(concurring in result in part and dissenting in part).
[¶ 26.] I agree that summary judgment was properly granted to County because there is no genuine issue as to any material fact whether County failed to properly and adequately maintain the gravel road. SDCL 15-6-56(e). Nor is there a genuine issue as to any material fact that the road had fallen “out of repair” or that County had notice of the defect. See generally Fritz v. Howard Township, 1997 SD 122, 570 N.W.2d 240. I do not join that portion of the majority’s discussion regarding whether loose gravel is an inherent part of a gravel road; obviously, there may be a case where the condition of a gravel road amounts to a defect requiring action by County. Id. at ¶¶ 11-13. Therefore, as to County, I concur in result only.
[¶ 27.] I dissent from the affirmance of summary judgment to Simpson because whether he “should reasonably have anticipated that injury would result from [his livestock] being so at large on the highway” (¶ 12) is a disputed factual issue which should be determined by a jury. Certainly, reasonable minds could differ whether under these circumstances this accident was foreseeable. Cf. Musch v. H-D Coop., Inc., 487 N.W.2d 623, 625 (S.D.1992) (noting this court’s adop*590tion of the “foreseeability” approach to determining proximate causation):
[T]he harm suffered must be found to be a foreseeable consequence of the act complained of. This does not mean, of course, that the precise events which occurred could, themselves, have been foreseen as they actually occurred; only that the events were within the scope of the'foreseeable risk. [I]t must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.
In 1981, this court embraced the concept of foreseeability as a requirement of proximate cause in Leslie v. City of Bonesteel, 303 N.W.2d 117 (S.D.1981). While that case was tried before the trial court without a jury, we reversed, finding the trial court had improperly used a “but for” standard to determine the proximate cause issue. We held that the trial court must apply the “substantial factor” test. In that case, we went on to state:
[T]o support a recovery in negligence the defendant’s act must have proximately caused the plaintiffs injury. As this Court stated in Goff v. Wang, 296 N.W.2d 729, 730 (S.D.1980), “[t]he issues of whether defendant owed a duty to the plaintiff and whether the defendant’s conduct proximately caused the plaintiffs injury are, in effect, so interrelated that they are generally treated as one in the same.”
(Other citations omitted); see also Thompson v. Summers, 1997 SD 103, ¶ 18, 567 N.W.2d 387, 394 (“Questions of proximate cause are for the jury in all but the rarest of cases.”); accord Eixenberger v. Belle Fourche Livestock Exch., 75 S.D. 1, 8, 58 N.W.2d 235, 239 (1953) (reinstating jury verdict for plaintiff injured by horses running at large and noting that questions of owner’s negligence were properly submitted to the jury):
Reasonable minds might very well have drawn different conclusions from the evidence as to whether the defendants should have reasonably anticipated the hazard of horses running at large in the vicinity of this highway at the time and under the circumstances shown by the evidence.
Id. at 9, 58 N.W.2d at 239-40. We should reverse and remand for a jury trial on Simpson’s alleged negligence.