Englund v. Vital, 838 N.W.2d 621

On July 7, 2008, 12‑year‑old K.V. threw a softball‑size landscaping rock that struck 9‑year‑old G.E. in the head, causing severe cranial injury. No adults were supervising the children.
The properties involved: Smith (landlord) owned two houses; the Vitals rented the house directly behind the Englunds. Backyards were unfenced and adjacent; the landscaping rocks were alongside the Vitals’ rental property.
Disputed facts: whether G.E. was on Smith’s yard when struck, whether K.V. intentionally chased and hit G.E., and whether Smith knew of K.V.’s rock‑throwing propensity.
Plaintiffs (the Englunds, guardians for G.E.) sued K.V., the Vitals, and Smith; claims against Smith included negligence and negligent rental (negligent rental was later conceded).
Smith moved for summary judgment; the trial court granted it, finding Smith owed no duty to G.E.; the appellate court affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether landlord Smith owed a duty of care to G.E. as landlord (possession/control)	Smith retained control (common area/control over rocks; purchased skid loader and agreed to remove rocks) so he had a duty	Smith had parted with possession of the rental premises; any control related to his own yard and he had not yet removed rocks or assumed control of the tenants’ landscaping	No duty — Smith had parted with full possession; evidence did not show he retained control or that the rocks came from a part he retained
Whether Smith owed a duty to protect G.E. from K.V.’s alleged intentional/criminal conduct (foreseeability/special relationship)	Smith knew of K.V.’s rock‑throwing and therefore should have foreseen harm and had a duty under Restatement §302B / Lagow exception	No special relationship; no exclusive control over safety; prior rock‑throwing was not sufficiently similar/foreseeable to impose a duty to protect third parties	No duty — the conduct was not sufficiently foreseeable and no special relationship or exclusive control existed to create a duty

Boe v. Healy, 168 N.W.2d 710 (S.D. 1969) (landlord liability is tort‑based; negligence defined)
Clauson v. Kempffer, 477 N.W.2d 257 (S.D. 1991) (general rule: landlord who parts with possession not liable; premises liability tied to possession/control)
Lagow Constr. & Dev. Co. v. Smith, 642 N.W.2d 187 (S.D. 2002) (landlord duty may arise when affirmative acts/omissions create foreseeable high risk of harm; special relationship and control considerations)
Janis v. Nash Finch Co., 780 N.W.2d 497 (S.D. 2010) (negligence requires breach of duty causing injury)
Andrushchenko v. Silchuk, 744 N.W.2d 850 (S.D. 2008) (gratuitous‑undertaking rule: undertaking to act can create liability if reliance or increased risk results)