(dissenting).
[¶ 25.] The jury was properly instructed on Fisher’s negligence claims, and the evidence supported the negligence verdict. Even if we assume the majority’s contrary conclusion is correct, we should remand for a new trial on all issues except negligence.
[¶26.] 1. The jury was properly instructed on Fisher’s negligence claims.
[¶27.] Actions against the State and the DOT are authorized by statute. SDCL 31-2-34 provides, in relevant part:
The state of South Dakota may be sued and made a defendant in any court in which an action is brought against the South Dakota department of transportation respecting any claim, right, or controversy arising out of the work performed, or by virtue of the provisions of any construction contract entered into by the South Dakota department of transportation.
As provided in this statute, contractors are not restricted to bringing actions solely under the terms of a contract:
The plain meaning of “any claim, right or controversy arising out of the work performed, ... ”, SDCL 31-2-34, permits an action either under the terms of the contract or outside of it for work performed. This interpretation is also supported by the fact that the phrase is followed by the disjunctive phrase “or by virtue of the provisions of any construction contract-” SDCL 31-2-34. If contractors are limited to actions under the provisions of the contract, then the phrase “any claim, right or controversy arising out of the work performed ...” is meaning*871less. In interpreting statutes, all provisions within a statute must be given effect if possible. We believe that this interpretation gives effect to all of the provisions of SDCL 31-2-34.
Candee Constr. Co., Inc. v. South Dakota Dep’t of Transp., 447 N.W.2d 339, 344 (S.D.1989), cert. denied, 494 U.S. 1067, 110 S.Ct. 1785, 108 L.Ed.2d 786 (1990) (citations omitted).
[If 28.] The construction contract in this case was entered into by Sundt Corporation and the State. Although Fisher was not a party to the contract, we recognize a cause of action for professional negligence when a foreseeable third party is injured. See Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assoc. Co., 500 N.W.2d 250 (S.D.1993). In Mid-Western, we allowed a cause of action against DGR, an engineering and architectural firm, which prepared drawings and specifications for fire detection and suppression systems for the Air National Guard base in Sioux Falls. Mid-Western was the contractor for the electrical portion of the project. When problems arose with ultraviolet detectors, they were replaced with ultraviolet infrared detectors. The Guard paid an additional amount for the new detectors but refused to give credit to Mid-Western for the ultraviolet detectors. Mid-Western sued several entities, including DGR, for its economic loss. Despite DGR’s claim that it owed no duty to Mid-Western in the absence of a contract, we held “in South Dakota a cause of action exists for economic damage for professional negligence beyond the strictures of privity of contract.”
To deny a plaintiff his day in court would, in effect, be condoning a professional’s right to do his or her job negligently with impunity as far as innocent parties who suffer economic loss. We agree the time has come to extend to plaintiffs recovery for economic damage due to professional negligence.
Id. at 254. Therefore, a party may bring a cause of action in negligence against an architect or engineer for economic damages if the party was foreseeably harmed by the professional’s negligence. Id. at 253.
[IT 29.] Such a cause of action is allowed because, by the nature of their work, professionals such as engineers and architects are required to exercise their skill and judgment. “The reasonable skill and judgment expected of professionals must be rendered to those who foreseeably rely upon the services.” Waldor Pump & Equip. Co. v. Orr-Schelen-Mayeron & Assoc., Inc., 386 N.W.2d 375, 377 (Minn.Ct.App.1986), Lloyd Potter, the Pierre region engineer for DOT, testified that when contractors bid concrete paving work, they purchase aggregates from suppliers like Fisher. In this case, Fisher is not only a subcontractor to the contract between Sundt and the State, but also a third party which might foreseeably sustain damages from professional negligence.
[¶ 30.] According to Potter, subcontractors such as Fisher are bound by requirements drafted in contracts between the State and a contractor. It is foreseeable that a subcontractor bound to follow contract specifications prepared by the State could be harmed by the negligent drafting or interpretation of the specifications. Mid-Western, 500 N.W.2d at 254 (quoting Waldor Pump, 386 N.W.2d 375). Therefore, State owes a duty to use such skill and care as ordinarily exercised by others in the industry when drafting and interpreting its contract clauses. Id. A breach of that duty may result in tort liability to foreseeable third parties. Limpert v. Bail, 447 N.W.2d 48, 51-52 (S.D.1989).
[¶ 31.] Fisher claimed DOT was negligent in refusing to allow Fisher to use the Fort Yates sand. DOT argues Fisher’s claims are “nothing more” than another way of saying that State breached its duty of good faith owed under the contract and therefore, Fisher’s cause of action sounds in contract, not negligence. South Dakota does not recognize a tort action for breach of good faith independent of the contract or duty arising under contract. Garrett v. BankWest, Inc., 459 N.W.2d 833, 842 (S.D.1990). Therefore, State argues Fisher was improperly allowed to argue this tort theory to the jury. However, we do recognize a duty to reasonably draft and interpret specifications in a contract. Mid-Western, 500 N.W.2d at 254. We also recognize that liability in tort may arise from breaching a duty to use proper care, even in the absence of a breach of contract. Limpert, 447 N.W.2d at 51. Although the negligence claim arose from *872drafting the contract or interpreting the duties under the contract, it was proper to instruct the jury on Fisher’s negligence claims according to South Dakota law. “Jury instructions are viewed as a whole and are sufficient if they correctly state the law and inform the jury.” Robbins v. Buntrock, 1996 SD 84, ¶ 12, 550 N.W.2d 422, 426 (quoting Sommervold v. Grevlos, 518 N.W.2d 733, 739 (S.D.1994)).
[¶ 32.] 2. The jury’s verdict of negligence was supported by the evidence.
[¶ 33.] The jury returned a verdict for Fisher on the negligence cause of action. Fisher claimed State was negligent in failing to follow industry standards and in denying Fisher the right to use the Fort Yates sand, fly ash, or a blend of sands to comply with the addendum’s requirement. Fisher also claimed State negligently drafted and interpreted its addendum.
[¶ 34.] The addendum is silent as to the addition of fly ash to meet the P 214 test requirements. State apparently anticipated the use of fly ash in sand to meet the expansion percentage allowed under its specifications. A summary of a presentation to the Research Review Board of DOT on June 13, 1991, stated: “The bad news is that roughly one-half of our current sand sources will require use of a fly ash in order to meet the 0.200% criteria.” The addendum was issued four days later, on June 17, 1991. On June 24,1991, the Final Report: Alkali Reactivity of Concrete Aggregates, prepared by Kenneth E. Marks of DOT, was completed. Its recommendations included: “any fine aggregates recording between .225 and .4% expansion would require the addition of Fly Ash (remove 10% Cement add 15% Fly Ash). This Fly Ash would be required to bring the expansion back to .225% or less.”
[¶35.] Larry Engebrecht, chief materials and surfacing engineer for DOT, testified that the State wrote the addendum and “meant that the sand alone without the addition of fly ash should meet that criteria.” He continued, “We thought we wrote it plain enough that only the sand aggregate had to meet that particular test result, not with the addition of fly ash.” Mike Durick, a construction engineer for DOT, worked with others to develop the addendum. He admitted the addendum did not prohibit the use of fly ash and allowed for additional optional testing if the sand did not meet the specifications. He indicated the State could have clarified whether fly ash could be used by excluding one paragraph of the P 214 test.7
[¶ 36.] Steven Gebler, Fisher’s expert witness, is a senior principal evaluation engineer with Construction Technology Laboratories in Illinois. Gebler testified that DOT’s addendum, by including the P 214 test without excluding any of the test’s sections, allowed for inclusion of fly ash to mitigate the expansion of the sand so the sand could meet the requirements of the test. He testified the P 214 test was a “screening test. Never meant to knock out any source whatsoever.”
[¶ 37.] According to Gebler, the P 214 test method includes additional testing which incorporates combinations of sand, including sand combined with fly ash. Gebler testified that the addendum issued by DOT incorporated the entire test method of the P 214 test:
When you reference a test, if you have a test method and if you want that whole thing to go in as part and parcel of a document, you would just cite the specification. But if you want to only have certain sections be applicable for that, then you can delete that part and you would have to say in mandatory language, for example, only sections so and so and so on apply. And if you don’t say anything, that means the whole thing applies.
The State’s wrongful or negligent conduct substantially damaged Fisher, and the evi*873dence on which the jury so found was clearly sufficient.
[¶ 38.] 3. Even under the majority’s conclusion, we should reverse and remand this case for new trial on all issues except negligence.
[¶ 39.] The State, through wrongful acts of its employees, damaged Fisher in the sum of $406,012.24. The jury believed Fisher was entitled to damages and awarded that amount. Now the majority opinion holds that the trial court erred in allowing the jury to consider the negligence cause of action. It is the trial court’s duty to set forth instructions to the jury “as to the law of the case as it pertains to any theory of the parties supported by the evidence....” LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶33, 544 N.W.2d 523, 530 (citations omitted). If the majority is correct, and the negligence theory was improperly presented to the jury, the trial court erred in its instructions. When jury instructions mislead, conflict or confuse the jury, it constitutes reversible error. Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 19, 552 N.W.2d 801, 808 (citing Wallahan v. Black Hills Elec. Coop., Inc., 523 N.W.2d 417, 423 (S.D.1994)); see also State v. Carver, 286 N.C. 179, 209 S.E.2d 785, 788 (N.C.1974):
It is well recognized in this jurisdiction that when there are conflicting instructions upon a material point, there must be a new trial since the jury is not supposed to he able to distinguish between a correct and incorrect charge.
(Citations omitted); accord Buckles v. State, 50 Ala.App. 552, 280 So.2d 820, 822 (Crim.1973); State v. Cronin, 41 N.C.App. 415, 255 S.E.2d 240, 245 (N.C.Ct.App.1979); State v. Slate, 38 N.C.App. 209, 247 S.E.2d 430, 433 (N.C.Ct.App.1978); cf. Veliz v. American Hosp., Inc., 414 So.2d 226, 228 (Fla.Dist.Ct.App.1982) (“The mere giving of two conflicting standards may, without more, constitute reversible error, even though one of the standards correctly applies.”); Mote v. Mote, 134 Ga.App. 668, 215 S.E.2d 487, 491 (1975) (“A charge containing two distinct propositions conflicting the one with the other is calculated to leave the jury in such a confused condition of mind that they can not render an intelligible verdict, and requires the grant of a new trial.”).
[¶ 40.] The jury was instructed that it could award damages for breach of contract, negligence, or both. The jury chose to award damages for negligence. According to a majority of this court, the trial court erroneously instructed the jury on negligence. In this ease, we do not know whether the jury would have awarded damages under the contract theory if it was the only cause of action presented. When presented with similar circumstances in a prior appeal, we correctly held that the case must be reversed and remanded:
It is now uneontroverted that Instructions 15 and 18 do not properly state the law as it applies to the circumstances surrounding this case. In this instance, it cannot be determined from the verdict which theory of liability — classic trespass or unreasonable trimming — was adopted by the jury.
[[Image here]]
Under this framework, it is obvious that Instructions 13, 15 and 19 contradict the proper workings of the law. As such, they unduly emphasize Wallahan’s former, and now rejected theory, and confuse and mislead the jury. Therefore, on this issue the case is reversed and remanded.
Wallahan, 523 N.W.2d at 423. The jury was told it could award full damages if it found State negligent. “Juries must follow the court’s instructions.” In re Certif. of Questions (Knowles v. United States), 1996 SD 10, ¶ 81, 544 N.W.2d 183, 202 (S.D.1996) (citing SDCL 15-14-11). The jury did as it was instructed and found in favor of Fisher for damages totaling $406,012.74. (S.D. 1996)
[¶ 41.] In view of the fact that the jury was fully instructed on two theories, one permissible and one, according to the majority, impermissible, Fisher is entitled to a new trial with proper instructions. Even under the majority’s view, we should reverse and remand for a new trial on all issues except negligence.
. The P 214 Proposed Test Method states, in part:
3.3 When it has been concluded from the results of tests performed using this proposed test method and supplementary information that a given aggregate should he considered potentially deleteriously reactive, additional studies, possibly using alternative methods, may be appropriate to develop information on the potential reactivity of other combinations containing the same cement with other aggregates, or the same cement-aggregate combination with a mineral admixture or ground blast-furnace slag. (Emphasis added.)
Fisher's expert, Steven Gebler, stated the “admixture they’re talking about there can be the fly ash or silica fume or furnace slag.”