(concurring in result).
[¶ 26.] I concur in the result, but not in the theory of the majority opinion. The theory espoused by the majority opinion violates Plaintiffs right to a jury trial. It allows the court, rather than the jury, to determine whether a failure to change the lock, if the jury determines a change was requested, resulted in foreseeability that someone might enter and harm the decedent. The question of foreseeabüity is a question of fact for the jury. I would rephrase the issue as: whether genuine issues of material fact exist concerning landlord’s duty to Ross, if any, to change the lock. Since genuine issues of material fact exist, we should reverse and remand for a jury trial.
[¶ 27.] The trial court erred in applying the special relationship two-part test articulated in Walther, 1998 SD 78 at ¶ 41, 581 N.W.2d at 535. This test is only applicable when the plaintiff asserts the defendant had a duty to control the'conduct of another with dangerous propensities. E.P. v. Riley, 1999 SD 163, ¶ 31, 604 N.W.2d 7, 15-16. Walther involved a man crawling through a properly working window left open by the victim. 1998 SD 78 at ¶ 6, 581 N.W.2d at 530. The subsequent claim that the landlord had a duty to protect is clearly distinguishable from the case at hand. Accordingly, this case should be analyzed using ordinary negligence principles rather than the special relationship framework.
*194[¶ 28.] Under ordinary negligence principles, Smith is required to prove that: (1) there was a duty; (2) there was a failure to perform that duty; and (3) an injury resulted from such failure. Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981). “[W]hether the 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 [and] the same.” Id. (citing Goff v. Wang, 296 N.W.2d 729, 730 (S.D.1980)). In order to sustain the cause of action, Smith was required to demonstrate that “the harm suffered [was] a foreseeable consequence of the act complained of’ and “[t]he negligent act [was] a substantial factor in bringing about the harm.” Id. (citing Williams v. United States, 450 F.Supp. 1040, 1046 (D.S.D.1978)).
[¶ 29.] Nothing in South Dakota law suggests that landlords have an affirmative duty to protect tenants from criminal activity. In some jurisdictions, however, the law has gradually moved toward enlarging landlord liability in instances where violent criminal acts by third parties are foreseeable and preventable. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63 at 442-43 (5th ed. 1984).
[¶ 30.] Many courts pondering whether landlords are under a duty to protect then-tenants against criminal activities by third persons have held that no duty exists simply by reason of the relationship, but that a duty might arise under special circumstances. Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331 § 2(a) at 335. Landlords who by their own negligent acts or omissions increase the risk of harm from crime owe a duty to exercise reasonable care to protect tenants from that increased risk. See Restatement (Second) of Torts § 302B (1965) (an exception to the general rule that one person has no duty to protect another from crime exists where that person’s affirmative acts or omissions have created a foreseeable high risk of harm from intentional misconduct). See also Restatement (Second) of Torts § 448 (1965) (criminal act of third person is superseding cause of harm to another unless defendants could have foreseen that their negligent conduct increased risk of crime). Foreseeability of harm then becomes the basis for delineating the boundaries for a duty of protection. B.A. Glesner, Landlords As Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises, 42 CaseWResLRev 679, 685 (1992).
[¶ 31.] It has been a well established principle, to date at least, that when a landlord reserves control over a portion of the premises, a failure to carefully maintain that area creates tort liability. Boe v. Healy, 84 S.D. 155, 159-60, 168 N.W.2d 710, 712-13 (1969). Landlords who prohibit their tenants from changing door locks and who demand a fee before changing locks when requested to do so, even in the face of increased danger to tenants, may become liable for negligence as a result of the increased risk to the tenant. If landlords insist on the exclusive right to change locks, then they may have some duty to change them when the locks are no longer effective against foreseeable criminal activity. See Cain, 703 F.2d at 1283 (imposing liability for broken or nonexistent apartment door locks).
[¶ 32.] Under this record, we must view the facts in a light most favorable to the nonmoving party. Wilson v. Great N. Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The facts viewed in the light most favorable to the nonmovant establish that:
*1951. The landlord exercised exclusive control over the changing of the lock.
2. The landlord was informed that a key had been missing.
3. The decedent’s only remedy was to request that the landlord change the lock.
4. The decedent told her mother that she had requested a lock change.
5. The decedent requested to borrow money to pay for the lock change.
6. The lock was not changed.
[¶ 33.] Assuming these facts as true, as required in summary judgment, there is a genuine issue of material fact and a jury question whether the request was made to change the lock. It is for a jury to determine if the failure to change the lock, if it finds the change was requested, resulted in foreseeability that someone might enter and harm the decedent. The question of foreseeability is a question of fact for the jury. E.P., 1999 SD 163 at ¶ 33, 604 N.W.2d at 16. This question of foreseeability can and should be determined under SDCL 20-9-1, which provides: “Every person is responsible for .injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.”
[¶ 34.] We should reverse and remand so the jury can determine genuine issues of material fact, proximate cause and foreseeability under proper instructions.