(concurring in part and dissenting in part).
I concur in all respects except that I dissent on Issue V.
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 of 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)).
Very simply, Karras damaged Alpha’s property and should be held responsible for it. Obviously, Karras is not obligated to pay twice, i.e, to Alpha and to the lessor, but this verdict is proper and should be affirmed, not reversed.