Mahmoudi v. City of Spearfish

#30742-aff in pt & rev in pt-SRJ
2025 S.D. 49

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

HAMIDEH MAHMOUDI, Plaintiff and Appellant,

v.

CITY OF SPEARFISH, Defendant and Appellee.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA

****

THE HONORABLE ERIC J. STRAWN
Judge

****

HEATHER M. LAMMERS BOGARD of
Costello, Porter, Hill, Heisterkamp,
Bushnell & Carpenter, LLP
Rapid City, South Dakota Attorneys for plaintiff and
appellant.

CASSIDY M. STALLEY of
Nooney & Solay, LLP
Rapid City, South Dakota Attorneys for defendant and
appellee.

****

ARGUED
MARCH 26, 2025
OPINION FILED 08/20/25
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JENSEN, Chief Justice

[¶1.] Hamideh Mahmoudi filed suit against the City of Spearfish (City)

alleging nuisance, negligence, and recklessness after she claims to have sustained

injuries when she stepped onto a metal culvert installed by the City. The City

moved for summary judgment on all claims. The circuit court granted the City’s

motion. We affirm in part and reverse in part.

Factual and Procedural History

[¶2.] In 1995 and 1996, the City undertook two improvement projects on

Dahl Road—the 1995 Consolidated Street Improvement Project and the 1996 Dahl

Road Sewer Improvement Project. As part of these projects, a metal culvert was

installed beneath the roadway, leaving the culvert’s end partially exposed in the

roadside ditch. There are no sidewalks on either side of Dahl Road.

[¶3.] On December 4, 2016, Mahmoudi, an ultra-marathon runner, was

running along Dahl Road, facing oncoming traffic. To avoid an approaching vehicle,

she stepped off the side of the road, and her foot became lodged in the culvert. This

incident caused her to sustain a sprained ankle and a 5 cm laceration on her right

shin; the laceration severed a vein and subsequently became infected, further

complicating her injuries and necessitating additional medical treatment.

[¶4.] In December 2017, Mahmoudi filed suit against the City, alleging

nuisance, negligence, and recklessness. Mahmoudi alleged that the City was

responsible for maintaining public rights-of-way—including roadways and ditches—

and that it had left the culvert “in the public right-of-way, uncapped, and partially

exposed.” Mahmoudi claimed that the City owed her and the public a duty to

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exercise reasonable and ordinary care to ensure the safety of the right-of-way and

that it breached this duty by failing to inspect, identify, and remove hazards;

provide safe walking surfaces; train its employees on pedestrian safety issues; and

post conspicuous, meaningful warning signs to alert the public to potential hazards.

[¶5.] In its answer, the City admitted that it was responsible for

maintaining public rights-of-way within city limits and that it had a duty to use

reasonable and ordinary care to keep them safe for public use. The City denied

failing to meet this standard and asserted that it had exercised ordinary care in

maintaining the culvert.

[¶6.] In answering interrogatories served by Mahmoudi, the City responded

that its maintenance practices are primarily “complaint driven,” with no routine

culvert inspections conducted absent a complaint. According to the City, no

complaints were made regarding this culvert before Mahmoudi’s accident, and no

regularly scheduled inspections occurred in the twenty years following its

installation. The City also indicated that it has no written policies or procedures

governing culvert inspection, installation, or maintenance. It noted that occasional

road work, such as patching and crack sealing, had taken place along Dahl Road

since the 1995 and 1996 projects but such work did not involve the culvert. The

City acknowledged that mowing, weed control, and snow removal occurred

periodically, yet stated it does not keep specific records of these activities and

characterized any such documentation as “immense” in volume and largely

unreviewed. Nevertheless, the City made its records available for Mahmoudi’s

inspection.

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[¶7.] In its interrogatory answers, the City also stated that it exposed the

pipe and cut off the damaged portion of the culvert in mid-December 2016 after

being notified of the incident. The City further explained that this repair was

directed by the Spearfish Public Works Administrator and carried out by Street

Department staff. No additional records or photographs of this work were created.

[¶8.] On February 29, 2024, the City moved for summary judgment,

asserting that it owed no common law duty to maintain, repair, or ensure the safety

of highways because municipalities are not liable for highway defects unless a

statute imposes such liability. The City argued that although SDCL 31-32-10

imposes a limited statutory duty once notice is given that a highway is damaged or

out of repair, Mahmoudi neither cited this statute nor alleged its violation. The

City claimed that Mahmoudi’s complaint relied solely on common law negligence

theories, asserting that the City owed her and the general public a duty to inspect,

train employees, and post warning signs. The City argued that these common law

duties were abrogated by SDCL 31-32-10 and, absent a breach of the duty imposed

by that statute, it could not be held liable for negligence.

[¶9.] The City asserted that SDCL 31-32-10 imposes liability only when “a

highway becomes out of repair” and not for inherent design defects but did not

address whether the culvert was damaged or reference any evidence in the record to

establish its condition, beyond asserting that “[t]he culvert was marked with a

marker post.” The City also included interrogatory responses Nos. 11–13 in which

it described how, following Mahmoudi’s accident in mid-December 2016, a City

employee inspected the culvert and “cut off the damaged end section.”

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[¶10.] The City argued that Mahmoudi’s nuisance claim failed as a matter of

law because SDCL 21-10-2 “exempts statutorily authorized actions or maintenance

from” constituting a nuisance. On Mahmoudi’s claim for recklessness, the City

argued that Mahmoudi had alleged only common law negligence and that neither

her complaint nor any discovery materials provided sufficient support for a claim of

gross negligence.

[¶11.] Mahmoudi opposed summary judgment, asserting that the City’s

motion was predicated on its immunity as a municipality and arguing that such a

defense was improper because the City failed to affirmatively plead immunity in its

answer. She further contended that the City should be bound by its own admission

of duty in its answer. Mahmoudi acknowledged that she did not explicitly cite

SDCL 31-32-10 in her complaint, but argued that her allegations were sufficient to

place the City on notice of her claim. She also argued that the requirements for

liability under SDCL 31-32-10 were met because “the culvert that was to be

maintained by [the City] became out of repair, resulting directly in an injury to

[Mahmoudi].” She argued that the City had constructive notice of the damaged

culvert since City employees “had repeated open views of the culvert while mowing,

weeding, and plowing” snow.

[¶12.] Regarding her nuisance claim, Mahmoudi maintained that the

exemption within SDCL 21-10-2 does not permit a public entity to negligently

create a nuisance and then avoid liability. She also contended that her gross

negligence claim was supported by the fact that the City had not inspected or

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maintained the culvert in the twenty years since its installation, nor implemented

an inspection policy like those required for townships under SDCL 31-14-33.

[¶13.] Mahmoudi submitted an affidavit with seven exhibits attached

including two photos of the culvert identified as Exhibits A and C. The affidavit

described Exhibit A as “a photograph taken after Defendant repaired the damaged

culvert, showing the lack of a sidewalk in the area where Plaintiff was running.”

Exhibit C was described as “a photograph of the uncapped, exposed, damaged

culvert taken within days of the subject accident.”

[¶14.] The City responded in its reply brief that it was not asserting

immunity as a defense. The City also argued for the first time that Mahmoudi had

failed to provide evidence showing that the culvert was damaged or that the City

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had notice of such damage. In support of this argument, the City claimed the

photographs Mahmoudi provided as Exhibits A and C did not show visible damage

to the culvert, “such as a gaping hole in the top, a piece of metal sticking up, or

otherwise.”

[¶15.] At the summary judgment hearing, the City reiterated the arguments

from its briefs, emphasizing that it owed no common law duty to Mahmoudi and

that SDCL 31-32-10 did not apply because she had not established that the culvert

was damaged. In response, Mahmoudi argued that the City’s position contradicted

its earlier admissions and discovery responses. Specifically, she referenced the

City’s previous admission that the culvert was left uncapped and partially exposed

in the public right-of-way, as well as its discovery responses stating that City

employees had inspected the culvert after the incident and had cut off the damaged

section. Counsel for Mahmoudi also read a portion of an email into the record that

the City provided during discovery, stating:

I would have submitted this to the Court had I thought this was
an issue, but in . . . an e-mail from Cheryl Johnson at the city,
December 13, 2016, in part says, “It appears that the culvert has
been damaged and has a split in the corrugated top section. The
culvert end is overgrown with grass and was snow covered from
plowing.”

[¶16.] Regarding the email, the City’s counsel clarified that she had inherited

the case and was unaware of the email because it was not part of the record

currently before the circuit court. The City contended that even if damage were

assumed, Mahmoudi had not shown that the City had constructive notice—arguing

that routine mowing and weed-eating did not prove that the City knew or should

have known of the culvert’s condition.

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[¶17.] Following the hearing, the circuit court granted summary judgment in

favor of the City, concluding that under South Dakota law, “a public entity does not

owe a common law duty of care.” The court further determined that Mahmoudi had

failed to show that the culvert was damaged as required to establish a duty under

SDCL 31-32-10, stating that “the evidence here is wholly insufficient to show there

is a genuine dispute about whether the culvert was damaged.” The court described

the City’s prior statements—that the damaged end of the culvert was removed

following the accident—as “conclusory” and “inadmissible evidence of a subsequent

remedial measure taken by the City[,]” concluding that such statements were

insufficient evidence of damage. Although the court found that “there is no dispute

that the culvert would have been observable by a City employee” it nonetheless

concluded that “mere observation of the culvert does not show that the City had

notice that the culvert was damaged.” Accordingly, the court ruled that

Mahmoudi’s negligence claim failed as a matter of law, that her nuisance claim was

barred by SDCL 21-10-2, and that her gross negligence claim was similarly

unsupported.

[¶18.] Mahmoudi appeals, raising the following issues:

1. Whether the circuit court erred in concluding as a matter
of law that Mahmoudi failed to present evidence to show
that the City was negligent under SDCL 31-32-10.

2. Whether the circuit court erred in concluding that SDCL
21-10-2 barred Mahmoudi’s nuisance claim against the
City.

3. Whether the question of gross negligence should be
submitted to the jury for determination.

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Standard of Review

[¶19.] “We review a grant or denial of summary judgment de novo.” City of

Sioux Falls v. Strizheus, 2022 S.D. 81, ¶ 15, 984 N.W.2d 119, 123 (citation omitted).

“In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we

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.” Burgi v. E. Winds Ct., Inc., 2022 S.D. 6, ¶ 15, 969 N.W.2d 919, 923

(citation omitted). “[W]hen there is reasonable doubt on whether a genuine issue of

material facts exists, the doubt should be resolved against the movant.” Berbos v.

Krage, 2008 S.D. 68, ¶ 17, 754 N.W.2d 432, 437 (citation omitted).

Analysis

1. Negligence under SDCL 31-32-10.

[¶20.] Mahmoudi contends that the record contains facts supporting her

claim that the City had a duty under SDCL 31-32-10 to repair the damaged culvert

and that it breached that duty.1 She highlights the City’s prior admissions in its

discovery responses, in which the City acknowledged that following Mahmoudi’s

1. Mahmoudi does not challenge the circuit court’s conclusion that the City does
not owe a common law duty of care with respect to streets and highways
under Hohm v. City of Rapid City, 2008 S.D. 65, ¶ 19, 753 N.W.2d 895, 905.
However, Mahmoudi maintains that the City waived any argument under
SDCL 31-32-10 by failing to affirmatively plead sovereign immunity in its
answer. While acknowledging sovereign immunity’s role in the early
development of our case law, Hohm ultimately held that SDCL 31-32-10
abrogated any broader common-law duty municipalities once owed for street
construction and maintenance. Id. ¶ 22, 753 N.W.2d at 906. Consequently,
the City’s argument that SDCL 31-32-10 limits any broader duty to
Mahmoudi does not require affirmative pleading of sovereign immunity; it is
simply a “no duty” defense.

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accident, the culvert was inspected, and the damaged end section was exposed and

removed by City employees.

[¶21.] The City argues that it is bound only to the factual admissions in its

answer, while the existence of a duty remains a legal conclusion. Although the City

acknowledges its discovery responses regarding the “damaged end section,” it

emphasizes that no such admission was ever made in any pleading, and

underscores Mahmoudi’s failure to reference it in her own statement of material

facts, noting that she did not refer to them until they were read in open court

during the summary judgment hearing.

[¶22.] “Duty is a question of law[.]” Foster-Naser v. Aurora Cnty., 2016 S.D.

6, ¶ 10, 874 N.W.2d 505, 508 (citations omitted). “Whether a duty exists and the

scope of that duty is for the court to determine.” Id. (citation omitted). In relevant

part, SDCL 31-32-10 provides:

If any highway, culvert, or bridge is damaged . . . to the extent
that it endangers the safety of public travel, the governing body
responsible for the maintenance of such highway, culvert, or
bridge, shall within forty-eight hours of receiving notice of such
danger, erect guards over such defect or across such highway of
sufficient height, width, and strength to guard the public from
accident or injury and shall repair the damage or provide an
alternative means of crossing within a reasonable time after
receiving notice of the danger.

[¶23.] The duty imposed by SDCL 31-32-10 arises only when there is damage

to a “highway, culvert, or bridge” and the governing body has notice of that damage.

SDCL 31-32-10. “The statute creates no duty to design or construct a roadway

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safely in the first place.” Godbe v. City of Rapid City, 2022 S.D. 1, ¶ 22, 969 N.W.2d

208, 214 (quoting Wilson v. Hogan, 473 N.W.2d 492, 496 (S.D. 1991)).2

[¶24.] Mahmoudi bore the ultimate burden of proving the existence of a duty

under SDCL 31-32-10 as one of the necessary elements for her negligence claim.

See Kuehl v. Horner (J.W.) Lumber Co., 2004 S.D. 48, ¶ 10, 678 N.W.2d 809, 812

(“The three necessary elements of actionable negligence are: (1) a duty on the part

of the defendant; (2) a failure to perform that duty; and (3) an injury to the plaintiff

resulting from such a failure.”). However, “[i]n summary judgment proceedings,

‘[t]he burden is on the moving party to clearly show an absence of any genuine issue

of material fact and an entitlement to judgment as a matter of law.’” Strizheus,

2022 S.D. 81, ¶ 18, 984 N.W.2d at 124 (second alteration in original) (citation

omitted).

[¶25.] When moving for summary judgment, the City did not make any

arguments or claims with respect to the condition of the culvert in its initial brief,

2. Although not relevant on this record, a governing body may satisfy its duty
under SDCL 31-32-10 by erecting guards within forty-eight hours of receiving
notice of damage and repairing the damage within a reasonable time. Thus,
while “this statute imposes a duty, the duty is only to warn of danger and to
make reasonably timely repairs upon notice that a damaged roadway is
creating a safety hazard.” Godbe, 2022 S.D. 1, ¶ 22, 969 N.W.2d at 214
(citation omitted). This Court has also held that whether a governing body
breached its duty under SDCL 31-32-10 is “a question for the factfinder.”
Fritz v. Howard Twp., 1997 S.D. 122, ¶ 17, 570 N.W.2d 240, 243. Further, we
have noted that an unexcused violation of SDCL 31-32-10 can constitute
negligence per se. See id. (“[A]n unexcused violation of a statute enacted to
promote safety constitutes negligence per se.” (citation omitted) (alteration in
original)). Although negligence per se addresses the duty and breach
elements of negligence, a plaintiff must still demonstrate that “the violation
of a statutory duty was the proximate cause of [their] injury[.]” Id. ¶ 17, 570
N.W.2d at 243 (citations omitted).

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nor did the City argue that there was no evidence that the culvert was damaged. In

her response brief, Mahmoudi specifically cited the City’s response to interrogatory

No. 13—which acknowledged that City employees observed the damaged condition

of the culvert after the accident—and repeatedly referred to the culvert as

“damaged” both in her brief and in her statement of undisputed facts. Although

Mahmoudi did not put forth other evidence to show that the culvert was damaged,

the City’s statement of undisputed facts conceded that the culvert was damaged by

citing its own interrogatory answers referencing the “damaged end section” of the

culvert being cut off after Mahmoudi’s accident.

[¶26.] In its rebuttal brief, the City relied on the photos Mahmoudi submitted

as Exhibits A and C to argue that “there is no apparent damage to the culvert[.]”

The City did not acknowledge that these photos were taken at different times and

depicted the culvert in different conditions as indicated in Mahmoudi’s affidavit.

Nor did the City attempt to explain why it had previously admitted that the culvert

was damaged or indicate that its previous responses were inaccurate in describing

the condition of the culvert as damaged.

[¶27.] On motion for summary judgment, “a party may not claim a version of

the facts more favorable than the version given in the party’s own testimony.”

Werner v. Norwest Bank S.D., N.A., 499 N.W.2d 138, 140–41 (S.D. 1993) (citations

omitted). Similarly, “[a]n issue of material fact will not be created by a party who

attempts to change its testimony without an explanation for its change or a showing

that its answers were ambiguous and that the new affidavit merely seeks to clarify

that testimony.” DFA Dairy Fin. Servs., L.P. v. Lawson Special Tr., 2010 S.D. 34,

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¶ 21, 781 N.W.2d 664, 670. It logically follows that a moving party cannot admit a

fact in multiple prior statements and then, without any explanation or showing of

ambiguity, reverse course to claim the fact does not exist.

[¶28.] In concluding there was no evidence that the culvert was damaged, the

circuit court disregarded the City’s prior statements describing the culvert as

having a “damaged end section,” labeling them as merely “conclusory.” Further, in

relying on Mahmoudi’s photographs to conclude there was no visible damage, the

court appears to refer to the photo depicting the culvert after it had been repaired.

At the time these photos were submitted, the issue of whether the culvert was

damaged was not in dispute and Mahmoudi offered these photos for different

purposes—Exhibit A to show the culvert after the City removed the end section and

Exhibit C to show the conditions around the time of the incident. Because the City

had already admitted to “damaged” portions of the culvert in its interrogatory

responses, and the photographs do not disprove that damage, there remains a

genuine dispute of fact on the issue of damage.3

3. The circuit court also characterized the City’s removal of the damaged culvert
section as an “inadmissible subsequent remedial measure.” Yet the City did
not raise any arguments at summary judgment regarding the admissibility of
this evidence under SDCL 19-19-407. Further, the City’s observation of the
condition of the culvert after the accident is not evidence of a subsequent
remedial measure. But even if the City’s action of cutting off the damaged
end of the culvert is considered evidence of a subsequent remedial measure,
such evidence may be admissible for other purposes, “such as impeachment
or—if disputed—proving ownership, control, or the feasibility of
precautionary measures.” SDCL 19‑19‑407. Moreover, the Advisory
Committee Notes to Federal Rule of Evidence 407—on which SDCL
19‑19‑407 is modeled—clarify that those “other purposes” also include
establishing “ownership or control, existence of duty, and feasibility of
(continued . . .)
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[¶29.] Nonetheless, for a duty to exist under SDCL 31-32-10, the City must

also have notice of the damaged condition of the culvert. This Court has held that

constructive or implied notice is sufficient under SDCL 31-32-10. See, e.g., Fritz v.

Howard Twp., 1997 S.D. 122, ¶ 21, 570 N.W.2d 240, 245; Clementson v. Union

Cnty., 256 N.W. 794, 796 (S.D. 1934); Zens v. Chicago, Milwaukee, St. Paul & Pac.

R. Co., 386 N.W.2d 475, 478 (S.D. 1986). “Every person who has actual notice of

circumstances sufficient to put a prudent man upon inquiry as to a particular fact,

and who omits to make such inquiry with reasonable diligence, is deemed to have

constructive notice of the fact itself.” Fritz, 1997 S.D. 122, ¶ 21, 570 N.W.2d at 245

(quoting SDCL 17-1-4). We have also held that it is a question of fact for a jury to

determine whether a governing body had constructive notice of damage under

SDCL 31-32-10. Id. ¶ 22, 570 N.W.2d at 245.

[¶30.] The circuit court acknowledged that “there is no dispute that the

culvert would have been observable by a City employee” but held that there was no

constructive notice because “mere observation of the culvert does not show that the

City had notice that the culvert was damaged.” However, this negative inference is

not an appropriate assessment on summary judgment. Moreover, the court based

its conclusion, at least in part, on the photo taken of the culvert after it had been

repaired by the City. “It is a question of fact for the jury to determine whether [the

City], in the exercise of ordinary care, should have discovered that the” culvert was

damaged before this accident. Id. ¶ 22, 570 N.W.2d at 245. Mahmoudi’s lacerated

________________________
(. . . continued)
precautionary measures, if controverted, and impeachment.” Fed. R. Evid.
407, Advisory Committee Notes (emphasis added).

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shin and her claim that her foot became lodged in the culvert creates an inference

that there was a jagged edge or opening on the culvert. Further, the City’s own

sworn statement about finding the culvert to be in a damaged condition after the

accident suggests the condition was observable. Finally, the facts in the record

show that City employees did periodic maintenance in the area surrounding the

culvert, including mowing, weed removal, and plowing snow. These facts are

sufficient to create a question for the jury as to whether the City should have

observed the culvert’s damaged condition.

[¶31.] Because there are genuine issues of material fact as to whether the

culvert was damaged and whether the City should have discovered this damage, the

circuit court erred in granting summary judgment on Mahmoudi’s negligence claim

under SDCL 31-32-10.

2. Nuisance

[¶32.] Mahmoudi argues that the circuit court erred in holding that her

nuisance claim was barred by SDCL 21-10-2. Mahmoudi contends that the City is

not protected by SDCL 21-10-2 because the City wholly failed to maintain the

culvert and, therefore, her nuisance claim should be allowed to proceed under SDCL

21-10-1.4 The City argues that the circuit court correctly concluded that Mahmoudi

4. Mahmoudi cites Greer v. City of Lennox, in which this Court upheld a
nuisance claim arising from a city’s operation of a dump, determining that
the city’s statutory authorization to operate the dump “does not extend to the
creation or maintenance of such an improper or unlawful condition.” 107
N.W.2d 337, 338 (S.D. 1961). However, Greer only addressed the question of
nuisance liability as an exception to governmental immunity for negligence
under the common law, not conduct that is statutorily exempt from being
considered a nuisance. Id. at 338–39. Moreover, Greer involved a private
(continued . . .)
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could not show the City created a nuisance by negligently maintaining the culvert

because she could not show that the City was negligent. The City also contends

that its maintenance and repair of highways is statutorily authorized conduct for

which it cannot be held liable in nuisance under SDCL 21-10-2.

[¶33.] Under SDCL 21-10-1,

A nuisance consists in unlawfully doing an act, or omitting to
perform a duty, which act or omission either:
(1) Annoys, injures, or endangers the comfort, repose, health,
or safety of others;
(2) Offends decency;
(3) Unlawfully interferes with, obstructs, or tends to obstruct,
or renders dangerous for passage, any . . . sidewalk,
street, or highway;
(4) In any way renders other persons insecure in life, or in
the use of property.

[¶34.] However, “South Dakota law specifically exempts statutorily

authorized actions or maintenance from being considered a nuisance.” Hedel-

Ostrowski v. City Of Spearfish, 2004 S.D. 55, ¶ 13, 679 N.W.2d 491, 497. Under

SDCL 21-10-2, “[n]othing which is done or maintained under the express authority

of a statute can be deemed a nuisance.” See Hedel-Ostrowski, 2004 S.D. 55, ¶ 13,

679 N.W.2d at 497 (holding that an individual injured while using a swing in a

public park could not sue the city for nuisance because the city maintained the

swing pursuant to its statutory authority to establish public parks for the benefit of

the public).

________________________
(. . . continued)
nuisance claim by a neighboring landowner whose private property interest
was significantly impacted by the city’s operation of a dump. Id. In contrast,
the present claim arises from the City’s statutory authority to construct and
maintain culverts and highways for the benefit of the general public.

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[¶35.] We have also generally held that mere negligence in the construction,

design, or maintenance of public highways does not constitute a nuisance. See

Dohrman v. Lawrence Cnty., 82 S.D. 207, 212, 143 N.W.2d 865, 868 (1966) (“The

alleged omissions at most consist of negligence in construction, maintenance, and

design of highways and are not sufficient to constitute a nuisance.”); Vesely v.

Charles Mix Cnty., 66 S.D. 570, 570, 287 N.W. 51, 52 (1939) (“The alleged omission

of the county was mere negligent conduct incident to and in the direct course of the

performance of a statutory duty and was not an act separate and apart from the

duty of constructing and maintaining highways and bridges delegated by the

state.”). We have similarly held that SDCL 21-10-2 precludes a nuisance claim

against a city for the repair and maintenance of city streets. See Loesch v. City of

Huron, 2006 S.D. 93, ¶ 13, 723 N.W.2d 694, 698 (“Because the City was repairing

and maintaining the road pursuant to a statutory obligation, the trial court did not

err in concluding that the City’s acts did not constitute a nuisance.”).

[¶36.] SDCL 9-45-1 provides municipalities with the power to plan, construct,

and repair streets, and SDCL 9-45-3 expressly authorizes them to construct and

repair culverts. Although failing to repair known damage to a culvert may breach

the duty set forth in SDCL 31-32-10, a city remains exempt from nuisance liability

under SDCL 21-10-2 because its actions, even if negligently performed, are still

conducted under the express authority granted by statute. Therefore, the

exemption in SDCL 21-10-2 precludes Mahmoudi’s nuisance claim against the City.

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3. Gross Negligence

[¶37.] Mahmoudi argues that the circuit court erred in concluding that there

was no evidence of gross negligence. Mahmoudi’s argument reiterates her view that

the City violated a duty by neglecting the culvert entirely for two decades and by

failing to create an inspection policy. She further contends that City employees

necessarily knew or should have known of the hazard—given frequent mowing,

weeding, and plowing in the area—and that this extended disregard reflects a

conscious indifference, sufficient to establish a prima facie case of gross negligence.

[¶38.] The City, however, argues that it had no duty to maintain or inspect

the culvert and Mahmoudi has offered no evidence to show that City officials

possessed the culpable state of mind necessary to prove “willful or wonton

misconduct” or gross negligence. The City also points out that the phrases “gross

negligence” or “willful or wonton misconduct” do not appear in Mahmoudi’s

complaint, where she originally asserted “negligence and recklessness.” Further,

the City contends that the fact it had not inspected the culvert for twenty years, at

most establishes a failure to exercise reasonable care for negligence and is

insufficient to demonstrate gross negligence.

[¶39.] “In South Dakota, the phrases gross negligence and willful or wanton

misconduct mean the same thing.” Fischer v. City of Sioux Falls, 2018 S.D. 71, ¶ 8,

919 N.W.2d 211, 215 (citations omitted). However, “[t]hese phrases refer to a

category of tort that is ‘different in kind and characteristics’ than negligence.” Id.

(citation omitted). “While a plaintiff alleging negligence must prove merely that

some harm is possible, a plaintiff alleging [gross negligence] must prove a

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substantial probability of serious physical harm.” Id. ¶ 10, 919 N.W.2d at 215.

“Additionally, [gross negligence] requires proof of an element not present in a

negligence claim.” Id. ¶ 9, 919 N.W.2d at 215. “[A] plaintiff alleging [gross

negligence] must [also] prove the defendant acted with a culpable mental state.” Id.

¶ 10, 919 N.W.2d at 215–16.

[¶40.] Summary judgment was proper on any claim by Mahmoudi for gross

negligence as there is no evidence in the record to distinguish Mahmoudi’s gross

negligence claim from one of ordinary negligence. At most, the evidence shows that

the City’s failure to inspect or maintain the culvert posed an unreasonable risk of

harm to the public. There is no evidence to suggest that the City knew its conduct

posed a substantial probability of serious physical harm to the public. Mahmoudi’s

assertions that the City should have known about the culvert problem over twenty

years are insufficient as a matter of law to support a claim of gross negligence.

Conclusion

[¶41.] We reverse the circuit court’s grant of summary judgment on the

negligence claim, concluding that genuine issues of material fact remain as to

whether the City was negligent under SDCL 31-32-10. We affirm the circuit court’s

grant of summary judgment on the claims of nuisance and gross negligence.

[¶42.] SALTER, DEVANEY, and MYREN, Justices, concur.

[¶43.] KERN, Justice, concurs specially.

KERN, Justice (concurring specially).

[¶44.] I join the Court’s opinion in its entirety. However, I write separately to

share my view that the Hohm decision too quickly disposed of municipalities’

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common law duties. The Hohm Court reached this conclusion by reviewing nearly a

hundred years of tort law. It first determined that the Legislature intended to

abrogate municipalities’ common law duties respecting roads by enacting a

statutory framework in Chapter 210, Laws 1915 that imposed a duty on cities,

counties, and townships to “keep all public roads and highways, culverts and

bridges in such condition as to render them safe and passable and free from danger

of accidents or injury to persons or property, while in the lawful use thereof[.]” See

Hohm v. City of Rapid City, 2008 S.D. 65, ¶ 9, 753 N.W.2d 895, 900. Then, the

Court noted that in 1939, the Legislature amended a subsequent version of Chapter

210 and eliminated this broad duty, leaving only a narrower duty to guard and

repair a road that becomes destroyed or out of repair. Id. ¶ 19, 753 N.W.2d at 905;

1939 SDC § 28.0913. Accordingly, the Court concluded that the Legislature

intended to eliminate all duties owed by municipalities except the narrow guard

and repair duty. Id. However, a closer look at the common law distinctions

between municipal and quasi-corporate (townships and counties) liability—as well

as previous and subsequent legislative reforms—suggests that the Legislature may

have simply intended to limit liability for negligent road maintenance, which it

subsequently expanded in 1986, and municipalities may still have a common law

duty today respecting roads outside SDCL 31-32-10.

[¶45.] In considering this question, it is necessary to look at the development

of our jurisprudence in this area, just as the Court did in Hohm.5 At common law,

5. This writing is not intended to be an all-inclusive assay of the law in this
area.

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local government entities were classified as either quasi-corporations or municipal

corporations. Counties, townships, and school districts were classified as quasi-

corporations, and as such, they were deemed involuntary “political subdivisions of

the state” possessing only those “powers expressly granted to them, and such

implied powers as are necessary to enable them to perform their duties, and no

more.” Town of Dell Rapids v. Irving, 7 S.D. 310, 64 N.W. 149, 151 (1895).

Although these entities “possess some corporate functions and attributes,” they

remain “primarily political subdivisions,—agencies in the administration of civil

government”—with corporate powers granted solely “to enable them more readily to

perform their public duties.” Id.

[¶46.] Thus, at common law, quasi-corporations enjoy governmental

immunity from liability in tort and in the absence of a specific statute waiving such

immunity “are not liable for damages caused by neglectful performance of” a duty.

Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 8 (1938). See also Williams v. Wessington

Twp., 70 S.D. 75, 77, 14 N.W.2d 493, 494 (1944) (“The reason assigned for the rule

of non-liability at common law is that counties and townships are political

subdivisions of the state exercising a part of the sovereign powers of the state and

liable only to the extent the state itself would be . . . .”); Conway v. Humbert, 82 S.D.

317, 320, 145 N.W.2d 524, 526 (1966) (“The basic principle underlying the rule of

governmental immunity is sovereignty.”); and Bailey v. Lawrence Cnty., 5 S.D. 393,

59 N.W. 219 (1894) (adopting this rule).6 Consequently, “[c]ounties and townships,

6. However, Hohm relies on our decisions applying this rule in the context of
SDCL 31-32-10 and its predecessors to state that we have “held that county
(continued . . .)
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being quasi corporations, are not liable in the absence of statute imposing liability

for injuries caused by defective highways.” Williams, 70 S.D. at 77, 14 N.W.2d at

494.

[¶47.] By contrast, municipal corporations were “created mainly for the

interest, advantage, and convenience of the locality of its people[,]” serving as an

“agency to regulate and administer the internal concerns of the locality in matters

peculiar to the place incorporated, and not common to the state or people at large.”

Irving, 64 N.W. at 151. The common law recognized that a municipal corporation

“has a dual character and performs dual functions,” acting in “a governmental

character for the administration of the general laws” or in “a corporate, private or

proprietary capacity.” Conway, 145 N.W.2d at 526. Thus, the general rule was that

a municipality was immune from tort liability when acting in a governmental

capacity “because . . . it is merely the agent of the state[,]” but it was liable for

negligence “when performing duties consequent upon the exercise of its corporate or

private powers.” Id. See also Bucholz v. City of Sioux Falls, 77 S.D. 322, 325–26, 91

N.W.2d 606, 608 (1958), overruled by Hohm, 2008 S.D. 65, 753 N.W.2d 895.

Because the construction and maintenance of municipal streets were deemed a

corporate or proprietary function, municipal corporations were “liable for injuries

________________________
(. . . continued)
and township duties as to highway maintenance were statutory.” Hohm,
2008 S.D. 65, ¶ 8, 753 N.W.2d at 900 (emphasis added). See also id. (quoting
Hanigan v. Minnehaha Cnty., 47 S.D. 606, 609, 201 N.W. 522, 523 (1924))
(“Prior to the adoption of chapter 210, Laws 1915 . . . it was the settled law of
this jurisdiction, following the rule of the common law, that a county was not
liable for damages caused by the neglect of its officers to keep in repair a
bridge upon a public highway because there was no express statute creating
such a liability.”).

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sustained in consequence of their failure to use due care to keep their streets in a

reasonably safe condition for public travel.” Williams, 70 S.D. 75, 77, 14 N.W.2d at

494. See also Bucholz, 91 N.W.2d at 610 (“[A] municipality while engaged in the

construction, repair or maintenance of its streets and sidewalks acts in a corporate

or proprietary capacity[.]”).

[¶48.] Although the rationale for distinguishing between quasi-corporations

and municipal corporations may no longer be readily apparent, this common law

distinction has been codified in statute for more than a century. Consistent with

the common law rules regarding municipal liability, SDCL 9-24-5, which was first

enacted in 1907, contemplates a municipality’s liability for personal injury or death

caused by its negligence. No analogous statute imposes comparable liability upon

counties or townships.

[¶49.] Counties and townships were first made liable for the negligent

construction and maintenance of highways by Chapter 210, Laws 1915, which

provided in relevant part:

§ 1. Guards Erected—Repairs made. It shall be the duty of the
road supervisors of any township, town or city, and the county
commissioners of any county not fully organized into civil
townships, to keep all public roads and highways, culverts and
bridges in such condition as to render them safe and passable
and free from danger . . . and in case such roads, highways,
culverts or bridges shall become in whole or in part destroyed or
out of repair . . . to such an extent as to endanger the safety of
public travel, it shall be their duty upon receiving notice thereof
to cause to be erected, for the protection of travel and public
safety, within twenty-four hours thereafter, substantial guards
over such defects . . . of sufficient height, width and strength to
warn and guard the public from accident or injury . . . and it
shall also be their duty to repair the same within a reasonable
time thereafter. . . .

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§ 2. Penalty. Any such officer or officers, who shall violate the
provisions of this act shall be guilty of a misdemeanor and upon
conviction shall be punished by a fine . . . or by imprisonment in
the county jail . . . or both such fine and imprisonment.
§ 3. Damages. Any person shall have a cause of action against
such city, town, township or county for injury to persons or
property sustained by reason of any violation of the provisions of
this act.
§ 4. All acts and parts of acts in conflict with this act are hereby
repealed.

1915 S.D. Sess. Laws ch. 210.

[¶50.] Although Chapter 210 was neither the first nor the only statute

imposing maintenance and repair duties on counties and townships, it was one of

the few instances in which immunity was waived, so its significance lies not in the

duties it enumerated but in its waiver of immunity from liability. Municipalities,

which were already liable at common law, were also included in the statute. While

the law repealed any statute inconsistent with its provisions, Chapter 210 was

consistent with other statutes reflecting the common law rule that municipalities

could be held liable for negligence when acting under their proprietary function.

See, e.g., SDCL 9-24-5 (“Any action for recovery of damages for personal injury or

death caused by the negligence of a municipality . . . shall be commenced within two

years from the occurrence of the accident causing the injury or death.”).

[¶51.] Under the provisions of Chapter 210, local governments—counties,

townships, and municipalities—were responsible for maintaining the roads within

their respective jurisdictional boundaries. However, through Chapter 333, Laws

1919, South Dakota entered “a new era of highway construction.” Hanigan v.

Minnehaha Cnty., 47 S.D. 606, 201 N.W. 522. To align with the Federal Aid Road

Act of 1916, Chapter 333 introduced a more unified approach to highway oversight

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and established “three systems of highways: (1) The state trunk highway system,

aided by federal funds, constructed by the state highway commission; (2) the county

highway system constructed by the counties under the supervision of the state

highway commission; and (3) secondary roads, constructed by townships.” Id.

Chapter 333 is the source for much of what is today codified in Title 31. See SDCL

31-1-5 (defining the highway systems to “clarify[] the duties and powers of the

various governmental state agencies charged with the administration of the

highways in South Dakota[.]”).

[¶52.] Very few provisions of Chapter 333 were applicable to municipalities.

Those that did apply, however, only concerned the portions of municipal streets

connected to the state trunk highway or county highway systems. See 1919 S.D.

Sess. Laws ch. 333, § 9 (requiring county highway systems to “include that portion

of the main traveled roads within incorporated cities and towns” but requiring

municipalities to maintain the roads once constructed); id. § 61 (making cities liable

for damages resulting from the city’s maintenance or repair of public utilities,

roads, and streets which make the trunk highway system “unsafe or dangerous for

public travel”). Thus, although municipal streets and alleys are deemed “highways

of this state” under SDCL 31-1-4, Title 31’s current provisions primarily govern only

the larger highway systems. See SDCL 31-1-5 (defining the highway systems “for

the purpose of clarifying the duties and powers of the various governmental state

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agencies charged with the administration of the highways in South Dakota,” none of

which include municipal streets and roads).7

[¶53.] Also in 1919, the highway liability statute enacted by Chapter 210,

Laws 1915, underwent its first revision and was codified at Sections 8589 and 8590

of the Revised Code of 1919, which provided in part:

§ 8589. Guards Erected–Repairs. It shall be the duty of the
governing body of every city, incorporated town and organized
civil township, and of the board of county commissioners in
territory not included in any such city, town or township, to keep
the public highways, culverts and bridges in such condition as to
render them safe, passable and free from danger of accident or
injury . . . and in case any highway, culvert or bridge shall
become, in whole or in part, destroyed or out of repair . . . to
such an extent as to endanger the safety of public travel, it shall
be the duty of such governing body or board, upon receiving
notice thereof, to cause to be erected for the protection of travel
and public safety, within twenty-four hours thereafter,
substantial guards over such defect or across such highway of
sufficient height, width and strength to warn and guard the

7. SDCL 31-1-5 states:

For the purpose of clarifying the duties and powers of the
various governmental state agencies charged with the
administration of the highways in South Dakota, the following
definitions of highway systems shall be applicable:
(1) “State trunk system,” the highways designated by statute
to be controlled and supervised by the Department of
Transportation;
(2) “County highway system,” the highways designated by
the board of county commissioners in organized counties
under the supervision of these bodies that have been
approved by the Department of Transportation;
(3) “Township highways,” the secondary highways in
organized townships that are administered by a board of
township supervisors;
(4) “County secondary highways,” the rural local highways in
organized counties, excluding the approved county
highway system, that are under the supervision of a
board of county commissioners.

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public from accident or injury, and to repair the same within a
reasonable time thereafter. . . .
§ 8590. Violation–Penalty–Damages. Any officer who shall
violate the provisions of the preceding section shall be deemed
guilty of a misdemeanor . . . any person who shall sustain injury
to person or property by reason of any violation of such section
shall have a cause of action against the city, town, township or
county as the case may be.

S.D. Rev. Code 1919, §§ 8589–90.

[¶54.] In 1923, the Legislature assigned to the State Highway Commission

the duty to maintain and repair the trunk highway system, which previously was

the responsibility of the counties for the portion of the highway within its borders.

1923 S.D. Sess. Laws ch. 285; see also Cain v. Meade Cnty., 54 S.D. 540, 223 N.W.

734, 735 (1929) (“By [Chapter 333, Laws 1919] the maintenance . . . of the trunk

system devolved upon the county in which the highway was located. By chapter

285, Laws 1923, the duty of maintaining such highways was transferred from the

county to the state highway commission.”). In 1931, the Legislature amended

Section 8589 to exclude organized civil townships, making counties responsible for

repairing and maintaining roads within the county except those in cities and

incorporated towns. 1931 S.D. Sess. Laws ch. 167; Clementson v. Union Cnty., 63

S.D. 104, 256 N.W. 794, 795–96 (1934).

[¶55.] These changes appeared to create a conflict between the public entity

vested with the duty to maintain and repair the road and the entity that could be

held liable for negligent maintenance or repair. Under a literal reading of the

relevant provisions, an injured party could bring an action against a county for

injuries resulting from the negligent repair of a highway when the duty to maintain

and repair the highway was vested with the state. Reasoning that the Legislature

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could not have intended such a result, this Court in Waller v. Edmunds County

concluded:

[B]y §§ 8589 and 8590 . . . the Legislature did not intend to
charge any sub-division with new and independent duties, but
rather intended thereby to amplify and render explicit the
duties assigned by other primary statutes dealing with
maintenance and repair, and through a waiver of sovereignty to
grant a right of action against the named sub-divisions for
negligence in connection with their respective duties in the
premises.

67 S.D. 165, 290 N.W. 484, 485 (1940) (emphasis added). In other words, Waller

determined that Sections 8589 and 8590 were liability statutes, not duty statutes.

[¶56.] While Waller was still pending, however, Sections 8589 and 8590 were

replaced in 1939 by SDC 28.0913, which provided:

In case any highway, culvert, or bridge shall become in whole or
in part destroyed or out of repair by reason of floods, fires, or
other cause to such an extent as to endanger the safety of public
travel, it shall be the duty of the governing body or board under
statutory duty to maintain such highway, culvert, or bridge
upon receiving notice thereof to cause to be erected for the
protection of travel and public safety, within twenty-four hours
thereafter, substantial guards over such defect or across such
highway of sufficient height, width, and strength to guard the
public from accident or injury and to repair the same within a
reasonable time thereafter. . . .
Any person who shall sustain injury to person or property by
reason of any violation of this section shall have a cause of
action against the county, township, city, or town as the case
may be for such damages as he may have sustained.

1939 SDC § 28.0913.

[¶57.] This Court addressed the changes to the statute for the first time in

Reaney v. Union County, where we stated that “[t]he revised text is not a mere

rearrangement of the substance of the old statutes.” 69 S.D. 392, 396, 10 N.W.2d

762, 764 (1943). Rather, by eliminating the broad duty to maintain safe highways

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and retaining only the duty to guard and repair destroyed or out of repair highways,

the Legislature intentionally narrowed the scope of liability. Id. at 762.

[¶58.] In my view, the significance of the duty described in SDC 28.0913 was

not that it was the only duty public entities had with respect to roads, but that a

cause of action existed for a breach of the duty it specified. Although the

Legislature narrowed the scope of liability by eliminating the broader duty in

Section 8589, it enacted or left intact several other statutes which imposed duties

with respect to roads. Critically, these statutes imposed duties only on counties and

townships and no analogous statutes existed for cities. See 1939 SDC § 28.0408 (“It

shall be the duty of [the county] to construct, repair, and maintain all secondary

roads within the counties not included in any city.”); 1939 SDC § 28.1402 (“The duty

to construct and maintain all bridges and culverts throughout the county, except

upon the State Trunk Highway system, is hereby imposed on the board of county

commissioners[.]”); 1939 SDC § 28.1415 (imposing duty on townships and counties

to inspect culverts at least once every three months and conduct repairs). But

without a waiver of immunity, duties falling outside SDC 28.0913 were

unenforceable. See Reaney, 69 S.D. at 397, 10 N.W.2d at 764 (“[A]ssum[ing] that

the county had been derelict in its duties,” by failing “to install adequate signs

warning of the danger . . . we conclude that the present statute does not afford

plaintiff a remedy for injuries proximately caused thereby.”).

[¶59.] SDC 28.0913 was subsequently divided and recodified as SDCL 31-32-

10, governing the “guard and repair” duty, and SDCL 31-32-11, governing

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governmental liability for violating SDCL 31-32-10.8 This Court continued to

reaffirm that the statutes were designed to restrict liability for highway

maintenance to a narrowly defined statutory duty—namely, the duty to guard and

repair highways that are damaged or out of repair—thereby effectively waiving

sovereign immunity only to the extent expressly provided. See Jensen v.

Hutchinson Cnty., 84 S.D. 60, 62, 166 N.W.2d 827, 828 (1969), overruled on other

grounds by Kiel v. DeSmet Twp., 90 S.D. 492, 242 N.W.2d 153 (1976) (“[C]ounties

and townships are not liable under the common law for injuries to persons or

property for negligent construction, maintenance or repair of highways, and liability

for damages is wholly statutory.”).

[¶60.] Thus, for most of their history, this Court consistently read SDCL 31-

32-10 and 31-32-11 to provide for a waiver of immunity resulting in potential

liability, not a limitation of the duties owed. The legislative decision in SDCL 31-

32-10 to set a specific “guard and repair” duty, for which immunity was not

available, does not in my view translate into an elimination of every other duty

imposed by a different statute or common law.

8. Prior to its repeal in 1986, SDCL 31-32-11 provided:

Any person who shall sustain injury to person or property by
reason of any violation of § 31-32-10 shall have a cause of action
against the county, township, city, or town as the case may be
for such damages as he may have sustained.

In case of counties, notice to the member of the board of county
commissioners of the commissioner district in which the injury
occurred or to the county highway superintendent shall be considered
as notice to the county.

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[¶61.] Although earlier caselaw consistently recognized municipal liability

based on common-law liability principles, Hohm determined that the Legislature—

in enacting the 1915 statute and later revising it in 1939—created a single

statutory scheme that included all local governmental entities, thereby abrogating

any broader common-law liability. In so concluding, the Hohm Court reasoned that

“the legislative inclusion of cities and towns in the statutes . . . subjected [them] to

the new, limited statutory liability identical to that of counties and townships[.]”

Hohm, 2008 S.D. 65, ¶ 13, 753 N.W.2d at 902. However, Hohm also held that

“cities’ common-law duties respecting streets were abrogated by” SDCL 31-32-10

and its predecessors. Id. ¶ 20, 753 N.W.2d at 905.

[¶62.] By determining that cities’ broader, common-law street-maintenance

duties were entirely replaced by the duties in Chapter 210, Laws 1915, and then

further limited in 1939, Hohm effectively treated municipalities as if they shared

the same immunity-based starting point as quasi-corporations. To further

complicate the issue, the Hohm decision did not determine whether the Legislature

intended merely to limit the scope of liability by constraining the duty for which

sovereign immunity was waived or instead intended to eliminate all duties outside

that narrow framework. The importance of this distinction arises as a result of the

Legislature’s repeal of SDCL 31-32-119 and enactment of SDCL 21-32A-1 in 1986,

which Hohm did not address. SDCL 21-32A-1 states:

9. This Court has addressed the 1986 repeal of SDCL 31-32-11 in relation to the
enactment of SDCL 21-32A-1 in only a limited capacity. See Bland v.
Davison Cnty., 507 N.W.2d 80, 82 (S.D. 1993) (Wuest, J., concurring)
(“[S]overeign immunity is not applicable in this case . . . [n]or is it an ‘out of
(continued . . .)
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To the extent that any public entity, other than the state,
participates in a risk sharing pool or purchases liability
insurance and to the extent that coverage is afforded
thereunder, the public entity shall be deemed to have waived
the common law doctrine of sovereign immunity and shall be
deemed to have consented to suit in the same manner that any
other party may be sued.

[¶63.] By enacting SDCL 21-32A-1 and repealing SDCL 31-32-11, the

Legislature signaled its intent to broaden the spectrum of recoverable claims

against local governments by allowing causes of action to be brought for breaches of

duties beyond the duty in SDCL 31-32-10. Following this change, injured parties

could bring actions against a public entity for a breach of existing statutory or

common law duties to the extent that the entity participated in a risk sharing pool

or purchased liability insurance. For counties and townships, this change was

significant because they had many statutory duties concerning road maintenance

and repair. However, because the Legislature did not use the same terminology for

municipalities, their duties only could have arisen from common law. Compare

________________________
(. . . continued)
repair’ case sanctioned by SDCL 31-32-10. Rather, this case falls within the
provisions of SDCL 31-12-19 because in purchasing liability insurance, the
County has waived sovereign immunity.”); Bickner v. Raymond Twp., 2008
S.D. 27, ¶ 9, 747 N.W.2d 668, 671 (“Although we previously held that SDCL
31-32-11 waived sovereign immunity and established a cause of action for a
breach under SDCL 31-32-10, this statute was repealed in 1986.”). Further,
this Court has held that where the State has waived sovereign immunity, the
State employees charged with maintaining a highway could nonetheless avail
themselves of the defense of sovereign immunity for violating SDCL 31-32-10
because the statute imposed a discretionary duty upon those employees. See
Hansen v. S.D. Dep’t of Transp., 1998 S.D. 109, ¶¶ 15, 29, 584 N.W.2d 881,
884–88 (“When the state has waived sovereign immunity to the extent of
participation in a risk-sharing pool or the purchase of liability insurance, a
state employee sued in his official capacity can no longer avail himself of the
defense of sovereign immunity except in defense of alleged negligence arising
from the performance of a discretionary act.”).

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SDCL 9-45-1 (“Every municipality may” repair roads and streets) (emphasis added);

with SDCL 31-12-26 (“Each board of county commissioners and county

superintendent of highways in organized counties shall construct, repair, and

maintain all secondary roads within the counties[.]”) (emphasis added).

[¶64.] Taken together, this historical context indicates that perhaps Hohm

overextended the Legislature’s intent in determining that municipalities’ common

law duties were abrogated by SDCL 31-32-10 and its predecessors. Hohm’s sharp

departure from historical principles of common law liability with respect to

municipalities continues to impact litigants today, including the plaintiff in this

case. Although the City’s contention that it owes no duty under SDCL 31-32-10

does not rise to an invocation of sovereign immunity, it is enabled to argue that it

owes no duty only because Hohm extended the remnants of the immunity

framework once applicable to quasi-corporations to municipalities, as well.

[¶65.] In my view, the Legislature’s intent is not clear, and the progression of

legislative action in this field reasonably lends itself to two opposite conclusions—

one where municipalities’ common law duties respecting roads were abrogated and

one where they remain. Clarification by the Legislature would be beneficial to

resolve this question of legislative intent.

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