#28965-a-JMK

2020 S.D. 43

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

EMILY FODNESS, CHRISTINE

FODNESS and MICHAEL FODNESS, Plaintiffs and Appellants,

v.

CITY OF SIOUX FALLS, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE CAMELA THEELER

Judge

* * * *

DANIEL R. FRITZ

TIMOTHY R. RAHN of

Ballard Spahr LLP

Sioux Falls, South Dakota Attorneys for plaintiffs and 

appellants.

JAMES E. MOORE

ALEXIS A. WARNER of

Woods Fuller Shultz & Smith P.C.

Sioux Falls, South Dakota Attorneys for defendant and 

appellee.

* * * *

ARGUED

JANUARY 14, 2020

OPINION FILED 07/29/20
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KERN, Justice

[¶1.] Emily Fodness suffered extensive injuries when her apartment 

collapsed after a contractor demolished certain portions of a load-bearing wall. 

Emily and her parents brought a negligence action against the City of Sioux Falls 

(the City) for issuing a building permit for the project. The City moved to dismiss, 

arguing that the public duty rule barred the suit and that the Fodnesses failed to 

plead sufficient facts to establish that the City owed them a special duty, which 

would bring them within an exception to the rule. The circuit court granted the 

City’s motion to dismiss and denied the Fodnesses’ motion to amend their 

complaint. The Fodnesses appeal. We affirm.

Facts and Procedural History

[¶2.] In April 2016, the City and Hultgren Construction LLC (Hultgren) 

began discussions about renovating the two buildings in downtown Sioux Falls 

located at and adjacent to 136 South Phillips Avenue (the Property). Hultgren

intended to remove portions of the load-bearing wall separating the interior of the 

two buildings to create a single, open area for commercial development. Emily and 

her parents, Christine and Michael (the Fodnesses), lived in an upstairs apartment 

in one of the buildings. Hultgren applied to the City for a building permit for 

interior demolition but did not include with its permit application any architectural 

or structural plans for its proposed work. The City issued the building permit, and 

Hultgren posted the permit outside the Property and began demolition work at the 

site.
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[¶3.] On December 2, 2016, Hultgren demolished certain portions of a loadbearing wall separating the two adjoining buildings. Michael was on the ground 

level when he ran out after feeling the building shift. He escaped before the 

building collapsed. Christine was not at home, but Emily was asleep in her room 

upstairs when the apartment collapsed. Emily dropped to the story below and 

became trapped by the rubble that fell from the walls and ceilings above her. 

Fortunately, Emily found her cellphone and communicated with family and first 

responders who rushed to her aid. Emily remained trapped for approximately four 

hours before rescuers were able to remove her from the debris and transport her to 

the hospital for emergency treatment for her injuries.

[¶4.] Emily, Christine, and Michael brought an action against the City, 

alleging one count of negligence and seeking compensation for their physical and 

emotional injuries. In their complaint, the Fodnesses alleged that the City was 

negligent in issuing Hultgren a building permit for interior demolition without 

adequate architectural or structural plans, particularly in light of its alleged 

knowledge of Hultgren’s violation of the conditions of past permits. According to the 

Fodnesses, the City was familiar with Hultgren’s practices because the City had 

previously issued approximately 33 building permits to Hultgren from February 

2013 to September 2016. They alleged the City received numerous complaints from 

citizens and businesses that Hultgren was failing to comply with, and working 

beyond, the scope of its building permits.

[¶5.] While the Fodnesses did not use the phrase “public duty” in their 

complaint, they did allege that the City breached “special duties” to them, that they 
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relied on the City’s actions, and that the City’s actions increased their risk of harm. 

They contended that the City was uniquely aware of the particular dangers and 

risks the Fodnesses would be exposed to when the City issued the permit. The 

Fodnesses alleged that they would not have continued to reside at the Property 

during the Hultgren construction project had the City notified them of the dangers 

the City knew existed. Thus, the Fodnesses claimed the City breached its special 

duty to them by exposing their family to known, dangerous, and life-threatening 

conditions that would not have occurred except for the City’s acts and omissions.

[¶6.] The City moved to dismiss for failure to state a claim under SDCL 15-

6-12(b)(5). The City argued that it owed no duty to the Fodnesses under the public 

duty rule and could not be subject to liability for negligently issuing a building 

permit. Moreover, the City argued that the Fodnesses failed to establish that the 

City owed them a special duty to bring them within the exception to the public duty 

rule because they could not satisfy any of the factors set forth in our holding in 

Tipton v. Town of Tabor (Tipton I), 538 N.W.2d 783 (S.D. 1995).

[¶7.] In response, the Fodnesses filed a brief in opposition to the motion to 

dismiss and moved to amend their complaint. The circuit court held oral argument 

on the motions and took the matter under advisement. The court issued a written 

opinion granting the City’s motion to dismiss because the complaint failed to allege 

sufficient facts to establish that the City owed the Fodnesses a special duty of care. 

The court also denied the Fodnesses’ motion to amend because they failed to show 

how an amendment would cure the defects in their original complaint. The circuit 

court entered an order of dismissal on March 19, 2019.
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[¶8.] The Fodnesses appeal raising two issues for review, which we restate 

as follows:

1. Whether the circuit court erred in dismissing the 

Fodnesses’ complaint under SDCL 15-6-12(b)(5).

2. Whether the circuit court abused its discretion in denying 

the motion for leave to amend the complaint.

Analysis

1. Whether the circuit court erred in dismissing the 

Fodnesses’ complaint under SDCL 15-6-12(b)(5).

[¶9.] “An appeal of a motion to dismiss presents a question of law and our 

standard of review is de novo, with no deference given to the trial court’s legal 

conclusions.” Id. ¶ 4, 659 N.W.2d at 22. A motion to dismiss “is viewed with 

disfavor and is rarely granted.” Guthmiller v. Deloitte & Touche, LLP, 2005 S.D. 77, 

¶ 4, 699 N.W.2d 493, 496. South Dakota still adheres to the rules of notice

pleading, and therefore, a complaint need only contain “[a] short and plain 

statement of the claim showing that the pleader is entitled to relief[.]” Gruhlke v. 

Sioux Empire Fed. Credit Union, Inc., 2008 S.D. 89, ¶ 17, 756 N.W.2d 399, 409 

(quoting SDCL 15-6-8(a)(1)).

[¶10.] “A complaint should not be dismissed for failure to state a claim unless 

it appears beyond doubt that the plaintiff can prove no set of facts in support of his 

claim which would entitle him to relief.” Id. ¶ 17 n.14, 756 N.W.2d at 409 n.14. 

Whether the complaint states a valid claim for relief is viewed “in the light most 

favorable to the plaintiff” and examined “to determine if the allegations provide for 

relief on any possible theory.” Osloond v. Farrier, 2003 S.D. 28, ¶ 4, 659 N.W.2d 20, 

22.
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[¶11.] The Fodnesses’ complaint alleges a single count of negligence against 

the City of Sioux Falls for issuance of the building permit. A cause of action for 

negligence “against a public entity . . . requires [proof of] the existence of a duty, a 

breach of that duty, and causation.” Maher v. City of Box Elder, 2019 S.D. 15, ¶ 8, 

925 N.W.2d 482, 485 (citing Tipton v. Town of Tabor (Tipton II), 1997 S.D. 96, ¶ 12, 

567 N.W.2d 351, 357). “Before liability may be imposed on the theory of negligence 

there must be a duty on the part of the defendant to protect a plaintiff from injury.” 

Kuehl v. Horner (J.W.) Lumber Co., 2004 S.D. 48, ¶ 10, 678 N.W.2d 809, 812. This 

duty depends on “whether a relationship exists between the parties such that the 

law will impose upon the defendant a legal obligation of reasonable conduct for the 

benefit of the plaintiff.” Zerfas v. AMCO Ins. Co., 2015 S.D. 99, ¶ 10, 873 N.W.2d 

65, 69. “Under the public duty doctrine government entities are generally 

determined to owe governmental duties only to the public, not individuals.” 

McDowell, 2018 S.D. 1, ¶ 36, 906 N.W.2d at 409 (citing Tipton II, 1997 S.D. 96, 

¶ 10, 567 N.W.2d at 356). “Because such duties exist only for the protection of the 

public, they cannot be the basis for liability to a particular class of persons.” Id.

[¶12.] The Fodnesses allege the City violated its public duty by failing to 

follow its own building code, and although they failed to cite any provision of the 

code in their complaint, the applicable provisions were identified for the circuit 

court during the motions hearing. The City’s building code adopted the 

International Building Code 2015 edition, which was in effect when the City issued 

the permit to Hultgren. See Sioux Falls Building Code § 150.017 (2015) (setting 

forth applicable portions of the 2015 international building code).
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Section 107.1 provides:

Submittal documents consisting of one complete set of hard copy 

plans . . . with other construction documents, statement of 

special inspections, geotechnical reports and other data shall be 

submitted with each permit application. The construction 

documents shall be prepared by a registered design professional 

where required by the statutes of the jurisdiction in which the 

project is to be constructed. Where special conditions exist, the 

building official is authorized to require additional construction 

documents to be prepared by a registered design professional.

(Emphasis in original.)1 The building code further provides that:

No person shall demolish or wreck a building or structure 

without first obtaining a razing permit . . . . Construction 

documents and a schedule for demolition shall be submitted 

where required by the building official. Where such information 

is required, no work shall be done until such construction 

documents or schedule, or both, are approved.

Sioux Falls Building Code § 3303.1 (emphasis added).

[¶13.] On several occasions, we have held that a city’s decision to issue 

building permits and conduct building inspections implicates a duty to the public 

rather than to an individual member of the public. In Hagen v. City of Sioux Falls, 

we explained that this is because “[b]uilding codes, the issuance of building permits, 

and building inspections . . . are designed to protect the public and are not meant to 

be an insurance policy by which the municipality guarantees that each building is 

built in compliance with the building codes and zoning codes.” 464 N.W.2d 396, 398 

 

1. There is an exception that authorizes: “The building official . . . to waive the 

submission of construction documents and other data not required to be 

prepared by a registered design professional if it is found that the nature of 

the work applied for is such that review of construction documents is not 

necessary to obtain compliance with this code.” Sioux Falls Building Code § 

107.1 (emphasis in original).
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(S.D. 1990) (quoting 7 McQuillin Municipal Corporations § 24:507 (3 ed.))2 We 

recently affirmed this holding in McDowell, 2018 S.D. 1, ¶ 39, 906 N.W.2d at 410 

(“We adhere to Hagen’s conclusion that building codes do not create a duty of care 

that will support a negligence claim.”).

[¶14.] In McDowell, we cited with approval the Washington Supreme Court’s 

observation that “[t]he primary purpose of building permits . . . is to secure to local 

government consistent compliance with construction, zoning and land use 

ordinances.” Id. ¶ 39, 906 N.W.2d at 410. As such, simply “[b]y issuing a permit, 

municipalities do not ‘imply that the plans submitted are in compliance with all’” 

established building standards. Id. We reasoned that “[l]ocal governments should 

not, for the particular benefit of individual persons, bear the burden of ensuring 

that every single building constructed within its jurisdiction fully complies with 

applicable codes.” Id. “The duty to ensure compliance rests with the individuals 

responsible for construction.” Id. “Permit applicants, builders and developers are 

in a better position to prevent harm to a foreseeable plaintiff than are local 

governments.” Id. Likewise, the City’s decision to issue a building permit to 

Hultgren did not create any public duty to the Fodnesses.

[¶15.] However, there is an exception to the public duty rule that will give 

rise to liability if there exists some “special duty” owed to an individual. Maher, 

2019 S.D. 15, ¶ 9, 925 N.W.2d at 485 (citing Tipton II, 1997 S.D. 96, ¶ 13, 567 

 

2. Although Tipton I rejected Hagen’s bright-line test, instead adopting a fourpart test from Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 806-07 

(Minn. 1979), Tipton I did not reverse Hagen’s conclusions with respect to 

building codes. See McDowell, 2018 S.D. 1, ¶ 39, 906 N.W.2d at 10.
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N.W.2d at 358). This well-established exception to the rule “arises only when there 

are additional indicia that the municipality has undertaken the responsibility of not 

only protecting itself, but also undertaken the responsibility of protecting a 

particular class of persons[.]” Tipton I, 538 N.W.2d at 786. Additionally, this 

exception to the public duty rule may also apply “when a public entity acts on behalf 

of a particular person actively causing injury” because the entity has “by its conduct 

already made a policy decision to deploy its resources to protect such individual.” 

Tipton II, 1997 S.D. 96, ¶ 13, 567 N.W.2d at 358. This special duty arises from 

general principles of tort law governing the delivery of service to others, providing 

“that persons are generally not liable for failure to act, but once having acted, must 

proceed without negligence.” Id.

[¶16.] In Tipton I, we adopted a four-part test to determine whether a 

governmental entity owed a particular individual or class of individuals a special 

duty. 538 N.W.2d at 787. The four factors include:

(1) the state’s actual knowledge of the dangerous condition;

(2) reasonable reliance by persons on the state’s representations 

and conduct;

(3) an ordinance or statute that sets forth mandatory acts 

clearly for the protection of a particular class of persons rather 

than the public as a whole; and

(4) failure by the state to use due care to avoid increasing the 

risk of harm.

Id. Evidence of “[a]ny combination of these factors may be sufficient” to prove the 

governmental entity owed a special duty. Id. Accordingly, we apply these factors to 

the Fodnesses’ claim that a special duty was created by the City’s issuance of the 

permit here.
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Actual Knowledge

[¶17.] The Fodnesses claim the City knew that by issuing Hultgren a permit 

for interior demolition, the risk of injury or death to the Fodnesses would increase 

because the City was aware Hultgren had not complied with the requirements of 

building permits in the past. Although we must accept the Fodnesses’ description of 

the events as true, the Fodnesses must allege that the City had actual knowledge 

that Hultgren intended to demolish a load-bearing wall without adequate 

safeguards.

[¶18.] “‘Actual knowledge’ means knowledge of ‘a violation of law constituting 

a dangerous condition.’” Tipton II, 1997 S.D. 96, ¶ 17, 567 N.W.2d at 358. 

“Constructive knowledge is insufficient: a public entity must be uniquely aware of 

the danger or risk to which a plaintiff is exposed.” Id.3 Actual knowledge is more 

than a “simple failure to perceive a violation”; “[i]t means knowing inaction could 

lead to harm.” Id. “Although actual knowledge may be shown by both direct and 

circumstantial evidence, it may not be established through speculation.” Id. ¶ 18, 

567 N.W.2d at 359. Because “actual knowledge denotes a foreseeable plaintiff with 

a foreseeable injury,” an inference of actual knowledge will be permitted only when 

the defendant “must have known” harm would occur rather than “should have 

known.” Tipton II, 1997 S.D. 96, ¶ 18, 567 N.W.2d at 359 (emphasis added).

 

3. Black’s Law Dictionary defines constructive knowledge as: “[k]nowledge that 

one using reasonable care or diligence should have, and therefore that is 

attributed by law to a given person.” Knowledge, Black’s Law Dictionary, 

(11th ed. 2019) (emphasis added).
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[¶19.] Our analysis of this factor in Tipton II, where we held that plaintiffs 

could not meet this high burden of proving actual knowledge, is instructive. 1997 

S.D. 96, 567 N.W.2d 351. In that case, privately owned wolf hybrids attacked the 

Tiptons’ daughter. The Tiptons filed suit against the Town of Tabor, alleging 

negligence for allowing the hybrids to remain in town, licensing the hybrids, and for 

failing to abate the nuisance the hybrids presented. They alleged Tabor had actual 

knowledge that the hybrids were dangerous because the police investigated 

complaints of howling and the officers saw the large cage that fenced in the hybrids. 

Tabor also issued licenses for the hybrids, which listed the animals as wolves.

[¶20.] The Tipton II Court held that evidence that the hybrids were caged by 

a large fence and were bred with wolves was not enough to prove actual knowledge 

of a dangerous condition. Id. ¶ 22, 567 N.W.2d at 360. Rather, the Court concluded 

these were “warning flags” of the hybrid’s dangerous proclivities but did not 

constitute actual knowledge. Id. Additionally, it found that even if the Tiptons 

could prove actual knowledge, “this element must be coupled with another of the 

four factors” because the special duty exception will generally not apply based solely 

upon actual knowledge. Id. ¶ 29, 567 N.W.2d at 364. Thus, we determined that the 

Tiptons were unable to prove that the town owed them a special duty. Id. ¶ 41, 567 

N.W.2d at 367.

[¶21.] Similarly, in the present case, the circuit court held that even if the 

City was aware of Hultgren’s past violations on other projects, the Fodnesses’ claim 

nevertheless must fail. This was because they did not allege that the City had 

actual knowledge of a dangerous condition on the premises because of Hultgren’s 
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failure to conform to a particular professional standard. Nor did the Fodnesses 

plead that the City had actual knowledge that Hultgren was acting outside the 

scope of its permit during the demolition of the building. The City’s knowledge of 

prior complaints about Hultgren’s compliance with other building permits amounts 

to no more than warning signs, i.e. constructive knowledge. At best, this could only 

support an argument that the City “should have known” that Hultgren’s conduct 

could lead to harm.

[¶22.] Still, the Fodnesses urge us to permit discovery and consider a factual 

record of complaints the City received regarding Hultgren before resolving the 

question of the City’s actual knowledge of a dangerous condition on the Property. 

While resolution of a special duty question may often require a more fully developed 

record, here the complaint is insufficient as a matter of law to show the City 

assumed a duty under the special duty exception to the public duty rule. Even if we 

assume that the complaints about Hultgren were sufficient to prove that the City 

had actual knowledge of a dangerous condition on the Property, the Fodnesses are 

unable to satisfy the other Tipton I factors. As we stated in Tipton II, “we are 

unaware of any ‘public duty’ jurisdiction which pins special duty liability solely 

upon actual knowledge.” 1997 S.D. 96, ¶ 28, 567 N.W.2d at 364. Therefore, “[o]nly 

when actual knowledge is coupled with one or more of the other factors, can we 

uphold both the spirit and substance of the private duty exception.” Id.

Reasonable Reliance

[¶23.] The Fodnesses claim that the building permit issued by the City to 

Hultgren, which was posted on the Property, was a representation by the City to 
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the occupants of the Property that the work performed in the building would be 

done within the standard of care for building construction. During oral argument 

before this Court, the Fodnesses alleged that the posted permit was a public notice 

that Hultgren had passed the permitting process and represented the standard of 

care for such work. The Fodnesses assert that they reasonably relied upon the 

permit to their detriment. However, “reasonable reliance must be based on specific 

actions or representations which cause the persons to forgo other alternatives of 

protecting themselves.” Andrade v. Ellefson, 391 N.W.2d 836, 841 (Minn. 1986); 

accord Tipton II, 1997 S.D. 96, ¶ 31, 567 N.W.2d at 364. “Reliance must be based 

on personal assurances” or promises made by the City. Tipton II, ¶ 32, 567 N.W.2d 

at 365.

[¶24.] We also addressed this factor in Tipton II, wherein plaintiffs argued 

that they believed the wolf hybrids were safe, relying on Tabor’s decision to issue a 

license to the animal’s owners. Id. ¶ 31, 567 N.W.2d at 365. We held that 

“licensing [is] insufficient for reliance” because there is no personal assurance or 

direct promise. Id. ¶¶ 31-32, 567 N.W.2d at 365. Likewise, as discussed in Hagen 

and McDowell, the issuance of a building permit does not represent that the plans 

and structures are in compliance with all applicable building codes and does not 

create a duty of care that will support a negligence claim. Hagen, 464 N.W.2d at 

398-400; McDowell, 2018 S.D. 1, ¶ 39, 906 N.W.2d at 410. Moreover, even if a 

building permit could be construed as a general representation by the City that the 

work to be performed would be in compliance with the City’s Building Code, it does 

not equate to a personal assurance to the Fodnesses that caused them to forgo other 
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options to protect themselves. In the absence of personal assurances or promises 

made by the City, the Fodnesses have failed to plead sufficient facts to support a 

finding of reasonable reliance.

Ordinance Mandating a Special Duty of Care

[¶25.] Although the Fodnesses cite the Sioux Falls Building Code to support 

their argument that the City violated a public duty, they have failed to designate—

either in their complaint or on appeal—any ordinance or statute that mandates a 

special duty of care. To prove this factor, the Fodnesses must identify “language in 

a statute or ordinance which shows an intent to protect a particular and 

circumscribed class of persons.” Tipton II, 1997 S.D. 96, ¶ 35, 567 N.W.2d at 365. 

As no such statute or ordinance was pled, the Fodnesses cannot establish the third 

factor of the Tipton test.

Failure to Avoid Increasing the Risk of Harm

[¶26.] The Fodnesses claim that the City’s issuance of a building permit to 

Hultgren, for a structure where the Fodnesses were known to reside, substantially 

increased the risk of injury or death to them. They further allege that the City was 

aware of past instances where Hultgren violated building permits and codes. 

Accepting as true the facts pled in the complaint, the Fodnesses must still allege an 

official action that “cause[d] harm itself or expose[d] plaintiffs to new or greater 

risks, leaving them in [a] worse position than they were before [the] official action.” 

Id. ¶ 38, 567 N.W.2d at 366.

[¶27.] Proof of the government’s “[f]ailure to diminish harm is not enough.” 

Id. ¶ 38, 567 N.W.2d at 366-67. There must be proof of an affirmative action by the 
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governmental entity that “contributed to, increased, or changed the risk which 

would have otherwise existed.” Gleason v. Peters, 1997 S.D. 102, ¶ 25, 568 N.W.2d 

482, 487 (holding that law enforcement’s failure to eliminate the potential danger of 

assault did not expose the plaintiff to greater risk than that which the public was 

exposed). See also Tipton II, 1997 S.D. 96, ¶ 39, 567 N.W.2d at 367 (concluding that 

neither the licensing of wolf hybrids nor the inspection of their cage was an 

affirmative action that increased harm); Von Batsch v. Am. Dist. Telegraph Co., 222 

Cal. Rptr. 239, 246-47 (1985) (holding that a police officer’s failure to eliminate the 

danger of unknown intruders was not an affirmative action that contributed to,

increased, or changed the risk).

[¶28.] Here, other than the issuance of a building permit, the Fodnesses did 

not establish an affirmative action by the City that contributed to or increased the 

Fodnesses’ risk of harm. Although the Fodnesses argue that the permit was issued 

in violation of the City’s Building Code because Hultgren failed to submit 

demolition plans, they cite an ordinance which does not appear to support this 

proposition. Instead, the ordinance regarding the issuance of razing permits states 

that construction documents shall be submitted “where required by the building 

official.” Sioux Falls Building Code § 3303.1. As noted by the circuit court, the 

Fodnesses have not cited an ordinance mandating that structural or architectural 

plans be submitted and approved by the City before demolition work can be done. 

Moreover, the Fodnesses have not pled any facts to support a finding that the City 

had actual knowledge that Hultgren was proceeding in an unsafe fashion. In any 

event, the Fodnesses’ argument is centered upon the City’s failure to require 
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demolition plans, and we have rejected the notion that a failure to act is the 

equivalent of an affirmative action giving rise to liability under the special duty 

doctrine. See Tipton II, 1997 S.D. 96, ¶ 38, 567 N.W.2d at 366.

[¶29.] As we held in Tipton I, proof of all four factors is not required to prove 

the existence of a special duty; rather any combination of the factors may be 

sufficient. 538 N.W.2d at 787. See Andrade, 391 N.W.2d at 843 (finding a special 

duty with only the first factor partially met and the third factor conclusively 

established). Nevertheless, the Fodnesses failed to allege facts from which any of 

the four Tipton I factors could be met. As such, the circuit court properly dismissed 

their complaint under SDCL 15-6-12(b)(5).

2. Whether the circuit court abused its discretion in denying 

the motion for leave to amend the complaint.

[¶30.] Motions for leave to amend should be granted freely when justice so 

requires. Prairie Lakes Health Care Sys., Inc. v. Wookey, 1998 S.D. 99, ¶ 28, 583 

N.W.2d 405, 417. However, the circuit court may deny leave to amend when “there 

are compelling reasons such as . . . futility of the amendment.” In re Wintersteen 

Revocable Tr. Agreement, 2018 S.D. 12, ¶ 11, 907 N.W.2d 785, 789.

[¶31.] Here, the Fodnesses filed a motion for leave to amend, but did not 

attach a proposed amended complaint or include proffered language in their motion. 

In their brief in support of their request, the Fodnesses admitted that the motion to 

amend was a “belt and suspenders motion” used as a precautionary measure in the 

event the circuit court felt the complaint was “missing certain technical language 

that could be added with a simple amendment.” During the motion hearing, the 

Fodnesses told the court that their motion was designed to give them leeway to 
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correct their complaint if the circuit court saw any type of “magic language 

missing.” Yet, the Fodnesses did not identify what additional facts, if any, they 

would plead if allowed to amend their complaint. Instead, they relied on their 

existing allegations. Therefore, the circuit court, based on the pleadings and 

arguments submitted, denied the motion, finding that amending the complaint 

merely to insert “technical language” would not remedy the shortcomings or 

otherwise change the outcome of the court’s analysis.

[¶32.] “The circuit court’s denial of a party’s request to amend the pleadings 

is reviewed under an abuse of discretion standard.” Zhang v. Rasmus, 2019 S.D. 46, 

¶ 33, 932 N.W.2d 153, 163. “An abuse of discretion is a fundamental error of 

judgment, a choice outside the reasonable range of permissible choices, a decision, 

which, on full consideration is arbitrary or unreasonable.” Id. Based on our review 

of the pleadings and the record, the circuit court did not abuse its discretion in 

denying the Fodnesses’ motion for leave to amend.

Conclusion

[¶33.] We have previously held that issuance of a building permit does not 

create a duty to a private individual which will support a negligence claim. Still, 

the City could owe a duty under the special duty exception to the public duty rule 

had the Fodnesses established a combination of the factors set forth in Tipton I. 

Because their complaint failed to plead facts sufficient to establish any of the 

required factors, the circuit court did not err by granting the City’s motion to 

dismiss for failure to state a claim. Additionally, the circuit court did not abuse its 
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discretion in denying the motion to amend the complaint having determined such 

amendment would be futile.

[¶34.] GILBERTSON, Chief Justice, and JENSEN and DEVANEY, Justices, 

and MEANS, Circuit Court Judge, concur.

[¶35.] MEANS, Circuit Court Judge, sitting for SALTER, Justice, 

disqualified.