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Date: 07-05-2022

Case Style:


Case Number: 2022 S.D. 6


Mark Salter





Plaintiff's Attorney:

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Defendant's Attorney: MARK J. ARNDT
Evans, Haigh & Hinton, LLP


Pierre, South Dakota - Personal Injury lawyer represented Plaintiffs and Appellants with alleging two negligence theories and a breach of contract claim.

East Winds Court is a mobile home community in Yankton owned by
the similarly named corporation, East Winds Court, Inc. Teresa Burgi rented a lot
from East Winds and lived in East Winds Court with her three children, including
K.B. Ronald Pasman was a neighbor of Teresa’s and also leased a mobile home lot
from East Winds. During the time relevant to this appeal, Pasman lived four lots
away from Teresa and K.B.
[¶3.] Pasman owned a pit bull named Marco. The dog originally belonged to
Pasman’s daughter, but she gave Marco to her father after realizing Marco’s size
made him unsuited to live in her apartment.1 Pasman’s daughter described Marco
as a well-behaved, playful dog.
[¶4.] Pasman’s experience with Marco was much the same. He
characterized Marco as a friendly dog who never barked or exhibited any behavioral
problems. Although Pasman stated he decided to adopt Marco primarily for
personal protection, the dog had no record of dangerous altercations with humans
1. Marco weighed about eighty pounds.
while under Pasman’s care. Pasman’s minor grandson claimed Marco had
previously been involved in a fight with another dog, although his recollection of the
altercation was vague and otherwise unconfirmed.
[¶5.] When Marco was not inside Pasman’s trailer home, he was tethered to
the front hitch of the trailer using a body-harness attached to a chain. The chain
allowed Marco roughly a ten-to-twelve-foot radius within which he could roam on
Pasman’s lot. On the day Marco arrived, Pasman affixed two “Beware of Dog” signs
to the front of his trailer, one on either side of the hitch.
[¶6.] Near the edge of Pasman’s lot was a free-standing basketball hoop.
The base of the hoop was located on Pasman’s lot, while the hoop itself extended out
over the paved street where neighborhood children would occasionally play.2 The
street was owned and maintained by East Winds.
[¶7.] On the afternoon of September 3, 2017, K.B. was playing basketball
with Pasman’s two young grandchildren in front of Pasman’s lot. Marco was
outside at the time, chained to the trailer hitch. The exact sequence of events that
followed is unclear from the record, but at some point K.B. attempted to retrieve a
basketball from Pasman’s driveway inside the perimeter of Marco’s chain. When
K.B. reached for the ball Marco attacked him, biting his face in several places. K.B.
ultimately required multiple corrective surgeries. Both parties agree K.B. did
nothing to provoke the attack.
2. Pasman testified in his deposition that he did not know who owned the hoop
or who placed it on his lot.
[¶8.] John Blackburn is the sole shareholder of the East Winds corporation.
He purchased East Winds Court in 2005 and owns several other rental properties in
the Yankton area. Ronald Galvan worked as the property manager of East Winds
Court and was tasked with maintaining the property, collecting rent,
communicating with tenants, and drafting leases. The written leases for Teresa’s
lot and Pasman’s lot treated dog ownership differently—Teresa’s lease prohibited
dogs, Pasman’s did not.
[¶9.] Section thirteen of Pasman’s lease was titled “Pets” and allowed
Pasman to have certain “non-vicious” animals, like domestic dogs, on the lot. In a
separate section, the lease also included a general remedial enforcement provision
stating that a “violation of any one of the terms of this lease, without limitation of
its other rights, shall entitle [the] landlord to terminate this lease, re-enter and take
over possession forthwith.”
[¶10.] As the property manager, Galvan was charged with keeping an eye on
East Winds Court and watching for “violation[s] of the [trailer court] rules.” Galvan
estimated he drove through the trailer court nearly every day during his time as
manager. Blackburn also surveyed the property, though far less frequently, stating
he drove through the trailer court approximately twice a year, often riding along
with Galvan during his inspections. However, neither Blackburn nor Galvan
remembered noticing the “Beware of Dog” signs hung on Pasman’s trailer. Galvan
did recall seeing Marco chained up outside Pasman’s trailer on one occasion but
stated that Marco remained “at the end of [Pasman’s] lot” and “didn’t even bark
when [Galvan] came up to the house.” Blackburn claimed he was unaware of
Marco’s existence.
[¶11.] After Marco attacked K.B., one of Pasman’s neighbors revealed that
she remembered the dog’s temperament differently. Though she had apparently not
reported Marco’s behavior previously, she claimed the dog often exhibited
aggressive tendencies and would lunge toward her on the end of his chain as she
passed by with her lawn mower. In her affidavit, the neighbor stated she
remembered seeing the “Beware of Dog” signs posted on Pasman’s trailer and
further believed that East Winds knew Marco was a danger to the neighborhood,
though she offered no explanation as to how or why East Winds knew that Marco
was dangerous.
[¶12.] Acting individually and as K.B.’s guardian ad litem, Teresa
commenced this action against East Winds seeking damages for K.B.’s injuries. Her
complaint alleged common law negligence, negligence per se, and breach of contract.
Teresa did not sue Pasman. However, East Winds filed a third-party complaint
against Pasman, seeking indemnification from him in the event it was found liable.
Pasman did not answer the third-party complaint and has appeared only as a
witness in this action.
[¶13.] In her general negligence claim, Teresa alleged that East Winds owed
a duty as a landlord to protect K.B. from the attack or to warn him of Marco’s
potential for violence. She further alleged that East Winds knew of Marco’s
dangerous propensities and failed to exercise reasonable care by not removing him
from the premises or otherwise terminating Pasman’s lease. The breach of contract
claim alleged Marco’s presence in the trailer court was a violation of Teresa’s lease,
which prohibited pets altogether. However, it appears that after the parties
conducted additional discovery and examined Pasman’s lease (which allowed nonvicious pets), the claim evolved into an allegation that East Winds allowed Pasman
to keep Marco in violation of the non-vicious pets clause in his lease.
[¶14.] East Winds moved for summary judgment as to all of Teresa’s claims,
which the circuit court granted. As is relevant to the general negligence claim at
issue in this appeal, the court concluded that East Winds owed no legal duty to K.B.
while he was present on Pasman’s leased premises outside of a common area, and,
in any event, East Winds had no knowledge of Marco’s alleged dangerous
propensities. Teresa appeals, alleging East Winds owed a duty to protect K.B. from
Pasman’s dog and that there are disputed issues of material fact as to whether East
Winds was aware of Marco’s dangerous propensities.3
Standard of Review
[¶15.] “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.” Ridley v. Sioux Empire Pit Bull Rescue, Inc., 2019 S.D.
48, ¶ 11, 932 N.W.2d 576, 580. “We view the evidence most favorably to the
nonmoving party and resolve reasonable doubts against the moving party.” Id.
3. From our review of Teresa’s submissions on appeal, it appears she has
abandoned her claims of negligence per se and breach of contract, both of
which were also determined adversely to her in the circuit court’s summary
judgment order.
(citation omitted). The procedural issue presented by a circuit court’s decision to
grant a motion for summary judgment is a question of law that we review de novo.
See Zochert v. Protective Life Ins. Co., 2018 S.D. 84, ¶ 18, 921 N.W.2d 479, 486
(citation omitted) (“We review a circuit court’s entry of summary judgment under
the de novo standard of review.”).
[¶16.] The substantive question at issue in this case—the existence of a legal
duty as a necessary element of a plaintiff’s negligence claim—is also a question of
law that is reviewed de novo. Sheard v. Hattum, 2021 S.D. 55, ¶ 23, 965 N.W.2d
134, 141 (citing Kirlin v. Halverson, 2008 S.D. 107, ¶ 28, 758 N.W.2d 436, 448).
Analysis and Decision
Landlord’s Reserved Control
[¶17.] As an overarching legal principle, “[t]he law of premises liability is
based on possession and control.” Clauson v. Kempffer, 477 N.W.2d 257, 259 (S.D.
1991) (citing W. Page Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on
the Law of Torts § 57, at 386). Viewed in the specific context of landlord liability, we
have applied the Restatement (Second) of Torts and stated the general rule as
follows: “a landlord, having parted with full possession of the premises to the tenant
is not liable for injury to third persons caused by the tenant’s negligence.” Id.; see
Restatement (Second) of Torts § 355 (Am. L. Inst. 2021) (“Except as stated in §§ 357
and 360–362, a lessor of land is not subject to liability to his lessee or others upon
the land . . . for physical harm caused by any dangerous condition which comes into
existence after the lessee has taken possession.”); Englund v. Vital, 2013 S.D. 71, ¶
11, 838 N.W.2d 621, 627 (stating the general rule of landlord liability set out in
Clauson); see also Walther v. KPKA Meadowlands Ltd. P’ship, 1998 S.D. 78, ¶ 42,
581 N.W.2d 527, 535 (holding that there is no “special relationship” between a
landlord and a tenant that would impose a duty upon landlords to protect a person
from the unlawful acts of another).
[¶18.] Under the terms of their lease agreement, East Winds parted with full
possession of the lot it rented to Pasman. As stated in a leading treatise:
When land is leased to a tenant, the law of property regards the
lease as equivalent to a sale of the premises for the term. The
lessee acquires an estate in land, and becomes for the time being
both owner and occupier, subject to all of the responsibilities of
one in possession, to those who enter upon the land and those
outside of its boundaries.
W. Page Keeton et. al., Prosser and Keeton on the Law of Torts § 63, at 434.
Although the written lease contained several restrictions upon Pasman’s use of the
premises, such as the one regulating pets, these restrictions did not impose a duty
on East Winds to act in any particular way.
[¶19.] Teresa submits a contrary argument in which she attempts to avoid
the general rule by claiming East Winds did not part with full possession and
control of Pasman’s lot. As support, she cites our decision in Clauson, and argues
that a landlord may be held liable to third parties for the negligent acts of a tenant
where the landlord reserves a right of re-entry or “any right to control what
activities were performed on the land or how they were conducted.” See 477 N.W.2d
at 261. But Teresa misreads this passage from Clauson.
[¶20.] As an initial matter, the reserved-control quote from Clauson was not
part of our holding but, rather, was included to address an unsuccessful argument
by the appellant-plaintiff. In Clauson, we applied the Restatement § 355 rule set
out above and held that the landlord was not subject to liability for injuries
sustained by the plaintiff who drove a motorcycle into a fence constructed by the
landlord’s tenant. In so doing, we rejected the plaintiff’s claim that the landlord
knew the tenant would build a dangerous fence on the property and, therefore, owed
a legal duty under Restatement (Second) of Torts § 379A (Am. L. Inst. 2021).4
[¶21.] As an additional comment, we noted that the landlord “reserved no
right of re-entry, and [the landlord] did not reserve any right to control what
activities were performed on the land or how they were conducted.” Clauson, 477
N.W.2d at 261. However, this statement merely expressed a corollary to the
general rule for landlord liability. It did not delineate a legal test for assessing the
extent of a landlord’s control and surely did not hold that any type of restriction on
a tenant’s use of the leased premises was sufficient to render the general rule
inapplicable. Indeed, we do not believe this to be the case.
4. Section 379A requires, among other things, that the landlord have actual
knowledge of the tenant’s intent to engage in dangerous activity on the leased
premises before the landlord can be subject to liability. We noted that § 379A
was also inapplicable in Clauson because it contemplates liability in
situations involving physical harm to persons “outside of the land.” 477
N.W.2d at 260 n.5. However, the plaintiff’s injuries in Clauson, as in the case
currently before us, occurred on the leased premises. See id. at 258
(describing the location of the fence on the property’s “northern border”). The
circumstances of Easson v. Wagner, 501 N.W.2d 348 (S.D. 1993), illustrate
the on-property/off-property distinction. In Easson, the plaintiffs sued the
landlord of a neighboring mine for property damage resulting from a tenant’s
blasting activity at the mine. After the circuit court granted the landlord’s
motion for summary judgment, we reversed and remanded the case to resolve
disputed factual issues based upon an application of Restatement (Second) of
Property: Landlord and Tenant § 18.4 (Am. L. Inst. 1977), which is identical
to § 379A of the Restatement (Second) of Torts.
[¶22.] Here, the fact that East Winds’ lease with Pasman included a provision
concerning pets does not mean that East Winds reserved control over dogs in its
mobile home park or that it did not part with possession of the leased premises.
The relevant section of the lease provides as follows:
PETS: TENANT assumes all responsibilities for pets. Dogs are
only allowed on TENANT’S property. Dogs are not allowed to
run free in East Winds Court. Barking of dogs, day or night is
not allowed. Only harmless, non-vicious, safe, pets such [as]
domestic dogs, housecats and indoor birds are allowed within
East Winds Court, Inc. without the prior written permission of
the LANDLORD. TENANTS are prohibited from keeping any
other type or description of pet or animal or reptile. If a
TENANT has a noisy pet such as a barking dog, the TENANT
will have to purchase at the TENANTS [sic] own expense a
muzzle and keep it on his/her dog at all times to prevent
[¶23.] Interpreting the plain language of the pet provision, we conclude that
it does not constitute a reservation of East Winds’ authority to control dogs on the
tenant’s leased premises. See Tri-City Assocs., L.P. v. Belmont, Inc., 2014 S.D. 23, ¶
9, 845 N.W.2d 911, 914–15 (noting that leases are contracts whose interpretation is
a question of law reviewed de novo). Instead, it imposes upon the tenant “all
responsibilities for pets” and is best read as a promise by the tenant to keep only
“non-vicious, safe” pets on the premises. Nothing in the text of this provision
imposes an obligation upon East Winds concerning pets.
[¶24.] The Appellate Court of Connecticut reached the same conclusion under
similar circumstances and rejected a plaintiff’s argument that a landlord had a duty
to investigate her tenants’ pet based upon a lease provision that allowed the
landlord “discretion to approve or deny the ability of [the] tenants to own or keep
pets on the property.” Raczkowski v. McFarlane, 225 A.3d 305, 311 (Conn. App. Ct.
2020). In the court’s studied view, the lease provision operated exclusively for the
benefit of the landlord and “did not impose a duty on the defendant to perform an
extraneous investigation of the dog’s behavioral propensities.”5 Id.
[¶25.] The Raczkowski court also rejected the plaintiff’s reserved-control
argument, holding that the plain language of the lease “g[a]ve the tenant complete
control and possession of the property[.]” Id. at 312; see also Howle v. Aqua Ill.,
Inc., 978 N.E.2d 1132, 1144, (Ill. App. Ct. 2012) (“[The landlord’s] ability to
terminate [the tenant’s] tenancy (and the fact that it later did so) because of the
conduct of his dogs does not constitute the requisite control that imposes a duty
. . . .”); Gilbert v. Miller, 586 S.E.2d 861, 865 (S.C. Ct. App. 2003) (“The lease
provision prohibiting pets in multifamily units was not equivalent to a promise
creating a duty on the part of [the landlord] to keep the premises free from pets or
vicious dogs.”). This rationale is consistent with the general rule for landlord
liability as stated by our precedent and “also promotes the salutary policy of placing
responsibility where it belongs, rather than fostering a search for a defendant
whose affluence is more apparent than his culpability.” See Clemmons v. Fidler,
791 P.2d 257, 260 (Wash. Ct. App. 1990).
[¶26.] Finally, Teresa’s additional argument that the general enforcement
provision in Pasman’s lease created a duty to enforce the pets provision is equally
unsustainable. Notwithstanding the fact that the argument begs the question of
whether East Winds was aware of any reason to terminate the lease in the first
5. These determinations were made in the context of the Raczkowski court’s
analysis of the plaintiff’s argument that she was a third-party beneficiary of
the pet provision. Teresa has not made a similar claim here.
instance, the enforcement provision merely provides East Winds with the remedy of
terminating the lease and regaining possession of the premises in the event Pasman
would breach “any one of the terms of this lease[.]” Nothing compels East Winds to
elect this remedy in the event of Pasman’s default, and the existence of the remedy
does not suggest a degree of lingering control beyond that which non-breaching
parties commonly possess in a variety of contexts involving written contracts.6 See
Middleton v. Klingler, 410 N.W.2d 184, 186 (S.D. 1987) (quoting 5A A. Corbin,
Corbin on Contracts § 1227, 502 (1964)).
[¶27.] We hold, therefore, that the provisions of Pasman’s lease agreement do
not prevent the operation of the general rule precluding a landlord’s liability for
“physical harm caused by a dangerous condition which comes into existence after
the lessee has taken possession.” See Restatement (Second) of Torts § 355.
Control of a Common Area
[¶28.] The general rule under which landlords are not subject to liability for
their tenants’ negligence is tempered by certain exceptions. We have recognized
four principal exceptions, each of which is based upon specific rules set out in the
Restatement (Second) of Torts:
(1) where a lessor contracts to repair the premises,
Restatement (Second) of Torts § 357;
6. During his deposition, Blackburn testified that he had not seen the “Beware
of Dog” signs on Pasman’s trailer. If he had, he stated that he would have
“taken action” and “investigated” to determine whether the “dog could be a
problem.” However, this does not mean that Blackburn was obligated by a
legal duty to do so or that his efforts to investigate further would have been
for the benefit of someone other than East Winds.
(2) where an undisclosed, dangerous condition exists at the
time the lease is entered into which the lessor knew or
should have known about, [Id. § 358];
(3) where the lessor retains in his control a common area of
the premises which the lessee is entitled to use as
appurtenant to the leased portion, [Id. § 360,] . . . or is
necessary for the safe use of lessee’s portion, [Id. § 361]; or
(4) where the lessor, in fact, makes repairs on the land while
it is in the lessee’s possession and the lessor completes the
repairs negligently, [Id. § 362].
Clauson, 477 N.W.2d at 259 (internal case citations omitted).
[¶29.] Here, Teresa argues that the third of these exceptions is applicable
because K.B. was playing basketball in the “common area” street owned by East
Winds prior to Marco’s attack. The type of “common area” exception implicated by
this claim relies upon Restatement (Second) of Torts § 360 (Am. L. Inst. 2021),
which provides as follows:
A possessor of land who leases a part thereof and retains in his
own control any other part which the lessee is entitled to use as
appurtenant to the part leased to him, is subject to liability to
his lessee and others lawfully upon the land with the consent of
the lessee or a sublessee for physical harm caused by a
dangerous condition upon that part of the land retained in the
lessor’s control, if the lessor by the exercise of reasonable care
could have discovered the condition and the unreasonable risk
involved therein and could have made the condition safe.
[¶30.] The rule stated in § 360 requires, as a threshold matter, that a
plaintiff’s injury was “caused by a dangerous condition upon” the common area over
which the landlord retains control. If the injury did not occur in a common area or
was not caused by a dangerous condition existing “upon” the common area, the
general rule of the Restatement (Second) of Torts § 355 applies, and the landlord is
not subject to liability—i.e., the landlord owes no duty to the plaintiff. Our decision
in Englund is instructive.
[¶31.] In Englund, we affirmed the circuit court’s determination that a
landlord was not liable to a third party for the negligence of a tenant under the
common area exception for two separate reasons: 1) there was no indication the
injury occurred in a common area; and 2) regardless, there was no dangerous
condition within the alleged common area. 2013 S.D. 71, ¶ 16, 838 N.W.2d at 628.
The plaintiffs in Englund were the parents of a minor child who was seriously
injured by a rock thrown at her head by the child of the landlord’s tenant. In their
negligence suit against the landlord, the parents claimed that the injury took place
in a common area—the landlord’s backyard—and sought to impose liability based
on the common area exception. However, the undisputed material facts established
that the landlord’s backyard was not a common area, but “[e]ven if [the landlord’s]
backyard did constitute a common area, the ‘dangerous condition’ or rock did not
come from the common area.” Id.
[¶32.] Here, a similar analysis applies, and we cannot accept Teresa’s
alternative landlord-control argument based upon the common area exception. The
undisputed evidence indicates that K.B.’s injuries occurred entirely on Pasman’s
leased lot and were inflicted by a dog that “did not come from the common area.”
See id. Moreover, there is no evidence that East Winds installed or maintained the
basketball hoop adjacent to the common area of the privately owned street or that
its continued use was unsafe. At most, the placement of the basketball hoop may
represent a causative link in the chain of events leading up to K.B.’s injuries, but it
cannot be said that East Winds failed to maintain a common area over which it had
control and should therefore be subject to liability for K.B.’s injuries. Cf. Shields v.
Wagman, 714 A.2d 881, 892 (Md. 1998) (reversing summary judgment for a
landlord who was aware of the dog’s vicious tendencies, and the attack occurred in a
common area).
Landlord Liability Based on Knowledge of a Dog’s Propensities
[¶33.] Teresa’s arguments focus principally on the question of whether
Marco’s attack on K.B. was foreseeable to East Winds. We have held, in this
regard, that a plaintiff may establish a triable issue of liability with a showing that
a dog’s owner knew or had reason to know of the dog’s dangerous propensities. See
Ridley, 2019 S.D. 48, ¶ 14, 932 N.W.2d at 580 (quoting Rowland v. Log Cabin, Inc.,
2003 S.D. 20, ¶ 9, 658 N.W.2d 76, 79) (“[A] plaintiff in a dog bite case may either
argue to the jury that the owner knew or should have known of the dog’s dangerous
propensities or that, under the totality of the circumstances, injury to the plaintiff
was reasonably foreseeable.”).
[¶34.] This rule presumes the existence of a duty to act reasonably and is
most often applied to determine liability questions for dog owners. See, e.g., Gehrts
v. Batteen, 2001 S.D. 10, ¶ 7, 620 N.W.2d 775, 778 (“[T]he failure to act upon the
knowledge of an animal’s abnormally dangerous propensities establishes a breach of
the duty of care owed by the owner to those that come in contact with the animal.”)
We have extended the dangerous-propensity rule beyond dog-owner defendants in
only one instance by applying it to a business owner where an invitee was attacked
by another patron’s dog. See Rowland, 2003 S.D. 20, ¶ 11, 658 N.W.2d at 79.
[¶35.] In Rowland, we held that the reasonable person standard applies in
the same way to both the “duty owed by a business owner to a business invitee and
the duty owed by a dog owner to individuals in society[.]” 2003 S.D. 20, ¶ 11, 658
N.W.2d at 79. As support, we cited our holding in Small v. McKennan Hosp., 437
N.W.2d 194 (S.D. 1989), but the existence of common law duty (from which a breach
under the dangerous-propensity rule may follow) is different for business owners
and invitees than it is for landlords and tenants.
[¶36.] As we had previously recognized in Walther, business owners and
invitees have a “special relationship” that imposes a duty upon business owners to
act reasonably to protect invitees from foreseeable injury. 1998 S.D. 78, ¶ 44, 581
N.W.2d at 536. However, Teresa has not claimed K.B. was an invitee of East
Winds. He lived at East Winds Court, but the relationship between a landlord and
a tenant does not qualify as a special relationship that would provide a predicate
basis for a common law duty for landlords, like East Winds. See id. Therefore,
Rowland is inapposite, and the dangerous-propensity rule does not apply here
because Teresa cannot demonstrate, as an initial matter, the existence of a duty
that would subject East Winds to liability.
[¶37.] We are aware that some jurisdictions have adopted a rule that imposes
liability on a landlord where the landlord has reserved control over the presence of
dogs on the leased premises and has knowledge of the dog’s vicious propensities.
See, e.g., Uccello v. Laudenslayer, 118 Cal. Rptr., 741, 743 (Cal. Ct. App. 1975); see
also Danny R. Veilleux, Annotation, Landlord’s liability to third person for injury
resulting from attack on leased premises by dangerous or vicious animal kept by
tenant, 87 A.L.R. 4th 1004 (1991) (collecting cases and distilling the general rule as
stated above). However, this narrow rule created by some courts for this class of
dog bite cases cannot be reconciled with our decisions setting out the principles
governing the broader topic of a landlord’s liability for the conduct of its tenant. See
Clauson, 477 N.W.2d at 259; Englund, 2013 S.D. 71, ¶ 11, 838 N.W.2d at 627.
[¶38.] Under the circumstances, Teresa’s effort to apply the dangerouspropensity rule is unsustainable because there is no underlying legal duty in the
absence of either a special relationship or the landlord’s retained control over the
leased premises. Therefore, it is unnecessary to address whether East Winds had
knowledge of Marco’s alleged dangerous propensities

Outcome: Marco’s attack on K.B., while undoubtedly tragic, is simply not
actionable, at least as to East Winds, because there is no duty that would subject it to liability.7 We therefore affirm the circuit court’s summary judgment order in
favor of East Winds.

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