(dissenting).
[¶ 35.] I respectfully dissent.
[¶ 36.] Clearly, the general rule is that there is no duty to protect a person from the criminal acts of a third party. Our two-pronged test, expressed a mere three years ago in Walther, states that a duty to protect a person from the criminal acts of a third party can arise ONLY if: (1) a special relationship exists between the landowner and the injured party; and (2) the intentional criminal acts were foreseeable. Walther, 1998 SD 78 at ¶ 41, 581 N.W.2d at 535. Thus, both must be established or a plaintiffs claim fails. In Walther, we held that no special relationship existed between a landlord and a tenant. Id. at ¶ 42. Herein, neither is established and thus, the conclusion of this Court to hold to the contrary is in error.
[¶ 37.] 1. No special relationship existed.
[¶ 38.] A legal • obligation generally must come from one of three sources. First it can be created by enactment of a specific statute. SDCL 1-1-23. No statute creating a duty of due care between a landlord and tenant exists in this state. Second, the obligation can come from the common law. Id. We held in Walther, no such common law duty exists between a landlord and tenant.2 Finally an obligation can arise from a contract. It is the contractual lease between landlord and tenant concerning lost key and lock replacement upon which this Court focuses to arrive at its “special circumstances.” Yet “[w]e have long recognized that ‘conduct that is merely a breach of contract is not a tort.’ ” Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, ¶ 32, 632 N.W.2d 856, 865 (quoting Weeg v. Iowa Mut. Ins. Co., *19682 S.D. 104, 109-110, 141 N.W.2d 913, 916 (1966) (additional citation omitted)).
[¶ 39.] 2. Forseeability.
[¶ 40.] Moreover, the Court’s analysis of forseeability is in error. The landlord-tenant relationship is not analogous to other relationships where a duty has been imposed. See Walther, 1998 SD 78 at ¶ 44, 581 N.W.2d at 536. In Walther we distinguished the landlord-tenant relationship from the business invitee-landowner relationship. Id. (citations omitted). In distinguishing the two relationships we stated that “the landlord cannot be expected to protect [tenants] from the wiles of felonry any more than the society can always protect them upon the common streets and highways leading to their residence or indeed in their home itself.” Id. (citations omitted). We further noted that:
[a]n apartment building is not a place of public resort where one who profits from the very public it invites must bear what losses that public may create. It is of its nature private and only for those specifically invited. The criminal can be expected anywhere, any time, and has been a risk of life for a long time.
Id. (citations omitted).
[¶ 41.] This Court bases its decision on the issues of exclusive control and foreseeability. But Ross gave Robert Powers, who contracted for her murder, access to her apartment key five months before her death. Not only did Ross share control of the locks with Lagow, she voluntarily extended control to Amy Powers, as well. Ross made no allegation that Lagow had any notice of the problems between Robert and Amy Powers, or even that Amy Powers was a resident in Ross’s apartment. Amy Powers lost the key to Ross’s apartment unbeknownst to Lagow. Lagow certainly did not have exclusive control of the lock. Nor could Lagow foresee any problem when it was not even aware that an additional key had been given to a third person not party to the lease contract. See King v. Ilikai Properties, Inc., 2 Haw.App. 359, 632 P.2d 657 (1981) (holding where tenant does not give explicit notice of particular threat, placing liability on landowner is unjustly imposing a duty of impossible performance); Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644 (Mo.App.1987) (holding while “special relationship” or “special circumstances” may give rise to landlord-tenant duty, no such relationship or circumstances existed where landlord’s contractor exposed tenant’s premises to theft); Martin v. Usher, 55 Ill.App.3d 409, 13 Ill.Dec. 374, 371 N.E.2d 69 (1977) (holding landlord’s failure to maintain locks, windows, and lights did not give rise to “special relationship” or duty); Knapp v. Wilson, 535 S.W.2d 369 (Tex.Civ.App.1976) (holding key lost by former tenant amounted only to mere possibility of burglary, not foreseeable risk). The facts of this case do not justify placing a special duty upon Lagow to protect its tenants from the criminal acts of third parties.3
*197[¶ 42.] 3. Issue of foreseeability not appropriate for appellate review.
[¶ 43.] Normally the next step would be to determine if Ross showed sufficient facts to create a jury question on foreseeability by applying the totality of the circumstances test. Walther, 1998 SD 78 at ¶ 41, 581 N.W.2d at 535 (citing Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D.1987)). In this case, however, the trial court did not address this issue, therefore the issue is not appropriate for appellate review. Thompson v. Summers, 1997 SD 103, ¶ 24, 567 N.W.2d 387, 395 (citations omitted).
Conclusion
[¶ 44.] Today the Court disregards the distinction between tort and contractual duties and the two-pronged test articulated in Walther, which establishes when a duty between a landlord and tenant arises. Instead, the Court erroneously applies other principles of negligence to establish a duty between a landlord and tenant arising under “special circumstances.” Under its flawed reasoning, the legal rationale of this case as compared with Walther is that the landlord apparently has a duty to protect tenants from felonious criminals who enter through a tenant’s door, but not through a tenant’s window.
[¶ 45.] Perhaps there would be no difference in the ultimate amount of landlord liability in this case, whether based on tort or breach of contract if both were properly pled. That is unknown, however, because the contract issue has not been brought before this Court on this appeal and therefore, cannot be considered. What about the next missing-key ease where there is no clause or even a written lease on the subject? Does landlord liability still attach via tort principles as this Court holds today? If so, the “special circumstances exception” has just swallowed up the general rule of landlord tort non-liability with no legal basis to do so.
[¶ 46.] For the above reasons, I respectfully dissent.
[¶ 47.] MILLER, Retired Chief Justice, joins this dissent.
. The Court concedes this point when it declares, ''[l]ittle in South Dakota statutes and precedents, however, suggests that landlords have a general duty to protect tenants from all criminal activity.... Most courts refuse to impose a broad duty on landlords to protect tenants from criminal acts committed by third parties on the premises.”
. This is not to say that a special relationship between a landlord and tenant can never exist, only that one does not arise in this case. See, e.g., Flood v. Wis. Real Estate Inv. Trust, 503 F.Supp. 1157 (D.C.Kan.1980) (holding landlord liable where he failed to maintain security as bargained for at beginning of the lease); Doe v. Stegall, 757 So.2d 201 (Miss.2000) (finding genuine issue of material fact where manager gave third party a master key); Rowe, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358 (finding genuine issue of material fact where manager knew master key and grand master key were missing); Razdan v. Parzen, 157 Ga.App. 848, 278 S.E.2d 687 (1981) (holding landlord liable for theft of tenant's property when landlord gave key to bogus repairman). Furthermore, these types of relationships are generally imposed by contract, thus giving rise to a breach of *197contract action. At most, Ross may be able to show that Lagow violated the provision in the lease that requires it to change a tenant's lock upon request and receipt of the $45 fee. But a breach of contract action does not automatically give rise to a “special relationship” that may then become a basis for a tort claim. Trouten, 2001 SD 106 at ¶ 32, 632 N.W.2d at 864.