*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.
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.
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.
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
It is true that the
sis
premises
is not an insurer of the Clark,
172,
* 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