author: AMUNDSON, Justice. SABERS, Justice

text:
    2002 SD 29
    Richard PARKER, Plaintiff and Appellee, v. CASA DEL REY-RAPID CITY, INC., Defendant and Appellant.
    No. 21810.
    Supreme Court of South Dakota.
    Argued Oct. 1, 2001.
    Decided Feb. 27, 2002.

      Dennis W. Finch, Tina M. Hogue of Finch, Bettmann, Maks, Rapid City, South Dakota, Attorneys for plaintiff and appel-lee.
    Gregory G. Strommen of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter Rapid City, South Dakota, Attorney for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Richard Parker was injured while making a delivery from his truck to Casa del Rey in Rapid City, South Dakota. A jury awarded Parker $290,000 for his damages resulting from the fall. Casa del Rey appeals. We affirm.

FACTS

[¶ 2.] On December 21, 1995, Parker, an experienced truck driver, was making deliveries for Nobel/Sysco Company. As he progressed into his route, Parker stopped at Casa del Rey between 9 and 10 a.m. Parker backed his truck trailer up near the unloading dock behind the restaurant and parked so that a gap was left between the trailer and the dock. There is conflicting testimony of whether the gap was 10-12 inches or 12-18 inches. In addition, the truck trailer was a bit higher than the unloading dock, creating a step down onto the dock.

[¶ 3.] After parking, Parker got out of his truck and crossed the parking lot to the steps of the unloading dock. Parker was aware that a light snow had fallen during the previous night. Additionally, he had noticed grease present on the dock during prior deliveries. Parker alleges the snow had made the greasy film on the steps “different” than he was used to, but proceeded up the steps and across the dock anyway because he did not believe the condition of the area was dangerous. He stepped off the dock into his trailer where he used a two-wheeled cart to haul five or six boxes of chips, which were stacked taller than he was, and pushed the cart out of the truck onto the dock. As he did, his foot slipped from beneath him just as he stepped over the gap between the truck trailer and the unloading dock. He fell and became wedged in the gap between the truck trailer and the dock. Parker suffered physical injuries from the fall, including a herniated disk in his back, which required surgery and resulted in medical bills. He also incurred educational costs in order to obtain less strenuous employment since he was no longer physically able to drive truck.

[¶ 4.] At trial, Casa del Rey claimed that no grease was present on the steps on the day Parker fell. The manager of Casa del Rey, Robert Krebsbach, testified that his employees rarely spilled grease on the dock as they were removing it from the restaurant and carrying it outside to a receptacle. If they did, however, Krebs-bach explained that it was restaurant policy to use a heavy-duty degreaser to clean up such spills. Casa del Rey also argued that Parker was contributorily negligent in the way he parked and unloaded the truck and that he had assumed the risk of injury. A jury found in favor of Parker and awarded him $290,000 in damages. Casa del Rey appeals the following issues:

1) Whether the evidence was sufficient to establish negligence.
2) Whether Parker was contributorily negligent and assumed the risk as a matter of law.
3) Whether the trial court correctly instructed the jury as to the law governing the case.
4) Whether the trial court should have allowed the admission of evidence regarding a previous fall at Casa del Rey.
5) Whether the trial court should have allowed evidence of the feasibility of safer equipment provided by Parker’s employer to be presented at trial.
6)Whether the trial court properly admitted a photograph of the premises into evidence.

STANDARD OF REVIEW

[¶ 5.] Casa del Rey’s claim that the evidence was insufficient to establish negligence is reviewed “in the light most favorable to upholding the verdict.” See Engberg v. Ford Motor Co., 87 S.D. 196, 201, 205 N.W.2d 104, 106 (1973). The same standard applies when determining if assumption of the risk and contributory negligence exist as a matter of law. See Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978) (stating when “determining whether the evidence on the plaintiffs behalf was sufficient to warrant submission to the jury, the plaintiff is entitled to have every controverted fact resolved in his favor and to have the benefit of all reasonable inferences that can be deduced from the evidence”). We have previously stated that the standard of review for issue three regarding jury instructions is, as follows:

On issues supported by competent evidence in the record, the trial court should instruct the jury. The trial court is not required to instruct on issues lacking support in the record. Failure to give a requested instruction that correctly sets forth the law is prejudicial error. Jury instructions are reviewed as a whole and are sufficient if they correctly state the law and inform the jury. Error is not reversible unless it is prejudicial. The burden of demonstrating prejudice in failure to give proposed instruction is on the party contending error. This Court has repeatedly stated that “[a] trial court must present only those instructions to the jury which are supported by competent evidence and set forth the applicable law.”

Overfield v. Am. Underwriters Life Ins. Co., 2000 SD 98, ¶ 11, 614 N.W.2d 814, 816 (citations omitted). Finally, all issues regarding the trial court’s evidentiary rulings require us to apply the “abuse of discretion” standard. See Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989).

DECISION

[¶ 6.] 1. Whether the evidence was sufficient to establish negligence.

[¶ 7.] Under the laws of this state, to establish negligence the plaintiff must prove “duty, breach of that duty, proximate and factual causation, and actual injury.” Fisher Sand & Gravel Co. v. South Dakota Dep’t of Transp., 1997 SD 8, ¶ 12, 558 N.W.2d 864, 867 (citing Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995)). In this particular case, there is no dispute that Parker was a business invitee of Casa del Rey’s. Thus, Casa del Rey owed Parker a duty to exercise “reasonable or ordinary care” while on its premises. Mitchell v. Ankney, 396 N.W.2d 312, 313 (S.D.1986). Reasonable and ordinary care requires Casa del Rey to keep its premises safe and warn any invitee, like Parker, of any “concealed, dangerous conditions known to ... [Casa del Rey].” See id. (citations omitted). In analyzing the duty owed to an invitee, this Court has stated that the “duty to warn is a subpart of the duty to keep the property reasonably safe. The duty to keep the property reasonably safe is, in turn, a subpart of the general duty to exercise reasonable care.” Id. This Court has additionally acknowledged that landowners are not expected to insure a safe condition, but rather must warn of a dangerous condition only if the condition existed for a time long enough to “justify the inference that he had knowledge of its existence.” Kryger v. Dokken, 386 N.W.2d 481, 483 (S.D.1986) (holding that a property owner with no knowledge of an abandoned well did not breach a duty under the nuisance laws). Furthermore, if a danger is reasonably obvious or known to the invitee, the landowner is excepted from liability unless he expects harm will occur in spite of the invitee’s knowledge of the danger. See Stenholtz, 264 N.W.2d at 516 (summarizing Restatement (Second) of Torts § 343A (1965)).

[¶ 8.] Casa del Rey argues that the evidence at trial was insufficient to establish a claim of negligence for an array of reasons. Parker, however, points out that Manager Krebsbach admitted employees occasionally spill grease on the unloading dock, which could create a slippery surface. Additionally, Parker testified that grease was present on the steps and dock. And, although Parker saw the grease and snow, he testified that it did not appear dangerous to him. We must review these facts in a light most favorable to the verdict, and there was clearly evidence that could support the jury’s decision. See Engberg, 205 N.W.2d at 105. These facts are enough to prove that Casa del Rey breached the duty it owed to Parker as an invitee. There was sufficient evidence to support the jury’s finding of negligence.

[¶ 9.] 2. Whether Parker was con-tributorily negligent and assumed the risk as a matter of law.

[¶ 10.] Contributory negligence is conduct by the plaintiff that amounts to a “breach of duty which the law imposes upon persons to protect themselves from injury, and which, concurring and cooperating with actionable negligence for which defendant is responsible, contributes to the injury complained of as a proximate cause.” Starnes v. Stofferahn, 88 S.D. 424, 432, 160 N.W.2d 421, 426 (1968). Furthermore, this state follows the rule that if Parker’s contributory negligence was “more than slight,” the defendant is not liable for his own negligence. See id. at 433, 160 N.W.2d 421.

[¶ 11.] Assumption of the risk exists under the precedent of this state when an individual knows that the danger exists, appreciates the character of the danger and “voluntarily accept[s] such risk by having a sufficient amount of time, knowledge, and experience to make an intelligent choice.” Myers v. Lennox Co-op. Assoc., 307 N.W.2d 863, 864 (S.D.1981). See also Mack v. Kranz Farms, Inc., 1996 SD 63, ¶ 9, 548 N.W.2d 812, 814 (enumerating the elements of assumption of the risk); Nelson v. Nelson Cattle Company, 513 N.W.2d 900, 904 (S.D.1994) (same).

[¶ 12.] Casa del Rey argues that the evidence shows Parker left a gap between the trailer and dock, obscured his vision with boxes and failed to use other available methods of unloading. Parker, however, also presented evidence that he did not appreciate the risk of falling, even though he saw the snow and the grease. He testified he did not realize the danger that the condition of the dock presented. Additionally, there was testimony that the gap between the dock and trailer was a result of the cramped space in which the truck had to maneuver behind Casa del Rey, and not due to Parker’s negligent parking. Also, there was testimony that grease was allowed to accumulate on the dock with the knowledge of Casa del Rey personnel. Thus, there was conflicting evidence on the dock’s condition at the time of the incident. In such a case, it is not up to this Court to determine which sides’ witnesses were most credible. See Mash v. Cutler, 488 N.W.2d 642, 646 (S.D.1992) (stating “[t]he credibility of witnesses, the weight to be accorded their testimony, and the weight of the evidence must be determined by the trial court and we accord the trial court some deference based on its observations of the witnesses and the evidence”). Contributory negligence and assumption of the risk are normally questions for a jury to decide unless “the facts are not in dispute or of such a nature that reasonable men could not differ.” Myers, 307 N.W.2d at 864. See also Hoffman v. Royer, 359 N.W.2d 387, 390 (S.D.1984) (quoting Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983), which said, “Questions relating to negligence and contributory negligence are questions of fact for determination by the jury in all except the rarest of instances”); Mack, 548 N.W.2d at 815 (stating “fact questions, such as assumption of the risk, are normally issues a jury decides”). In addition, a plaintiff may only be denied recourse “as a matter of law” under these two theories if all of the elements are “conclusively established.” See Stenholtz, 264 N.W.2d at 518; Smith v. Community Co-op. Assoc. of Murdo, 87 S.D. 440, 442, 209 N.W.2d 891, 892 (1973). We affirm the submission of this issue for a jury determination.

[¶ 13.] 3. Whether the trial court correctly instructed the jury as to the law governing the case.

[¶ 14.] Casa del Rey claims that the trial court’s instructions to the jury were “incomplete, incorrect, or inappropriate” and that the trial court’s failure to give several instructions was error. First, the trial court need only instruct the jury on issues “supported by competent evidence in the record.” Sundt Corp. v. South Dakota Dep’t of Transp., 1997 SD 91, ¶ 19, 566 N.W.2d 476, 480. If the instructions given “mislead, conflict, or confuse the jury, it constitutes reversible error.” Wallahan v. Black Hills Elec. Coop., Inc., 523 N.W.2d 417, 422 (S.D.1994). We will not reverse the trial court’s decision regarding jury instructions unless the complaining party was prejudiced by it. See Overfield, 2000 SD 98, ¶ 11, 614 N.W.2d 814, 816 (citations omitted). We must, however, look at the instructions “as a whole” to determine if they adequately inform the jury on the law. See id.

[¶ 15.] A complaining party must have properly objected to an instruction to preserve the issue for appeal. See Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 28, 573 N.W.2d 493, 503. SDCL 15—6—51(b) states that “no grounds of objection to the giving or the refusing of an instruction shall be considered ... on ... appeal, unless presented to the court upon the ‘settlement’ of such instructions.” Sundt Corp., 1997 SD 91 at ¶ 17, 566 N.W.2d at 480 (citations omitted). The complaining party must have specified and stated the grounds for his objection, and a mere general objection is not sufficient to preserve the right to appeal. See id. An attorney must be clear when objecting to jury instructions “so the trial court is advised of what possible errors exist and be granted the opportunity to correct any instructions.” See id.

[¶ 16.] In this case, Casa del Rey argues that the trial court erred by incorrectly instructing the jury as to causation and premises liability. The record indicates that Casa del Rey did not properly object to the instructions given regarding causation or premises liability, thus we do not address these issues on appeal. See id. at ¶ 17. Even if the objection was made, the instructions given by the trial court accurately set forth the laws applicable to the case. See Overfield, 2000 SD 98 at ¶ 11, 614 N.W.2d at 816.

[¶ 17.] Casa del Rey also argues that the court below erred in failing to include assumption of the risk as one of the issues in the case and failed to instruct the jury properly on Parker’s employer’s duty to furnish Parker with safe equipment. During the settlement of instructions, Casa del Rey objected to the trial court’s instruction number 14 regarding the issues of the case. As is evident, this instruction is void of any reference to assumption of the risk as an issue in the ease. The trial court’s instruction on the issues of the case was void of any reference to assumption of the risk. Plaintiff objected to the court’s instruction, but the trial judge overruled it. Additionally, the trial court refused to accept Defendant’s proposed instructions, one of which defined assumption of the risk as an issue, and another that expounded on assumption of the risk.

[¶ 18.] The record does contain an instruction where the elements of assumption of the risk were explained to the jury. In addition, other instructions explained contributory negligence and differentiated assumption of the risk from contributory negligence. While it was error to not include as part of instruction number 14 the assumption of the risk issue, the instructions given adequately explain the law of this affirmative defense to the jury. In reviewing the instructions as a whole, there was no prejudicial error. See Overfield, 2000 SD 98 at ¶ 11, 614 N.W.2d at 816 (finding the instructions must be viewed as a whole to determine if they adequately inform the jury on the laws).

[¶ 19.] Next, Casa del Rey argues that the trial court erred by denying its proposed jury instruction on an employer’s duty to provide a safe work place for the plaintiff, which read as follows:

An employer has a duty to furnish an employee with a reasonably safe place to work. This includes the duty of establishing proper methods of work and adequate supervision of the work and safe equipment with which to perform the work. If the employee is mature and sensible and has had some experience in the work being done, he must look after himself as to all obvious dangers in the details of the work.

Casa del Rey relied on Jackson v. Van Buskirk, which held employers have a duty to furnish a safe work place for employees, but did not deal with nonparty negligence. 424 N.W.2d 148, 149 (S.D.1988). The trial judge ruled the jury should not be given the instruction, as that would “unduly interject” a nonparty into the case. Notwithstanding this reasoning, the trial judge went on to state that it was “fair game” to argue the employer’s duty to the jury during closing argument. This must have been based on the fact that there was evidence admitted during trial on an employer’s duty.

[¶ 20.] This Court has held that if there is “competent evidence” in the record regarding a particular issue, then the jury should be instructed on that issue. Wallahan, 523 N.W.2d at 422. We cannot permit juries to deliberate regarding any issue without first receiving proper guidance. This jury was apparently authorized to consider the factual evidence on the employer’s duty without receiving any law on the issue or being told what law to apply to the evidence regarding that issue.

[¶ 21.] In the case of Steele v. Encore Manufacturing Co., Inc., 7 Neb.App. 1, 579 N.W.2d 563, 568 (1998), the Nebraska Court of Appeals held as follows:

[T]he general rule in Nebraska is that where it is claimed that the conduct of a nonparty is the sole proximate cause of an accident, the jury should be advised that if it finds that the nonparty is the sole proximate cause, then its verdict should be for the defendant. This is merely a way of instructing the jury that it is appropriate for a defendant to deny proximate cause by introducing evidence that someone else was the sole proximate cause. Although the above stated rule has been the general rule in Nebraska for quite some time, the present situation is unique and presents an issue of first impression in Nebraska for one reason: The nonparty third person whose negligence is alleged to have been the sole proximate cause is the plaintiffs employer. Although we acknowledge that employers cannot be held hable in tort for injuries to employees covered by the Nebraska Workers’ Compensation Act, we do not, as Steele urges, conclude that a defendant is therefore barred from arguing in a negligence action that the employer’s negligence was actually the sole proximate cause of the employee’s injuries.
Regardless of the plaintiffs not being entitled to tort compensation from the employer, if the employer’s actions are the sole proximate cause of the employee’s injuries, then it follows that the defendant’s conduct is not a proximate cause, and the defendant should be entitled to argue and have the jury instructed accordingly. Numerous other courts, both federal and state, have acknowledged that evidence of an employer’s negligence is admissible and that appropriate jury instructions are required if the evidence is such that a jury should find that the employer’s negligence is the sole proximate cause of the employee’s injuries. See McClish v. Niagara Mach. and Tool Works, 266 F.Supp. 987 (S.D.Ind.1967); Gatlin v. Cooper Tire & Rubber Co., 262 Ark. 839, 481 S.W.2d 338 (1972); Wagner v. Clark Equip. Co., Inc., 243 Conn. 168, 700 A.2d 38 (1997); Chumbley v. Dreis and Krump Mfg. Co., 621 N.W.2d 192 (Iowa App.1993); Caulfield v. Elmhurst Contracting Co., 268 A.D. 661, 53 N.Y.S.2d 25 (1945).

(other internal citations omitted). There is no question that an employer’s negligence is a proper factor to consider if it is the sole proximate cause of injuries. A review of the record in this case discloses that this was not the theory of the defense and that the trial court was not given the opportunity to embrace or reject this theory. This Court has long taken the position that if the trial court has not had the opportunity to rule on an issue, we will not reverse on the non-presented issue. See Knudson v. Hess, 1996 SD 137, ¶ 11, 556 N.W.2d 73, 76. It is unfortunate that the trial court stated that the employer’s negligence was “fair game” for argument without instructing on the law, but on this record, the case must be affirmed on this issue.

[¶ 22.] 4. Whether the trial court should have allowed the admission of evidence regarding a previous fall at Casa del Rey.

[¶ 23.] Prior to trial, Casa del Rey made a motion in limine to prevent some of Parker’s witnesses from testifying. One of those witnesses was James Tiltrum, a deliveryman for a beer distributor who had previously made deliveries to Casa del Rey. In September of 1995, Tiltrum fell as he was ascending the steps attached to the unloading dock where Parker had fallen. Tiltrum’s fall occurred as he was pulling a full keg of beer, which weighed about 163 pounds, up the steps.

[¶ 24.] Casa del Rey attempted to keep Tiltrum’s testimony out, arguing that the testimony of Tiltrum’s fall did not happen in the same place or manner as Parker’s. The motion was denied and subsequently, at trial, Manager Krebsbach testified that he did not know of any prior falls on the dock. In response, Parker presented Tilt-rum’s testimony regarding his fall on the steps.

[¶ 25.] This Court held in Durham v. Ciba-Geigy Corporation that facts can be proven by events that are substantially similar, although not identical, to the facts to be proven. 315 N.W.2d 696, 699 (S.D.1982). The Durham Court stated: “[a]n issue as to the existence or occurrence of a particular fact, condition, or event, may be proved by evidence as to the existence or occurrence of similar facts, conditions, or events, under the same, or substantially similar circumstances.” See id. (citations omitted).

[¶ 26.] Tiltrum fell just a few months prior to Parker’s fall. Additionally, it was in the same general location, and he, too, contends that the grease was a contributing factor in his fall. Although there was no snow on the ground and Tiltrum fell while pulling a keg up the steps, rather than while unloading on the dock, the jury was fully apprised of those distinguishing factors. The facts indicate that Tiltrum’s fall could be viewed as “substantially similar to the one giving rise to the case in issue.” See Novak v. Navistar Int’l Transp. Corp., 46 F.3d 844, 851 (8thCir.1995) (holding that dissimilar prior incidents are inadmissible to prove the facts of the case). The trial court has broad discretion in determining whether evidence is “immaterial, conjectural or remote” in nature, and we will fully recognize that discretion here. See Durham, 315 N.W.2d at 699. We find no abuse of discretion here and affirm the trial court on this evidentiary issue.

[¶27.] We need not address issues 5 and 6, as they “lack sufficient merit or importance to warrant individual attention.” Mattson v. Rachetto, 1999 SD 51, ¶ 7 n. 4, 591 N.W.2d 814 n. 4.

[¶ 28.] Therefore, we affirm.

[¶ 29.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, and GORS, Acting Justice, concur.

[¶ 30.] SABERS, Justice, concurs in part and concurs in result in part.

SABERS, Justice

(concurring in part & concurring in result in part).

[¶ 31.] I concur in Issues 1 through 4 and concur in result on Issues 5 and 6 as I would address them.

      . Parker explained that it was difficult to park in Casa del Rey's parking lot, as there was a short distance between the unloading dock and some concrete parking barriers. Additionally, he was pulling a shorter trailer than usual and was having a difficult time maneuvering it in Casa del Rey's parking lot.

      . Parker arguably could have used other methods of unloading, such as covering the gap between the dock and trailer with a metal ramp or skidboard, or pulling the cart rather than pushing it. Jay Prichard, Parker's coworker who was assisting Parker that morning at Casa del Rey, testified at trial that it would have been proper for Parker to pull the cart onto the dock. This would help keep momentum and prevent the wheels of the cart from falling into the gap between the dock and truck. Additionally, there was conflicting testimony at trial as to whether a metal ramp, or "skidboard,'' could have been used to cover the gap between the truck and dock.

      : The Restatement (Second) Torts § 331 (1965) states that an invitee can be either a public invitee or a business visitor. A business visitor “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.” Parker was on the premises in connection with business dealings, and thus is considered an invitee.

      . As support for its argument, Casa del Rey alleges tire following: Grease on the steps had been there during prior deliveries and did not affect the footing on the steps; Parker was fully aware that snow could cause the dock to become slippery; Parker admittedly parked so that a gap was left between the truck and dock and stacked the chips on the cart so as to block his line of sight; several other people had walked on the steps and crossed the same unloading dock that morning without falling; and that Parker admitted he didn’t believe the condition of the dock was dangerous prior to the fall, thereby defeating Parker's claim for negligence. See Stenholtz, 264 N.W.2d at 516 (finding that landowners are not liable for dangers known or reasonably obvious to an invitee).

      . Trial Court Instruction number 17 regarding causation stated the following:
      A legal cause is a cause that produces a result in a natural and probable sequence, and without which the result would not have occurred.
      A legal cause does not need to be the only cause of a result. A legal cause may act in combination with other causes to produce a result.
      The trial court's instructions regarding premises liability included the following: [Trial Court Instruction Number 18] The possessor of land owes an invitee the duty of exercising reasonable or ordinary care for the invitee’s safety.
      [Trial Court Instruction Number 20] In general, an owner of land is not liable to an invitee for physical harm caused to them by an activity or condition on the land whose danger is known or obvious to the invitee. However, if the owner of land has reason to believe that the condition will harm the invitee despite its obviousness, the owner has a duty to warn the invitee regarding the condition or to take other reasonable steps to protect the invitee.
      The word "known” means that the invitee both knew of the existence of the dangerous condition, and also appreciated the probability and gravity of the danger posed by the condition. The word "obvious” means that the condition and the risk would be recognized by a reasonable person in the invitee's position, regardless whether the invitee subjectively recognized the danger.

      . A review of the record indicates Casa del Rey did not object to the trial court’s proposed instruction on these two topics during settlement of instructions. Thus, it did not preserve the right to appeal pursuant to SDCL 15-6-51(b). (Casa del Rey did object to a portion of the trial court’s instruction regarding a landowner's duty, but on different grounds than it appealed.) Although Casa del Rey did propose its own instructions on these issues, that is not enough for review by this Court. See Johnson v. Houser, 704 F.2d 1049, 1051 (8thCir.l983) (stating that the "mere tender of an alternative instruction without objecting to some specific error in the trial court's charge or explaining why the proffered instruction better states the law does not preserve the error for appeal”).

      . Instruction number 14 given by the trial court stated the following:
      The issues to be determined by you in this case are these: First, was the defendant negligent?
      If you find the defendant was not negligent, you will return a verdict for the defendant. If you find the defendant was negligent, you have a second issue to determine, namely: Was that negligence a legal cause of any injury to the plaintiff?
      If you find defendant’s negligence was not a legal cause of plaintiff’s injury, plaintiff is not entitled to recover and you will return a verdict for the defendant.
      If you find defendant’s negligence was a legal cause of plaintiff's injury, you then must find on a third issue:
      Was the plaintiff also negligent?
      If you find that the plaintiff was not negligent, you then must fix the amount of plaintiff’s damages and return a verdict for the plaintiff.
      If you find that the plaintiff was also negligent, you then must determine a fourth issue, namely:
      Was that negligence a legal cause of the plaintiff's injury?
      If you find that it was not a legal cause of plaintiff’s injury, you then must fix the amount of plaintiff’s damages and return a verdict for the plaintiff.
      If you find that plaintiff's negligence did contribute as a legal cause of plaintiff's injury, the plaintiff may still recover if the jury should find that such contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant. If you find that the plaintiff is contributorily negligent, but that such plaintiff's negligence is under the circumstances slight in comparison with defendant’s negligence, the plaintiff is still entitled to recover, but the damages to be awarded plaintiff must be reduced in proportion to the amount of plaintiff’s contributory negligence. If you find that such contributory negligence of the plaintiff is more than slight in comparison with the negligence of the defendant, the plaintiff cannot recover.
      As indicated in this instruction, you should first determine the question of liability before you undertake to fix an amount that would compensate for damage, if any, found to have been suffered.

      . Instruction number 24 given by the trial court stated:
      If a person assumes the risk of injury or damage, the person is not entitled to any recovery. To support an assumption of the risk defense, the defendant must show:

        (1) that the plaintiff had actual or constructive knowledge of the existence of the specific risk involved;
      (2) that the plaintiff appreciated the risk's character; and
      (3) that the plaintiff voluntarily accepted the risk, having had the time, knowledge, and experience to make an intelligent choice.
      South Dakota Pattern Jury Instruction 13-01. The elements listed are the same as those cited in numerous South Dakota cases. See Myers, 307 N.W.2d at 864; Mack, 548 N.W.2d at 814; Nelson, 513 N.W.2d at 904.
      In giving instruction number 24, Casa del Rey was allowed to argue to the jury that assumption of the risk foreclosed Parker's entitlement to recovery.

      . Casa del Rey proposed an instruction stating, in pertinent part: “Defendant may reasonably assume that Plaintiff will protect himself by the exercise of ordinary care, or that he will voluntarily assume the risk of harm if he does not succeed in doing so” (citing Mitchell, 396 N.W.2d 312 (1986)).


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2002 SD 30
    Curtis R. FISHER and Debbie G. Fisher, Plaintiffs, v. Rick KAHLER, d/b/a Kahler Realtors, Defendant and Appellee, and Arlen and Eunice Rude, Defendants and Appellants.
    No. 21807.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 1, 2001.
    Decided Feb. 27, 2002.
    Rehearing Denied April 16, 2002.

      Gene R. Bushnell of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, Rapid City, Attorneys for appellees.
    Paul J. Gillette of Gillette, Battey & Gillette, Redfield, Attorney for appellants.
   KONENKAMP, Justice.

[¶ 1.] This appeal centers on a claim of negligent misrepresentation brought by commercial property buyers against the sellers’ realtor. The trial court granted summary judgment for the realtor, concluding that the realtor had no legal duty to the buyers. We reverse and remand because South Dakota’s realtor licensing laws create additional duties for licensees beyond those imposed by the common law.

Background

[¶ 2.] As this case comes before us on summary judgment, we relate the facts in a light most favorable to the nonmoving parties. Satellite Cable Srvs., Inc. v. Northern Electric Coop., Inc., 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480. Curtis and Deb Fisher owned two adjoining commercial lots in Rapid City, South Dakota. These properties, Lot 0 and Lot U, were leased to Federal Express. Lot U was the primary site for the Federal Express facilities, but a portion of its paved parking area extended onto Lot 0. In 1993, Rick Kahler, d/b/a Kahler Realtors, contacted Curtis Fisher and requested an opportunity to sell the bare portion of Lot 0. The Fishers told Kahler that they did not want to sell the paved parking lot portion. They signed an exclusive listing agreement with Kahler, giving him the right to list for sale Lot 0 for one year.

[¶ 3.] Arlen and Eunice Rude, the owners of Rude Transportation, were looking to buy commercial land in Rapid City for a future truck terminal. Kahler, as agent for the Fishers, represented to the Rudes that Lot 0 was 1.3 acres, 177 feet by 318 feet. Kahler showed them documents on the lot, including a plat, but none of these depicted a parking lot on Lot 0. In conversation with the Rudes, Kahler told them that Lot 0 consisted entirely of vacant ground. Kahler made no independent determination of the actual dimensions of the portion of Lot 0 that the Fishers wanted to sell. After making a brief visual inspection, the Rudes offered to buy the lot. At that time, the Fishers reminded Kahler that they did not wish to do anything that would interfere with their lease to Federal Express. In November 1994, the Fishers and the Rudes executed a purchase agreement, one provision of which was that no survey would be required. After the sale, the Rudes ordered a survey of Lot 0, which revealed its usable size to be 107 feet by 318.02 feet — not sufficient, in their view, for their planned freight terminal.

[¶ 4.] Not intending to sell the parking area on Lot 0, which they leased to Federal Express, the Fishers sued Kahler for mishandling the sale. The Rudes were included in the suit because the Fishers wanted a court order to reform the deed, so that the paved portion of the lot could be returned to them. The Rudes cross-claimed against Kahler for negligent misrepresentation. After various legal maneuvers unnecessary to recount here, the parties moved for summary judgment. In granting Kahler’s motion, the circuit court concluded that Kahler owed no legal duty to the Rudes. The Rudes now appeal that decision. The Fishers are not involved in this appeal.

Analysis and Decision

[¶ 5.] Summary judgment is appropriate under SDCL 15-6-56 when the entire record reveals that there is no genuine issue on any material fact and that the moving party is entitled to a judgment as a matter of law. See Meyer v. Santema, 1997 SD 21, ¶ 8, 559 N.W.2d 251, 254 (citations omitted). If there are genuine issues of material fact, then summary judgment is improper. Farmers Feed & Seed, Inc. v. Magnum Enterprises, Inc., 344 N.W.2d 699, 701 (S.D.1984). Disputed facts become material if they affect the outcome of a case under the law, “that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986). On review, we apply the same test as the trial court: we probe the record for material facts, resolve disputed facts in favor of the nonmoving party, and decide whether the moving party is entitled to a judgment as a matter of law. Sorrels v. Queen of Peace Hosp., 1999 SD 133, ¶ 5, 601 N.W.2d 606, 608.

[¶ 6.] Liability in tort depends on the existence and breach of duty, and unless a statute creates a legal obligation, ascertaining a duty and defining its limitations remain a function of the courts. Tipton v. Town of Tabor, 1997 SD 96, ¶ 12, 567 N.W.2d 351, 357 (Tipton II). A duty will not spring up at the mere behest of those with grievances real or imagined. A duty arises either by legislation or by the common law, through the ever-changing movement of social, political, and economic forces. Here, Kahler was an agent of the Fishers, not of the Rudes. It has been well accepted, not only in South Dakota but throughout the United States, that a seller’s agent has no duty to ensure that a buyer’s interests are well served. But see Cechovic v. Hardin & Associates, Inc., 273 Mont. 104, 902 P.2d 520, 525, 526 (1995) (liability of realtors affirmed in failing to exercise reasonable care in determining and communicating to buyers actual boundaries of property).

[¶ 7.] In Lunstra v. Century 21 GKR-Lammers Realtors, this Court had occasion to examine a similar case. 442 N.W.2d 448 (S.D.1989). There, a home-buyer sued the realtors and sellers for misrepresenting the size and boundaries of a residential lot. The trial court granted summary judgment against the buyer. Affirming, this Court held that the buyer’s claim was barred because any prior reference to the size of the lot merged into the warranty deed that was delivered to and accepted by the buyer. In dissenting, Justice Sabers argued that the majority effectively excused realtors from performing the basic professional duty of making a reasonably complete investigation of a property before making representations about it to buyers. Additionally, the dissent cited the South Dakota Real Estate Commission’s regulations for licensed realtors.

[¶ 8.] In 1992, three years after Luns-tra, the South Dakota Legislature enacted into law standards of conduct for realtors, many of which had been Real Estate Commission regulations. Two of these enactments have particular relevance here, since they modify common law duties of realtors. SDCL 36-21A-71 provides in pertinent part:

Unprofessional conduct includes the following: (4) making any false promise or advertisement of a character such as to influence, persuade, or induce a party; to a transaction to the party’s injury or damage; [and] (32) committing any act constituting or demonstrating bad faith, incompetence, or fraudulent dealings.

SDCL 36-21A-78 provides, again in pertinent part: “On taking a listing, a licensee shall substantiate that the information taken in the listing agreement is accurate.” Thus, unprofessional conduct on the part of a realtor is not confined to actions respecting only client sellers of real estate. The Legislature’s intention as expressed in these two statutes was to broaden the scope of a realtor’s duties. SDCL 36-21A-71(4) specifies no particular party, and by “a party” we understand the Legislature to mean “any party.” SDCL 36-21A-78 broadens the scope of duties even beyond the parties to any given transaction; it addresses the profession itself.

[¶ 9.] Just as lawyers have duties to the legal profession antecedent to duties to particular clients, so now, by statute, South Dakota realtors have a duty to their profession and to the public, namely, to substantiate information in listing agreements. Consequently, realtors can be held liable for negligent misrepresentation in failing to substantiate their listings. “Negligence is the breach of a legal duty imposed by statute or common law.” Stevens v. Wood Sawmill, Inc., 426 N.W.2d 13, 14 (S.D.1988) (citation omitted). Indeed, these statutes go far toward making the occupation of realtor a professional one.

[¶ 10.] Since our original formulation in Boos v. Claude, we have not deviated in our understanding of negligent misrepresentation:

“there must be knowledge, or its equivalent, that the information is desired for a serious purpose; that he to whom it is given intends to rely and act upon it; that, if false or erroneous, he will because of it be injured in person or property. Finally, the relationship of the parties, arising out of contract or otherwise, must be such that in morals and good conscience the one has the right to rely upon the other for information, and the other giving the information owes a duty to give it with care.”

69 S.D. 254, 260, 9 N.W.2d 262, 265 (1943) (citation omitted) (emphasis added). The Restatement (Second) of Torts § 552 (1977) is in essential agreement with South Dakota law:

One who, in the course of his business, profession, or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

From these sources, we isolate the elements of this tort as follows: negligent misrepresentation occurs whenever one party makes (1) a misrepresentation, (2) without reasonable grounds for believing the statement to be true, (3) with the intent to induce a particular action by another party, and the other party (4) changes position with actual and justifiable reliance on the statement, and (5) suffers damage as a result.

[¶ 11.] According to the Rudes, Kahler told them that Lot 0 was entirely “vacant” land, and he represented that the dimensions of the lot for sale as 177 feet by 318 feet. By Kahler’s own admission, he did not verify that his representations were correct. At least four distinct questions of fact exist: (1) Did Kahler misrepresent the character and dimensions of the actual property to be sold, “such as to influence, persuade, or induce” the Rudes into a transaction to their damage, in contravention of SDCL 36-21A-71(4)? (2) Did Kahler’s dimensional description of the actual portion of Lot 0 intended for sale fall below the standards for realtor competence, contravening SDCL 36-21A-71(32)? (3) Did Kahler violate the general duty of substantiation prescribed in SDCL 36-21A-78? (4) Did the brief visual inspection of the lot the Rudes conducted constitute a determination, independent of Kahler’s representations, that it would be suitable for their purposes, or did they actually and justifiably rely on his representations? These are disputed questions of material fact. Because they are unresolved, the summary judgment cannot stand.

[¶ 12.] We reverse and remand for trial.

[¶ 13.] GILBERTSON, Chief Justice, and SABERS and AMUNDSON, Justices, and GORS, Acting Justice, concur.

      . "In negotiating a real estate sale, any relationship between the seller’s agent and the potential buyer is a commercially antagonistic one, with each side working for his best advantage and not for the benefit of the other.” Andrie v. Chrystal-Anderson & Assoc. Realtors, Inc., 187 Mich.App. 333, 466 N.W.2d 393, 395 (1991). "[A] listing agent representing a seller [of real estate] does not owe the buyers a duty to disclose defects.... ” Blackmon v. First Real Estate Corp., 529 So.2d 955, 959 (Ala.1988). "[A] broker has no legal duty [to a buyer] to inspect listed property and disclose all facts which might materially affect its value or desirability.” Hagans v. Woodruff, 830 S.W.2d 732, 736 (Tex.App.1992). And in McAdams v. Dorothy Edwards Realtors, Inc., the Indiana Supreme Court claimed to be "unaware of any authority for the proposition that a seller's agent owes a buyer a duty to act in the buyer's best interest.” 604 N.E.2d 607, 611 (1992).

      . See Meyer, 1997 SD 21, 559 N.W.2d 251; Aesoph v. Kusser, 498 N.W.2d 654 (S.D.1993); Peterson v. Rogers, 347 N.W.2d 580 (S.D.1984); Littau v. Midwest Commodities, Inc., 316 N.W.2d 639 (S.D.1982).

      . It is also for the fact finder to determine whether the dimensions of the property which the Fishers were willing to sell were accurately listed and whether Kahler negligently misrepresented them.

      . Since the Rudes are suing under a theory of negligent misrepresentation, SDCL 36-21A-71(3) is irrelevant, because it proscribes misrepresentation that is not only false but also willful. If an act is willful, it cannot also be negligent.


author: GORS, Acting Justice. AMUNDSON, Justice SABERS, Justice

text:
    2002 SD 31
    PENNINGTON COUNTY, a political Subdivision of the State of South Dakota, Plaintiff and Appellant, v. STATE of South Dakota, Acting by and Through the UNIFIED JUDICIAL SYSTEM; D.J. Hanson, in his Official Capacity as Acting State Court Administrator; and Jeffrey Krattenmaker, in his Official Capacity as Court Administrator for the Seventh Judicial Circuit Court, Defendant and Appellees.
    No. 21910.
    Supreme Court of South Dakota.
    Argued on Nov. 14, 2001.
    Decided Feb. 27, 2002.

      James S. Nelson and David E. Lust of Gunderson, Palmer, Goodsell & Nelson, Rapid City, Attorneys for plaintiff and appellant.
    Thomas J. Welk and Lisa Hansen Marso of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, Attorneys for defendant and appellees.
   GORS, Acting Justice.

[¶ 1.] Pennington County sued the State of South Dakota Unified Judicial System (State) for a judgment declaring that the county did not have to provide space for court services in the courthouse or that the State had to pay for the space. The trial court ruled in favor of the State and the county filed this appeal. We vacate the judgment and dismiss the action.

FACTS

[¶ 2.] Pennington County, South Dakota, is the second most populous county in the state. It has a large courthouse which more than doubled in size in 1991 to meet the expanding need for courtrooms, the clerk of courts and court services. The county also built a new jail next to the courthouse. There are five circuit judges and three magistrate judges in the Pennington County Courthouse plus their court administrator, secretaries, law clerk and court reporters. In addition, the courthouse contains the clerk of courts office, eighteen court services officers and clerical staff. The judges also serve Custer and Fall River Counties which, together with Pennington County, make up the Seventh Judicial Circuit. County offices are also located in the courthouse, including the register of deeds, auditor, treasurer and others. The state’s attorney and the sheriff are located immediately adjacent to the courthouse in a public safety building which also houses the Rapid City police department.

[¶ 3.] In 2000, the county determined that it needed more room for law enforcement and the state’s attorney, and the county commission concluded that court services should vacate the courthouse or pay rent. In July of 2000, the county requested that the State remove court services from the courthouse. The State declined. The county sued the State (and the State Court Administrator and the Seventh Circuit Court Administrator in their official capacities) seeking a declaratory judgment that the county did not have to provide space for court services in the courthouse or that the State had to pay for the space.

[¶ 4.] This Court’s previous Chief Justice appointed the Honorable Rodney J. Steele, a circuit court judge from Brook-ings, to avoid having a local judge, who might be interested in the outcome, decide the case. After a court trial, Judge Steele ruled in favor of the State and Pennington County appeals.

[¶ 5.] Court services officers conduct adult presentence investigations, SDCL 23A-27-5, and juvenile home studies, SDCL 26-7A-88, and supervise adults, SDCL 23A-27-12, 23A-27-12.1, 23A-27-13 and 23A-27-18.2, and juveniles who are placed on probation, SDCL 26-8B-6, or who are diverted from formal proceedings, SDCL 26-7A-10(3). Court services officers perform an integral part of the court functions. Hansen v. Kjellsen, 2002 SD 1, ¶ 9, 638 N.W.2d 548, 550 (citing Dorman v. Higgins, 821 F.2d 133, 137 (2d Cir.1987); Sheltpn v. McCarthy, 699 F.Supp. 412, 413 (W.D.N.Y.1988)).

[¶ 6.] Currently, court services is located in the courthouse in every county in South Dakota except Beadle County (Huron), where court services is located next door in the annex. Prior to 1991, due to lack of space in the Pennington County courthouse, court services and a circuit judge were located at the juvenile detention center, which was more than a mile from the courthouse. Location of hearings, warrants for failure to appear, processing difficulties, delays in presentence reports and difficulty collecting restitution and fines resulted in the establishment of a planning committee to examine the space issues. The planning committee recommended, and the Pennington County Commissioners voted, to build an annex to the courthouse and to place court services on the second floor. Construction started in 1988 and the annex was occupied by 1991. Court services has remained in the annex to this date.

[¶ 7.] The legislature has previously spoken through appropriations regarding court services. Since unification of the judicial system in 1975, the legislature has appropriated money to pay for salaries, expenses, equipment and supplies for circuit courts and court services but has not appropriated any money to pay for any space. The legislature in its wisdom and within its authority has left it to the counties to provide and pay for space for courts and court services as counties have done throughout the entire history of the State. If the legislature wanted the State to pay all sixty-four counties for the space provided to court services, it could have said so in no uncertain terms and appropriated the money to pay the rent.

[¶ 8.] Both before and after court unification in 1975, it has been well understood that the counties provided and paid for space for courts and court services. Although there is no specific statute requiring the county to pay, custom and usage, while not determinative, is instructive in this case. Until 1983, counties were not only expected to provide space, but they were also expected to pay a share of the overall cost of the court system. See 1974 SD Sess.Law ch. 158. Then in 1983, counties were given a credit for the space provided. 1983 SD Sess.Law ch. 162 § 5. When the counties’ share of the cost of the court system was phased out, the credit was repealed, too. 1985 SD Sess.Law ch. 164. However, repealing the credit did nothing to repeal the requirement to provide the space; there was just nothing to credit it against anymore.

STANDARD OF REVIEW

[¶ 9.] Jurisdiction may be raised at any time. Devitt v. Hayes, 1996 SD 71, ¶ 6, 551 N.W.2d 298, 300. This Court may raise issues of jurisdiction sua sponte. Weins v. Sporleder, 2000 SD 10, ¶ 8, 605 N.W.2d 488, 490; Bohlmann v. Lindquist, 1997 SD 42, ¶ 10, 562 N.W.2d 578, 580; State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987). Questions of jurisdiction are reviewed de novo. White Eagle v. City of Fort Pierre, 2000 SD 34, ¶ 4, 606 N.W.2d 926, 928; Risse v. Meeks, 1998 SD 112, ¶ 10, 585 N.W.2d 875, 876; State v. Vandermay, 478 N.W.2d 289, 290 (S.D.1991).

ANALYSIS AND DECISION

[¶ 10.] In the United States, the individual states have all authority except that which they have delegated to the federal government or prohibited to themselves. US Const art 1 §§ 8, 10; McDonald v. Sch. Bd. of Yankton Ind. Sch. Dist. No. 1, 90 S.D. 599, 606, 246 N.W.2d 93, 97 (S.D.1976) (citing Kramar v. Bon Homme County, 83 S.D. 112, 115, 155 N.W.2d 777, 778 (1968)). The states have created local government entities such as counties, townships and cities to do the states’ work at the local level. These subordinate arms of the State have only that authority specifically given by the state legislature. SDConst art IX § 1. “[A county] has only such powers as are expressly conferred upon it by statute and such as may be reasonably implied from those expressly granted.” State v. Quinn, 2001 SD 25, ¶ 10, 623 N.W.2d 36, 38 (citing State ex rel. Jacobsen v. Hansen, 75 S.D. 476, 478, 68 N.W.2d 480, 481 (1955) (citations omitted)). Counties, like cities, lack inherent authority and derive their power from the legislature. See City of Marion v. Schoenwald, 2001 SD 95, ¶ 6, 631 N.W.2d 213, 216; Welsh v. Centerville Township, 1999 SD 73, ¶ 10, 595 N.W.2d 622, 625; Donovan v. City of Deadwood, 538 N.W.2d 790, 792 (S.D.1995) (citations omitted). A county is a public corporation which exists only for public purposes connected with the administration of state government. County of Tripp v. State, 264 N.W.2d 213, 218 (S.D.1978). A county and its revenues are subject to state legislative control where there is no express contrary restriction. Id. at 218 (citing Slutts v. Dana, 138 Iowa 244, 115 N.W. 1115 (1908)).

[¶ 11.] The primary purpose of a courthouse is for court. State ex rel. Hattie v. Bd. of County Comm’rs, 52 Ohio St.2d 117, 370 N.E.2d 462, 464 (1977). The primary purpose is the reason the building is called a courthouse. Pennington County agrees that the court should be in the courthouse and that court services is an arm of the court. The questions are whether court services should be in the courthouse with the court and who must pay for the space.

[¶ 12.] The State argues that the UJS has the inherent power to compel the county to provide' space in the courthouse at county expense. However, we do not determine whether the UJS has inherent authority to require the county to provide space in the courthouse at county expense.

[¶ 13.] Article II of the South Dakota Constitution declares that the powers of the State government are divided into three distinct departments, the legislative, executive and judicial. The judicial department is now designated as the UJS. Therefore, this action, while in part being designated by the county as against the UJS and two of its administrators, who are sued only in their official capacity, is in reality a suit against the State itself.

[¶ 14.] The State is immune from suit unless it consents. Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991). The legislature may designate “in what manner and in what courts suits may be brought against the state.” SD Const art III, § 27. “The State may also waive sovereign immunity by legislative enactment identifying the conditions under which lawsuits of a specified type would be permitted.” Wilson, 473 N.W.2d at 494. The State did not consent to be sued in this case. Therefore, the trial court did not have jurisdiction to enter declaratory relief in favor of the county.

[¶ 15.] Generally, counties cannot sue the state. In City of New York v. State, 86 N.Y.2d 286, 631 N.Y.S.2d 553, 655 N.E.2d 649, 651 (1995), the New York Court of Appeals pointed out that the traditional principle has been that local government corporate entities (i.e., counties, townships and cities) and their officers cannot sue the state. Counties are merely subdivisions of the state created by the state to conveniently carry out the state’s governmental functions as the state’s agents. As agents, counties cannot contest the actions of their principal, the state. Counties cannot sue their creators. Id. at 653. The New York Court also rejected the notion that the city’s general authority to “sue and be sued” conferred capacity to sue the state. Id. at 653. The court noted that the wrong, if any, must be corrected by the legislature. Id. at 654 (citing Albany County v. Hooker, 204 N.Y. 1, 97 N.E. 403, 408 (1912)). The New York Court relied on Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). There the United States Supreme Court held that a city could not sue the state because the city is merely a political subdivision of the state and exists by state legislation. Id., 262 U.S. at 189-90, 43 S.Ct. at 537-38, 67 L.Ed. at 942. The legislature could simply terminate the city and provide a different government where the city is located. Id.

[¶ 16.] The State cannot be sued for declaratory relief. Declaratory actions are authorized under SDCL 21-24-3. The statute provides that any person whose rights are affected by a statute may obtain a declaration of rights. SDCL 21-24-3. “Person” is defined in SDCL 21-24-2 as “any person, partnership, joint stock company, unincorporated association, or society, or municipal, public or other corporation of any character whatsoever.” (emphasis added). A county is a body corporate with power to sue and be sued. SDCL 7-18-1. Therefore a county may bring a declaratory judgment action, but not against the State. SDCL 21-24-7 provides that “when declaratory relief is sought all persons shall be made parties who have or claim any interest which would be affected by the declaration.” (emphasis added). Danforth v. City of Yankton, 71 S.D. 406, 412, 25 N.W.2d 50, 53 (1946) sets out the jurisdictional requisites for a declaratory judgment action:

(1) There must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interest are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must be ripe for judicial determination.

(emphasis added). Under SDCL 21-24-2, the State does not meet the definition of a person because South Dakota is a state, not a person, partnership, joint stock company, unincorporated association, society or a municipal, public or other corporation of any character. Since the State is not a person, the State is not a proper party and the trial court did not have jurisdiction to enter declaratory relief in favor of the county.

[¶ 17.] The trial court lacked subject matter jurisdiction. Jurisdiction cannot be conferred by consent, agreement, stipulation or waiver. Weston v. Jones, 1999 SD 160, ¶ 33, 603 N.W.2d 706, 713 (Sabers, J., dissenting). A judgment without jurisdiction is void. State v. Neitge, 2000 SD 37, ¶ 13, 607 N.W.2d 258, 262 (citing State v. Haase, 446 N.W.2d 62, 64 (S.D.1989)).

[¶ 18.] In conclusion, Pennington County’s remedy is with the legislature, which has the power to authorize the State to rent space from Pennington County and to appropriate money to fund the authorization.

[¶ 19.] The circuit court judgment is vacated and this action is dismissed.

[¶ 20.] GILBERTSON, Chief Justice, and TIMM, Circuit Judge, concur.

[¶ 21.] AMUNDSON, Justice, concurs specially.

[¶ 22.] SABERS, Justice, dissents.

[¶ 23.] TIMM, Circuit Judge, sitting for KONENKAMP, Justice, disqualified.

AMUNDSON, Justice

(concurring specially).

[¶ 24.] In its initial complaint Pennington County prays for declaratory judgment stating that “Pennington County has no legal obligation to pay for or provide, at its own expense, an office and facilities for the Seventh Judicial Circuit Court Services.” Despite the County’s contention that its request is in the form of equitable relief, its prayer is, in essence, a request for money/rent damages.

[¶25.] Counties are “creatures of the Legislature; they exist by reason of statutes enacted within the power of the Legislature .... The creature is not greater than its creator, and may not question that power which brought it into existence and set the bounds of its capacities.” Edgemont Sch. Dist. v. S.D. Dept. of Revenue, et al., 1999 SD 48, ¶ 15, 593 N.W.2d 36, 40 (citation omitted). The power of the Legislature to control this issue is “unrestrained” because counties “are not sovereign entities[,]” but are rather “[political subdivisions of states.” See id. at ¶ 14. As a creature existing only because the State created it, Pennington County has no authority to sue the sovereign/State. No matter who is named in the caption of a case as a defendant, the UJS and its employees are just one part of the sovereign/State.

[¶ 26.] Therefore, I agree with the majority opinion’s ultimate result; there is no question that Pennington County should go through the legislative process for the appropriation of funds to pay for any rent entitlement.

[¶ 27.] I further agree that the judiciary has the inherent power to administer the operation of the courts in doing the people’s business. In the case of In re Integration of Neb. State Bar Assoc., 133 Neb. 283, 275 N.W. 265, 267 (1937), the Nebraska Supreme Court defined inherent power as follows: “The term ‘inherent power of the judiciary’ means that which is essential to the existence, dignity and functions of the court from the very fact that it is a court.” The creature created in this case is attempting to take over a function of the court, namely telling the court and its staff that efficiency and location of operation means nothing. The court does not control what is filed by the citizens of Pennington County, or law enforcement of Pennington County, or the legal profession in Pennington County, but the court is required to administer justice in deciding legal disputes filed within it. In this ease, the 7th Circuit judges have testified that the location of the staff as presently provided is needed.

SABERS, Justice

(dissenting).

[¶ 28.] I dissent because the majority opinion goes out of its way to be inconsistent and partially wrong. Footnote 4 correctly provides that “this Court may raise issues of jurisdiction sua sponte.” We may raise jurisdiction sua sponte, but we don’t have to.

[¶ 29.] If the jurisdiction question is reached by this Court sua sponte, we have no authority to say anything other than that there is no jurisdiction. If we were to follow the actual holding of the majority opinion, the bulk of the opinion becomes mere dicta, including paragraphs 5 and 7-16.

[¶ 30.] We have jurisdiction under Tripp County v. Department of Transportation to at least state that we have authority to affirm the trial court in the denial of relief to the County. 429 N.W.2d 473 (S.D.1988). In addition, we should point out that the County needs to go to the Legislature if it needs funds or reimbursement for items supplied to the Judicial Branch. I would also point out that the required space need not be in the courthouse as long as it is reasonably close.

[¶ 31.] These questions need to be answered and should be and, in my opinion, can be under the authority of the Tripp County case.

      . At one time, Sixth Circuit Court Services was located in the old Carnegie Library in Hughes County. The library was located on the courthouse square, next door to the courthouse.

      . "[T]he duty of each county to pay the expenses of the local administration of justice within the county ... arises as well from our general system of county organization, as from express statutes, defining the duties of counties on this particular subject. Indeed, but a part of these duties which have always been recognized as devolving upon the counties, have ever been defined by express statute.” Bd. of Supervisors v. Beveridge, 16 Ill. 312 (Ill 1855), (quoted in Scott v. Minnehaha County, 35 S.D. 447, 450, 152 N.W. 699, 700 (1915)).

      . Webster’s Dictionary defines "courthouse” as "[a] building in which established courts are held, or a house appropriated to courts and public meetings.” Webster’s New Int’l Dictionary 611 (2d ed 1954). Black's Law Dictionary defines “courthouse” as "[t]he building occupied for the public sessions of a court, with its various offices. The building occupied and appropriated according to law for the holding of courts.” Black’s Law Dictionary 354 (6th ed 1990).

      . In Tripp County v. Dep’t of Transp., 429 N.W.2d 473 (S.D.1988), Tripp County commenced a declaratory judgement action against the Department of Transportation (DOT) in circuit court. The county sought an adjudication that the responsibility for maintaining a highway transferred from the county to DOT by virtue of legislation passed in 1986. The trial court granted summary judgment for DOT, and this Court reversed. However, the jurisdictional requisites of SDCL 21-24-7 and Danforth were not raised in Tripp County, and jurisdiction was not discussed. Similarly, jurisdiction was not addressed at the trial court level in this case. Nevertheless, this Court may raise issues of jurisdiction sua sponte. Weins, 2000 SD 10 at II 8, 605 N.W.2d at 490; Bohlmann v. Lindquist, 1997 SD 42 at ¶ 10, 562 N.W.2d at 580; Phipps, 406 N.W.2d at 148. In fact, this Court has even said that we are "required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not....” Decker v. Tschetter Hutterian Brethren, 1999 SD 62, ¶ 14, 594 N.W.2d 357, 362.

      . State money can only be spent by appropriation. SDCL 4-8-1. A State official paying for space without both authority of law and an appropriation would be personally and criminally liable. SDCL 4-8-2, -3. No law authorizes the State to rent space for circuit courts or court services and no appropriation has been made to rent space. Even if there was authority, it would still be illegal for State officials to pay for the space without an appropriation. SDCL 4-8-4.


author: AMUNDSON, Justice.

text:
    2002 SD 28
    Earl D. BOHLEN, Plaintiff and Appellant, v. Kathy TYLER, d/b/a Tyler Computer Service, Defendant and Appellee.
    No. 21949.
    Supreme Court of South Dakota.
    Argued on Jan. 8, 2002.
    Decided Feb. 27, 2002.

      David R. Strait of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, Attorneys for plaintiff and appellant.
    Gregory P. Grajczyk of Boos and Grajc-zyk, Milbank, Attorney for defendant and appellee.
   AMUNDSON, Justice.

[¶ 1.] Earl D. Bohlen (Bohlen) sued Kathy Tyler, d/b/a Tyler Computer Service (Tyler), for an alleged breach of a lease agreement. The circuit court granted summary judgment in Tyler’s favor. Bohlen appeals. We reverse.

FACTS

[¶ 2.] On July 20, 1998, Tyler entered a three-year lease agreement with Bohlen, the owner of Whetstone Mall in Milbank, South Dakota. Pursuant to this agreement, Tyler was to rent office space in the Whetstone Mall for her computer business. In March of 1999, Tyler moved out of the rented office space and into a larger building she purchased. Tyler decided she needed a larger location to accommodate her computer business.

[¶ 3.] Tyler argues that prior to the move, she had been released from the lease agreement with Whetstone Mall. Tyler bases that claim on a conversation she had with Betty Dockter, (Dockter), Bohlen’s property manager, in which Dockter indicated that there would be no problem re-renting the office space where Bohlen had her computer store. Tyler stated in her deposition that she assumed she was “out of the contract” after that conversation. Dockter, however, said that she informed Tyler that she was still obligated for the Whetstone Mall lease payments.

[¶ 4.] In response to this demand for rent, Tyler wrote a letter to Bohlen stating the following:

Last week, Betty informed me that you were still expecting me to pay rent on the office space I had moved from on March 20. I guess there had been a misunderstanding on my part. I had earlier requested that I be released from my three-year contract. I was told that you were renting the office and thus assumed that I had been released from the contract.

The letter proceeded to explain how Tyler could not afford to pay rent and make payments on her new office. It then alleged the lease agreement was unenforceable by stating: “Also, I understand that the office space I was renting is not zoned for retail. So, in essence I was illegally using the space you had rented me ... I am again asking to be relieved from my contract....”

[¶ 5.] Bohlen did not release Tyler, but rather filed a petition for recovery of the rent. Both parties then filed motions for summary judgment. The circuit court judge, after viewing a number of affidavits and exhibits, denied Bohlen’s motion, but granted summary judgment in favor of Tyler. Bohlen appeals the lower court’s decision on the following issue:

Whether the trial court erred by granting summary judgment based on its finding that the property use was in violation of Milbank’s city zoning ordinances.

STANDARD OF REVIEW

[¶ 6.] We have previously held that:

[Sjummary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Further, [i]f no issues of material fact exist, and legal questions have been correctly decided, we will affirm.

Tri County Landfill Assoc., Inc. v. Brule County, 2000 SD 148, ¶ 9, 619 N.W.2d 663, 667. When reviewing a grant of summary judgment, “[tjhe evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party.” Meyer v. Santema, 1997 SD 21, ¶ 8, 559 N.W.2d 251, 254 (quoting Lamp v. First Nat’l Bank of Garretson, 496 N.W.2d 581, 583 (S.D.1993)). “The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” Id. (citation omitted).

DECISION

[¶ 7.] The trial court, in granting summary judgment, held that the purpose for which the premises was leased was not a permitted use under Milbank’s zoning ordinances 17.32.020 and 17.32.030.

[¶ 8.] Tyler submitted this ordinance violation as a defense to Bohlen’s claim for the lease payments. The trial court relied on Central States Health and Life Company of Omaha v. Miracle Hills Limited Partnership, 235 Neb. 592, 456 N.W.2d 474 (1990) in its summary judgment order. This case presents four methods for handling a lease where the property use violates a zoning ordinance. Those four methods include:

(1) The lease is unenforceable where the contemplated use of the leased premises is prohibited by a zoning regulation.
(2) The lease is valid where a serviceable use of the premises remains which is consistent with the limitations of the lease.
(3) The lease is not necessarily void and unenforceable where the zoning authorities have the power to grant a variance or the continuance of a conforming use.
(4) The lease is enforceable because the lessee is presumed to have known about the zoning restriction and in executing the lease assumed the risk that a variance would not be granted.

Id. at 597, 456 N.W.2d 474 (internal citations omitted).

[¶ 9.] In Central States Health and Life Company, the court determined that the lease was “void ab initio” based on a zoning ordinance violation. Under Milbank City Ordinances 17.32.020 (permitted uses) and 17.32.030 (special uses), however, it is it unclear whether a violation has occurred in the case at hand. Moreover, it was Tyler’s burden to prove that the zoning ordinance made her use of the building illegal. In McNally v. Moser, the Maryland court, while explaining this burden, stated the following:

It was the appellants who asserted that they had been relieved of their liability under the lease and who had the burden of persuading the court that [the zoning ordinance] produced the result they claim — that the use of the leased premises for a professional office was impossible in fact. The appellants offered neither witnesses nor other evidence requiring such a finding.

210 Md. 127, 122 A.2d 555, 560 (1956). The court further said:

Dr. McNally, [appellant and lessee,] having brought about the challenge to the use so that he could escape his responsibilities under the lease, could not stand idly by and, because of a notice to that effect from an administrative official, gladly accept as fact that his use of the office was illegal ... [H]e was under an obligation ... to continue that use, or at least to wait until impossibility became a fact, not merely a possibility. One may not rely on illegality or invalidity where the doing of that said to be forbidden may reasonably be made legal and possible through administrative or judicial action.

Id. at 561. In St. Luke’s House, Incorporated, v. DiGiulian, 274 Md. 817, 836 A.2d 781 (1975), this holding was cited approvingly as the court addressed whether a property use violated a restricted covenant. In St. Luke’s, the court said, “One who relies on illegality, failure of consideration or other affirmative defenses, has imposed on him the burden of persuasion.” Id. at 787. It further said that “prevention of the use of the premises for the purpose contemplated by the lease may serve to excuse performance, but that the one asserting the defense must prove the existence of that prohibition.” Id. at 788 (citing 49 AmJur2d Landlord and Tenant § 269 (1970) (other citations omitted)).

[¶ 10.] Tyler, in support of her motion for summary judgment, relied solely on the ordinances. Bohlen resisted by showing evidence regarding .the present uses of other tenants in the leased premises. The record shows that the Whetstone Mall is located in a B-3 Highway Business District Zone. Pursuant to Milbank City Ordinance Section 17-32-010(1), a B-3 Highway business is supposed to: “serve the needs of the highway user and the automobile, and in so doing to establish appropriate locations which will not cause undue traffic congestion.”

[¶ 11.] The record on file consists of various affidavits. Dockter stated in her affidavit that the City of Milbank has never filed any proceedings involving a violation of this ordinance. Additionally, Dockter lists the other businesses currently in the Whetstone Mall: a video store, tanning salon, mental health counseling agency, investment brokerage, cellular phone business and service station. An affidavit given on January 22, 2001, by Cynthia Schumacher, a Milbank City employee involved with enforcing the zoning ordinances, states that neither Tyler Computer Service, nor any other proprietor located in the Whetstone Mall, has been notified of any zoning ordinance violation. Her deposition further states that “[t]he City of Milbank never made any affirmative decision or action to interfere, prevent, or hinder Tyler Computer Service or its normal operation during its use and occupancy of the Whetstone Mall premises.” Additionally, Schumacher explained the characteristics of a B-3 Highway Business District. The B-3 zone permits retail establishments for serving the needs of highway travelers, “including but not limited to such facilities as drug stores, gift shops and restaurants.” Schumacher further explained that permits for other uses, “including but not limited to various businesses, offices, contractor shops, and other uses which in the opinion of the Planning Commission are of the same general character as those enumerated in the B-3 District.”

[¶ 12.] There is no dispute that Tyler used the premises for a computer store for a considerable period of time without any problems arising with the City involving the use. The only time the issue of legality of use came up was when disputes over the liability regarding lease payments surfaced. Therefore, the burden obviously falls on Tyler to show the premises could not be used for such purpose. Further, we find that the appropriate standard for resolving this type of dispute is whether or not the leased premises can be used for the purpose intended under the lease where the ordinance provides for a possible variance or conditional use. In fact, in Central States Health & Life Company, the trial court acknowledged that prior to trial the appropriate city zoning authorities refused to authorize the intended use, which is not the case here. See Central States Health & Life Co., 456 N.W.2d at 476.

[¶ 13.] In reviewing this record, we find sufficient evidence to indicate that genuine issues of material fact exist. See Tri County Landfill Assoc., Inc. v. Brule County, 2000 SD 148 at ¶ 9, 619 N.W.2d at 667. Based on our decision on this issue, it is unnecessary to address any other issues presented on appeal. Therefore, we reverse and remand to the trial court for a determination as to whether a violation of the zoning ordinances occurred.

[¶ 14.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and GORS, Acting Justice, concur.