey’s claim. It informed Stacey that 

coverage was not implicated because, even assuming an unidentified driver hit the 

deer and left the carcass in Zerfas’s lane of travel, Stacey would not legally be 

entitled to recover damages from the unidentified driver of the vehicle. AMCO 

explained that, based on its research of state law and common law in South Dakota, 

the mere fact that an individual hits a deer and kills it does not create a duty to 

remove it from the roadway or to warn motorists that the remains exist in the 

roadway. AMCO informed Stacey that it also denied her claim because Stacey 

failed to present competent evidence that the accident was in fact caused by an 

unidentified driver and not that Zerfas himself hit the deer.

[¶7.] In October 2012, Stacey brought a breach of contract action against 

AMCO for its failure and refusal to pay uninsured motorist benefits as a result of 

Zerfas’s accident. Stacey asserted that AMCO had an obligation under the terms of 

the insurance contract to pay uninsured motorist benefits for Zerfas’s death because 

she would be legally entitled to recover damages from the unidentified driver who

negligently left a deer carcass in the lane of travel. AMCO moved for summary 

judgment, and the circuit court held a hearing. At the conclusion of the hearing, the 
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court orally granted AMCO’s motion. It found no basis under the facts to support 

that the unidentified driver had a legal duty to Zerfas to remove the carcass or warn 

of its existence. The court issued an order granting AMCO summary judgment. 

Stacey appeals and we restate the issue as follows: 

Did the circuit court err when it granted AMCO summary 

judgment because the unidentified hit-and-run driver did not 

owe Zerfas a legal duty?

Standard of Review

[¶8.] We determine whether summary judgment was proper by reviewing 

“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.” 

Millea v. Erickson, 2014 S.D. 34, ¶ 9, 849 N.W.2d 272, 275 (quoting Andrushchenko 

v. Silchuk, 2008 S.D. 8, ¶ 8, 744 N.W.2d 850, 854). “All facts and favorable 

inferences from those facts must be viewed in a light most favorable to the 

nonmoving party.” Andrushchenko, 2008 S.D. 8, ¶ 8, 744 N.W.2d at 854 (quoting 

Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847). In this negligence 

action, summary judgment is proper if no duty exists as a matter of law. Millea, 

2014 S.D. 34, ¶ 9, 849 N.W.2d at 275. Whether “a duty [exists] is a question of law 

that is reviewed de novo.” Id.

Analysis 

[¶9.] AMCO’s insurance policy provides that AMCO “will pay compensatory 

damages which an ‘insured’ is legally entitled to recover from the owner or operator 

of an ‘uninsured motor vehicle’ because of ‘bodily injury[.]’” It is undisputed that 

Stacey is an “insured” under the policy. The policy defines an “‘[u]ninsured motor 
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vehicle’” to include “a hit-and-run vehicle whose operator or owner cannot be 

identified and which hits or causes an accident resulting in ‘bodily injury’ without 

hitting[.]” For purposes of this appeal, we assume that a driver, other than Zerfas, 

hit the deer and that the driver cannot be identified. We further assume that the 

presence of the deer carcass in Zerfas’s lane of travel caused him to swerve, lose 

control of his vehicle, and be struck by oncoming traffic. Based on these 

assumptions, the vehicle driven by the unidentified driver meets AMCO’s policy 

definition of an “uninsured motor vehicle.” The question remains whether Stacey 

would be legally entitled to recover damages from the unidentified driver.

[¶10.] To be legally entitled to recover from the unidentified driver, there 

must exist a duty between the unidentified driver and Zerfas. See Johnson v. 

Hayman & Assocs., Inc., 2015 S.D. 63, ¶ 13, 867 N.W.2d 698, 702; Millea, 2014 S.D. 

34, ¶ 11, 849 N.W.2d at 275-76. This is because “[t]he existence of a duty owed by 

the defendant to the plaintiff, which requires the defendant to conform to a certain 

standard of conduct in order to protect the plaintiff against unreasonable risks, is 

elemental to a negligence action.” Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D.

1985). A duty can arise out of common law or statute. Millea, 2014 S.D. 34, ¶ 12, 

849 N.W.2d at 276. However, a duty depends on “whether a ‘relationship exists 

between the parties such that the law will impose upon the defendant a legal 

obligation of reasonable conduct for the benefit of the plaintiff.’” First Am. Bank & 

Tr., N.A. v. Farmers State Bank, 2008 S.D. 83, ¶ 16, 756 N.W.2d 19, 26 (quoting 

Casillas v. Schubauer, 2006 S.D. 42, ¶ 14, 714 N.W.2d 84, 88).
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[¶11.] According to Stacey, the circuit court erred as a matter of law when it 

refused to recognize a specific duty between the unidentified driver and Zerfas 

based on the well-established law that every driver in South Dakota has a legal 

duty to exercise ordinary care at all times when using a public highway so as to 

avoid putting others in danger. Stacey declares that “[t]here is one simple question 

that determines whether this common legal duty applies to the undisputed facts of 

this case: was the hit-and-run driver using a public highway?” In her view, because 

“[t]he answer to that question is plainly yes[,]” the unidentified driver owed Zerfas a 

duty. 

[¶12.] We disagree. One’s broad duty to exercise ordinary care at all times to

avoid placing another at risk of physical injury “does not define the circumstances

under which the law imposes a duty on an alleged tort-feasor.” See Millea, 2014 

S.D. 34, ¶ 13, 849 N.W.2d at 276 (quoting Poelstra v. Basin Elec. Power Coop., 1996 

S.D. 36, ¶ 13, 545 N.W.2d 823, 826). It simply recognizes the right of an injured 

person to recover for another’s negligence. Id. The existence, scope, and range of a 

duty, on the other hand, depend upon the foreseeability of the risk of harm. 

Johnson, 2015 S.D. 63, ¶ 13, 867 N.W.2d at 702; Hamilton v. Sommers, 2014 S.D. 

76, ¶ 22, 855 N.W.2d 855, 862; Poelstra, 1996 S.D. 36, ¶ 16, 545 N.W.2d at 826. 

[¶13.] Here, Stacey claims that it was foreseeable to the unidentified driver 

that others (including Zerfas) would be at risk of injury from the presence of a deer 

carcass in the lane of travel. Because a risk of injury was foreseeable, Stacey 

argues that a duty exists and a jury must decide whether the duty was breached 

when the unidentified driver left “a carcass in the driving lane of an interstate 
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before dawn without doing anything[.]” Stacey’s argument confuses the concepts of 

foreseeability of harm as it relates to the element of causation and foreseeability of 

harm relevant to the element of duty. We have recognized that the concepts are 

often confused in tort law. See Peterson v. Spink Elec. Coop., Inc., 1998 S.D. 60, ¶ 

15, 578 N.W.2d 589, 592 (quoting Poelstra, 1996 S.D. 36, ¶ 18, 545 N.W.2d at 827) 

(“foreseeability for purposes of establishing a duty is not invariably the same as the 

foreseeability relevant to causation”). 

[¶14.] As to causation, foreseeability is a fact question and is examined at the 

time the damage was done. Id. By contrast, “foreseeability in defining the 

boundaries of a duty is always a question of law” and is examined at the time the 

act or omission occurred. Johnson, 2015 S.D. 63, ¶ 13, 867 N.W.2d at 702 (quoting 

Braun v. New Hope Twp., 2002 S.D. 67, ¶ 9, 646 N.W.2d 737, 740); Hamilton, 2014 

S.D. 76, ¶ 22, 855 N.W.2d at 862. To determine whether a duty exists, we examine 

“the facts as they appeared at the time, and not by a judgment from actual 

consequences which were not then to be apprehended by a prudent and competent 

man.” Peterson, 1998 S.D. 60, ¶ 15, 578 N.W.2d at 592 (quoting 57A Am. Jur. 2d 

Negligence § 125, Westlaw (database updated November 2015)).

[¶15.] The question we must decide, therefore, is whether the act of leaving a 

carcass on the driving lane of the interstate created a foreseeable risk of injury 

“such that the law will impose upon the defendant a legal obligation of reasonable 

conduct for the benefit of the plaintiff.” See Millea, 2014 S.D. 34, ¶ 12, 849 N.W.2d 

at 276 (quoting First Am. Bank, 2008 S.D. 83, ¶ 16, 756 N.W.2d at 26). It cannot be 

disputed that there is some degree of danger from the presence of a deer carcass on 
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a driving lane of an interstate. Yet, this does not perforce mean that it was 

foreseeable that a driver would not be able to avoid striking the carcass. Beyond 

our assumption that the unidentified driver hit the deer and left the carcass in the 

driving lane of the interstate, we have no additional facts bearing on the 

unidentified driver’s acts or omissions at the time the deer carcass was left on the 

interstate. And every user of a highway has “a duty to exercise reasonable care 

under the circumstances . . . to maintain control of the vehicle so as to be able to 

stop or otherwise avoid an accident within that person’s range of vision.” See 

Cooper v. Rang, 2011 S.D. 6, ¶ 6, 794 N.W.2d 757, 758 (quoting jury instruction); 

Herren v. Gantvoot, 454 N.W.2d 539, 542 (S.D. 1990). Here, there is evidence that 

other drivers using the southbound lane on Interstate 29 avoided the deer carcass.

[¶16.] To accept Stacey’s view that a duty exists under the facts of this case 

would in essence impose strict liability upon all drivers post-impact with wild 

animals and make them ensurers of the safety of all following travelers. Yet when 

examining foreseeability of harm, we have said that “[n]o one is required to guard 

against or take measures to avert that which a reasonable person under the 

circumstances would not anticipate as likely to happen.” Wildeboer v. S.D. Junior 

Chamber of Commerce, Inc., 1997 S.D. 33, ¶ 18, 561 N.W.2d 666, 670 (quoting 

Poelstra, 1996 S.D. 36, ¶ 16, 545 N.W.2d at 826-27 (citation omitted)). We conclude 

that the circuit court did not err when it ruled that the unidentified driver did not 

owe Zerfas a common law duty.
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[¶17.] Because there is no common law duty, we next address Stacey’s claim 

that the unidentified driver owed Zerfas a statutory duty under SDCL 31-32-6 to 

warn of the existence of the deer carcass. That statute provides:

It shall be the duty of every person who so injures or obstructs 

any bridge or highway as to render the same unsafe 

immediately to put up a danger sign and use diligence to notify 

one or more of the members of the board or commissioners 

having jurisdiction or supervision over such bridge or highway of 

such injury or obstruction. A violation of this section is a petty 

offense.

Id. According to Stacey, SDCL 31-32-6 “explicitly” creates a duty upon the 

unidentified driver to Zerfas and “may well” be evidence of negligence per se. 

Stacey further directs this Court to SDCL 32-24-8, which defines the act of careless 

driving to include driving without due caution. She then suggests that “jurors may 

well conclude that a driver who drives off from a scene where he has caused a deer 

carcass to be lying in the lanes of travel—particularly in the dark of an early winter 

morning—is at that point not driving carefully and with due caution.” 

[¶18.] Neither SDCL 31-32-6 nor SDCL 32-24-8 define the scope of the duty 

between the unidentified driver and Zerfas under the facts of this case. First, 

Stacey concedes that there is no evidence that the unidentified driver violated 

SDCL 32-24-8. Moreover, SDCL 31-32-6 does not create a specific duty on a driver 

who hits a deer while traveling on a public highway. On the contrary, we have 

interpreted SDCL 31-32-6 to mean that a driver has a duty “to avoid any unusual or 

unreasonable use of the highway and by such use obstruct the highway or make it 

dangerous for travel[.]” See Norman v. Cummings, 73 S.D. 559, 563, 45 N.W.2d 

839, 841 (1951) (emphasis added) (interpreting the predecessor statute). We 
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explained that “no liability attaches to the user as a result of such use,” if a driver 

injures or obstructs a highway rendering it unsafe because of that driver’s usual, 

ordinary, and reasonable use of the highway[.]” Id. 

[¶19.] There is no evidence and Stacey makes no claim that the unidentified 

driver’s use of the highway was unusual or unreasonable. Moreover, although the 

deer carcass created a hazard on the interstate, that hazard does not necessarily 

mean the interstate was obstructed or that the highway became dangerous for 

travel as contemplated by SDCL 31-32-6. See Norman, 73 S.D. at 563, 45 N.W.2d at 

841 (presence of hazard was “a mere circumstance of the accident”). Therefore, the 

circumstances do not support that the unidentified driver owed Zerfas a statutory 

duty under SDCL 31-32-6. 

[¶20.] Because, under the facts of this case, no common law or statutory duty 

existed between the unidentified driver and Zerfas, the circuit court did not err 

when it granted AMCO summary judgment. There being no duty, we need not 

address AMCO’s alternative argument that Stacey failed to present competent 

evidence of the accident. 

[¶21.] Affirm.

[¶22.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.