*1 PER CURIAM.

This is an from an order appeal terminat-

ing parental rights in this and dependency

neglect action. We reverse the order and

remand the case to the circuit court for

entry of findings of fact and conclusions of

law and a corresponding order that are

consistent with the evidentiary standard - Kramer, in Santosky v. adopted U.S.

-, (1982). S.Ct. 71 L.Ed.2d 599

See H., S.D., the Interest S.

N.W.2d 851

All the Justices concur. Budahl,

Deanna BUDAHL and Loren Appellants,

Plaintiffs ASSOCIATES,

GORDON AND DAVID A Corporation,

South Dakota Defendant Appellee.

No. 13541.

Supreme Court of South Dakota.

Argued March Aug.

Decided McCann,

Richard J. Helsper of Martin & Mickelson, C., Brookings, plaintiffs P. and appellants; George S. Mickelson of Mc- Cann, Mickelson, C., Martin P. Brookings, & on brief. Woods, Fuller,

Francis M. Smith Smith, Falls, & Shultz Sioux for defendant appellee. WOLLMAN, Chief Justice. Appellant Deanna Budahl commenced an damages personal inju- action to recover allegedly ries falling suffered after on ice on the sidewalk in place front of a of busi- by appellee ness owned in the of Brook- *2 Budahl, city Loren To assist the in Appellant performing duty Deanna’s its ings.1 husband, to brought an action loss of con- with reference control over the side- walks, per- practice, in with his wife’s it has been common sus- sortium connection by legislative authority, require appeal tained to injury sonal action. occupants adjacent the owner or dismissing the action on of the judgment from the lots keep a to the sidewalks clear from the directed verdict. appellee’s motion pro- accumulation of snow and ice and to part, part affirm in reverse in We vide a for violation of the ordi- penalty remand. nance. The first issue is whether the local ordi- is responsibility occupant The of the to imposes duty a on the owner nance or municipality. occupant The has no occupant keep abutting of to pedestrian toward a in such a case gives walks free of ice rise to and snow a as the one at bar. pedestrian cause of action on of a part injured of the This rule is stated in Restatement who as a result failure of (Second) (1965): to of Torts occupant comply § the owner or with the ordinance. adopt The court will not as the standard of a reasonable re- conduct of man the Brookings City Ordinance 33-72 re- § quirements legislative a enactment or of quires abutting property owners and occu- regulation pur- an administrative whose pants to ice from adjacent remove snow and pose is be exclusively found to penalty The sidewalks.2 failure to com- ply 33-73, with this is stated in ordinance § which allows the remove city to the snow or (c) to impose upon per- the actor the ice “and assess the cost thereof formance of service a which the state or

fronting abutting or property.” any give subdivision of it to undertakes public ....

The common law rule is that when the presence (c) of to ice and snow on a sidewalk official comment clause of § reads, abutting p. at 32: structure is result of natural accumulation, responsibility to remove Other legislative enactments and ad- such accumulation falls the municipality. regulations ministrative are intended requires This so even when ordinance purpose of imposing upon abutting their occupants to clear sidewalks performance actor the of which a service within a precipitation state, it, certain time after or some subdivision of has Generally, falls walk. such an give ordi undertaken public. They adopted nance is compel as a method to responsi- are intended to make the actor occupant state, of property abutting on a side ble to the rather than indi- any vidual; walk to governing body per assist the in respect they and in are simi- forming its municipal duty. general These lar to assessing ordinances of cost common principles law were summarized improvements upon street of owners Supreme Court of North Dakota in a provision may land. Such Stoudt, 165, 12 Clark v. 73 N.D. part machinery by enacted as a of the (1944): which a franchise is conferred sidewalk, upon any Brookings keep 1. In an earlier action the such sidewalk free appellants’ dismissed as a defendant based on and clear from snow and ice at all times. comply failure to with the notice statute of impossible When it is to take snow and ice governing against municipal limitations suits being from such walk reason of its frozen ity. Budahl v. Gordon and David Associates person the owner or or Brookings, (S.D. 287 N.W.2d 489 possession charge inor of such shall lot 1980). sprinkle spread some or suitable material prevent becoming the same to slippery the walk from Brookings City provides: Ordinance 33-72 § dangerous (Rev.Ords. to travel. It shall be the of the owner or 1964, 12.0501) person possession lot, charge or parcel inor plot ground fronting water, artificial corporation transporta- to furnish accumulation. Strandness tion, Ward, Montgomery (N.D. or some other service.... 1972). Annot., generally, 18 A.L.R.3d example As an rule the au- suggest thors Restatement a factual sce- nario similar to the one issue: a directed neces- “[A] [for verdict] sarily plaintiff’s admits the truth of evi- Illustration: *3 every dence and of fact may inference that 5. A municipal provides ordinance legitimately therefrom.” drawn North- abutting property that owners must re- Perez, Realty 500, west v. 81 Company S.D. pair defects in sidewalks and remove 504, 345, (1965). 347 them, they snow and ice from and that if direct, a When faced with motion to fail to do so liable they shall be the weigh trial court is not free to repairs for the cost of the or removal. gauge credibility evidence or of the The ordinance to have no is construed witnesses. These are matters other purpose impose responsibili- than to jury. accept He must that evidence ty A, owner, to the city. an which is most to party favorable fails to remove ice from the sidewalk. B against whom sought, and slips injured. on the ice and is The ordi- indulge all legitimate inferences in his nance does a provide not standard of con- favor fairly that can be drawn there- duct for the benefit B. If, viewed, from. ... so when there is Torts, (Second) Restatement supra, at 32. any substantial evidence to sustain the We note that majority of states adhere cause of action or defense it must be Annot., to the common law 82 rule. jury.... submitted to the A.L.R.2d (1962); High- 998 39 Am.Jur.2d 248, Myers Quenzer, 79 S.D. ways, Streets, 517, 518, Bridges pp. & §§ (citations (1961) omitted). N.W.2d (1968); Municipal Corpora- 918-20 63 C.J.S. Modica, See also Stenholtz 862, p. tions (S.D.1978). Appellants abrogate ask us to the testimony offered of an common law rule. We decline to do so. employee a located of business next door to Rather, we occupant hold that an owner or appellee’s building. This witness testified property pedestrians is not liable that appellee’s premis- he was familiar with fall resulting from a caused es on daily basis from the time of the first natural snow and accumulation of ice on a through snowfall December property, sidewalk in front of the notwith February time of the accident in 1977. He standing the an existence of ordinance that part testified in that: imposes owner or Q. in as you Would describe much detail to remove the ice snow penalizes and possible exactly what the failure to do so.3 you concerning saw the accident? Well, ladies, lady, A. I seen or come question next is whether Stewarts, out of and when she was trial court properly granted appellee’s mo halfway approximately across the case, tion for directed In this verdict. sidewalk, went her feet out from un- issue that is motion for crucial to the direct her, der slid and come she down any ed verdict is whether there credible her back on completely on the side- showing evidence an unnatural artificial walk. accumulation snow of ice and on the side walk appellee’s premises. An

abutting property Q. time, held At particular you that did have liable if he causes such an unnatural or a chance to observe the sidewalk? note, however, secondarily Rapid We that this court in owner of liable to a Hills, any damages v. First National Bank Black (1961), 79 S.D. 107 N.W.2d 693 held that owner’s failure to sidewalk in front (SDCL 9-46-2) specifically property. SDC 45.1605 makes of his HENDERSON, (specially

Yes. Justice concur- ring). you What did observe? <© ice That there was all over the side- A of the trial re- reading testimony fair Í» it, walk. The snow had covered but veals credible that there evidence existed there was ice on the sidewalk. jury question as whether there was an compacted And was this ice? unnatural ice or artificial accumulation of O' Testimony snow on the sidewalk. in- «! Yes. reveals appellant dripping troduced building itself, And concerning O* of water overhang from an onto the you did ever see water run off of freezing walk and a of this accumulation. the building? Moreover, importantly, neigh- and most There is water dripped some appellee bor of testified from Decem- overhanging over an that was on the February ber of 1976 through of 1977 there building, yes. was a failure shovel the save <y Where did that water run to then? *4 scoops by steps, occasional of snow the < n Onto the sidewalk. precautions and no were taken to avert <y And did it freeze? ashes, sand, injury gravel, such salt <$ Yes. being placed on the sidewalk at the situs the same reviewing freezing. After this evidence we This witness testified agree cannot with trial court’s appellee’s the determi that he employees informed appellants present nation that had failed to something this that be condition and should substantial which jury evidence from the placed dan- on the sidewalk because it was have could found that an unnatural or arti gerous. It that appears this advice went ficial accumulation of ice and snow existed enterprise attempted unheeded. The which the appellee’s proper sidewalk to attract business was known as Stewarts ty and that that accumulation was the Hairstylists enterprise and it this which proximate cause of Deanna inju Budahl’s invited the appellant property. onto its True, might ries. well appellants have es When appellant daughter and her left precision with greater tablished the location Stewarts, her feet went out from her under the ice formed the by water that had fell, ultimately and she incurring approxi- dripped overhang, from the but $15,000 mately medical expenses al- fairly could have inferred from the above- leged permanent injury. Snow covered quoted testimony that the ice covered the compacted appellant ice where fell. As I sidewalk in the area where Mrs. Budahl file, negli- review no contributory I see slipped Accordingly, and fell. the trial gence assumption of the risk shown at permitted court should have the issue of Therefore, the time of trial. the trial court appellee’s liability for condition caused erred in granting appellee’s by dripping to be by water decided directed verdict the close evi- jury. We the judgment therefore reverse dence for appellant the reason that extent appellants’ that it denied (if by jury) introduced evidence believed claim of liability upon this theory, based of an unnatural and artificial accumulation and we remand the case the circuit court of snow and ice on sidewalk in front of upon for trial issue. To the extent appellee’s property, thereby causing the judgment that the upon was based the deni slip appellant. slip and fall of the For a of appellants’ liability al claim for viola ice, involving fall case a hairstyling tion of a remove ice and salon, and a reversal on a directed verdict snow, it is affirmed. injured plaintiff, see Maxwell Lewis,

DUNN, FOSHEIM, 186 Neb. JJ., MORGAN and concur. Authority rule that actionable

HENDERSON, J., specially. concurs negligence may predicated be cre- on the dangers vitee from which are forseeable or artificial accumula- ation of an unnatural or tenant of of snow or ice an owner arrangement tion from the or use. The obli in the annotation building may be found original to the gation extends construc (1979), Injuries in at 95 A.L.R.3d 15 Connec- premises, tion of the where it results tion with Ice or and also 18 A.L.R.3d Snow dangerous condition. The fact (1968), Abutting Liability Owner’s premises open are must Ice Formed on Injury from Sidewalk account, will taken into call for Due to Discharge Precipitation Artificial greater care than in the case of a visitor So, in * Conditions on Premises. our decision private at a home.” case, exactly plowing in this we are not quote that I Johanson is because reason It is old law it virgin ground. but is still Stoudt, cited strength it drew from Clark good you your law that cannot use property However, majority opinion. in the al- Longberg to the detriment of another. though the old common law Clark blessed Company, v. H.L. Green 15 Wis.2d principles, say: it did (1962), a dentist and a discharged If the water personal owner were sued for permitted sidewalk or it flowing or snow water from the dentist’s freezing office and then ice on drip into from his roof onto the Held, sidewalk in the way. entrance situation, we would have a different but dentist was not relieved of where the accumulation comes from nat- ground that he breached no of care to primary duty ural causes the case, the pedestrian. appel- In the instant may by which ordinance call just lant awas business invitee and not upon the owners to assist it in the dis- *5 passerby pedestrian. charge municipal (Empha- of its duties. mine.) enterpriser occupier supplied

It is true that the sis premises is not an insurer of the Clark, 172, 12 N.W.2d at 711. 73 N.D. at For, safety regards general public. as Perhaps point, regards more on the case in the case of Johanson v. Nash Finch Com- bar, at than other is the 1972 North 271, pany, (N.D.1974), 276 Supreme case of Dakota Court Strandness Supreme quoted North Dakota Court with Ward, majority Montgomery by v. cited approval (and sense) following it makes forerunner, opinion, but which cited the Torts, Prosser, statement found in Law of our decision here involves Factually, Clark. Edition, 4th pages 61 at 392-393: “overhang”; mentioned a Strandness occupier “The is not an insurer of the Clark, “canopy”. quoting After from invitees, safety only of his is duty Supreme in North Dakota’s Court Strand- protec exercise their reasonable care for expressed: ness obligation tion. But of reasonable rule is that exception An to the one, care is applicable a full in all re abutting property owner or spects, extending everything upon who constructs or maintains his threatens the invitee with an unreason in such a as to canopy manner occupier able risk of harm. The must not discharge cause an artificial and accumu- injure use care not to the visitor sidewalk, which, lation of water activities, negligent and warn him of la (cid:127) frozen, when makes the use of the side- tent dangers occupier of which the dangerous, will held liable to one walk knows, but inspect prem he must also who, being rightfully upon possible dangerous ises to discover condi danger- of such know, injured consequence tions of which he does not and take precautions protect reasonable the in ous condition.

* also, Graber, 364, falling steps entrance into the Wolf N.W.2d 368 down from rear 303 (S.D.1981), apparent actual or con- of store owner to busi- store and who had no premises knowledge dangerous ness invitee of condition. for harm caused on the structive (not sidewalk) 86-year-old of an woman

Strandness, N.W.2d at landowner pedestri- either are ques- entitled to have decide or to ans injuries negligence. tion of However, caused a defective sidewalk. our cut state into the common law rule corporation charged A municipal with The majority would not now abro- duty keeping of its and side streets rule; gate common law neither I. would reasonably walks in a safe condition. However, exceptions rules have and I Co., would Milling McCleod v. Tri-State 71 S.D. 1961, watch for them this as did Court in 1961. N.W.2d 485 In book, Rapid City my Court in v. First the 1961 decision was National Bank sound. Additionally, (Rapid City), derogation the Black Hills cited in statutes in of com- majority opinion, footnote 3 of the reiterat liberally mon law are to be construed with ed the general principle a-municipality to effect objects view of the statute and is charged with affirmative justice. to promote The old rule of the n common keeping reasonably its sidewalks in a safe law derogation that statutes in public condition for travel liable and is strictly the common law are to be construed neglect. its In our 1961 application has no in this state. See SDCL expression, we indicated that: 2-14-12. there

Conversely, as is no common law resting the owner abutting upon land public walk to

keep or maintain the same in there

is no corresponding liability gener-

al except when such or occu-

pant creates or maintains an excavation

or other artificial condition walk which causes or contributes to an In the Matter of the EXPLORATION Falls, injury. Kimball Sioux PERMIT RENEWAL OF SILVER [1945], S.D. (Emphasis N.W.2d 873 MINES, KING PERMIT EX-5. supplied mine.) No. 13406. Rapid City, at S.D. *6 45.1605, 694. Because SDC now SDCL 9- Supreme Court of South Dakota. 46-2, went beyond statutory the usual pro- Rehearing April visions states, found in other this Court was constrained to honor the specifics of that Decided Aug.

statute which provided, essentially, that the

abutting owner was secondarily liable to damages

owner’s to repair. Liability failure

damages ultimately thereunder would shift

to the abutting lot owner. Did Da- South

kota therefore make an inroad Yes,

common law rule? in my opinion, and

by the passage the statute which was

interpreted and honored the 1961 Court.

There is no doubt that requiring statutes

abutting landowners to construct and them,

sidewalks and rebuild if necessary,

have been enacted assess the cost

the owners rather than have municipali-

ty defray the Interpretation costs. of these

statutes reveals overwhelming authority

that this impose does not