#26355-a-LSW

2013 S.D. 71

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

RUSSELL ENGLUND and MARY

ENGLUND, INDIVIDUALLY, AND 

AS THE GUARDIANS AD LITEM

OF GABRIELLE ENGLUND, Plaintiffs and Appellants,

v.

PAUL VITAL and KRISTINE VITAL,

INDIVIDUALLY, AND AS THE 

GUARDIANS AD LITEM OF 

KEENAN VITAL, Defendants,

and

ROBERT SMITH, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SECOND JUDICIAL CIRCUIT

MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KATHLEEN K. CALDWELL

Retired Judge

* * * *

DANIEL K. BRENDTRO

JEFF COLE of

Zimmer, Duncan & Cole, LLP

Sioux Falls, South Dakota Attorneys for plaintiffs 

and appellants. 

RICHARD L. TRAVIS

ERIC D. DENURE

LINDSAY K. EDWARDS of

May & Johnson, PC

Sioux Falls, South Dakota Attorneys for defendant 

and appellee.

* * * *

ARGUED ON MARCH 18, 2013

OPINION FILED 10/02/13
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WILBUR, Justice

[¶1.] Twelve-year-old K.V. threw a softball-size rock that struck nine-yearold G.E. in the head. The parties disagree whether the incident was an accident or 

intentional. The incident occurred near the intersection of three backyards in 

Hartford, South Dakota. One backyard belonged to the rental home of K.V.’s 

parents, the Vitals; the second belonged to G.E.’s parents, the Englunds; and the 

third belonged to the Vitals’ landlord, Robert Smith. Smith owned his own home, as 

well as the home next door, which the Vitals rented. Following the accident, the 

Englunds brought suit, individually, and as guardians ad litem for G.E., against 

K.V., the Vitals, and Smith. The claims against Smith included negligence and 

negligent rental. Smith moved for summary judgment, which the trial court 

granted. The Englunds appeal the trial court’s grant of summary judgment in favor 

of Smith. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] On July 7, 2008, twelve-year-old K.V. threw a softball-size rock that 

struck nine-year-old G.E. The rock struck G.E. in the forehead and her skull was 

severely damaged. Following the incident, G.E. was taken to the hospital where a 

titanium plate was inserted to repair her skull. G.E.’s parents indicated that her 

behavior changed as a result of her injury.1 

[¶3.] The parties disagree as to the circumstances whereby the rock was 

thrown. Prior to the incident, G.E. had been playing with K.V.’s younger sister, 

 

1. Specifically, G.E.’s parents “noticed changes to her demeanor, concentration, 

growth rate, her ability to handle complex tasks, and her response to 

adversity.”
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M.V. G.E. and M.V. had been building a “fort” in M.V.’s backyard. The children 

were not under adult supervision.2 G.E. told her mother that she was running 

away from K.V. because he was chasing her with a rock. G.E. further told her 

mother that when she turned around to see if K.V. was still chasing her, she was hit 

with the rock. The Englunds also allege that K.V. may have washed off the rock 

before going to get help. Conversely, K.V. indicated that he was throwing rocks 

between two trees. He reported that after he threw the rock, he noticed G.E. run 

out from behind one of the trees. K.V. indicated that he yelled G.E.’s name to get 

her attention, but that when she turned around, she was hit by the rock. The 

parties agree that the rock came from the landscaping located alongside the Vitals’ 

rental home. 

[¶4.] At the time of the incident, G.E. and K.V. were neighbors. G.E. lived 

with her parents, the Englunds. K.V. lived with his parents, the Vitals. The Vitals 

and their landlord, Smith, lived in two separate homes directly behind the 

Englunds. Smith owned his home, as well as the property next door, which he 

rented to the Vitals. The backyards of all three properties were unfenced. There 

was evidence that the children had permission to play in Smith’s backyard, which 

contained a swing set. 

[¶5.] The parties disagree where the incident took place. G.E. indicated that 

she was on Smith’s property when she was struck and that K.V. was standing near 

the lot line between the Vitals’ rental property and Smith’s home. K.V. stated that 

 

2. Paul and Kristine Vital were at work at the time of the incident. G.E.’s 

mother, Mary Englund, was home at the time of the incident.
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G.E. was running toward the side of her house when she was struck and that he 

was standing in his own backyard. 

[¶6.] K.V. also indicated that a few weeks before the accident Smith saw

K.V. throwing rocks at trees. According to K.V., Smith told him not to throw rocks 

toward Smith’s house. The Englunds claim that Smith knew of K.V.’s propensity 

for rock throwing and that Smith agreed to remove the landscaping rocks from both 

his home and the Vitals’ rental property. The Englunds also claim that prior to the 

incident, K.V. had lifted up a large piece of concrete “in a menacing manner” near a 

location where G.E. and M.V. were playing. The Englunds indicated that Smith 

had purchased a skid loader for the purpose of removing the rocks. Smith’s wife,

Katherine Smith, indicated that she and her husband had “talked about” moving 

the rocks, but that they “just [ha]dn’t g[otten] to it yet.” Smith, however, indicated 

that the skid loader was purchased to assist with snow removal.

[¶7.] The Englunds brought suit, individually, and as guardians ad litem for 

G.E., against K.V., the Vitals, and Smith. The claims against Smith included: 

negligence, negligent rental, and punitive damages. The claim of negligent rental,

however, was conceded by the Englunds. Smith moved for summary judgment. The 

motion was granted. The trial court held that Smith owed no duty to G.E. The 

order granting summary judgment in favor of Smith was certified as final under 

SDCL 15-6-54(b). The Englunds now appeal the grant of summary judgment in 

favor of Smith. Accordingly, this appeal is limited to the Englunds’ claims against 

landlord Smith.
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[¶8.] We address the following issues on appeal:3

1. Whether the trial court erred in granting summary judgment 

based, in part, on its determination that Smith did not owe G.E. 

a duty of care based on his position as landlord.

2. Whether the trial court erred in granting summary judgment 

based, in part, on its determination that Smith owed no duty to 

protect G.E. from the alleged intentional or criminal conduct of 

K.V.

STANDARD OF REVIEW

[¶9.] Upon review of a grant of summary judgment, “[w]e must determine 

whether the moving party demonstrated the absence of any genuine issue of 

material fact and showed entitlement to judgment on the merits as a matter of law.” 

Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting 

Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745). “[A] material fact 

is one that might affect the outcome of the case[.]” Smith ex rel. Ross v. Lagow 

Constr. & Developing Co. (Lagow), 2002 S.D. 37, ¶ 9, 642 N.W.2d 187, 190. We view 

the evidence “most favorably to the nonmoving party and reasonable doubts should 

be resolved against the moving party. The nonmoving party, however, must present 

specific facts showing that a genuine, material issue for trial exists.” Brandt, 2013 

S.D. 22, ¶ 7, 827 N.W.2d at 874 (quoting Jacobson, 2008 S.D. 19, ¶ 24, 746 N.W.2d 

at 745). Ultimately, “[o]ur task on appeal is to determine only whether a genuine 

issue of material fact exists and whether the law was correctly applied.” Id. 

 

3. Because G.E.’s designation as a licensee or invitee is not determinative to the 

outcome of this case, we decline to consider Appellant’s request that we 

eliminate the distinction between invitee and licensee and adopt a duty of 

reasonable care for all lawful entrants upon land.
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DECISION

[¶10.] 1. Whether the trial court erred in granting summary 

judgment based, in part, on its determination that Smith 

did not owe G.E. a duty of care based on his position as 

landlord.

[¶11.] The Englunds argue that Smith, as the Vitals’ landlord, owed a duty of 

care to G.E. “The landlord’s liability has been said to be one sounding in tort and

based upon negligence[.]” Boe v. Healy, 84 S.D. 155, 159, 168 N.W.2d 710, 712 

(1969) (citation omitted). “Negligence is the breach of a duty owed to another, the 

proximate cause of which results in an injury.” Janis v. Nash Finch Co., 2010 S.D. 

27, ¶ 8, 780 N.W.2d 497, 500 (quoting Stone v. Von Eye Farms, 2007 S.D. 115, ¶ 6, 

741 N.W.2d 767, 770). “The general rule regarding a landlord’s liability is: a 

landlord, having parted with full possession of the premises to the tenant is not 

liable for injury to third persons caused by the tenant’s negligence.” Clauson v. 

Kempffer, 477 N.W.2d 257, 259 (S.D. 1991) (citations omitted); see also Hendrix v. 

Schulte, 2007 S.D. 73, ¶ 9, 736 N.W.2d 845, 848. 

[¶12.] The Englunds argue that Smith owed G.E. a duty of care because he 

retained control over the Vitals’ rental property. “The law of premises liability is 

based on possession and control.” Clauson, 477 N.W.2d at 259 (citing W. Keeton, D.

Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 57, at 386). 

Generally, “a lessor of land is not subject to liability to his lessee or others upon the 

land with the consent of the lessee . . . for physical harm caused by any dangerous 

condition which comes into existence after the lessee has taken possession.” Id. 

(noting §§ 357 and 360-62 of the Restatement (Second) of Torts (1965) as 

exceptions). 
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[¶13.] The Englunds assert that Smith saw K.V. throwing rocks and allegedly 

told K.V. to stop, thus, demonstrating control over the Vitals’ rental property. Yet, 

K.V.’s deposition testimony suggests that Smith was asserting control over his 

personal residence rather than the Vitals’ rental property. In his deposition, K.V. 

testified:

Q. Had anybody ever talked to you about throwing rocks before 

this incident with [G.E.], saying that you shouldn’t be throwing 

rocks?

A. Robert Smith had stated that he didn’t want me to throw

rocks toward his house.

Q. Robert Smith told you that?

A. Yes, sir.

Q. And that was before this incident with [G.E.]?

A. Yes, sir.

Q. Do you remember when that happened?

A. That was the same time I was throwing them at the tree sir.

Q. A couple weeks before?

A. Yeah.

Q. What did he tell you?

A. Well, I was throwing them at the tree, which is throwing 

them toward his house. So he didn’t want me to hit his house on 

accident, sir, so he told me not to throw them toward his house.

Accordingly, even if Smith saw K.V. throwing rocks and asked him to stop, the 

evidence reflects that Smith was asserting control over his own residence, rather 

than the rental home then occupied by the Vitals.

[¶14.] The Englunds further argue that Smith demonstrated control over the 

Vitals’ rental property by allegedly agreeing to remove the landscaping rocks from

the Vitals’ rental property and by purchasing a skid loader to remove the rocks. In
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viewing the facts most favorably to the Englunds, we assume that Smith agreed to 

remove the rocks and purchased the skid loader in order to remove the rocks. Even 

if Smith agreed to remove the rocks in the future, he had not yet asserted control 

over the Vitals’ rental property. The evidence suggests that the Vitals remained in 

control of the property they rented from Smith. Accordingly, the trial court properly 

granted summary judgment, based in part, on the fact that Smith had parted with 

possession of the Vitals’ rental property.

[¶15.] The Englunds further argue that Smith should be liable, as a landlord,

because his backyard constituted a common area. This Court has recognized

several exceptions to the general rule that a landlord is not liable for injury to third 

persons so long as the landlord has “parted with full possession of the premises[.]” 

Id. One such exception is “where the lessor retains in his control a common area of 

the premises which the lessee is entitled to use as appurtenant to the leased 

portion[.]” Id. (emphasis added) (citing Restatement (Second) of Torts § 360 (1965))

(additional citations omitted). If the lessor maintains such a common area he is:

subject to liability to his lessee and others lawfully upon the 

land with the consent of the lessee . . . for physical harm caused 

by a dangerous condition upon that part of the land retained in 

the lessor’s control, if the lessor by the exercise of reasonable 

care could have discovered the condition and the unreasonable 

risk involved therein and could have made the condition safe. 

Restatement (Second) of Torts § 360 (1965).

[¶16.] The Englunds’ position that Smith retained a common area under the 

Restatement (Second) of Torts § 360 requires that G.E. was entitled to be on Smith’s 

property. The legal definition of “entitled” is “[t]o grant a legal right to or qualify 

for.” Black’s Law Dictionary (9th ed. 2009). Under this definition, G.E. was not 
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entitled to use Smith’s yard. On the contrary, the Englunds indicate that Smith 

allowed all of the neighborhood children to use his backyard swing set.4 Further, 

there is no evidence that the Vitals’ rental agreement created an entitlement 

whereby the Vitals were allowed to use Smith’s backyard as appurtenant to their 

rental home. Because neither the Vital children nor G.E. had a legal right to use 

Smith’s backyard, it was not a common area as contemplated under the 

Restatement (Second) of Torts § 360. Further, even if Smith’s backyard did 

constitute a common area, the “dangerous condition” or rock did not come from the 

common area. The parties agree that the rock thrown by K.V. came from the 

landscaping alongside the Vitals’ rental home. Therefore, the trial court did not err 

in finding that Smith did not maintain his backyard as a common area and that the 

common area exception to the general rule of landlord liability did not apply. 

[¶17.] The Englunds argue that Smith, as a landlord, undertook a duty to 

repair when he allegedly agreed to remove the rocks. Another exception to the 

general rule of landlord liability, as set forth in Restatement (Second) of Torts § 362,

is when a landlord purports to repair the land or actually “makes repairs on the 

land while it is in the lessee’s possession and the lessor completes the repairs 

negligently[.]” Clauson, 477 N.W.2d at 259 (citing Restatement (Second) of Torts § 

362 (1965)). In order for Restatement (Second) of Torts § 362 to apply, the 

landlord’s agreement to make repairs must have “made the land more dangerous for 

 

4. Plaintiffs’ Statement of Disputed Facts and Additional Material Facts dated 

August 23, 2011, provides: “Mr. Smith had a swing set in his backyard, which 

he invited all of the neighborhood children to use.”
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use or given it a deceptive appearance of safety[.]” Restatement (Second) of Torts § 

362 (1965).5 Further: 

The lessor is subject to liability if, but only if, the lessee neither 

knows nor should know that the purported repairs have not 

been made or have been negligently made and so, relying upon 

the deceptive appearance of safety, subjects himself to the 

dangers or invites or permits his licensees to encounter them.

Restatement (Second) of Torts § 362 cmt. d (1965).

[¶18.] Smith argues that Restatement (Second) of Torts § 362 is inapplicable 

under the facts of this case. We agree. First, even if Smith agreed to remove the 

rocks, his failure to do so did not make the land more dangerous for use. The 

condition of the land remained the same. Second, again assuming that Smith 

agreed to remove the rocks, his failure to do so did not give the land a deceptive 

appearance of safety. Further, there was no evidence that the Vitals or their 

neighbors, the Englunds, were under the impression that the rocks had been 

removed. Therefore, the trial court did not err in concluding that Smith, as a 

landlord, did not owe a duty to G.E. because he allegedly agreed to remove the 

rocks.

 

5. In full, the Restatement (Second) of Torts § 362 provides:

A lessor of land who, by purporting to make repairs on the land 

while it is in the possession of his lessee, or by the negligent 

manner in which he makes such repairs has, as the lessee 

neither knows nor should know, made the land more dangerous 

for use or given it a deceptive appearance of safety, is subject to 

liability for physical harm caused by the condition to the lessee 

or to others upon the land with the consent of the lessee or 

sublessee.
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[¶19.] 2. Whether the trial court erred in granting summary 

judgment based, in part, on its determination that Smith 

owed no duty to protect G.E. from the alleged intentional 

or criminal conduct of K.V.

[¶20.] The Englunds argue that Smith had a duty to protect G.E. from 

intentional or criminal conduct at his residence and rental property. “On the whole, 

we recognize no general duty to protect one’s fellow human beings from crime, and 

that rule equally applies to the ordinary relationship of landlord and tenant.” 

Lagow, 2002 S.D. 37, ¶ 12, 642 N.W.2d at 190-91. “If a duty exists for such 

protection, it must originate from some special relationship imposing an obligation 

to protect another from crime based on a position of dependence intrinsic to the 

relationship.” Id. ¶ 12, 642 N.W.2d at 191.

[¶21.] However, “[s]ection 302B of Restatement (Second) of Torts (1965) 

creates an exception to the general rule that one has no duty to protect another 

from crime.” Id. ¶ 16, 642 N.W.2d at 191.6 “It provides that such a duty may arise 

if a person’s affirmative acts or omissions create a foreseeable high risk of harm 

from criminal assault.” Id. ¶ 16, 642 N.W.2d at 191-92. “Thus, landlords who by 

their own affirmative acts or omissions create a high risk of harm from crime owe a 

duty to exercise reasonable care to protect tenants from that increased risk.” Id. ¶

16, 642 N.W.2d at 192. “Landlord responsibility also depends on the foreseeability 

of a criminal act.” Id. Foreseeability is determined “by examining all the 

 

6. The full text of Restatement (Second) of Torts § 302B provides:

An act or an omission may be negligent if the actor realizes or 

should realize that it involves an unreasonable risk of harm to 

another through the conduct of the other or a third person which 

is intended to cause harm, even though such conduct is criminal.
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circumstances, including the landlord’s knowledge of prior criminal incidents on the 

premises.” Id. ¶ 19, 642 N.W.2d at 192. “The prior incidents must be sufficiently 

numerous or of such significance and similarity that the landlord was on notice that 

there was probable danger to the tenants.” Id.

[¶22.] Relying on the Lagow case, the Englunds argue that Smith owed a 

duty to G.E. In Lagow, a tenant was murdered in her apartment after her killers 

had entered with a key. Id. ¶ 15, 642 N.W.2d at 191. The tenant had previously 

told her landlord that she had misplaced her apartment key. Id. There was a 

question of fact as to whether tenant had asked her landlords to change the locks or 

whether she believed that the key would “turn up.” Id. Under tenant’s lease 

agreement, the apartment locks could only be changed by her landlords. Id. 

[¶23.] A full reading of Lagow makes clear that the landlord’s heightened 

responsibility in that case came from the language of the lease agreement, whereby 

the landlords exclusively controlled the tenant’s lock, and her safety from the 

outside world. Here, even assuming that Smith agreed to remove the rocks, he did 

not have exclusive control over G.E.’s safety, as in Lagow. There were other ways 

that G.E. could have been protected from the alleged intentional or criminal acts of 

K.V. The Englunds suggest that K.V.’s rock throwing was a well-known problem. 

Accordingly, the Englunds could have limited G.E.’s ability to play in her neighbors’ 

backyard without adult supervision. 

[¶24.] There is also a dispute as to whether Smith knew that K.V. was 

throwing rocks. Viewing the facts in the light most favorably to G.E., we assume 

that Smith had knowledge of K.V.’s propensity for rock throwing. Even if Smith 
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were aware that K.V. was throwing rocks, the evidence does not suggest that K.V. 

has previously thrown rocks at people. Accordingly, the alleged intentional or 

criminal acts of K.V. were not sufficiently foreseeable. Therefore, the trial court did 

not err in granting summary judgment based on its finding that the Englunds failed 

to prove that Smith had a duty to protect G.E. from K.V.’s alleged intentional or 

criminal behavior.

CONCLUSION

[¶25.] Viewing the evidence in the light most favorable to G.E., the record 

reflects that Smith parted with full possession of the leased premises and did not 

maintain a common area. Further, Smith’s alleged agreement to remove the rocks 

did not make the “landscaping condition” more dangerous. Further, K.V.’s alleged 

criminal act was not sufficiently foreseeable to Smith. Therefore, the trial court did 

not err in concluding that Smith did not owe a duty of care to G.E. and in granting 

summary judgment in favor of Smith. 

[¶26.] Affirmed.

[¶27.] GILBERTSON, Chief Justice, and SEVERSON, Justice, concur.

[¶28.] KONENKAMP, Justice, concurs in result.

[¶29.] ZINTER, Justice, deeming himself disqualified, did not participate.

KONENKAMP, Justice (concurring in result).

[¶30.] This lawsuit raises the question of a landlord’s duty to protect neighbor 

children from the injurious acts of tenant children. For reasons of public policy, and 

under the particular facts of this case, that duty should be circumscribed.
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[¶31.] Considering the evidence in a light most favorable to the nonmoving 

party, as the law requires, the record shows that the landlord knew his tenants’ 

twelve-year-old child had been throwing rocks. “A couple of weeks before the 

incident,” the landlord had intercepted the child and told him to stop when the child 

was throwing a rock toward the landlord’s house. And, based on other information 

the landlord had, a fair inference can be drawn that he knew neighbor children 

were endangered. Indeed, plaintiff father had seen the tenants’ child throwing 

rocks twice and told the landlord both times. On another occasion, the tenants’ 

child was seen hoisting a large chunk of concrete near where other children were 

playing. Recognizing the obvious danger, an adult told him to put the concrete 

down. Again, the landlord was informed, and, at that point, he decided to remove 

the landscape rocks from his property and the tenants’ property. Within a few days, 

he bought a skid loader to perform the job. Three weeks later, however, with the 

landscape rocks unremoved, the tenants’ child picked up a rock from the 

landscaping material in the tenants’ yard and chased the child victim. She ran. 

But when she turned to see if he had gone, he hit her in the head with the twopound, softball-sized rock, causing unconsciousness and serious cranial injury. 

[¶32.] Plaintiffs assert, among other things, that the landlord was negligent 

in his duty to prevent the tenants’ child from injuring the neighbor child by 

“intentional or criminal conduct that [the landlord] knew of or could expect to occur 

at his residence and rental property.” We must decide what duty the landlord had 

in these circumstances. “A duty, in negligence cases, may be defined as an 

obligation, to which the law will give recognition and effect, to conform to a 
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particular standard of conduct toward another.” W. Page Keeton, et al., Prosser & 

Keeton on the Law of Torts § 53, at 356 (5th ed. 1984). Negligence “is conduct which 

falls below the standard established by law for the protection of others against 

unreasonable risk.” Id. § 43, at 280; see also SDCL 20-9-1. Courts decide the 

existence of a duty because it is “‘entirely a question of law, to be determined by

reference to the body of statutes, rules, principles and precedents which make up 

the law. . . .’” Tipton v. Town of Tabor, 1997 S.D. 96, ¶ 11, 567 N.W.2d 351, 357 

(quoting W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 37, at 236 

(5th ed. 1984)) (additional citations omitted). 

1. Control of the Premises

[¶33.] The rock used in this incident came from the tenants’ yard. Our Court 

rules today that the landlord parted with full possession and control of this part of

the rental premises. Yet his possession of the premises, generally, is not at issue. 

Rather, the question is whether the landlord retained control of the landscaping 

rock appurtenant to the tenants’ premises. Viewing the evidence in a light most 

favorable to the plaintiffs, the landlord retained control of the landscaping rock. 

He, not the tenants, announced an intention to remove it and then took action by 

obtaining a skid loader. By implication, the landlord’s undertaking to remove the 

rock negates a conclusion that he parted with full control of this area. Thus, we 

must take a step further to determine the question of duty. 
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2. Foreseeability of Injury

[¶34.] We have often said that whether a duty exists in tort “depends on the 

foreseeability of injury.”7 See Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d 

227, 229-30 (S.D. 1994) (citation omitted). The test is purely prospective. Deciding 

foreseeability is not a function of predicting the past, for hindsight is not the 

standard. In determining whether something was foreseeable, we do not ask what 

actually happened, but what a reasonable person would have foreseen as likely to 

happen. Leon Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401, 

1417 (1961); Ballard v. Uribe, 715 P.2d 624, 628 n.6 (Cal. 1986). Here, the landlord 

knew from personal knowledge and neighbor complaints that his tenants’ twelveyear-old child had a proclivity for throwing rocks around the tenancy where other 

children were playing. That noxious and unrestrained behavior certainly portended 

likely personal injury. And the landscaping materials on the tenancy made rocks 

readily available. Thus, contrary to the Court’s holding, it must be concluded that 

this injury was foreseeable. Indeed, the landlord’s decision to remove the rocks in 

reaction to complaints illustrates his anticipation of potential injury and only 

bolsters the case for foreseeability. But foreseeability forms only part of the duty 

analysis. Public policy also plays a “major” role in deciding questions of duty. 

Kirlin v. Halverson, 2008 S.D. 107, ¶ 52, 758 N.W.2d 436, 453 (citation omitted). 

 

7. We deal here with foreseeability in the duty sense, a question of law, which 

focuses on whether the landlord should have acted to reduce the probability 

of the tenant child striking a neighbor child with a rock. Once a duty is 

found, the fact finder would then use foreseeability in the causation sense to 

decide whether the landlord’s duty-required measures would have prevented 

the incident that gave rise to the injury. 
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3. Role of Public Policy 

[¶35.] “No better general statement can be made than that the courts will 

find a duty where, in general, reasonable persons would recognize it and agree that 

it exists.” W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 53, at 359

(5th ed. 1984). Would reasonable persons recognize a duty on the landlord here to 

protect a neighbor child? The Restatement of Torts, as a quasi codification of 

common law tort duties, seems inadequate to this particular question. Plaintiffs 

also cite as helpful authority Smith ex rel. Ross v. Lagow Construction & Developing 

Co., 2002 S.D. 37, 642 N.W.2d 187. But that case is inapposite because it dealt with 

a landlord’s duty to protect a tenant from a criminal attack in circumstances where 

the landlord controlled an instrumentality for the tenant’s safety, a door lock. 

Conversely, here we are dealing with the question of a duty to protect a neighbor 

child from a tenant child. Plaintiffs also ask us to hold the landlord to a higher duty 

of care by abolishing the common law distinction between licensees and invitees. 

But, as the Court points out, the evidence is hardly clear on the victim’s location 

and her legal status when she was struck by the rock while playing somewhere in 

the common backyards. 

[¶36.] What makes the duty question troublesome here is that the landlord is 

being sued for negligently failing to protect a neighbor child from a risk the landlord 

did not create. In these atypical circumstances, absent controlling authority, courts 

examine several public policy factors, including “the closeness of the connection 

between the defendant’s conduct and the injury suffered, the moral blame attached 

to the defendant’s conduct, the policy of preventing future harm, the extent of the 
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burden to the defendant and consequences to the community of imposing a duty to 

exercise care with resulting liability for breach, and the availability, cost, and 

prevalence of insurance for the risk involved.” Rowland v. Christian, 443 P.2d 561, 

564 (Cal. 1968) (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts 

(3d ed. 1964); 2 Harper and James, The Law of Torts at 1052, 1435 (1956)). Five of 

these elements — nexus of conduct and injury, moral blame, deterrence, burden, 

and consequences on the community — advise against judicial recognition of an 

affirmative duty on the landlord. 

[¶37.] Nothing about ordinary rocks as landscape material suggests an 

unreasonably dangerous condition.8 Numerous homes and businesses have 

landscapes adorned with stone and rock in diverse sizes and shapes. It was only the 

tenants’ child who made the landscaping rocks dangerous here. If children want to 

throw rocks, or similar objects, it would be extremely difficult to remove every 

means to prevent such mischief. Rocks are often a natural aspect of the terrain, 

even when not part of a designed landscape. If landlords of single-family residences 

must bear a duty to prevent injury to children caused by rock-throwing tenant 

children, there would be little way of knowing specifically all that might be required 

 

8. Restatement (Second) of Torts § 360 (1965), dealing with a landlord’s liability 

for a “dangerous condition upon that part of the land retained in the lessor’s 

control,” would not apply here because the condition of the property itself was 

not dangerous. See also Restatement (Second) of Property: Landlord & 

Tenant § 17.3 (1977) (almost identical provision). Contrast our case with 

Ruiz v. Victory Props., LLC, 43 A.3d 186 (Conn. App. Ct. 2012), where the 

defendant landlord’s apartment building had a yard strewn with trash, rocks, 

and broken pieces of concrete. A ten-year-old child carried a large rock from 

the yard and threw it from a third-story window, injuring another child. 

There, the court found a violation of the duty of care because the landlord 

failed to maintain a safe common area on the premises. Id. at 194.
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to fulfill that duty. And, for children plainly intent on harming other children, 

removing rocks from a tenancy would hardly present an obstacle to such intent. 

Maintaining landscape rock on one’s property holds little nexus to the injury here.

[¶38.] As for moral blame, landscaping with rock bears no discernible moral 

culpability, and the notion that landscaping this way should be deterred is 

meaningless. On the burden question, liability on landlords and landowners for the 

misuse of their landscaping rock by mischievous children could be substantial. And 

the consequences on the community of imposing such a duty may well be 

detrimental, especially if greater accountability for child misbehavior were to shift 

to landlords and away from parents.9 In some instances, of course, a landlord’s 

superior knowledge of a tenant’s dangerousness might give rise to a duty to protect, 

or at least to warn, those who might come in contact with the tenant. But that is 

not our case. All these considerations suggest that reasonable persons would not 

recognize a duty here under the facts most favorable to plaintiffs. Indeed, to impose 

a duty in these circumstances would create a baneful extension of tort liability, 

tending to make landlords insurers of the safety of persons harmed by the injurious 

acts of their tenants’ children.10 

 

9. “In contrast to tort standards, public nuisance doctrine may create broad 

landlord liability for tenants’ illegal activities. Nuisance doctrines, both 

public and private, encompass a broad range of activities[.]” B. A. Glesner,

Landlords as Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability 

on Landlords for Crime on the Premises, 42 Case W. Res. L. Rev. 679, 716 

(Summer 1992). 

10. Compare our case with the facts in Mayer v. Housing Authority of Jersey City, 

202 A.2d 439 (N.J. Super. Ct. App. Div. 1964), aff’d by per curiam, 210 A.2d 

617 (1965). A child was hit in the eye with a rock thrown by another 

(continued . . .)
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[¶39.] Corollary legislative enactments also will not support finding a duty on 

the landlord. When it comes to personal injury caused by a minor’s “malicious and 

willful” acts, our Legislature has strictly limited the financial responsibility of the 

minor’s parents to $2,500 plus taxable court costs. SDCL 25-5-15. Although no one 

here characterizes the tenant child’s act as both “malicious and willful,” if parental 

liability for these acts is legislatively so limited, how can we say that South 

Dakota’s public policy requires that landlords should bear greater accountability 

than the parents for a tenant child’s intentional acts? 

4. Assumption of Duty

[¶40.] On the other hand, even though a duty may not exist in law, a duty 

can be voluntarily assumed, and once assumed, a person must exercise reasonable 

care in the performance of that duty. Did the landlord assume a duty to protect 

neighbor children from his tenants’ rock-throwing child when he said he would 

remove the landscape rock? The backyards held by the tenants, the injured child’s 

parents, and the landlord were apparently all used as a common play area for the 

children. In fact, the landlord’s yard had a swing set the children were allowed to 

use. Plaintiffs assert that the landlord “recognized a danger and took initial steps 

to remedy it, but then failed to follow through on his promise.” In Andrushchenko v. 

________________________

(. . . continued)

unknown child on a playground at the landlord’s housing project. There, the 

opinion rested liability not on foreseeability, but on the duty prong. And the 

court imposed liability, not because of the presence of stones on the 

playground, but because the defendant, knowing that children were in the 

habit of throwing stones, failed to take reasonable precautions (hiring 

playground supervisors) to prevent stone throwing. 
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Silchuk, 2008 S.D. 8, ¶ 24, 744 N.W.2d 850, 858, we dealt with the gratuitous duty 

rule as defined in Restatement (Second) of Torts, § 323 (1965):

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other’s person or things, is subject to 

liability to the other for physical harm resulting from his failure 

to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such 

harm, or

(b) the harm is suffered because of the other’s reliance upon the 

undertaking. 

[¶41.] As in Silchuk, the facts here taken in a light most favorable to 

plaintiffs “do not support the implied or express undertaking of a gratuitous duty 

to” protect a neighbor child. See 2008 S.D. 8, ¶ 24, 744 N.W.2d at 858-89. The 

landlord’s failure to remove the rocks did not increase the risk of harm; that is, it 

did not make the situation worse than it had been. A condition not intrinsically 

dangerous does not become dangerous simply because the landlord had agreed to 

remove it. And plaintiffs do not assert that they relied on the landlord’s promise as 

a means to protect their child. Indeed, the injured child’s parents well knew of the 

tenant child’s rock-throwing habits. 

[¶42.] In these circumstances, the landlord had no legal duty to protect the 

neighbor child from his tenants’ rock-throwing child.