(concurring specially).
I agree with the holdings of the majority on all issues. I write specially to take issue with the majority’s treatment of the Karras holding as follows:
The cause of action for economic damage based on professional negligence should not be confused with our holding in Karras. Karras v. Time Out, Inc., 469 N.W.2d 380, 386 (S.D.1991) (Subsequent tenant does not have cause of action based on common law property rights or landlord/tenant relationship to recover for intentional damage to real estate by former tenant, his remedy lies within lease agreement).
In my view, the majority would be more forthright to simply admit its error on Issue V in Karras. As I urged in Karras:
Alpha claimed that Karras damaged the restaurant before vacating the premises. Alpha proved its case as the jury awarded Alpha compensatory damages and interest. Alpha had a leasehold interest in the restaurant property and that is sufficient to sustain the damage award.
SDCL 20-9-1 provides in part:
Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want or ordinary care or skill[.] (Emphasis added.)
This statute clearly provides a duty and it would be error for this court to determine otherwise. This is not a matter of privity as correctly acknowledged by the trial court but incorrectly concluded by the majority opinion. This is a tort, not a contract matter. “A duty to use proper care may also arise from a contractual relationship and breach of the resulting duty may give rise to tort liability.” Limpert v. Bail, 447 N.W.2d 48, 51 (S.D.1989) (citing Friedhoff v. Engberg, 82 S.D. 522, 527, 149 N.W.2d 759, 762 (1967)). “Liability in tort for breach of that duty may arise as the result of negligence during the performance of the contract, even if there has been no breach of contract.” Id. (citing Layman v. Braunschweigische Maschinenbauanstalt, Inc., 343 N.W.2d 334, 341 (N.D.1983)).
Karras, 469 N.W.2d at 387 (Sabers, J., dissenting). Obviously, it is too late to help Alpha against Karras, but it is never too late to help the law.
*257The majority also overlooks this courts precedent in Limpert v. Bail, 447 N.W.2d 48 (S.D.1989), which held that a professional veterinarian’s legal duty runs not only to the owner and seller of tested cattle, but also to the buyer. Id. at 51. In so holding, we stated:
Even if the contractual relationship was between Rotenberger [veterinarian] and Limpert [owner and seller], rather than Rotenberger and Bail [buyer], a breach by Rotenberger of the duty owed to Limpert could still render Rotenberger liable to Bail. As explained by the court in Layman, supra:
Where one undertakes by contract to perform a certain service and is chargeable with the duty of performing the work in a reasonably proper and efficient manner, and injury occurs to a blameless person, the injured person has a right of action directly against the offending contractor which is not based on any contractual obligation but rather on the failure of such contractor to exercise due care in the performance of his assumed obligation.
Id. at 341 (quoting 57 Am.Jur.2d Negligence § 50). Such an imposition of liability is consistent with SDCL 20-9-1, which provides in part: “Every person is responsible for injury to the person, property, or rights of another caused by his ... want of ordinary care or skill[.]” Rotenberger had a duty to exercise due care in the testing of the cattle. If in turn, Rotenberger allowed Limpert to do some of the testing, it would not absolve him from his responsibility to Bail. Thus, a legal duty and genuine issues of material fact exist.
Limpert, 447 N.W.2d at 51-52 (citations omitted). Accordingly, a claim based on the cause of action is not entirely new to this court.