LawyersUSA

South Dakota's governmental immunity statutes have abrogated the common-law duty of cities to maintain streets, the South Dakota Supreme Court has ruled.

A 16-year-old boy was severely injured when a car his older sister was driving skidded off an icy street in a city park and overturned in a canal.

His parents sued the city, alleging breach of its duties relating to streets, including construction, maintenance, guardrails and signage.

The parents won a jury verdict.

The city appealed, asserted that 1939 amendments to state law removed a broad duty derived from common law to keep roads safe and free from danger, and that the statute now imposed only the limited duty to guard and repair roads that were destroyed or out of repair.

The city argued the "duty to repair" amendments applied not only to townships and counties, but to cities and towns as well.

The court agreed, applying its holding prospectively.

"[The original 1915 statute] did not merely restate the common-law duty of municipalities as to maintenance of streets, it prescribed the new statutory duties for cities, towns, counties and townships, enacted criminal penalties, and created a civil cause of action for violation of those duties," the court said.

"Even if we were to determine that some vestige of the common-law liability of municipalities survived the enactment of [original statute] in 1915, we hold that it was fully abrogated by the 1939 statutory revisions that eliminated the broad duty to maintain reasonably safe highways and confined counties and townships, as well as cities and towns, to the more limited duty to guard and repair highways that are damaged or destroyed."

South Dakota Supreme Court. Hohm v. City of Rapid City, No. 24105-a. July 17, 2008. Lawyers USA No. 99310416. Click here for the full text of this opinion.