(dissenting).
[¶ 45] Genuine issues of material fact regarding the exceptions to the public duty doctrine permeate this case and the trial court should have allowed it to go to a jury. “The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” State, Dep’t of Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citation omitted). Since the defendants did not meet their burden, summary *368judgment was improperly granted and we should reverse.
[¶ 46] 1. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS HAD ACTUAL KNOWLEDGE OF THE POTENTIAL FOR AN ATTACK BY THE WOLVES.
[¶ 47] Tabor Police Chief Sutera and Bon Homme County Sheriff O’Donnell both visited the Holland residence and personally observed the wolves and their cage. The animals’ genetic makeup may include a small percentage of German Shepherd, but by all accounts their appearance26 and behavior were undeniably characteristic of wolves, not dogs.27 Additionally, the Town employee responsible for the licensing the wolves classified them as “wolf hybrids” based solely upon information provided by Mrs. Holland; however, the veterinarian’s rabies certificate upon which the employee relied clearly identified the animals as “wolves.”
[¶ 48] As noted by the conference opinion, the pen in which the wolves were kept “suggested contact with the createes it held may be dangerous.” Supra ¶ 19.
Furthermore, the owner’s treatment of the wolf dogs could be interpreted as proof that they were dangerous, wild animals. Evidence showed that Holland never released the animals from their pens. He also took extraordinary precautions to prevent their escape. In constructing the animals’ pen, Holland used fence which was seven to eight feet tall, with an additional three feet of wire all the way around the pen. He installed wire under the surface of the ground, approximately four feet into the pen, so that the animals could not dig an escape hole along the edge of the pen. He also asked neighbors to refrain from visiting the pen unless, he was present. In addition to having no yard fence, there was no exterior guard rail or secondary fence surrounding the cage that prevented visitors from coming into physical contact with the animals.
Tipton v. Town of Tabor, 538 N.W.2d 783, 787 (S.D.1995) (Tipton I) (emphasis in original).
[¶ 49] The manner in which Holland caged his animals was observed by Sutera and O’Donnell. While escape may have been unlikely, the wolves were able to stick their heads through openings in the livestock panels,28 which ultimately facilitated this attack. It is for the jury, not the trial court or this court, to decide whether an attack could be anticipated based upon the defendants’ observations of the cage and whether that constitutes actual knowledge of the potential *369danger. See, e.g., Barger v. Jimerson, 130 Colo. 459, 276 P.2d 744, 746 (1954) (“[T]he proof offered as to the nature and disposition of the dog as appearing to be savage and ferocious was equivalent to express notice. Moreover, the fact that defendants kept the dog confined is persuasive in concluding that they considered it unsafe for the dog to be at large.”); Machacado v. City of New York, 80 Misc.2d 889, 365 N.Y.S.2d 974, 979 (N.Y.Sup.Ct.1975) (“Danger and physical harm are not of necessity screened out by the presence of a barrier if that barrier is in some way surmountable or permits the threat of danger.”); cf. Uccello v. Laudenslayer, 44 Cal.App.3d 504, 118 Cal.Rptr. 741 (1975) (listing reasons landlord should have known of dog’s dangerous propensities and including “Beware of Dog” signs).
[¶ 50] The conference opinion states that “Holland had previous experience in raising wolfdogs and represented them to be safe.” Supra ¶ 19. It is unclear to whom he made such representations. He told the neighbors never to approach the cage unless he was present. Even if he told Sutera and O’Donnell that the wolves were safe, it is essentially irrelevant. An owner of a dangerous animal can not be expected to be objective about its dangerousness. “Wolves ... are considered unsafe no matter how ‘domesticated’ their owners may consider them.” Supra ¶ 26 (citing Hays v. Miller, 150 Ala. 621, 43 So. 818 (1907)). If an owner were objective, there would be no need for ordinances and statutes such as the ones at issue here. See SDCL 7-12-29:
The sheriff may take possession of any animal suspected of being dangerous. The sheriff may hold such animal until a formal determination can be made of the extent of the danger such animal poses. If the animal has attacked or bitten a human or an animal pet, the formal determination shall include consultation with the department of health for the purposes of rabies control. The sheriff may dispose of any animal so determined to be dangerous.
See also Town of Tabor Ordinance § 8-1108, which provides: “No dog of fierce, dangerous or vicious propensities, licensed or not, shall be harbored or kept within the town.” As noted in Champagne v. Spokane Humane Society, 47 Wash.App. 887, 737 P.2d 1279, 1282 (1987), “The protection of the public against marauding animals, whether wild or domestic, is similar in nature to the protection furnished by a police department against the lawless and depraved elements among men.” (Citation omitted).
[¶ 51] As for the ordinance which became effective the day after the attack on Crystal Tipton, reproduced supra at note 15, even the conference opinion acknowledges that “there is contradictory evidence” as to whether it was enacted in response to Holland’s wolves. Obviously, if it were enacted for that reason, it constitutes strong evidence that the Town of Tabor had actual knowledge of the likelihood of an attack by the wolves. “Contradictory evidence” on a material factual issue precludes summary judgment.29 Sorting out the truth is the jury’s function. Bauman v. Auch, 539 N.W.2d 320, 325 (S.D.1995).
It is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among con*370flicting inferences and conclusions that which it considers most reasonable.
Fajardo v. Cammack, 322 N.W.2d 873, 878 (S.D.1982) (Wollman, C.J., concurring specially) (citations omitted).
[¶ 52] 2. REASONABLE RELIANCE.
[¶ 53] Although there is no evidence of any direct representation to Crystal Tipton, one could argue that she and other similarly situated children should be able to reasonably rely, without evidence, on government authorities to maintain towns free from attractive, public nuisances which viciously attack unsuspecting children. As noted, this attack occurred within the community of the Town of Tabor, not in a rural or secluded area.
[¶ 54] At any rate, a plaintiffs inability to prove reliance is not a bar to suit. Andrade v. Ellefson, 391 N.W.2d 836, 843 (Minn.1986) (finding a special duty when first factor only partially met and third factor conclusively established); Tipton I, 538 N.W.2d at 787 (“Strong evidence concerning any combination of these factors may be sufficient to impose liability on a government entity.”).
[¶ 55] 3. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER CRYSTAL TIPTON WAS A MEMBER OF THE CLASS PROTECTED BY THE STATUTES.
[¶ 56] The plain language in Tipton I instructs that the language of a statute is not dispositive of whether there is a duty to any particular class of persons:
Sole reliance on statutory language in determining whether a duty exists is needlessly restrictive and arbitrary. A statutory reference to a particular class of persons could very well be inadvertent rather than the result of any reasoned analysis of municipal or county responsibility. We require an analytical framework that more accurately measures a public entity’s culpability for the harm suffered.
538 N.W.2d at 787. Despite this language, the conference opinion concludes that, since the statutes and ordinances at issue do not mention a particular class, they were not intended to protect Crystal Tipton. It is not disputed that SDCL 7-12-29 and Tabor’s ordinance § 8-1108 gave the Town and the County the authority to act.
[¶ 57] Sutera and O’Donnell were satisfied after their visit to the cage that the animals could not escape. Therefore, the only persons who could foreseeably be injured by the wolves were those persons who did not comprehend the danger of approaching the cage. Compare Machacado, 365 N.Y.S.2d at 976, where the court noted, “Experience and common sense dictate that a person, believing herself to be in imminent danger of attack by a feral animal, will take immediate and precipitous action to avoid injury.” Children are not and can not be held to that level of experience and common sense:
Generally, a minor is not held to the same standard of conduct as that of an adult unless he engages in an activity normally only undertaken by adults. Wittmeier v. Post, 78 S.D. 520, 105 N.W.2d 65 (1960). The objective standard of the reasonable prudent person does not apply to a minor, but rather a special (subjective) standard of care is used which takes into account his age, intelligence, experience and capacity. Finch v. Christensen, 84 S.D. 420, 172 N.W.2d 571 (1969).
Alley v. Siepman, 87 S.D. 670, 674, 214 N.W.2d 7, 10 (1974); cf. Hofer v. Meyer, 295 N.W.2d 333, 336 (S.D.1980) (attractive nuisance case) (“A child of three, indeed even older children, would not perceive the horse as being imminently dangerous.”).
[¶ 58] Additionally, the Tiptons raise SDCL 21-10-1, which defines what acts and omissions constitute nuisances:
A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health, or safety of others;
(4) In any way renders other persons insecure in life, or in the use of property.
As noted by the conference opinion, supra ¶ 31, ferocious or biting dogs are “a nuisance of the worst sort.”
*371[¶ 59] The Town of Tabor had the power to remove the wolves under this statute. See SDCL 9-29-13: “Every municipality shall have power to declare what shall constitute a nuisance and prevent, abate, and remove the same.” See also Wynkoop v. Mayor & City Council of Hagerstown, 159 Md. 194, 150 A. 447, 449 (1930) (“[W]here the municipality is authorized by the Legislature to abate nuisances, the authority carries with it the duty to exercise it, and where it either fails to adopt such ordinances as may be necessary to the reasonable performance of that duty, or to exercise reasonable diligence in enforcing them when adopted, it will be answerable to any private individual injured as a result of its default.”).
[¶ 60] A nuisance such as Holland’s wolves constitutes a “public” nuisance. See SDCL 21-10-3:
A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon the individuals may be unequal. Every other nuisance is private.
Cf. SDCL 40-34-4 (failure to keep one’s dogs confined is public nuisance when more than five dogs involved). The significance of the wolves constituting a public nuisance is that the statute narrows the class of persons intended to be protected by its provisions. If it were meant to extend a duty of protection to the public as a whole, it would not make sense to list the three categories of persons to whom it is directed. “[T]his court must assume that the Legislature meant what the statute says and therefore give its words and phrases a plain meaning and effect.” In re Estate of Gossman, 1996 SD 124, ¶ 6, 555 N.W.2d 102, 104 (citing Nilson v. Clay County, 534 N.W.2d 598, 601 (S.D.1995)). SDCL 2-14-1 provides that when construing and giving effect to our statutes, “words used are to be understood in their ordinary sense_” As the plain language of SDCL 21-10-3 states, the persons to be protected are a “community,” a “neighborhood,” or “any considerable number of persons.”
[¶ 61] Clearly, the duty to declare something a nuisance and to then remove it is owed, not to the public generally but rather to neighbors and adjoining landowners.30 Surely a child visiting a neighbor or adjoining landowner is included in the class of persons intended to be protected by the nuisance statutes.31 It is undisputed that defendants had the power to remove the animals. Nuisance liability may be imposed on non-owners if they have control over “the instrumentality alleged to constitute the nuisance.” 58 AmJur2d Nuisances § 117, at 761 (1989). “The person whose duty it is to abate a nuisance should answer for the consequences resulting from its continuance.” Id. § 118; cf. Cochrane v. Mayor of City of Frostburgh, 81 Md. 54, 31 A. 703, 705 (1895) (holding city liable for failure to control animals running at large, and stating that when a statute confers a power upon a corporation to be exercised for the public good, “the exercise of the power is not merely discretionary, but imperative, and the words ‘power and authority’ in such case may be construed ‘duty and obligation’ ”).
*372[¶ 62] As noted, the Town employee who licensed the wolves had actual knowledge that they were wolves. She testified by deposition that she relayed this information to the Town Board. The ordinance granting the Town the power to license dogs did not include the power to license wild animals. “A municipality or other political subdivision licensing or authorizing the creation or maintenance of a nuisance is liable for resulting damages[.]” 57 AmJur2d Municipal, County, School, & State Tort Liability § 165, at 177 (1988).32
[¶ 63] Children in the neighborhood certainly came within the “ambit of the risk” created by any negligent failure to act on the potential danger of an attack by the wolves. See Livingston v. City of Everett, 50 Wash.App. 655, 751 P.2d 1199, 1201 (1988) (citations omitted):
When statutes intend to insure the safety of the public highways, a governmental officer’s knowledge of an actual violation creates a duty of care to all persons and property who come within the ambit of the risk created by the officer's negligent conduct.
(Emphasis added) (finding that persons entering an apartment where dangerous dogs were released to owner by City Animal Control came within “ambit of the risk” created by release of the dogs). It was only a matter of time before a child wandering into the unfenced yard and near the cage would be attacked by the wolves.33 Whether the defendants should have acted to protect Crystal Tipton and other children in the neighborhood is a question for the jury.
[¶ 64] There are genuine issues of material fact whether Crystal and similarly situated children should have been the object of the defendants’ duty to act on the potential danger of an attack by these wolves. As noted, Crystal may have been a reasonably foreseeable plaintiff in light of the knowledge the defendants possessed after visiting the cage. See Champagne, 737 P.2d at 1283 (noting that under these exceptions, “an entity performing governmental functions may be held liable where the plaintiff demonstrates that an otherwise general duty to the public has focused on the particular plaintiff and the entity breaches that duty”). Furthermore, the nuisance statutes clearly delineate a duty, not to the general public but to three classes of, persons.
[¶ 65] The conference opinion, supra note 16, states that the jury can consider the defendants’ resources and its resource allocation policy in answering the question whether the defendants owed a duty to Crystal and other similarly situated children. However, this is really a non-issue under the nuisance statutes because the defendants had the opportunity to remove these wolves at no cost to the municipality. See SDCL 21-10-6, which provides, in relevant part:
*373A public nuisance may be abated without civil action by any public body or officer authorized thereto by law.... Every municipality may defray the cost of abating a public nuisance by taxing the cost thereof by special assessment against the real property on which the nuisance occurred. When the nuisance abated is an unsafe or dilapidated building, junk, trash, debris or similar nuisance arising from the condition of the property, the municipality may commence a civil action against the owner of the real property for its costs of abatement in lieu of taxing the cost by special assessment.
The public duty rule stems, at least in part, from a concern that individuals could affect the manner in which limited public resources are utilized. See supra ¶ 10. As this statute makes clear, the defendants are afforded an opportunity to carry out their duty without depleting any resources. Therefore, this concern is not present in a suit brought under the nuisance statutes, and should be considered by the jury — as stated by the majority' — not withheld from the jury as done by the trial court.
[¶ 66] 4. THERE ARE GENUINE ISSUES OF MATERIAL ACT WHETHER DEFENDANTS’ FAILURE TO ACT CONSTITUTED A BREACH OF DUTY.
[¶ 67] As noted, the Defendants had the authority to remove the wolves from the residence. They were apparently under no duty to visit Holland’s home on the basis of complaints concerning the howling.34 However, as stated by the conference opinion, supra ¶ 13, “persons are generally not liable for failure to act, but once having acted, [they] must proceed without negligence." (Emphasis added). If the jury finds that the defendants possessed actual knowledge of the likelihood of an attack by the wolves, whether they were obligated to act is another question for the jury. See Andrade, 391 N.W.2d at 841 (“Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.”); see also id. at 844 (Wahl, Justice, concurring specially) (“[Defendants] had actual knowledge of a dangerous condition ... such that a special duty was imposed on them to do something about the condition.”). Whether a defendant breached a duty and whether his breach resulted in injury to the plaintiff are questions for the jury. Laber v. Koch, 383 N.W.2d 490, 493 (S.D.1986).35
[¶ 68] Whether the removal of the wolves would have diminished the risk of harm to Crystal and other children is yet another jury question. The conference opinion states that “[fjailure to diminish harm is not enough.” Supra ¶ 38 (citing Andrade, 391 N.W.2d at 843). It is true that Andrade stands for the proposition that failure to decrease the risk of harm can not be the grounds upon which duty is imposed. However, Andrade goes on to state that failure to decrease the risk of harm “goes to whether, assuming the legal duty exists, it was breached." 391 N.W.2d at 843 (emphasis added). As Andrade states, the duty can be estab*374lished by the knowledge of the dangerous condition. It is axiomatic that questions of breach, proximate cause, and damages are resolved by the jury in all but the rarest of cases.
[¶ 69] Imposing liability for a person’s failure to act when that person has knowledge of the dangerousness of an animal, coupled with the power to remove the animal from the premises is not a novel concept. Analogous are the cases where liability was imposed when a landlord’s knowledge of the dangerous propensity of a tenant’s dog was combined with his power to prevent the animal’s presence on the premises:
[I]f a landlord has such a degree of control over the premises that it fairly may be concluded that he can obviate the presence of the dangerous animal and he has knowledge thereof, an enlightened public policy requires the imposition of a duty of ordinary care. To permit a landlord in such a situation to sit idly by in the face of the known danger to others must be deemed to be socially and legally unacceptable.
There is a moral blame attached to a landlord’s conduct under these circumstances; he-cannot be permitted to knowingly stand aside where it is shown that he has the power to remove the animal from the premises without incurring a liability for his failure to act.
Uccello, 118 Cal.Rptr. at 746, 747-48; accord Donchin v. Guerrero, 34 Cal.App.4th 1832, 41 Cal.Rptr.2d 192 (1995); Linebaugh v. Hyndman, 213 N.J.Super. 117, 516 A.2d 638 (App.Div.1986).
[¶ 70] The essence of Tipton’s claim is that an attack should have been reasonably anticipated by the defendants, that it became their duty to protect Crystal against it, and that their failure to perform that duty was negligence. There is “strong evidence” on three of the four factors, which is more than Tipton I, 538 N.W.2d at 787 or Cracraft v. City of St. Louis Park, 279 N.W.2d 801 (Minn.1979), require. Since resolution of this action hinges on the jury’s determination of sharply disputed issues, i.e., whether the defendants had actual knowledge of the likelihood of an attack, and if. so, whether they breached a duty by not acting, summary judgment was improper. We should reverse and remand for trial on the merits.
*375[[Image here]]
EXHIBIT #43
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EXHIBIT #62
. Copies of photographs of the animals are attached to this writing.
. When this court reversed and remanded this case, we stated, "The suggestion by Town that a four to five percent mix of German Shepherd would have diminished the animals' innate dangerous propensity is a claim that must be examined more fully on remand.” Tipton v. Town of Tabor, 538 N.W.2d 783, 787 (S.D.1995) (Tipton I). On remand, the defendants offered no proof to support this contention. The trial court stated, in granting summary judgment to the defen- ■ dants, "[W]hile it is true ... that Defendants have not produced anything in answer to the Supreme Court’s query, neither have Plaintiffs furnished any argument, factual or legal, which would make this inquiry relevant.” The burden is on the party requesting 'summary judgment to demonstrate the absence of any genuine issue of material fact and that he is entitled to judgment on the merits as a matter of law. Walz v. Fireman’s Fund Ins. Co., 1996 SD 135, V 6, 556 N.W.2d 68, 70. For the trial court to shift the burden to the Tiptons was unfair and contrary to our well-established standards for summary judgment.
Even so, the Tiptons produced information from various publications concerning the dangers of wolf hybrids. Compounding the trial court’s error is the majority’s statement that there is no showing that any of the defendants were ever aware of this information. Again, the burden is on the defendants; they argued the wolves were less dangerous because of their 4-5% German Shepherd ancestry. Tip-tons refuted their argument. Therefore, it is a disputed issue of material fact whether the defendants knew that hybrids
"make horrible pets” and are "schizophrenic. — sometimes Lassie, sometimes Cujo. Getting too close to one is a gamble. This animal is going to make the pit bull seem like a puppy.” (Supra note 17).
.In fact, photographs in the record show one wolf with its entire head outside the cage. Two sides of the cage were livestock panels, which are fences consisting of continuous rectangular openings of substantial size.
. The trial court misread Tipton I; in granting summary judgment, the court stated, "The Supreme Court obviously did not find issues of material facts. If they had done so, they would not have remanded for further review.” (Emphasis in original). The plain language of our opinion indicates there were unresolved questions of fact: "[W]hether Town or County had actual knowledge of a dangerous condition created by the presence of the wolf hybrids is a subject of sharp dispute.” Tipton I, 538 N.W.2d at 787 (emphasis added). We pointed-out that many more facts could be considered under the Cra-craft factors than were addressed under the Ha-gen test, including the significance, if any, of the defendants’ observations of the extraordinary measures taken by Holland in caging the wolves. See also id. at 788 (Erickson, Circuit Judge, concurring in part and dissenting in part) ("[T]he majority argues that there is a material issue as to these public officials' actual knowledge of a dangerous condition!.]"). For the trial court to assume we would reverse and remand a grant of summary judgment where there were no genuine issues of material fact is somewhat illogical.
. See, e.g., City of Aberdeen v. Wellman, 352 N.W.2d 204, 205 (S.D.1984) (noting that one of the considerations in determining whether a nuisance must be abated is "the present use and trends of use of surrounding property ") (emphasis added) (citation omitted); see also Union County v. Hoffman, 512 N.W.2d 168, 170 (S.D.1994) (analyzing whether mobile home park was a public nuisance by examining its effect on residents of the park); Town of Winfred v. Scholl, 477 N.W.2d 262, 263 (S.D.1991) (affirming trial court's conclusion that junk on appellant's property constituted a nuisance and noting that the conclusion was reached by taking testimony from adjoining landowners); Watson v. Great Lakes Pipeline Co., 85 S.D. 310, 314-15, 182 N.W.2d 314, 316-17 (1970) (testing of neighboring landowners' wells sufficient to establish jury question whether defendant polluted their water and thus constituted public nuisance).
. See Runkel v. City of New York, 282 A.D. 173, 123 N.Y.S.2d 485, 489 (1953), where the City of New York was held liable for failing to abate a known nuisance when neighborhood children were injured while playing in a dangerous, abandoned building. The children were found to come within the class of persons intended to be protected by the nuisance statutes. The court relied on N.Y. Mult. Dwell. Law § 309, which defines "nuisance” in part as any public nuisance known at common law and "whatever is dangerous to human life or detrimental to health.”
. See, e.g., Landau v. City of New York, 180 N.Y. 48, 72 N.E. 631, 634 (1904) (city could be held liable for consenting in advance to nuisance (fireworks); issuing permit placed it under same liability as if it created nuisance itself); Speir v. City of Brooklyn, 139 N.Y. 6, 34 N.E. 727, 728 (1893) (city issuing fireworks permit held liable for resulting fire); Kolb v. Mayor of Knoxville, 111 Tenn. 311, 76 S.W. 823, 824 (1903) (city liable for illness resulting from pollution — it did not create pollution, but it licensed individual who did); City of Richmond v. Smith, 101 Va. 161, 43 S.E. 345, 348 (1903) (noting that since it was city's duty to abate nuisance, “[T]he sin of commission in granting the permit cannot be less than the sin of omission in failing to discharge its duty”); see generally Annotation, Liability of Municipality for Injury of Damage From Explosion or Burning of Substance Stored by Third Person Under Municipal Permit, 17 A.L.R.2d 683 (1951).
. See Muhlenkort v. Union County Land Trust, 530 N.W.2d 658, 662 (S.D.1995) (“To establish a duty on the part of the defendant, it must be foreseeable that a party would be injured by the defendant's failure to discharge that duty.”); Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 227, 229-30 (S.D.1994) ("Whether a duty exists depends on the foreseeability of injury.”); see also Mid-Western Elec., Inc. v. DeWild Grant Reckert & Assocs. Co., 500 N.W.2d 250, 254 (S.D.1993) ("We instruct trial courts to use the legal concept of foreseeability to determine whether a duty exists.”); Champagne, 737 P.2d at 1283 (noting that the "privity" necessary to impose liability despite the public duty doctrine refers to the relationship between the entity and the reasonably foreseeable plaintiff); Wytupeck v. City of Camden, 25 N.J. 450, 136 A.2d 887, 894 (1957) (holding city responsible for injuries to minor and noting that the relationship between the parties is founded upon the foreseeability of harm to the person in fact injured) (paraphrasing Judge Cardozo's writing in Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928)).
. Regardless, once they undertook to visit the wolves' cage, they may have assumed a duty to Crystal Tipton. See, for example, Schultz v. Mills Mutual Insurance Group, 474 N.W.2d 522, 524 & n. 1 (S.D.1991), where this court noted that a cause of action may be premised upon Restatement (Second) of Torts § 324A (1965), which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
le) the harm is suffered because of reliance of the other or the third person upon the undertaking.
. Ordinarily, the question of whether a duty exists is a question of law for the court. Here, the answer to that question rests upon substantial issues of material fact that are rightfully jury questions. Swiden Appliance & Furniture, Inc. v. National Bank of SD, 357 N.W.2d 271, 277 (S.D.1984); accord City of Gary v. Odie, 638 N.E.2d 1326, 1329-30 (Ind.Ct.App.1994) ("Factual questions may be interwoven with the determination of the existence of a relationship, rendering the existence of a duty a mixed question of law and fact, ultimately to be resolved by the fact-finder.”) (citation omitted).