APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA HONORABLE SCOTT P. MYREN Judge.
The opinion of the court was delivered by: Zinter, Justice
[¶1.] A pedestrian was injured when a concrete-filled metal grate in a city sidewalk collapsed. The grate covered a no longer used excavation that was originally a stairwell to the basement of an abutting building. The pedestrian and his wife sued the current building owner for negligence and loss of consortium. The circuit court granted summary judgment in favor of the building owner. The court concluded that because the city sidewalk had been rebuilt by the building owner at the direction of the city in accordance with city specifications, the city rather than the building owner owed the duty of care to the public for maintenance of the sidewalk. We conclude that an excavation/grate is a "special use" of a sidewalk. We further conclude that when an abutting property owner creates or maintains a special use, the property owner owes a duty of due care to the public with respect to that special use. We finally conclude that the abutting property owner's duty with respect to special uses is concurrent with any duties that may also be owed by cities. Therefore, we reverse and remand.
Facts and Procedural History
[¶2.] In 1984, Lonald Gellhaus and a partner purchased the building located at 112 South Lincoln Street in Aberdeen (City). According to the original plat of the City, this street, which included the sidewalk, was dedicated to the public. City accepted the street and has at all relevant times owned the sidewalk in front of Gellhaus's building.
[¶3.] The building was constructed in 1909 as a hotel, with office space on the ground floor and the lower basement level. Originally, there were stairwells in the front of the building. The stairwells were excavated into the sidewalk so the public could access shops in the basement. The stairwells also provided a natural light source for the basement.
[¶4.] As early as 1897, City began regulating sidewalks. An 1897 ordinance determined "the kind of material of which [the sidewalks] shall be constructed." Ordinances in 1906 and 1909 determined the width of the sidewalk. Ordinances from 1897 through 1909 specifically allowed private excavation into City's sidewalk for the purpose of creating stairways leading to cellars or basements in abutting buildings.
[¶5.] By 1924, City changed its policy and prohibited abutting property owners from making new excavations except for certain purposes, and then only if "covered with suitable iron covers, iron grating, or glass set in iron or cement [sic]." A landowner covering a permissible excavation was required to obtain a permit from the City Engineer. By 1954, City prohibited existing openings in sidewalks. An ordinance provided that no permanent openings could "be made or maintained in any sidewalk in any of the public streets of the City of Aberdeen for the purpose of stairways leading to any basement or cellar" unless covered as specified in the ordinance. At some time prior to 1968, this excavation was covered by the concrete-filled metal grate at issue. It is not known who covered the excavation with the grate.
[¶6.] In 1968, City "deem[ed] it necessary to repair or rebuild the concrete sidewalks in front of and abutting upon" 150 downtown properties, including the Gellhaus property. The 1968 ordinance required the abutting owners to "repair or rebuild at their own cost and expense cement [sic] sidewalks in front of and abutting" their properties. The owners were required to repair or rebuild using "Portland cement concrete in accordance with the City Ordinance and under the supervision of the City Engineer." City notified the property owners that if these improvements were not made within the time specified, City would perform the work and assess the costs against the property owner. It is unknown whether the building owner at that time or City performed the work. For purposes of summary judgment, Gellhaus conceded that his predecessor rebuilt the sidewalk.
[¶7.] The evidence indicates that the concrete-filled metal grate was in place at the time of the 1968 reconstruction. During that reconstruction, the excavation was not filled, and the concrete-filled grate remained a part of the reconstructed sidewalk. Further, Lockes do not take issue with the circuit court's observation that: "When the sidewalk was reconstructed in 1968, it would have had to have been constructed in a way that conformed to the City's specifications.... I did not find any evidence... that the sidewalk... was constructed in a manner that was not consistent with the City's specifications."
[¶8.] After purchasing the building in 1984, and up to the time of the accident in 2003, Gellhaus did not fill the excavation. Although the windows in the basement were covered and the subspace under the grate was no longer used, a door in the building allowed access to the subspace. Additionally, although Gellhaus noticed the concrete in the grate "had worn to some extent," he did not inspect the grate or perform any repair or maintenance. There is also no evidence that City notified Gellhaus of a defect or that he should repair or replace the grate.
[¶9.] On July 24, 2003, Bryan Locke was standing on the sidewalk in front of Gellhaus's building, which housed a probation office on the first floor. Locke, a deputy sheriff, was about to knock on the window to get the attention of a probation officer. Almost immediately after Locke stepped onto the grate covering the excavation, the grate collapsed. Locke fell approximately nine feet into the subspace and was seriously injured.
[¶10.] Following discovery, Gellhaus moved for summary judgment. Gellhaus argued that because the 1968 reconstruction was required to be completed in accordance with City specifications, City became liable to the public for the manner in which the sidewalk had been reconstructed and maintained with the grate covering the excavation. The circuit court agreed holding that following the 1968 reconstruction, the duty of due care became City's obligation rather than Gellhaus's. The court explained:
[When the City] said [by the 1924 and 1954 ordinances], okay, you can build your stairway but now you can't have it anymore, removes the responsibility of the landowner when the City also at the same [time under 1968 ordinance], or shortly thereafter said, you have to rebuild the sidewalk and you have to do it up to our specifications. So when... they required the landowner to rebuild it or would rebuild it themselves in 1968, they undertook the responsibility to make sure that it was up to specifications. And if they wanted the hole filled in, they should have filled it in or had it filled in. And when they accepted the ...