#26516-aff in pt, rev in pt & rem-SLZ
2013 S.D. 62
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
EDNA F. PATITUCCI and
ANTHONY J. PATITUCCI, Plaintiffs and Appellants,
v.
CITY OF HILL CITY and
GRANITE SPORTS, INC., Defendants and Appellees.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE JANINE KERN
Judge
****
JON J. LAFLEUR of
Abourezk & Zephier, PC
Rapid City, South Dakota Attorneys for plaintiffs
and appellants.
KYLE L. WIESE
JAMES S. NELSON of
Gunderson, Palmer, Nelson
& Ashmore, LLP
Rapid City, South Dakota Attorneys for defendant and
appellee City of Hill City.
JEFFREY R. CONNOLLY
J. CRISMAN PALMER of
Gunderson, Palmer, Nelson
& Ashmore, LLP
Rapid City, South Dakota Attorneys for defendant and
appellee Granite Sports, Inc.
****
ARGUED ON MAY 21, 2013
OPINION FILED 08/14/13
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ZINTER, Justice
[¶1.] Edna Patitucci was injured while walking on a sidewalk abutting
Granite Sports, Inc. (Granite Sports), a sporting goods store in Hill City (City). The
sidewalk also abutted a state/federal highway, which is the City’s main street.
Edna and her husband sued the City and Granite Sports for negligence. The circuit
court granted summary judgment for both defendants, ruling that neither owed a
duty of care relating to the sidewalk. Patituccis appeal. We reverse the summary
judgment granted in favor of the City and affirm the summary judgment granted in
favor of Granite Sports.
Facts and Procedural History
[¶2.] On August 21, 2009, Edna fell and fractured her wrist while walking
on a split-level sidewalk in Hill City. The sidewalk abutted Granite Sports, which
is located on U.S. Highway 16/385. The highway extends through the City as its
main street. The upper sidewalk, which abutted businesses on the highway, was
constructed by the State of South Dakota approximately sixty years ago. From
1995 to 1997, the State reconstructed the highway in the City. The upper sidewalk
was not included in the reconstruction project. However, a curb and a narrow lower
sidewalk were added at street level. This created a split-level sidewalk at various
locations. There was an approximate six-inch difference in elevation between the
upper sidewalk and lower sidewalk where Edna fell.
[¶3.] In August 2011, Edna and her husband sued the City and Granite
Sports. They alleged negligence in failing to eliminate or reduce the risk of injury
associated with the split-level sidewalk.
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[¶4.] The City moved for summary judgment. It argued that it owed no duty
to the Patituccis because it contended that it did not design, build, maintain,
control, or own the sidewalk. The City contended that the State, through the
Department of Transportation, designed, built, and controlled the sidewalk, which
was within the highway right-of-way. The City relied on the affidavits of Brett
McMacken, the City’s administrator, and Art Anderson, the City’s public works
superintendent. McMacken indicated that the sidewalk was built and designed by
the State at least sixty years ago, and both he and Anderson asserted that the
sidewalk was controlled by and under the authority of the State.
[¶5.] Patituccis argued that the City controlled the sidewalk. Patituccis
relied on a number of statutes authorizing municipalities to construct, improve, and
control sidewalks within the municipality. Patituccis also contended that the City’s
control was demonstrated in a 1994 “maintenance and encroachment” agreement
between the City and the State, as well as in the City’s council meeting minutes and
a City resolution relating to improvement of the sidewalk.
[¶6.] Granite Sports argued that it also owed no duty to the Patituccis.
Granite Sports relied on an affidavit from its owner, Pat Wiederhold. He indicated
that Granite Sports did not design, construct, or control the sidewalk. Granite
Sports also pointed out that, as a business abutting a sidewalk, its duty was
limited. And Granite Sports contended that it had no limited duty because its
owner did not reside on the business premises, the City did not give Granite Sports
notice that the sidewalk was in need of repairs, and Granite Sports did not alter or
modify the sidewalk.
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[¶7.] Patituccis, however, argued that Granite Sports could be secondarily
liable to the City for damages under SDCL 9-46-2 if the City were found liable.
Patituccis contended that it was necessary for Granite Sports to remain in the suit
as a procedural matter because “[t]he City will cross-claim against Granite Sports,
Inc. if it is determined that the City owed a duty to [Edna] to keep its sidewalk
safe.”
[¶8.] The circuit court granted summary judgment for the City and Granite
Sports. The court reasoned that neither defendant controlled the sidewalk. The
court noted that “the location where Edna . . . fell is located within the . . . State’s
highway right-of-way[.]” Relying on the affidavits of McMacken, Anderson, and
Wiederhold, the court also noted that “the [C]ity did not design, construct or control
the sidewalk and . . . the extent of Granite [Sports’] maintenance of the sidewalk in
front of the store [was] snow removal and removal of debris.”
[¶9.] On appeal, Patituccis argue that both defendants owed them a duty to
keep the sidewalk reasonably safe. They also argue that both defendants owed
them a duty to warn of the sidewalk’s dangerous condition. “The existence of a duty
in a negligence action is a question of law subject to de novo review by this Court.”
Locke v. Gellhaus, 2010 S.D. 11, ¶ 11, 778 N.W.2d 594, 597.
The City
[¶10.] Patituccis contend that the City’s control and concomitant duty is
evidenced in several statutes, the 1994 maintenance and encroachment agreement,
and the City’s acts to improve the sidewalk. Patituccis contend that the City had a
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duty to keep the sidewalk reasonably safe even though it was within a state
highway right-of-way.
[¶11.] The City “does not dispute that if it had control over the sidewalk, [it]
would be responsible for designing, constructing, maintaining, and repairing the
sidewalk.” However, the City argues that the State, rather than the City, had
control of the sidewalk abutting the highway. The City contends that “without
control, [it] cannot be liable for the State’s failure to redesign and reconstruct the
split-level sidewalk.” We agree that municipal control is necessary to impose a
municipal duty of care with respect to sidewalks. But we conclude that under the
relevant statutes, the City had sufficient control to impose a duty of care.
[¶12.] A number of statutes vest municipalities with control of sidewalks
within their municipal boundaries. SDCL 9-45-1 grants municipalities authority to
construct, improve, and repair sidewalks in the municipality. And SDCL 9-30-2
grants municipalities authority to control the use of those sidewalks. 1 Further,
SDCL chapter 9-46 grants municipalities broad authority to require improvements
that the municipality deems necessary for the sidewalks within its boundaries.
Indeed, SDCL 9-46-3 specifically authorizes municipalities to notify landowners to
construct, rebuild, or repair sidewalks when the municipality “deems it necessary to
construct, rebuild, or repair any sidewalk[.]” 2 Significantly, none of these broad
1. See also SDCL 9-30-5, which provides that: “Every municipality shall have
power to require the owner of abutting property to remove snow and ice from
sidewalks . . . .”
2. See also SDCL 9-46-1 (authorizing municipalities to prescribe the width and
type of materials used to construct sidewalks); SDCL 9-46-2 (authorizing
(continued . . .)
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grants of authority and control are limited when the sidewalk is within a State
highway right-of-way in the municipality. This Court has specifically noted that
under these statutes, “the legislature has given much authority to municipalities to
deal with sidewalks within their boundaries.” City of Sioux Falls v. Murray, 470
N.W.2d 619, 620 (S.D. 1991). Thus, there is ample authority to conclude that the
City had control of sidewalks within its municipal boundaries. 3
[¶13.] We also observe that the 1994 maintenance and encroachment
agreement reflects that the City and State believed the City had control of the
sidewalk where Edna fell. Prior to the reconstruction of the highway in 1995, the
City and State entered into the 1994 agreement. In the agreement, the City agreed
to certain conditions regarding encroachments, utilities, speed limits, parking,
curbs, highway access, lighting, and pavement markings for the highway right-of-
way. Tellingly, in the recitals, the City and State acknowledged that: “[T]he section
of the [highway reconstruction project] within the Municipality . . . is within the
legal jurisdiction of the Municipality for traffic regulations and the control of
building setbacks, zoning, sidewalks, utilities, etc.” (Emphasis added.)
________________________
(. . . continued)
municipalities to require the repair of sidewalks and imposing landowner
liability for the failure to repair sidewalks as directed by the municipality);
SDCL 9-46-4 (authorizing municipalities to do the work or hire the work to be
done if the landowner fails to construct, reconstruct, or repair the sidewalk in
the manner directed by the municipality); SDCL 9-46-5 (authorizing
municipalities to assess adjoining property for the cost of sidewalk
construction, reconstruction, or repair).
3. The parties do not argue that the City’s duty to keep the sidewalks in a
reasonably safe condition (as evidenced by these statutes) was abrogated by
the enactment of any subsequent statutes. Cf. Hohm v. City of Rapid City,
2008 S.D. 65, 753 N.W.2d 895.
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[¶14.] The City acknowledges this language in the 1994 agreement as well as
its general statutory authorization to control sidewalks. But the City argues that
the State had control of this sidewalk because it was in the State highway right-of-
way. The City points out that this highway and sidewalk were built and modified
by the State. The City also points out that this sidewalk is within the State
highway right-of-way, which is part of the state trunk highway system. 4 Therefore,
the City argues that the State had control under SDCL 31-4-14, which provides that
“[a]ll marking, surveying, construction, repairing, and maintenance of the state
trunk highway system is under the control and supervision” of the State. See also
SDCL 31-1-5(1) (providing that the state trunk highway system is comprised of
highways “controlled and supervised by the [State] Department of Transportation”).
The City ultimately contends that the State’s control over this state trunk highway
includes control of the sidewalks in the highway right-of-way. We disagree.
[¶15.] The City’s argument overlooks the definition of highways within the
state trunk system. SDCL 31-1-1 defines those “highway[s]” as “[e]very way or
place of whatever nature open to the public . . . for purposes of vehicular travel[.]”
Because a city sidewalk is not open to the public for purposes of vehicular travel,
the State’s control over the vehicular portion of U.S. Highway 16/385, as granted in
SDCL 31-4-14 and 31-1-5(1), does not supplant the statutes granting the City
control of the sidewalk. As the Connecticut Supreme Court explained:
4. The City contends that “[a] majority of cases have defined a sidewalk as a
walkway that is part of the street.” See Hohm, 2008 S.D. 65, ¶ 36, 753
N.W.2d at 909 (Konenkamp, J., concurring specially).
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Ordinarily, [the] duty to keep in repair is imposed on the [State]
with respect to the vehicular portion of a trunk-line highway but
not with respect to a sidewalk, even though it lies within the
limits of a trunk-line highway. Where the state takes over an
existing street or highway as a state road, it assumes the
responsibility for its use and maintenance for all purposes
incident to vehicular traffic, and it leaves undisturbed the
existing responsibility of the municipalities for sidewalks and
the like.
Tuckel v. Argraves, 170 A.2d 895, 896 (Conn. 1961) (internal citations and quotation
marks omitted).
[¶16.] Notwithstanding the foregoing, the City claims that it did not have the
“full and complete control” necessary to impose a duty. The City relies on Locke v.
Gellhaus, 2010 S.D. 11, 778 N.W.2d 594, and Rapid City v. First National Bank of
the Black Hills, 79 S.D. 38, 107 N.W.2d 693 (1961) [hereinafter First Nat’l Bank].
The City points out that in those cases, this Court found a municipal duty because
municipalities had “full and complete control” of the public sidewalks within their
corporate limits.
A municipality has full and complete control over the public
sidewalks within its corporate limits. Consequently, a
municipality is charged with the affirmative duty of keeping its
sidewalks in a reasonably safe condition for public travel, and is
liable for injuries caused by its neglect.
Locke, 2010 S.D. 11, ¶ 15, 778 N.W.2d at 599 (quoting First Nat’l Bank, 79 S.D. at
39-40, 107 N.W.2d at 694). The City contends that it did not have that “full and
complete control” because it could not repair or act with respect to this sidewalk
without the State’s consent. The City contends that the need for State consent is
demonstrated in the 1994 maintenance and encroachment agreement, a City
resolution to improve the sidewalk at issue, City council minutes, and a City grant
application. The record does not support the City’s contention.
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[¶17.] The 1994 agreement did require the State’s approval of the City’s
designated speed limit, installation of curbs, changes to signal timing, and addition
of new access points and encroachments. But the agreement did not require the
State’s approval to redesign, reconstruct, or repair the sidewalk. Similarly, in a
City sidewalk resolution, the City “recognize[d] the sidewalks on Main Street [were]
in need of improvement and repair[.]” The City then resolved “that said sidewalks
shall be repaired and improved to ensure the safety of citizens and visitors[.]”
(Emphasis added.) This directive was not qualified as being subject to State
approval. Additionally, the council minutes and the grant application reflect that
the City was only seeking approval for State funding for the improvements. Those
documents do not reflect that the City needed the State’s approval to repair the
sidewalks. The City’s evidence does not reflect that it lacked full and complete
control of the sidewalk.
[¶18.] We conclude that the City had sufficient control of the sidewalk to
charge it “with the affirmative duty of keeping its sidewalks in a reasonably safe
condition for public travel, and [it] is liable for injuries caused by its neglect.” See
Locke, 2010 S.D. 11, ¶ 15, 778 N.W.2d at 599. The circuit court erred in concluding
otherwise.
[¶19.] Patituccis also argue that the City had a duty to warn of the split-level
nature of the sidewalk. 5 The general duty to keep property in a reasonably safe
5. The City contends that Patituccis’ complaint and Edna’s answers to
interrogatories limited Patituccis’ claim to negligent design. Therefore, the
City contends that its failure to maintain the sidewalk and failure to warn of
known, dangerous conditions are not at issue. We disagree. Patituccis’
(continued . . .)
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condition includes the duty “to warn of concealed, dangerous conditions[.]” Luther
v. City of Winner, 2004 S.D. 1, ¶ 19, 674 N.W.2d 339, 347. Because the City owed
Patituccis the duty to keep the sidewalk reasonably safe, it also owed them a duty
to warn if the sidewalk was in a “concealed, dangerous condition[ ] known to the
[City.]” See id.
[¶20.] The City, however, argues that the split-level sidewalk was a known
and obvious danger, and therefore, it had no duty to warn. The question whether a
sidewalk is in a known or obvious dangerous condition generally involves a question
of fact. See id. ¶ 21 (stating that there was a genuine issue of material fact whether
the condition of the sidewalk was in “an unreasonably dangerous condition such
that the [municipality] had a duty to warn” and whether the sidewalk’s condition
was “so obvious that warning was unnecessary”). Under the record developed to
this point, the known or obvious danger argument involves a question of fact for the
circuit court to resolve on remand.
________________________
(. . . continued)
complaint alleged negligence in a broad sense: that the sidewalk was “in an
unsafe condition creating a hazardous and dangerous threat to the safety of
the public[,]” the City “had a duty to construct and maintain the city
sidewalks in a safe condition[,]” and the City “negligently and carelessly
allowed the unsafe sidewalk to remain as a hazard and threat to the safety of
the public.” Edna’s answers to interrogatories also asserted negligence in a
broad sense: Edna claimed that the sidewalk was unsafe and she “didn’t
realize that the sidewalk was split level.” The complaint and Edna’s answers
were sufficient under notice pleading to permit claims of negligence beyond
negligent design. See Gruhlke v. Sioux Empire Fed. Credit Union, Inc., 2008
S.D. 89, ¶ 17, 756 N.W.2d 399, 409 (quoting SDCL 15-6-8(a)(1)) (“[A]
complaint need only contain ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’”).
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Granite Sports
[¶21.] Patituccis argue that the court erred in granting summary judgment
for Granite Sports. Patituccis contend that Granite Sports had a duty to maintain,
repair, and warn of dangerous conditions concerning the sidewalk.
[¶22.] Under common law, landowners abutting public sidewalks generally
do not owe a duty to keep them in a reasonably safe condition. Locke, 2010 S.D. 11,
¶ 15, 778 N.W.2d at 599. An exception exists when the abutting owner “creates or
maintains an excavation or other artificial condition on the sidewalk.” Id.; see also
First Nat’l Bank, 79 S.D. at 40, 107 N.W.2d at 694. The exception, known as the
“special use” doctrine, is described as follows:
If the abutter makes special use of the sidewalk, he or she owes
a duty to maintain it in a reasonably safe condition for
pedestrians lawfully using it, and must exercise reasonable care
to guard the public from injury. If the abutter does not, he or
she becomes liable to any persons injured as a proximate result
of his or her negligence. The abutter’s liability for negligence is
not affected by the fact that the municipality has a duty to
perform and may also be liable. . . . Liability results from the
fact that the abutter creates or maintains the thing from which
the injury results, and not because he or she owns the abutting
property.
Locke, 2010 S.D. 11, ¶ 16, 778 N.W.2d at 599 (citation omitted).
[¶23.] Patituccis acknowledge this rule and exception. However, they failed
to meet their summary judgment burden of identifying facts suggesting that
Granite Sports owed a duty because of its special use of the sidewalk. On the
contrary, in their brief to the circuit court, Patituccis acknowledged that “the
evidence does not suggest that the ‘special use’ doctrine applies[.]” On this record,
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Patituccis may not assert a claim that Granite Sports owed a common-law duty to
maintain the sidewalk in a reasonably safe condition.
[¶24.] Property owners may also owe a statutory duty to keep abutting
sidewalks reasonably safe. However, the statutory duty is conditional. SDCL 9-46-
2 provides that abutting landowners may be liable to a municipality for negligent
repair if the abutting owner resides on the premises. Owners who do not reside on
the premises may be liable to a municipality for negligence if the owner fails to
repair the sidewalk after being notified by a municipality to do so.
Any owner of real property who fails to keep in repair the
sidewalks in front of or along such property if he resides
thereon, or if he does not reside thereon, to repair the same
forthwith when notified, is liable to the municipality for any
damage caused by such neglect. The duty of the municipality to
notify the nonresident owner does not affect the liability of the
owner for any injury proximately caused by the negligent
construction or repair of the sidewalk. The failure of the
municipality to notify the nonresident owner does not result in
any liability on the part of the municipality for any injury
proximately caused by the negligent construction or repair of the
sidewalk.
SDCL 9-46-2.
[¶25.] Patituccis argue that Granite Sports owed them a duty of care under
this statute. The argument is misplaced. SDCL 9-46-2 “makes the abutting owner
secondarily liable to the municipality for damages caused by the owner’s failure to
repair.” See First Nat’l Bank, 79 S.D. at 43, 107 N.W.2d at 695 (discussing the
predecessor to SDCL 9-46-2); see also Locke, 2010 S.D. 11, ¶ 12, 778 N.W.2d at 597.
Under this statute, Granite Sports could only be secondarily liable to the City by
means of a cross-claim or a later suit if the City were found liable. See, e.g., First
Nat’l Bank, 79 S.D. 38, 107 N.W.2d 693 (involving a municipality seeking indemnity
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from the abutting property owner under the predecessor to SDCL 9-46-2, after the
municipality was deemed liable to a pedestrian injured on the sidewalk in an earlier
suit). Patituccis have not, however, demonstrated how Granite Sports’ liability to
the City creates a duty of care from Granite Sports to the public. Granite Sports
owed no statutory duty to Patituccis under SDCL 9-46-2. 6
[¶26.] Patituccis finally argue that Granite Sports had a duty to warn
pedestrians of the dangerous nature of the split-level sidewalk. “The duty to warn
is a subpart of the duty to keep the property reasonably safe[.]” Janis v. Nash
Finch Co., 2010 S.D. 27, ¶ 12, 780 N.W.2d 497, 501 (quoting Mitchell v. Ankney, 396
N.W.2d 312, 314 (S.D. 1986)); see also Luther, 2004 S.D. 1, ¶ 19, 674 N.W.2d at 347.
Because Granite Sports did not have the general duty to keep the sidewalk
reasonably safe in this case, it did not have the lesser included duty to warn. The
circuit court did not err in granting summary judgment for Granite Sports.
[¶27.] We affirm the summary judgment granted in favor of Granite Sports.
We reverse the summary judgment granted in favor of the City and remand for
further proceedings.
6. Patituccis also argue that Granite Sports had general “premises liability” to
Patituccis because, under SDCL 43-16-3, Granite Sports was presumed to
own the property to the center of the street, which would include the
sidewalk. See SDCL 43-16-3 (“An owner of land bounded by a road or street
is presumed to own to the center of the way, but the contrary may be
shown.”). However, in responding to Granite Sports’ statement of material
facts in support of summary judgment, Patituccis stated that it was
“[u]ndisputed” that Granite Sports did not own the sidewalk. Therefore,
Patituccis waived their right to now argue that Granite Sports owned the
sidewalk.
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[¶28.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON and
WILBUR, Justices, concur.
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