EDNA F. PATITUCCI and ANTHONY J. PATITUCCI, Plaintiffs and Appellants,
CITY OF HILL CITY and GRANITE SPORTS, INC., Defendants and Appellees.
ARGUED ON MAY 21, 2013
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE JANINE KERN Judge.
JON J. LAFLEUR of Abourezk & Zephier, PC Rapid City, South Dakota Attorneys for plaintiffs and appellants.
KYLE L. WIESE JAMES S. NELSON of Gunderson, Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota Attorneys for defendant and appellee City of Hill City.
JEFFREY R. CONNOLLY J. CRISMAN PALMER of Gunderson, Palmer, Nelson & Ashmore, LLP Rapid City, South Dakota Attorneys for defendant and appellee Granite Sports, Inc.
[¶1.] Edna Patitucci was injured while walking on a sidewalk abutting Granite Sports, Inc. (Granite Sports), a sporting goods store in Hill City (City). The sidewalk also abutted a state/federal highway, which is the City's main street. Edna and her husband sued the City and Granite Sports for negligence. The circuit court granted summary judgment for both defendants, ruling that neither owed a duty of care relating to the sidewalk. Patituccis appeal. We reverse the summary judgment granted in favor of the City and affirm the summary judgment granted in favor of Granite Sports.
Facts and Procedural History
[¶2.] On August 21, 2009, Edna fell and fractured her wrist while walking on a split-level sidewalk in Hill City. The sidewalk abutted Granite Sports, which is located on U.S. Highway 16/385. The highway extends through the City as its main street. The upper sidewalk, which abutted businesses on the highway, was constructed by the State of South Dakota approximately sixty years ago. From 1995 to 1997, the State reconstructed the highway in the City. The upper sidewalk was not included in the reconstruction project. However, a curb and a narrow lower sidewalk were added at street level. This created a split-level sidewalk at various locations. There was an approximate six-inch difference in elevation between the upper sidewalk and lower sidewalk where Edna fell.
[¶3.] In August 2011, Edna and her husband sued the City and Granite Sports. They alleged negligence in failing to eliminate or reduce the risk of injury associated with the split-level sidewalk.
[¶4.] The City moved for summary judgment. It argued that it owed no duty to the Patituccis because it contended that it did not design, build, maintain, control, or own the sidewalk. The City contended that the State, through the Department of Transportation, designed, built, and controlled the sidewalk, which was within the highway right-of-way. The City relied on the affidavits of Brett McMacken, the City's administrator, and Art Anderson, the City's public works superintendent. McMacken indicated that the sidewalk was built and designed by the State at least sixty years ago, and both he and Anderson asserted that the sidewalk was controlled by and under the authority of the State.
[¶5.] Patituccis argued that the City controlled the sidewalk. Patituccis relied on a number of statutes authorizing municipalities to construct, improve, and control sidewalks within the municipality. Patituccis also contended that the City's control was demonstrated in a 1994 "maintenance and encroachment" agreement between the City and the State, as well as in the City's council meeting minutes and a City resolution relating to improvement of the sidewalk.
[¶6.] Granite Sports argued that it also owed no duty to the Patituccis. Granite Sports relied on an affidavit from its owner, Pat Wiederhold. He indicated that Granite Sports did not design, construct, or control the sidewalk. Granite Sports also pointed out that, as a business abutting a sidewalk, its duty was limited. And Granite Sports contended that it had no limited duty because its owner did not reside on the business premises, the City did not give Granite Sports notice that the sidewalk was in need of repairs, and Granite Sports did not alter or modify the sidewalk.
[¶7.] Patituccis, however, argued that Granite Sports could be secondarily liable to the City for damages under SDCL 9-46-2 if the City were found liable. Patituccis contended that it was necessary for Granite Sports to remain in the suit as a procedural matter because "[t]he City will cross-claim against Granite Sports, Inc. if it ...