Hendrix v. Schulte, No. 23973.

CourtSupreme Court of South Dakota
Writing for the CourtMyren
Citation2007 SD 73,736 N.W.2d 845
PartiesTyra HENDRIX, Plaintiff and Appellant, v. Kenneth SCHULTE, Defendant and Appellee.
Docket NumberNo. 23973.
Decision Date18 July 2007
736 N.W.2d 845
2007 SD 73
Tyra HENDRIX, Plaintiff and Appellant,
v.
Kenneth SCHULTE, Defendant and Appellee.
No. 23973.
Supreme Court of South Dakota.
Considered on Briefs March 20, 2007.
Decided July 18, 2007.

[736 N.W.2d 846]

Michael D. Bornitz and Onna B. Houck of Cutler & Donahoe, LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Daniel R. Fritz and Nicole Nachtigal Emerson of Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

MYREN, Circuit Judge.


[¶ 1.] Tyra Hendrix (Hendrix) appeals the circuit court's order granting summary judgment in favor of Robert Schulte (Schulte), her landlord. We affirm.

736 N.W.2d 847
FACTS AND PROCEDURAL HISTORY

[¶ 2.] Schulte owned residential rental property in Minnehaha County. Hendrix and her family rented a house from Schulte with assistance from the federal government's Section 8 housing program. In March 2002 Hendrix fell while on the stairs in the house she rented from Schulte.

[¶ 3.] The rental house was constructed in the 1930s. There was no evidence that a building permit or permit for additions, alterations, or repairs was ever issued for the house. There was no evidence that any additions, alterations, or repairs requiring a permit were ever undertaken on the house.

[¶ 4.] The stairway did not have a handrail at the time Hendrix rented the property. There was no evidence that the stairway had ever had a handrail.

[¶ 5.] Hendrix sued Schulte based on her claim that he had a duty to "maintain the premises in a reasonably safe condition." She alleged that he violated that duty by failing to install a handrail on the staircase. She also alleged that failure to install a handrail was negligence per se because it "violated § R315.1 of the Residential Code" of the City of Sioux Falls. She claimed that she fell on the stairs and suffered injuries as a result of Schulte's negligence. Schulte denied the allegations.

[¶ 6.] Schulte filed a motion for summary judgment with supporting affidavits. Hendrix opposed the motion and filed opposing affidavits. The circuit court granted Schulte's motion for summary judgment. Hendrix filed a timely appeal.

STANDARD OF REVIEW

Our standard of review on summary judgment requires this Court to determine whether the moving party has demonstrated the absence of any genuine issue of material fact and entitlement to judgment on the merits as a matter of law. SDCL 15-6-56(c). The circuit court's conclusions of law are reviewed de novo. Titus v. Chapman, 2004 SD 106, ¶ 13, 687 N.W.2d 918, 923 (citing Sherburn v. Patterson Farms, Inc., 1999 SD 47, ¶ 4, 593 N.W.2d 414, 416 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771)). However, all facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party. Id. (citing Morgan v. Baldwin, 450 N.W.2d 783, 785 (S.D.1990)). We will affirm the circuit court's ruling on a motion for summary judgment when any basis exists to supports its ruling. Westfield Ins. Co., Inc. v. Rowe, 2001 SD 87, ¶ 4, 631 N.W.2d 175, 176 (citing Estate of Juhnke v. Marquardt, 2001 SD 26, ¶ 5, 623 N.W.2d 731, 732).

Weitzel v. Sioux Valley Heart Partners, 2006 SD 45, ¶ 16, 714 N.W.2d 884, 891.

ANALYSIS

[¶ 7.] "In order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury." Fisher Sand & Gravel Co. v. South Dakota Dept. of Transportation, 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867. This case turns on the question of whether Schulte had any duty to protect Hendrix from injury. Kuehl v. Horner Lumber Co., 2004 SD 48, 678 N.W.2d 809. A duty can be created by statute or common law. Id.

[¶ 8.] As a general rule, the existence of a duty is to be determined by the court. Erickson v. Lavielle, 368 N.W.2d 624 (S.D.1985). Summary judgment in a negligence case is appropriate when the trial judge resolves the duty question in the defendant's favor. Id.;

736 N.W.2d 848

Bland v. Davison County, 507 N.W.2d 80 (S.D.1993).

1. Landlord duties under common law

[¶ 9.] The general rule under the common law is that the owner of a building who has leased that building to another, without any agreement to repair, is not liable to a tenant or to his invitees for injuries sustained by reason of its unsafe condition. Boe v. Healy, 84 S.D. 155, 168 N.W.2d 710 (1969).1 Similarly, once a landlord has parted with full possession of the premises to the tenant, the general rule is that the landlord is not liable for injury to third persons caused by the tenant's negligence. Clauson v. Kempffer, 477 N.W.2d 257 (S.D.1991). When setting forth that general rule in Clauson, this Court quoted approvingly from the Restatement (Second) of Torts § 355. This Court then discussed the various exceptions to that general rule that are itemized in the Restatement (Second) of Torts §§ 357-362. This Court has also applied other common law general rules and exceptions outlined in the Restatement (Second) of Torts. See Walther v. KPKA Meadowlands, Ltd., 1998 SD 78, 581 N.W.2d 527; Smith v. Lagow Construction & Developing Co., 2002 SD 37, 642 N.W.2d 187 (both cases dealing with landlords' duties to protect against unlawful acts of third parties).

[¶ 10.] This Court has not specifically utilized the Restatement (Second) of Torts § 356 (1965) in any prior decisions. Section 356 explains that a "lessor of land is not liable to his lessee . . . for physical harm caused by any dangerous condition, whether natural or artificial, which existed when the lessee took possession." After reviewing the case law, the circuit court correctly concluded that this Court would utilize § 356 in an appropriate case.

[¶ 11.] It was undisputed that the stairwell did not contain a handrail at the time Hendrix took possession, and that it was in the same condition when Hendrix fell. Under the analysis of the general rule in § 356, Schulte is not liable for a dangerous condition that existed when Hendrix took possession. However, the necessary analysis does not end with § 356. The harshness of that general rule is moderated in certain specific circumstances that are outlined in the exception sections, §§ 357-362.

[¶ 12.] Restatement (Second) of Torts § 357 (1965) provides one such exception. It reads:

A lessor of land is subject to liability for physical harm caused to his lessee and others upon the land with the consent of the lessee or his sublessee by a condition of disrepair existing before or arising after the lessee has taken possession if:

a. the lessor, as such,...

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23 practice notes
  • First American Bank v. Farmers State Bank, No. 24638.
    • United States
    • Supreme Court of South Dakota
    • August 13, 2008
    ...Estate of Shuck, 1998 SD 32, ¶ 8, 577 N.W.2d 584, 586). Additionally, a duty can be created by common-law or statute. Hendrix v. Schulte, 2007 SD 73, ¶ 7, 736 N.W.2d 845, 847 (citing Kuehl v. Horner Lumber Co., 2004 SD 48, ¶ 11, 678 N.W.2d 809, 812). Duty is also based upon foreseeability. ......
  • Sapienza v. Liberty Mut. Fire Ins. Co., 3:18-CV-03015-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 17, 2019
    ...liability for an improper defense. Chem-Age Indus., Inc. v. Glover, 652 N.W.2d 756, 770 (S.D. 2002) ; see also Hendrix v. Schulte, 736 N.W.2d 845, 848–49 (S.D. 2007) (applying the Restatement); Wildeboer v. S.D. Junior Chamber of Commerce, Inc., 561 N.W.2d 666, 674 n.10 (S.D. 1997) (Sabers,......
  • Engesser v. Fox, CIV. 15-5044-JLV
    • United States
    • U.S. District Court — District of South Dakota
    • September 26, 2016
    ...negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.' " Hendrix v. Schulte, 736 N.W.2d 845, 847 (S.D. 2007) (quoting Fisher Sand & Gravel Co. v. S.D. Dep't of Transp., 558 N.W.2d 864, 867 (S.D. 1997)). The existence of a duty is u......
  • Davies v. GPHC, LLC, 29688-a-MES
    • United States
    • Supreme Court of South Dakota
    • September 14, 2022
    ...a tenant or to [the tenant's] invitees for injuries sustained by reason of its unsafe condition." Hendrix v. Schulte, 2007 S.D. 73, ¶ 9, 736 N.W.2d 845, 848 (citing Boe v. Healy, 84 S.D. 155, 159, 168 N.W.2d 710, 712 (1969)). Analyzing the question as a legal one, we have similarly stated t......
  • Request a trial to view additional results
23 cases
  • First American Bank v. Farmers State Bank, No. 24638.
    • United States
    • Supreme Court of South Dakota
    • August 13, 2008
    ...Estate of Shuck, 1998 SD 32, ¶ 8, 577 N.W.2d 584, 586). Additionally, a duty can be created by common-law or statute. Hendrix v. Schulte, 2007 SD 73, ¶ 7, 736 N.W.2d 845, 847 (citing Kuehl v. Horner Lumber Co., 2004 SD 48, ¶ 11, 678 N.W.2d 809, 812). Duty is also based upon foreseeability. ......
  • Sapienza v. Liberty Mut. Fire Ins. Co., 3:18-CV-03015-RAL
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • May 17, 2019
    ...liability for an improper defense. Chem-Age Indus., Inc. v. Glover, 652 N.W.2d 756, 770 (S.D. 2002) ; see also Hendrix v. Schulte, 736 N.W.2d 845, 848–49 (S.D. 2007) (applying the Restatement); Wildeboer v. S.D. Junior Chamber of Commerce, Inc., 561 N.W.2d 666, 674 n.10 (S.D. 1997) (Sabers,......
  • Engesser v. Fox, CIV. 15-5044-JLV
    • United States
    • U.S. District Court — District of South Dakota
    • September 26, 2016
    ...negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.' " Hendrix v. Schulte, 736 N.W.2d 845, 847 (S.D. 2007) (quoting Fisher Sand & Gravel Co. v. S.D. Dep't of Transp., 558 N.W.2d 864, 867 (S.D. 1997)). The existence of a duty is u......
  • Davies v. GPHC, LLC, 29688-a-MES
    • United States
    • Supreme Court of South Dakota
    • September 14, 2022
    ...a tenant or to [the tenant's] invitees for injuries sustained by reason of its unsafe condition." Hendrix v. Schulte, 2007 S.D. 73, ¶ 9, 736 N.W.2d 845, 848 (citing Boe v. Healy, 84 S.D. 155, 159, 168 N.W.2d 710, 712 (1969)). Analyzing the question as a legal one, we have similarly stated t......
  • Request a trial to view additional results

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