author: KONENKAMP, Justice. MEIERHENRY, Justice ZINTER, Justice

text:
    2008 SD 1
    CITIBANK SOUTH DAKOTA, N.A., Plaintiff and Appellee, v. Wayne E. SCHMIDT, Defendant and Appellant.
    No. 24389.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Decided Jan. 2, 2008.

      Robert J. Breit of Breit Law Offices; Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Wayne E. Schmidt, Mobridge, South Dakota, Pro Se defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this collection action, a debtor representing himself advances several dubious legal theories on why he should not be responsible for paying his entire credit card debt. In circuit court, a judgment was entered against him for the whole amount. Despite some of the debtor’s questionable arguments, however, it appears that he was in fact defrauded in a telemarketing swindle. Therefore, part of his debt must be reexamined. We affirm in part, reverse in part, and remand for further proceedings.

Background

[¶ 2.] Wayne E. Schmidt of Mobridge, South Dakota, entered into a credit card agreement with Citibank of South Dakota, N.A. He incurred charges on his card and, for a while, made monthly payments on his account. From July through September 2004, Schmidt used his card for five transactions with an entity in New York calling itself New World Coin and Rarities (New World). It turned out to be a scam. According to the United States Attorney for the Eastern District of New York, New World was a racket operated as a rare coin investment scheme, targeting the elderly. To persuade the victims to buy “rare” coins, which were in reality worthléss or nonexistent, telemarketers fraudulently told their elderly prey that the coins they purchased could be resold at substantially greater prices in Europe and that the company would facilitate those resales. As explained by the United States Attorney, “[t]he victims in this case, thinking they were making wise investments based on information provided by the operators of this boiler room, New World Coin and Rarities, tossed their fife savings away to the tune of over one million dollars.” Two prime defendants, Steven and Thomas Fasano, indicted on fraud charges in connection with this scheme, pleaded guilty in United States District Court in April 2005.

[¶ 3.] Schmidt claimed that his account should not be charged for these transactions because he was defrauded. In response, Citibank issued conditional credits and reviewed his claim. After, its review, Citibank credited Schmidt with $4,000, but it ruled that the remaining New World charge of $7000 was “valid.” Still, insisting that he was not responsible for the New World transactions or, for that matter, any other of his charges, Schmidt stopped making payments on his account.

[¶ 4.] Citibank declared the entire account balance of $19,279.65 due and owing and brought suit to recover the debt, along with its attorney’s fees and costs. When Citibank moved for summary judgment, Schmidt, who represented himself, appeared in court with certain documents, which the circuit court treated as his response. Schmidt later submitted an affidavit after the court gave him additional time. One document Schmidt offered was a Better Business Bureau report about New World being shut down after fraud charges were brought against its owners. One other document Schmidt provided was an arbitration award against Citibank from another dubious entity, Dispute Arbitration Resolution Group. Deeming this “award” to be invalid, the circuit court gave no credit to it and granted summary judgment for Citibank. Schmidt appeals.

Analysis and Decision

[¶ 5.] As in circuit court, Schmidt, who claims he cannot afford a lawyer, represents himself in this appeal. His submissions make it difficult at first to fathom exactly what happened. But now armed with the federal court materials on how the rare coin scheme worked, we can piece together the circumstances. Schmidt told the circuit court that he had a package deal with New World that was never consummated. He gave the court a copy of a 2004 “contract” he made with a company purported to be in London, United Kingdom, to sell certain coins for $131,900. According to Schmidt, he agreed to purchase these coins from New World only on the condition that New World “would resell the coins” to Winston Rarities of London, undoubtedly a nonexistent company. As detailed by the United States Attorney in New York, victims were induced to buy bogus rare coins by advising them that a bid had already been received for the purchase of the victim’s coins at a substantial profit to the victim. Based on our present knowledge of events, we can deduce that the coins Schmidt bought, which he denies receiving, were worthless in any event. Citibank obviously saw some merit in Schmidt’s plight because it credited his account with $4,000 of the $11,000 charged by New World.

[¶ 6.] Schmidt never filed a formal answer. to Citibank’s complaint, but he did file a responsive letter, which the circuit court took as his answer. In the letter, Schmidt explained that he was persuaded to purchase coins from New World, which he never received. Also, at the invitation of the circuit court, Schmidt later filed an affidavit in response to the affidavits filed by Citibank. In this affidavit, Schmidt reiterated that “he has not received any of the coins for which New World Rarities has charged his account $11,000....” The circuit court considered Schmidt’s responses inadequate to preclude summary judgment.

[¶ 7.] Schmidt now argues that South Dakota courts should be required to explain procedures like summary judgments to civil defendants who represent themselves. If people choose to appear in court on their own, they must familiarize themselves with the procedures and laws governing their cases. Judges cannot ethically advise litigants on how to advocate their positions. In view of the increasing number of pro se litigants, however, the Unified Judicial System now provides legal guides for people who want to represent themselves in court. See “A Guide for Representing Yourself in South Dakota Courts,” Form UJS-300 Rev. 07/2007, available at www.sdjudicial.com. As explained in this publication, court staff cannot “[g]ive advice or information to one party over another or take sides in a case.”

[¶ 8.] It should be unmistakable to lawyers and laypersons alike that when facing a motion for summary judgment, the opposing party must “be diligent in resisting [the motion], and mere general allegations and denials which do not set forth specific facts will not prevent the issuance of a judgment.” Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Hughes-Johnson Co. v. Dakota Midland Hosp., 86 S.D. 361, 364, 195 N.W.2d 519, 521 (1972)); see also SDCL 15-6-56(e); Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765. On appeal, we will affirm summary judgment when the facts and law are clear and no genuine issues of material fact exist. Bordeaux, 2005 SD 117, ¶ 11, 707 N.W.2d at 126 (citations omitted). Despite Schmidt’s claim that he was not informed of his rights, the record shows that, within the bounds of judicial ethics, the circuit judge did explain to Schmidt the basic rules applicable to summary judgments. Schmidt answered that he understood what the judge had explained. The judge also allowed Schmidt to submit, after the hearing, certain documents as his response, when normally responses to a motion for summary judgment must be submitted before the hearing.

[¶ 9.] Illustrating too well perhaps the pitfalls of self-representation, Schmidt advances a perplexing array of contentions having little or no relation to the issue in this case. These claims need not be repeated here. Most of them have been found meritless by numerous courts around the country, and Schmidt cites no legal authority to conclude otherwise.

[¶ 10.] We will address, nevertheless, two of Schmidt’s more peculiar theories on why he should not have to pay any of his credit card debt. Schmidt presented the circuit court with an arbitration award from an operation in Las Vegas, Nevada, called Dispute Resolution Arbitration Group (DRAG). Schmidt contends that this award concludes the matter in his favor. The award was based on information only Schmidt provided. Citibank did not participate. The “arbitrator” heard one side of the case and concluded that Citibank committed, among other things, “ultra vires conduct” and deceptive trade practices. As a result, the “award” not only eliminated Schmidt’s entire debt, but also granted him a large monetary sum against Citibank. Attached to Schmidt’s reply brief is a letter from DRAG. The letter gives considerable insight into the devious nature of this outfit. It states,

For those individuals who feel they should pay for what they’ve used (such as credit card purchases or student loans), please let me remind you that the bank’s purpose is to keep people in debt through deceit. So I submit to you, why should you pay on something that was secured by their intentional failure to disclose the true terms of your debt?

DRAG claims that it will “eliminate the debt” and “show a positive credit rating on [the] eliminated accounts[.]” Its printed material also states: “Set Yourself Free! It has worked flawlessly for thousands of people and it will work for you!” DRAG delivered as advertised: its “arbitration award” against Citibank was predetermined.

[¶ 11.] We do not know what, if anything, Schmidt paid for his “arbitration.” In the end, however, it becomes obvious that to avoid his loss from one fraud, Schmidt fell into the clutch of another. Whether he was truly a victim of this counterfeit arbitration, or whether he was a willing participant, we cannot discern from the record. In any event, a court is entitled to vacate an arbitration award procured by fraud. SDCL 21-25A-24(1). The circuit court rightly gave no credence to DRAG.

[¶ 12.] By far the most bizarre of Schmidt’s claims is that he should not have to repay his entire credit card debt because Citibank “monetized” his signature. In his view, through the device of signature “monetization,” his credit card charges, in whatever amount, have already been paid in full. In reading the literature Schmidt submitted in court from the purveyors of DRAG, it appears that this flum-mery came from them. In any case, no matter what the term “monetize” may mean in financial parlance, in the context of this case, it is utter gibberish.

[¶ 13.] When Citibank brought its motion for summary judgment, it presented an affidavit and documentary evidence that Schmidt had a valid account with Citibank, made charges, and failed to make payment on those charges. With respect to the New World charges, at the summary judgment hearing counsel for Citibank argued that although Schmidt did timely notify Citibank that he disputed the $11,000 in charges to his account, his claim could not be honored because, in accord with the credit card agreement, Schmidt “must have made the purchase in [his] home state or, if not within [his] home state, within 100 miles of [his] current address.” Schmidt’s response, larded though it was with irrelevancies, managed to outline the fact that he was defrauded by telemarketers who were later arrested and indicted, and that he had timely protested the charges on his credit card. Obviously, he did not present his case with the precision of a seasoned lawyer, but that is not our standard.

[¶ 14.] Despite Schmidt’s unskilled advocacy, there appears to be genuine issues of material fact precluding summary judgment. See SDCL 15-6-56(e). “Summary judgment is an extreme remedy and should be awarded only when the truth is clear and reasonable doubts touching the existence of a genuine issue as to material fact should be resolved against the movant[.]” S.D. Dept, of Rev. v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989) (citing Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968)). Even a poorly self-represented litigant deserves fair treatment, especially considering that the burden of proof is on Citibank, as the party moving for summary judgment, and the “benefit of any doubt” on whether there is a material issue of fact goes to Schmidt, as the nonmoving party. See Trammell v. Prairie States Ins. Co., 473 N.W.2d 460, 462 (S.D.1991).

[¶ 15.] Acknowledging the arrant fraud perpetrated against Schmidt in the New World swindle, and the fact that these charges were presented to the circuit court as a billing dispute, we remand for further proceedings to determine what amount, if any, Schmidt owes Citibank on those charges. Along with any other applicable state and federal laws, the circuit court should consider the Truth in Lending Law, codified in the Consumer Credit Protection Act, 15 USC §§ 1601-1700; Truth and Lending Reg. Z, 12 CFR §§ 226.1-226.36; and the Fair Credit Billing Act, 15 USC §§ 1666-1666j.

[¶ 16.] On the other hand, Schmidt has no valid defense for not paying his remaining credit card charges incurred for everything except the New World transactions. Accordingly, Citibank’s judgment against Schmidt on all claims for credit card charges other than from New World are affirmed.

[¶ 17.] Affirmed in part, reversed in part, and remanded.'

[¶ 18.] GILBERTSON, Chief Justice, and SABERS, Justice, concur.

[¶ 19.] ZINTER and MEIERHENRY, Justices, concur in part and dissent in part.

MEIERHENRY, Justice

(concurring in part and dissenting in part).

[¶ 20.] I would not remand this case. Based on the evidence presented, the circuit court did not err when it ruled in favor of the plaintiff for the entire claim. The majority opinion acknowledges that Schmidt’s defense was laden with irrelevancies and a “perplexing array of contentions.” supra ¶ 9.

[¶ 21.] We should not endeavor to supplement the record or retry the case for the defendant on appeal. To do so is unfair to the plaintiff who had no chance to address the evidence or legal authority on which the majority opinion is based. Additionally, we should not fault the circuit court for failing to spot a valid defense from an incomplete and perplexing record; or from bizarre and illegitimate legal arguments. I would affirm on all issues.

ZINTER, Justice

(concurring in part and dissenting in part).

[¶22.] I join the writing of Justice Meierhenry because despite the circuit court’s extraordinary offers to allow Schmidt to raise and argue any issues he desired to resist summary judgment, Schmidt failed to pursue the issue remanded by this Court. Under well-established law, Schmidt is precluded from pursuing an issue he never raised.

[¶ 23.] At the summary judgment hearing, the circuit court went well beyond normal procedural practice to ensure that Schmidt was fully and fairly afforded his day in court. The circuit court painstakingly advised Schmidt of the nature of the proceeding, the procedural requirements of summary judgment, and the danger of not having an attorney. Thereafter, counsel for Citibank raised the fact that Schmidt disputed the credit card charges, but argued that Schmidt lost that right because, pursuant to the credit card agreement, the charges must have been made in his home state or within 100 miles of his current address. The circuit court then explained to Schmidt the consequences of failing to present affidavits raising an issue of fact about this dispute. The court even gave Schmidt an additional opportunity to present “whatever you want [to] me,” whether in proper form or not, stating, “[t]ake your time and gather everything that you want me to consider [in resisting the motion] and give it to me.” Following the submission of five such documents, Schmidt’s sole argument involved the matter of arbitration. Following the arbitration discussion, the court asked Schmidt, “[w]hat else did you want to tell me[?]” Schmidt responded: “Nothing, Your Hon- or. That’s it.” The court then gave each party ten additional days to submit further affidavits. The court indicated it was affording this extraordinary opportunity to make sure everyone had a “fair chance to see everything that I have in front of [me] and present anything else.”

[¶ 24.] Thereafter, Schmidt submitted an affidavit. Although that affidavit mentioned the home state/100 mile limitation, it did not identify authorities or make arguments suggesting that South Dakota was the home state or that the limitation had any application in this case. Instead, Schmidt only argued that such limitations do “not give fair protection to the credit cardholder, when cheated by a merchant.” Nevertheless, the Court suggests that the burden of proof on the home state/100 mile limitation was on Citibank, and that Schmidt should have had the “benefit of any doubt” concerning the existence of any disputed fact on that issue. Supra ¶ 14. “[T]hose resisting summary judgment must [, however,] show that they will be able to place sufficient evidence in the record at trial to support findings on all the elements on which they have the burden of proof.” Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 14, 707 N.W.2d 123, 127 (quoting Chem-Age Indus., Inc. v. Glover, 2002 SD 122, ¶ 18, 652 N.W.2d 756, 765 (citation omitted)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265, 273 (1986) (stating that entry of summary judgment is mandated against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial). And in this case, Schmidt had the burden of proof on this exception to liability because it was an affirmative defense. See SDCL 15-6-8(c) (providing that affirmative defenses include any “matter constituting an avoidance or affirmative defense”). Therefore, Citibank did not have the summary judgment burden on the home state limitation defense.

[¶ 25.] It is undisputed that Schmidt entered into a credit card agreement with Citibank and used the credit card to make purchases. Additionally, the Court concedes that when Citibank brought its motion for summary judgment, it submitted an affidavit and documentary evidence that Schmidt failed to make payment on those charges. Supra ¶ 13. Therefore, Citibank met its summary judgment burden. Schmidt, however, introduced no evidence creating an issue of fact on his affirmative defense. Consequently, summary judgment against Schmidt was mandated. Cel-otex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552, 91 L.Ed.2d at 273.

[¶26.] Although Schmidt was free to act as his own lawyer, “[h]e may not [now] capitalize on his unfamiliarity with law; he is bound by the same rules of evidence and procedure as is required by those who are duly licensed to practice law.” Farmers Co-op. Elevator Co. of Revillo v. Johnson, 90 S.D. 36, 42, 237 N.W.2d 671, 674 (1976). Having chosen to act as his own lawyer, “he is bound to the consequences of his course of action.” Id.

      . Schmidt supplied only a disjointed assortment of details to the circuit court. Additional information we take judicial notice of from the docket of the United States District Court for the Eastern District of New York, and the United States Department of Justice website at http://www.usdoj.gov/usao/nye/pr/2005/ 2005jan20.html. See SDCL 19-10-2(2) (Rule 201(b)(2)); SDCL 19-10-3 (Rule 201(c)).

      . A federal district court in Nevada recently entered an injunction against DRAG and found its owner, Mark Swanson, liable for civil conspiracy, intentional interference with contractual relations, and defamation, all in connection with these fake arbitration awards. Chase Bank USA, N.A. v. Dispute Resolution Arbitration Group, 2007 WL 1577853 (D.Nev. May 31, 2007) (unpublished).

      . We have never examined the implications of a 100-mile limit in a credit card clause. Nothing in the record indicates whether the circuit court specifically ruled on it. Should it apply in a case of pure fraud? If it does apply, some jurisdictions have established a limitation on its application. They have con-eluded that whether a transaction occurred within 100 miles of the cardholder’s resident address depends entirely on where the contract was formed. In re Standard Financial Management Corp., 94 B.R. 231, 238 (Bkrtcy.D.Mass.1988); Citibank (South Dakota), N.A. v. Mincks, 135 S.W.3d 545, 554 n. 8 (Mo.Ct.App.2004); Singer v. Chase Manhattan Bank, 111 Nev. 289, 890 P.2d 1305, 1306-07 (1995). We know this was a telemarketing scam. If a contract was deemed to have been formed in a cardholder's resident state, the 100-mile limitation will not apply. The full extent of the fraud and the possible implications of the 100-mile rule implicate genuine issues of material fact.

      . The court described the documents as: a letter, a July 14, 2004 contract with Winston Rarities Ltd., and documents relating to the "arbitration.” Although they were not procedurally proper submissions in opposition to a motion for summary judgment, the court informed Schmidt that it would nonetheless consider them.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    2008 SD 7
    Barbara Ann DRAPEAU, Plaintiff and Appellant, v. Heather Rose KNOPP, Defendant and Appellee.
    No. 24545.
    Supreme Court of South Dakota.
    Considered on Briefs on Nov. 6, 2007.
    Decided Jan. 30, 2008.

      James G. Abourezk of Abourezk Law Offices, PC Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Mark J. Welter of Wilka & Welter, LLP, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   PER CURIAM.

ACTION

[¶ 1.] Barbara Ann Drapeau (Drapeau) appeals a circuit court judgment finding in the favor of Heather Rose Knopp (Knopp), the defendant.

FACTS

[¶ 2.] On December 14, 2006, Drapeau was a passenger in her vehicle, driven by her daughter, Emberlyn Hopkins (Hopkins). Driving north on Louise Avenue, Hopkins made a left-hand turn onto Empire Place Road, which led to the Empire Mall. While Hopkins turned onto Empire Place Road, Knopp was traveling from one private parking lot to another (south to north) across Empire Place Road. Dra-peau’s vehicle struck Knopp’s vehicle on the passenger side. Vehicles traveling on Empire Place Road have the right-of-way over vehicles entering the street from a parking lot, under SDCL 32-26-14. Dra-peau’s vehicle was totaled as a result of the accident. Drapeau sued Knopp for the retail value of her vehicle and the cost of towing.

[¶ 3.] At trial, Drapeau testified that her daughter stopped at the traffic light at the intersection of Louise and Empire Place Road, and, after the light had turned green and all the traffic had cleared, they turned left onto Empire Place Road traveling at a speed of five to ten miles per hour. She claims that at the moment Knopp pulled out of a parking lot in front of her vehicle, the collision took place. Although Knopp never challenged Drapeau’s testimony regarding her vehicle’s speed, she challenged her credibility.

[¶ 4.] Knopp questioned Drapeau about the fact that the police record indicated she was the driver, claiming that Drapeau lied to the police to hide the fact that her daughter was driving the vehicle. At the time, her daughter did not have a license, which she claimed was taken from her about ten years earlier as the result of a traffic offense, but she acknowledged her daughter does not “tell [her] everything.” Drapeau claimed that the officer only asked who the owner was, never who was driving.

[¶ 5.] During Knopp’s testimony she indicated the existence of numerous defects of Drapeau’s vehicle to support her claim that the car was in “fair to poor” condition, only worth about three-thousand, and not three-thousand nine-hundred and ninety-five dollars as claimed by Drapeau.

[¶ 6.] Knopp testified that she was traveling from one parking lot to another across Empire Place Road. She stopped at the stop sign, and after waiting for a “couple of cars” to pass she “looked both ways” and saw that no vehicles were turning onto the road. She determined that “it was clear to pass,” at which point she “proceeded into the intersection.” As Knopp’s vehicle was entering the opposite parking lot, Drapeau’s vehicle proceeded onto the road and struck the right passenger door of Knopp’s vehicle. Knopp conceded that vehicles traveling on Empire Place Road had the right-of-way.

[¶ 7.] The trial court found that Knopp was acting reasonably under the circumstances. It also concluded that Drapeau failed to prove Knopp was negligent. Dra-peau appeals.

STANDARD OF REVIEW
This Court reviews a trial court’s findings of fact under the “clearly erroneous” standard and overturns a trial court’s conclusions of law only when the trial court erred as a matter of law. In applying the clearly erroneous standard, our function is not to decide factual issues de novo. The question is not whether this Court would have made the same finding that the trial court did, but whether on the entire evidence we are left with a definite and firm conviction that a mistake has been committed. We will not overturn the trial court’s decision unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made. Due regard shall be given to the opportunity the trial court had to judge the credibility of witnesses.

Zarecky v. Thompson, 2001 SD 121, ¶8, 634 N.W.2d 311, 314 (citations omitted).

ANALYSIS AND DECISION

[¶ 8.] Drapeau contends that the trial court’s findings were clear error and its conclusions were an abuse of discretion. We are not convinced.

[¶ 9.] According to Knopp’s testimony she was driving with the utmost care, making every attempt to ensure the safe passage of her vehicle across the street, yet, her vehicle was still struck (T-bone style) by Drapeau’s vehicle. According to Knopp, her vehicle started to exit the street when Drapeau’s vehicle turned onto Empire Place Road. Although Knopp conceded that street traffic has the right-of-way, this concession is not equivalent to fault. In Carpenter v. City of Belle Fourche, we stated: “An intersection collision is not proof by itself that fault lies with the unfavored driver.... Drivers are not required to notice every vehicle within the range of vision, but only those within the radius of danger.” 2000 SD 55, ¶ 14, 609 N.W.2d 751, 759 (stating that negligence of a vehicle “entering a preferential highway protected by a stop sign remains for the trier of fact”) (citations omitted); see also Ricketts v. Tusa, 87 S.D. 702, 706, 214 N.W.2d 77, 79 (1974) (stating “where a driver looks but fails to see another vehicle shown to be in a favored position, the question of his negligence is for the jury”) (citations omitted). Furthermore, a driver may forfeit the right-of-way by traveling at an excessive speed. SDCL 32-26-13 (“The driver of any vehicle traveling at an unlawful speed shall forfeit the right-of-way which he might otherwise have hereunder.”). Assuming that Knopp did take the precautions stated above, the trial court’s findings were not in error and its conclusions were not an abuse of discretion. Thus, we affirm the trial court’s judgment.

[¶ 10.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER and MEIERHENRY, Justices, participating.

      . SDCL 32-26-14 provides:
      The driver of a vehicle about to enter or cross a public highway from an alley, building, private road, or driveway shall yield the right-of-way to all vehicles approaching
      on such public highway. A violation of this section is a Class 2 misdemeanor.

      . Knopp testified as follows:

        I was stopped at a stop sign waiting to cross into another parking lot and I had stopped at the stop sign, looked both ways, seen a couple cars coming, waited and I seen it was clear to pass and I proceeded into the intersection. As I proceeded into the intersection, my front part of my car was already into the next parking lot as Barbara's daughter proceeded into the street and hit my car.


author: GILBERTSON, Chief Justice. ZINTER, Justice

text:
    2008 SD 9
    John UNRUH II; Nathaniel Unruh and Amy Miller, individually and as Personal Representatives of the Estate of John Harold Unruh, deceased; and Mollie Eichman, individually, Plaintiffs, v. DAVISON COUNTY, South Dakota; Hutchinson County, South Dakota; David Miles, individually and in his capacity as the Davison County Sheriff; Don Radel, individually and in his capacity as Administrator of the Davison County Jail; Connie Ireland, individually and in her capacity as a Davison County employee; Glen Ellerton, individually and in his capacity as a Davison County employee; Jeff Miner, individually and in his capacity as a Davison County employee; Jerry McNary, individually and in his capacity as a Davison County employee; Cindy Voyles, individually and in her capacity as a Davison County employee; Roger Erickson, individually and in his capacity as a Davison County employee; Ginger Faas, individually and in her capacity as a Davison County employee; Linda Aldrich, individually and in her capacity as a Davison County employee; Tom Kulm, individually and in his capacity as a Davison County employee; Carol Radel, individually and in her capacity as a Davison County employee; and other Unknown Persons, individually and in their capacity as employees of Hutchinson and Davison Counties, South Dakota, Defendants.
    No. 24511.
    Supreme Court of South Dakota.
    Original Proceeding Argued Nov. 7, 2007.
    Decided Jan. 30, 2008.
    Rehearing Denied March 3, 2008.

      Sheila S. Woodward, Michael F. Marlow of Johnson, Miner, Marlow Woodward & Huff, LLP, Yankton, South Dakota, Attorneys for plaintiffs.
    Gary P. Thimsen, James A. Power, Cheri S. Raymond of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for defendants, Davison County & Davison County Defendants.
    Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for defendants, Hutchinson County & Deb Gering.
   GILBERTSON, Chief Justice.

[¶ 1.] Plaintiffs, John Unruh II, Nathaniel Unruh, Amy Miller, individually and as personal representatives and on behalf of the Estate of John H. Unruh, deceased, (Unruh) and Mollie Eichman, individually, brought an action against Davi-son County and Hutchinson County and several of their employees known and unknown (collectively “Defendants”) for negligent conduct and conduct deliberately indifferent to Unruh’s civil rights, resulting in his death. Plaintiffs filed their suit in the United States District Court, District of South Dakota, Southern Division, Sioux Falls, South Dakota. Defendants asserted immunity from liability under SDCL 3-21-8 and 3-21-9. The District Court certified one question to the South Dakota Supreme Court. For the reasons set forth herein, we answer the certified question in the negative.

FACTS AND PROCEDURE

[¶2.] On the night of June 27, 2004, Unruh was arrested by the Freeman, South Dakota City Police and charged with third offense driving under the influence. Following a blood test conducted at the Freeman Hospital, Unruh was transferred to the custody of the Hutchinson County Sheriffs Department. Hutchinson County contracted with Davison County for jail services. A Hutchinson County Sheriffs deputy transported Unruh to the Davison County Jail in Mitchell, South Dakota. Unruh was booked into custody by Davison County on June 28, 2007 at about 12:30 a.m.

[¶ 3.] Unruh, who had a history of excessive alcohol consumption and medical problems that included a heart attack and aneurism, had been prescribed a number of prescription medicines. Though the transporting deputy stopped at Unruh’s house at his request, Unruh elected not to bring his medications, anticipating that he would make bail the next day. While in Davison County’s custody, Unruh’s physical condition deteriorated. By the evening of June 29, he had become delirious. That night, Unruh was transported to the Avera Queen of Peace Hospital in Mitchell at around 11:30 p.m. He was later evacuated by air to the Heart Hospital in Sioux Falls, South Dakota where he died.

[¶ 4.] Plaintiffs alleged that Defendants’ negligence and failure to follow procedures resulted in Unruh’s death and violated his civil rights. Defendants asserted that they were immune from claims of liability in connection with Unruh’s death as provided under SDCL 3-21-8 and 3-21-9. Plaintiffs argued that Defendants, who had liability coverage in effect at the time in question, had waived their immunity to the extent of that coverage as provided under SDCL 21-32A-1.

The District Court certified one question to this Court, which we accepted: Does a county’s purchase of liability insurance or participation in a risk sharing pool, pursuant to SDCL 21-32A-1, waive the county’s and its employees’ immunity granted by SDCL 3-21-8 and 3-21-9 to the extent of such insurance or participation in a risk sharing pool?

STANDARD OF REVIEW

[¶ 5.] Technically, this Court does not sit as an appellate court in this case as the matter came to us as a certified question from the United States District Court for the District of South Dakota. Nevertheless, we employ the same legal standards for this analysis that we use when reviewing appellate cases.

The construction of a statute is a question of law. We interpret statutes in accord with legislative intent. Such intent is derived from the plain, ordinary and popular meaning of statutory language. “[I]ntent must be determined from the statute as a whole, as well as enactments relating to the same subject.” “[Wjhere statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them ‘harmonious and workable.’ ”

Wiersma v. Maple Leaf Farms, 1996 SD 16, ¶ 4, 543 N.W.2d 787, 789 (internal citations omitted).

ANALYSIS AND ANSWER

[¶ 6.] Does a county’s purchase of liability insurance or participation in a risk sharing pool, pursuant to SDCL 21-32A-1, waive the county’s and its employees’ immunity granted by SDCL 3-21-8 and 3-21-9 to the extent of such insurance or participation in a risk sharing pool?

[¶ 7.] The States’ sovereign immunity derives from English law and was ratified in Article III, Section 2 of the United States Constitution. Alden v. Maine, 527 U.S. 706, 713, 119 S.Ct. 2240, 2246-47, 144 L.Ed.2d 636 (1999). The Eleventh Amendment extends the States’ immunity from suits to those commenced by citizens of another State or citizens or subjects of a foreign country. Id. at 713, 119 S.Ct. at 2246, 144 L.Ed.2d 636 (citing U.S. Const amend 11).

[¶ 8.] Sovereign immunity is established on a state level by Article III, Section 27 of the South Dakota Constitution: “The Legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Still, this Court recognizes that sovereign immunity arises in part from the common law. Sioux Falls Constr. Co. v. City of Sioux Falls, 297 N.W.2d 454, 457 (S.D.1980) (citing High-Grade Oil Co., Inc. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980)). Sovereign immunity is limited in that it only exists in the absence of consent to be sued. Cromwell v. Rapid City Police Dept., 2001 SD 100, ¶ 13, 632 N.W.2d 20, 24 (quoting Alden, 527 U.S. at 754, 119 S.Ct. at 2267, 144 L.Ed.2d 636; citing In re Request for Opinion of the Supreme Court Relative to Constitutionality of SDCL 21-32-17, 379 N.W.2d 822, 825 (S.D.1985)).

[¶ 9.] In 1981, the Legislature authorized the State of South Dakota to obtain liability insurance for the purpose of insuring the State, its officers, agents and employees. SDCL 21-32-15. During the same legislative session SDCL 21-32-16 was enacted, therein providing that to the extent of liability insurance coverage, the State is “deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued.” SDCL 21-32-16 (emphasis added).

[¶ 10.] In 1986, the Legislature extended sovereign immunity and the waiver provisions of SDCL chapter 21-32 to all public entities, including counties, with the enactment of SDCL chapter 21-32A. SDCL 21-32A-1 provides:

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. The waiver contained in this section and §§ 21-32A-2 and 21-32A-3 is subject to the provisions of § 3-22-17.

(Emphasis added). SDCL 21-32A-2 essentially applies the provisions of SDCL 21-32-17, see supra note 4, to employees, officers or agents of any public entity. SDCL 21-32A-3 provides:

Except insofar as a public entity participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any public entity is immune from liability for damages whether the function in which it is involved is governmental or proprietary. The immunity recognized herein may be raised by way of affirmative defense.

[¶ 11.] During the same legislative session in which SDCL chapter 21-32A was enacted, the Legislature also enacted SDCL 3-21-8 and 3-21-9, related to the operation and maintenance of jails and correctional facilities, and administration of prisoner parole and release. SDCL 3-21-8 provides:

No person, political subdivision, or the state is liable for failure to provide a prison, jail, or penal or correctional facility, or if such facility is provided, for failure to provide sufficient equipment, personnel, programs, facilities, or services in a prison or other correctional facility.

SDCL 3-21-9 provides in pertinent part:

No person, political subdivision, or the state is liable for any injury resulting from the parole or release of a prisoner or from the terms and conditions of his parole or release or from the revocation of his parole or release, or for any injury caused by or resulting from:
(5) Services or programs administered by or on behalf of the prison, jail, or correctional facility.

[¶ 12.] In Brown v. Egan Consolidated School District No. 50-2, 449 N.W.2d 259 (S.D.1989), this Court discussed the proposition that there are multiple and independent basis for sovereign immunity. The claim in Brown arose from the defendant school district’s operation of a school bus. Id. at 260. While driving to work, during a morning when blizzard-like conditions existed, the plaintiff unexpectedly encountered one of the district’s buses parked in the middle of the road. Unable to stop, the plaintiff was severely injured when she collided with the rear end of the bus. At the time of the collision, the bus was being used for the routine transportation of students to school.

[¶ 13.] The district carried liability insurance. The plaintiff filed a tort action against the district to the extent of its insurance coverage based on waiver under SDCL 21-32A-1. However, the district asserted SDCL 13-29-1 as an affirmative defense claiming the statute created an independent statutory basis for sovereign immunity which was separate from the previously recognized constitutional and common law basis and which was not waived by the purchase of liability insurance coverage.

[¶ 14.] The Court found that the immunity asserted by the district under SDCL 13-29-1, as then enacted, did not apply to the facts of that case. Id. at 261-62. The Court went on to dismiss the proposition of a separate “statutory sovereign immunity.” Id. at 262. In dismissing the proposition, however, the Court did so with specific reference to SDCL 13-29-1 and the waiver statute SDCL 21-32A-1.

[¶ 15.] SDCL 13-29-1, as it was then enacted, authorized school districts to own and operate buses for the purpose of transporting students to and from school and extracurricular activities. See supra note 8. The statute also provided that if districts granted usage of school buses for certain nonregulated purposes, defined under then enacted SDCL 49-28-2(1) or (8), the districts would not be liable for any subsequent damages. Id. SDCL 49-28-2(1) excluded from Public Utilities Commission regulation motor vehicles used by school districts for transporting students to and from schools or when use was granted to nonprofit organizations for transport of persons under twenty-one years of age. See supra note 9. SDCL 49-28-2(8) excluded from Commission regulation, motor vehicles used by nonprofits for transportation of senior citizens or the handicapped. Id.

[¶ 16.] The grant under SDCL 49-28-2(1) was conditioned in part upon an organization furnishing insurance coverage to the extent of that carried by a school district for usual transportation during school activities. Id. In holding that the school district waived sovereign immunity under SDCL 21-32A-1 by purchasing liability insurance, the Court in Brown concluded that granted use pursuant to SDCL 49-28-2(1) or (8), invoking immunity under SDCL 13-29-1, was related to nonprofit-organization use of school district buses. 449 N.W.2d at 261. The Court found that since such use under SDCL 49-28-2(1) was in part conditioned upon the non-profit carrying liability insurance having limits no less than that carried by the school district, the immunity language in SDCL 13-29-1 served only to prevent stacking of liability insurance coverage and “did nothing more than reiterate the common law concept of sovereign immunity embodied in the South Dakota Constitution[.]” Id. at 262.

[¶ 17.] With respect to SDCL 21-32A-1, the Court concluded:

SDCL 21-32A-1 provides that a public entity such as a school district is deemed to have waived immunity and to have consented to be sued as any other party may be sued. It does not create the special variety of sovereign immunity urged by District. Sovereign immunity exists for school district’s [sic] use of school buses, but can be waived, as was done here, by the purchase of liability insurance.

Id. (emphasis added). We agree with the Court’s statement and its holding with respect to the immunity provided under then enacted SDCL 13-29-1 and that it did not apply to the facts of the case. The sovereign immunity that the school district attempted to assert as a defense in Brown was created by the Legislature pursuant to SDCL 21-32A-3. See supra ¶ 10. The district’s purchase of liability insurance effected a waiver of the statutorily created sovereign immunity as provided by SDCL 21-32A-1. The district’s assertion that immunity was preserved under SDCL 13-29-1, notwithstanding SDCL 21-32A-1, was simply incorrect under the circumstances.

[¶ 18.] The South Dakota Legislature has enacted many statutes that provide immunity from tort claims. It did so for a purpose. Although we have not previously addressed whether a statutory immunity provision supersedes waiver provisions such as those found in SDCL chapters 21-32 and 21-32A, our opinions in decisions subsequent to the Court’s decision in Brown are indicative of the efficacy of statutory immunity. Were it to the contrary, all such sovereign immunity statutes enacted or amended since SDCL chapters 21-32 and 21-32A in 1986 would be superfluous since they would do no more than was done in that statute. Rather, the Legislature has decided to grant statutory-sovereign immunity in specific instances which are not subject to the waiver provisions in SDCL chapters 21-32 and 21-32A. E.g., SDCL 7-9-21(1997) (registers of deeds not liable for refusal to record documents when carried out in good faith); SDCL 9-38-105 (amended 1992) (municipalities or governing boards thereof not liable for negligence in operation of public recreation facilities by officers or employees of recreation board); SDCL 13-24-20 (amended 2007) (school districts not liable for damages arising out of use of their facilities, computers, motor vehicles, or land granted for community service purposes); SDCL 20-9-4.1 (amended 1986) (no liability for good faith lending of emergency care and services); SDCL 20-9-4.6 (2000) (immunity from liability for use or failure to use automatic external defibrillator in emergency) SDCL 26-8A-14 (amended 1991) (immunity from liability for good faith reporting in connection with suspected child abuse); SDCL 27A-7-10 (2000) (immunity from liability for county boards of mental illness for good faith action on applications and petitions for involuntary commitment); SDCL 36-4-25 (1998) (physicians peer review committee not liable for acts in reasonable belief that action was warranted).

[¶ 19.] Furthermore, a review of the above statutes reveals a significant expansion, beyond common law sovereign immunity, resulting from the statutory enactments. By definition common law sovereign immunity protected only the sovereign and its agents — today employees of the affected public entities. See Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524, 526 (1966) (holding sovereign immunity to be available to “an officer or employee [of a governmental entity] in the performance of his duties”). However, many of these statutes, enacted after 1986, expand immunity beyond the purview of government and its protected individuals to all “persons,” not just officers and employees of a governmental entity.

[¶ 20.] In Hall v. City of Watertown ex rel. City of Watertown Police Department, the plaintiffs were injured as bystanders when an individual in a stolen vehicle lost control while being pursued by a Water-town, South Dakota Police Officer. 2001 SD 137, ¶ 2, 636 N.W.2d 686, 687. The plaintiffs sued the City of Watertown, its police department and the pursuit officer. Id. ¶ 3. The defendants sought summary judgment asserting immunity under SDCL 3-21-9. Id. ¶ 3, 636 N.W.2d at 688. The circuit court agreed that there was immunity under SDCL 3-21-9. However, it denied the defendants’ motion ruling that it had been waived as provided under SDCL 21-32A-1 by the city’s participation in a risk sharing pool. Although we affirmed the circuit court’s decision to deny summary judgment, we differed with its rationale. We affirmed concluding that the statutory immunity provisions of SDCL 3-21-9 were inapplicable to the facts of the case. Id. ¶¶ 5, 7, 636 N.W.2d at 689.

[¶ 21.] The plaintiffs in Brown Eyes v. South Dakota Department of Social Services, sued the Department of Social Services (DSS) and several of its administrative and subordinate employees, in tort and contract, arising out of a pending adoption that failed when an Indian tribal court asserted jurisdiction over the subject children. 2001 SD 81, ¶3, 630 N.W.2d 501, 504. The defendants filed a motion for summary judgment on both the tort and contract claims. Id. ¶ 4, 630 N.W.2d at 504. The circuit court granted the defendant’s motion, setting out sovereign immunity for the rationale as to the tort claims. Id.

[¶ 22.] In affirming the circuit court, we found that since the DSS had not purchased liability insurance or participated in a risk-sharing pool it had not waived sovereign immunity under either SDCL 21-32-16 or 21-32A-2. Id. ¶7, 630 N.W.2d at 505. We also found that DSS’s administrative employees were properly granted summary judgment since they had not engaged in any activity that breached immunity. Id. ¶ 11, 630 N.W.2d at 506. However, we found that the three social workers involved in the pending adoption were not eligible for sovereign immunity. Id. ¶ 12. Nonetheless, we upheld the circuit court’s summary judgment as to the social workers on the basis of statutory immunity grounded in a showing of good faith pursuant to SDCL 26-8A-14. Id. ¶¶ 13, 16, 630 N.W.2d at 507, 508.

[¶23.] The plaintiffs claim in Cromwell, like that in Hall, arose from a police pursuit that resulted in injury to the plaintiff. The plaintiffs injury occurred when an intoxicated motorist, who was being pursued by a Rapid City Police Officer, collided with the plaintiffs vehicle. Cromwell, 2001 SD 100, ¶ 2, 632 N.W.2d at 22. The defendants Sled a motion for summary judgement based on sovereign immunity, which the circuit court denied. Id. ¶¶ 5, 6.

[¶ 24.] The defendants in Cromwell participated in a liability risk-sharing pool at the time of the plaintiffs injury, thus invoking waiver under SDCL 21-32A-1. Id. ¶ 3. Following the collision, but prior to the complaint, the defendants transferred their liability coverage from the risk-sharing pool to a private insurer. Id. ¶ 4. The pool coverage was claims paid, meaning it only covered claims made prior to coverage termination. Id. ¶ 3. The private insurer’s policy was claims made, meaning coverage did not commence until the effective date of the policy. Id. ¶4. Since the defendants failed to purchase tail coverage from the private insurer, a gap in coverage resulted. Id. ¶ 5.

[¶ 25.] The defendants argued that the gap in coverage entitled them to reclaim sovereign immunity that had been waived by participation in the risk-sharing pool. Id. ¶ 18, 632 N.W.2d at 25. In affirming the circuit court, we held that once the defendants waived sovereign immunity, it could not be reclaimed without the plaintiffs consent. Id. ¶ 26, 632 N.W.2d at 26-27. However, in so holding, we implied that the defendants could have reclaimed sovereign immunity under these circumstances had the Legislature enacted a statutory basis. In reference to the language of SDCL 21-32A-1, whereby waiver is deemed to be consent to be sued, we stated:

Once this consent is given, and absent a valid statutorily recognized barrier to recovery, a public entity is in no better position than any other defendant to defeat a plaintiffs constitutional right to have his day in court. Does a statutorily recognized barrier to recovery exist here? City has not demonstrated any exist. Waiver of immunity and consent to be sued occurs by operation of statute. We find no similar statute which allows a public entity to reassert sovereign immunity for a claim once it has been waived by operation of law.

Id. ¶ 31, 632 N.W.2d at 27-28 (emphasis added).

[¶ 26.] The Legislature’s intent is clear when SDCL 3-21-8 and 3-21-9 are read together with SDCL 21-32A-1. See Wiersma, 1996 SD 16, ¶4, 543 N.W.2d at 789 (restating the well settled rule of statutory construction that legislative “intent must be determined from the statute as a whole, as well as enactments relating to the same subject”) (citations omitted). The plain language of SDCL 21-32A-1 states that it is the “common law doctrine of sovereign immunity” that is waived by procurement of liability coverage. Since immunity in the specific area of the operation and maintenance of jails and correctional facilities, and administration of prisoner release was created through legislative enactment of SDCL 3-21-8 and 3-21-9, the general, common law waiver provisions do not apply. See also Schafer v. Deuel County Bd. Of Comm’rs, 2006 SD 106, ¶ 10, 725 N.W.2d 241, 245 (reciting the rule of statutory construction that “statutes of specific application take precedence over statutes of general application”) (quotation omitted).

[¶ 27.] As previously noted, SDCL 21-32A-1 and SDCL 3-21-8 and 3-21-9 were all enacted during the 1986 legislative session. It is therefore reasonable to infer that while the Legislature sought to establish the basis under which public entities could waive sovereign immunity, it was at the same time cognizant of a need to immunize, through statute, torts arising from the operation and maintenance of jails and correctional facilities, and administration of prisoner release. To conclude otherwise would be to render SDCL 3-21-8 and 3-21-9 meaningless since immunity would exist in lieu of public entity liability coverage, and would still be waived without SDCL 3-21-8 and 3-21-9 in the event coverage was procured. See Yankton Ethanol, Inc. v. Vironment, Inc., 1999 SD 42, ¶ 15, 592 N.W.2d 596, 599 (citing the well established precept that “[t]here is a presumption against a construction which would render a statute ineffective or meaningless”) (quoting In re Real Estate Tax Exemption for Black Hills Legal Services, Inc., 1997 SD 64, ¶ 12, 563 N.W.2d 429, 432); Rapid City Educ. Ass’n v. Rapid City School Dist., 522 N.W.2d 494, 498 (S.D.1994) (citing Nelson v. Sch. Bd. of Hill City Sch. Dist., 459 N.W.2d 451, 455 (S.D.1990)).

[¶ 28.] Finally, Unruh argues that the operation of a jail under set administrative policies is a ministerial function, which pursuant to our decision in Kyllo v. Panzer, 535 N.W.2d 896 (S.D. 1995), would preclude the application of sovereign immunity. However, the texts of SDCL 3-21-8 or 3-21-9 contain no discretionary/ministerial distinction. By 1986, the Legislature was certainly aware of this legal doctrine, because it has existed since early in statehood for issues concerning common law sovereign immunity. Kyllo, 535 N.W.2d at 899 (citing State v. Ruth, 9 S.D. 84, 68 N.W. 189, 190 (1896)). We interpret statutes as written. “When a statute’s language is clear, certain and unambiguous, our function confines us to declare its meaning as plainly expressed.” Wiersma, 1996 SD 16, ¶ 6, 543 N.W.2d at 790. Here, there is no ambiguity. The distinction between discretionary and ministerial acts is not applicable. We recently addressed this specific issue. In Clay v. Weber, 2007 SD 45, 733 N.W.2d 278, we stated:

We do, however, observe that Inmates mistakenly argue that the activities of the Administrators were ministerial, and therefore Administrators were not entitled to statutory “immunity.” Because the ministerial/discretionary distinction is not within the text of SDCL 3-21-8 and 3-21-9, that distinction is not relevant to the Administrators’ entitlement to this statutory immunity. The distinction is only relevant under sovereign immunity....

Id. ¶ 7 n. 5, 733 N.W.2d at 282 n. 5 (emphasis in original).

[¶ 29.] For all the foregoing reasons, we hereby answer the certified question in the negative.

[¶ 30.] SABERS and KONENKAMP, Justices, concur.

[¶ 31.] ZINTER and MEIERHENRY, Justices, concur specially.

ZINTER, Justice

(concurring specially).

[¶ 32.] I concur, but would not address the discretionary/ministerial question considered by the Court, even though it has been raised by the parties. I would not address that question because it was not certified as a question by the district court. Our appellate jurisdiction is limited, and in these cases it is limited to answering “questions of law certified ... by the ... United States district court[.]” SDCL 15-24A-1 (emphasis added). Because the discretionary/ministerial question was not certified, we are without jurisdiction to determine whether the discretionary/ministerial doctrine has application under the statutes and facts of this case: these are questions for the district court.

[¶ 33.] I also write to note that in my view, this is a unique case that does not require analyzing and determining the differences between common law and statutory immunity. The entire field of common law sovereign immunity regarding the operation of this jail (and the purchase of insurance) has been superseded by statutes rendering this question solely a matter of statutory interpretation.

[¶ 34.] The common law doctrine of sovereign immunity is acknowledged and incorporated in Article III, Section 27 of the South Dakota Constitution. Under that constitutional provision, the “Legislature shall direct by law in what manner and in what courts suits may be brought against the state.” Id. Pursuant to that authority, the common law doctrine of sovereign immunity has today, in large part, been transformed from common law; i.e. decisional law, to statutory law. With respect to the issues of jails, insurance, and participation in risk pools, the common law has been entirely displaced by SDCL 21-32A-1, SDCL 3-21-8, and SDCL 3-21-9. Thus, our task is to determine the nature and extent of the state’s sovereign immunity under these statutory directives.

[¶ 35.] Ultimately, for the reasons expressed by the Court, I agree that the immunity afforded under the more specific immunity statutes (SDCL 3-21-8 and 3-21-9) is not abrogated by insurance or risk pool participation under SDCL 21-32A-1.

[¶ 36.] MEIERHENRY, Justice, joins this special writing.

      .Hutchinson County and “Other Unknown Persons” individually and in their capacity as employees of Hutchinson County have been dismissed from the law suit. The sole remaining Hutchinson County defendant is Sheriff’s Deputy Deb Gering. Gering is alleged to have failed to follow through on a request for medications for Unruh after receiving a telephone request from Davison County Jail staff.

      . Unruh’s blood alcohol content was .356.

      . Davison County had liability coverage through its participation in the South Dakota Public Assurance Alliance, a government risk sharing pool. Hutchinson County carried liability insurance through a private insurer, EMC Insurance Company.

      . In 1983, the Legislature expressly extended SDCL 21-32-16 to employees, officers and agents of the state by enacting SDCL 21-32-17. The statute provides as follows:

        Except as provided in § 21-32-16, any employee, officer, or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.
      SDCL 21-32-17 (emphasis added).

      .In Brown v. Egan School Dist. No. 50-2, this Court opined that the definition of "public entities” under SDCL 3-21-1, applies to “public entities” as the term is used in SDCL chapter 21-32A. 449 N.W.2d 259, 262 (S.D.1989). SDCL 3-21-1 provides in pertinent part:
      "Public entities,” the State of South Dakota, all of its branches and agencies, boards and commissions. The term also includes all public entities established by law exercising any part of the sovereign power of the state, including, but not limited to municipalities, counties, school districts, townships, sewer and irrigation districts, and all other legal entities that public entities are authorized by law to establish.
      (Emphasis added).

      . In 1987, the Legislature enacted a measure which added language to SDCL chapter 21-32A extending the waiver provisions of that chapter to include Participation in risk sharing pools.

      . The 1986 Legislature thought this protection significant enough to pass it with an emergency clause, thus making it effective immediately upon approval by the Governor.

      . At the time, SDCL 13-29-1 provided in part:
      The school board of any school district may acquire, own, operate, or hire buses for the transportation of students to and from its schools either from within or without the district or for transportation to and from athletic, musical, speech, and other interscholastic contests in which participation is authorized by the school board. If the use of a school bus is granted by the school board pursuant to subdivision (1) or (8) of § 49-28-2, the school district is not liable for suit or damages which may arise as the result of the use.

      (Emphasis added).

      . At the time, SDCL 49-28-2 provided in part that the following vehicles were exempt from Public Utilities Commission regulation:
      (1) Motor vehicles used solely in transportation as authorized by § 13-29-1 to and from consolidated or other schools, on trips approved by the school board for the purpose of attending interscholastic activities or other educational programs, or when rented by or their use has been granted to a nonprofit club, group, organization, fraternal society, association or corporation under § 13-24-20 for the transportation of persons under the age of twenty-one years. However, when rented or the use is granted, the movement of the motor vehicle is restricted to a radius of one hundred miles in any direction from the point at which the motor vehicle is most frequently dispatched, garaged, serviced, maintained, operated or otherwise controlled, the driver of such motor vehicle must be fully qualified to drive the motor vehicle as required by the laws of this state, and the motor vehicle must be covered by an insurance policy similar to, with the limits no less than, the insurance coverage which is in effect while the motor vehicle is used for the transportation of school children, school personnel or other adult persons authorized by the school board of a school;

      (8) Motor vehicles used by a nonprofit organization to solely provide transportation to persons fifty five years of age and over or transport those who by reasons of a physical or mental handicap are unable to utilize conventional public transportation^]

        (Emphasis added).

      . In arriving at its conclusion, the Court made no reference to the fact that SDCL 49-28-2(8) included no mandate that liability insurance coverage be a condition to non-regulated use under that subsection. See supra note 9.

      . SDCL 26-8A-14 provides:
      Any person or party participating in good faith in the making of a report or the submitting of copies of medical examination, treatment or hospitalization records pursuant to §§ 26-8A-3 to 26-8A-8, inclusive, or pursuant to any other provisions of this chapter, is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, and has the same immunity for participation in any judicial proceeding resulting from the report. Immunity also extends in the same manner to persons requesting the taking of photographs and X rays pursuant to § 26-8A-16, to persons taking the photographs and X rays, to child protection teams established by the secretary of social services, to public officials or employees involved in the investigation and treatment of child abuse or neglect or making a temporary placement of the child pursuant to this chapter, or to any person who in good faith cooperates with a child protection team or the department of social services in investigation, placement or a treatment plan. The provisions of this section or any other section granting or allowing the grant of immunity do not extend to any person alleged to have committed an act or acts of child abuse or neglect.

      . Likewise SDCL 3-21-8 and 3-21-9 also fail to contain the words "sovereign immunity” despite the fact the Legislature expressly put the term in SDCL 21-32A-1, which it enacted during the same session.

      . We have also been invited to examine this issue in light of South Dakota Constitution Article VI, section 20, commonly known as the "Open Courts Provision.” Plaintiffs claim SDCL 3-21-8 and 3-21-9 are unconstitutional as violative of that provision. As this is not part of the question certified to us by the Federal District Court we decline to address it at this point and leave it for another day when it is properly before us.


author: MEIERHENRY, Justice. SABERS, Justice

text:
    2008 SD 8
    Alex ANDRUSHCHENKO and Nataliya Andrushchenko, as Guardian Ad Litem of D.A., a Minor, and Nataliya Andrushchenko, Individually, Plaintiffs and Appellants, v. Ivan SILCHUK and Lyuba Silchuk, Metzger Construction, Inc. and M & M Plumbing-HVAC, L.L.C., Defendants and Appellees.
    No. 24464.
    Supreme Court of South Dakota.
    Argued on Oct. 3, 2007.
    Decided Jan. 30, 2008.

      Rollyn H. Samp of Samp Law Firm, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
    William C. Garry, Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellees Silehuk.
    Roy A. Wise of Richardson, Wyly, Wise, Sauck, & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Metzger Construction.
    Mark D. O’Leary, Sioux Falls, South Dakota, Attorney for appellee M & M Plumbing.
   MEIERHENRY, Justice.

[¶ 1.] Alex and Nataliya Andrushchenko (Andrushchenkos), as guardians ad litem of their minor child D.A., and Nataliya Andrushchenko, individually, brought suit against Ivan and Lyuba Silehuk (Silchuks), Metzger Construction, Inc., and M <& M Plumbing-HVAC, L.L.C. (M & M) (collectively defendants) for injuries that D.A. sustained from scalding water in the Sil-chuks’ bathtub. The circuit court granted summary judgment to the defendants. Andrushchenkos appeal. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] The circuit court was presented with certain undisputed facts. On December 29, 2002, Silchuks invited Andrush-chenkos and their three-year-old son, D.A., over to their home for lunch. Early in the visit, D.A. turned on the faucets and flooded the main floor bathroom. Later, the Silehuk children and D.A. went upstairs to play. Mrs. Silehuk went upstairs and saw that D.A. was not playing with the other children. He was playing by himself in another area of the room. She closed the door to the bedroom where the baby was sleeping and rejoined the adults on the main floor. The baby was sleeping in the master bedroom, with access to the master bathroom, which had a whirlpool tub. She did not bring D.A. downstairs with her nor report to his parents that he was playing alone upstairs. Shortly thereafter, the adults heard D.A. scream. They ran upstairs and found him in the bathtub in the master bathroom. He had evidently opened the door of the baby’s room and entered the master bathroom. He turned on the hot water and placed toys and other objects in the bathtub. He then either intentionally climbed or accidentally slipped into the bathtub. The hot water caused severe burns. The water in the tub was approximately 160° F. His burns required extensive treatment, including plastic surgery.

[¶ 3.] Silchuks’ water heaters were installed as part of the construction of their home a few months prior to the incident. Metzger Construction, as the general contractor, hired M & M to install the water heaters. M & M claimed it set the thermostats at 125° F.

[¶ 4.] Andrushchenkos alleged that the defendants were negligent. They claim that Silchuks owed D.A. the duty of ordinary and reasonable care because of his status as an invitee and because of a gratuitous duty undertaken by Mrs. Silehuk to protect D.A. They claim that Metzger had a duty to set the water heater thermostats at 120° F. as established by the 2003 Uniform Plumbing Code and the water heater manuals and that Metzger’s duty extends to third parties such as D.A. They also claim that M & M had a duty to warn Silchuks that the thermostat setting had a high risk of scalding.

[¶ 5.] Silchuks, Metzger and M & M filed motions for summary judgment after discovery. Andrushchenkos filed affidavits in opposition to the summary judgment motion. Silchuks and Metzger objected to three of Andrushchenkos’ opposing affidavits: (1) police reports of the investigation of the incident, (2) a water heater use and care manual and (8) a copy of the 2003 Uniform Building Code. The circuit court sustained the objections to the three affidavits and their attachments because of lack of foundation or relevancy.

[¶ 6.] The circuit court entered summary judgment for all defendants. The court determined from the undisputed evidence that Andrushchenkos had not established that the defendants owed a duty to the injured child. As to defendants Sil-chuks, the circuit court determined that as a social guest D.A. had the status of licensee. Thus, Silchuks only owed a duty to warn of or make safe concealed dangerous conditions known to them at the time D.A. sustained his injuries. The court determined that Andrushchenkos had not produced sufficient evidence to demonstrate that Silchuks knew of any alleged dangerous condition. Similarly, the court rejected Andrushchenkos’ gratuitous duty theory. The court based its determination on evidence that Ms. Andrushchenko admitted in her deposition that she had not relinquished her responsibility to supervise D.A. while in Andrushchenkos’ home. The court also found that Andrushchenkos had not presented evidence that Silchuks had agreed to assume the responsibility to supervise D.A.

[¶ 7.] As to Metzger and M & M, the circuit court determined that Andrush-ehenkos had not presented evidence that they had violated any ordinance, statute or industry standard, which would have created a duty to D.A. and that no duty arose in common law. Andrushchenkos appeal and raise the following issues:

ISSUES

1. Whether the circuit court erred by not admitting exhibits offered in opposition to the summary judgment motion.
2. Whether the circuit court erred in granting summary judgment for defendants.

STANDARD OF REVIEW

[¶ 8.] “When reviewing a grant of summary judgment, ‘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.’ ” Kling v. Stem, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. “All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party.” Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847. However, the nonmoving party must “present more than [unsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact.” Burley v. Kytec Innovative Sports Equipment, Inc., 2007 SD 82, ¶ 34, 737 N.W.2d 397, 408 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)). “Summary judgment is generally not feasible in negligence cases.” Satterlee v. Johnson, 526 N.W.2d 256, 258 (S.D.1995). “The existence of a duty is a question of law that is reviewed de novo.” State Auto Ins. Co. v. B.N.C., 2005 SD 89, ¶20, 702 N.W.2d 379, 386 (citation omitted).

[¶ 9.] Evidentiary rulings are reviewed under an abuse of discretion standard. Looks Twice v. Whidby, 569 N.W.2d 459, 460 (S.D.1997).

ANALYSIS

1. Whether the circuit court erred by not admitting exhibits: offered in opposition to the summary judgment motion.

[¶ 10.] Andrushchenkos attempted to offer copies of police reports prepared by the Sioux Falls Police Department and obtained by subpoena. Andrushchenkos submitted the exhibits to show that the police investigation demonstrated that the water temperature was 160° F. at the time of the scalding. The accompanying affidavit was from Andrushchenkos’ attorney, not from the custodian of the records or from the officers who made the reports. The court refused to consider the reports because of lack of foundation.

[¶ 11.] We have consistently held that the party submitting an affidavit has the duty to lay the proper foundation to establish admissibility. An affidavit from the custodian of the records or other qualified witness is necessary to establish foundation. See DuBray v. South Dakota Dept, of Social Services, 2004 SD 130, ¶ 15, 690 N.W.2d 657 (holding it is the burden of the proponent to establish trustworthiness and admissibility). The proper foundation for business records in a summary judgment proceeding is an affidavit from a custodian of the records or other qualified witness. In this case, the only evidence of admissibility was the attorney’s affidavit. The general rule is that attorney affidavits should not be used unless the matter is uncontested or a mere formality. We have explained use of an attorney’s affidavit as follows:

[w]hen submitting affidavits in support of summary judgment motions, an attorney’s affidavit is governed by the same rules of admissibility in regard to personal knowledge and competency.... Furthermore, an attorney’s affidavit should not be utilized for summary judgment decisions unless the testimony therefrom would be admissible at trial . the affidavits must not ... give evidence regarding matters that would be questions of fact.” Maryland Cas. Co. v. Delzer, 283 N.W.2d 244, 249 (S.D.1979).

Id.

[¶ 12.] Clearly, Andrushchenkos’ attorney was not the custodian of the police reports, and the court did not abuse its discretion by sustaining the objection. Additionally, none of the defendants contested that the water temperature was high enough to scald. Regardless of the ruling, the court indicated it considered the evidence of the water temperature because it came in through other admissible and relevant sources. Thus, for purposes of the summary judgment ruling, the court considered the evidence in the light most favorable to Andrushchenkos. The court took, as true, the fact that the water out of the tap was 160° F. and that the water heater thermostats were on the highest setting.

[¶ 13.] Andrushchenkos also offered evidence that the proper thermostat setting should have been lower than set by M&M. The evidence was in the form of a manual Andrushchenkos’ attorney received from the water heater manufacturer, Rheem, after a phone call to their service department. The attorney’s affidavit included the following:

3. On October 17, 2005,1 made a phone call to Rheem Manufacturing’s Technical Support Line at 1-800-432-8273.
4. I spoke to Mr. Brock Adams, an employee and technical support operator for Rheem Manufacturing.
5. Rheem manufacturing manufactures Richmond Water Heaters....
6. I gave Mr. Adams the model number of Defendant Silchuck’s water heater as listed in the Police Report of Officer Spaeth.
7. Mr. Adams searched his database and sent to me via e-mail .PDF copies of the Use and Care Manuals for Defendant Silchuk’s water heater model for the years 1992 (sent as Apl0960-i.pdf), 2000 (sent as Apl0960-10.pdf), and 2002 (sent as Apl0960-ll.pdf).

Copies of the manuals and Mr. Adams’s email were attached to the Affidavit as exhibits.

[¶ 14.] The use and care manual provided general safety precautions concerning the water temperature settings and warned that water temperatures over 125° F. could instantly cause severe burns or death from scalds. The manual also indicated that at the highest setting the water temperature would reach 160° F. Silchuks and Metzger objected arguing that the manual was irrelevant because the Sil-chuks’ water heaters were different models than depicted in the manuals, and that the manuals contained inadmissible hearsay and lacked proper foundation.

[¶ 15.] The circuit court ruled that the manuals lacked proper foundation. The court did not abuse its discretion in making that ruling. The attorney’s affidavit concerning who the attorney talked to and how the attorney retrieved the manual involved questions of fact, especially since defendants challenged whether this was the manual for the water heaters installed in Silchucks’ home. Using an attorney’s affidavit in this manner also runs the risk of the attorney becoming a fact witness in the case — clearly not allowed under the code of ethics. South Dakota Rules of Professional Responsibility 3.7(a)(1) (“a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless: (1) the testimony relates to an uncontested issue”). See also Maryland Cas. Co. v. Delzer, 283 N.W.2d 244, 249 (S.D.1979) (“an attorney’s affidavit should not be utilized for summary judgment decisions unless the testimony therefrom would be admissible at trial.”) (citation omitted).

[¶ 16.] On appeal, the attorneys for Andrushchenkos argue that the use and care manuals were self-authenticating and should have been admitted under SDCL 19-17-1(4) & (9). They claim each manual was self-authenticating because of its title, its reference to contact information at the same address as the manufacturer, its appearance, contents, substance, and internal patterns coupled with being directed to the consuming public and not litigation. They claim the manual set the standard by which Metzger and M & M were to install the water heaters and adjust the thermostats.

[¶ 17.] SDCL 19-17-1(4) & (9) set forth the requirements for a document to be self-authenticating:

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this section:
(4) Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
(9) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result.

SDCL 19-17-1(4) and (9) are identical to Federal Rules of Evidence 901(b)(4) and (9). A review of the manual reveals nothing in its appearance or content that makes it self-authenticating. In State v. Ratten, this Court stated that a proponent of self-authenticating evidence “must make a prima facia showing that evidence is what it purports to be.” 312 N.W.2d 469, 469-70 (S.D.1981). In this case, an examination of the manual makes no connection between the manual and the water heaters installed in the Silchuks’ home. The names of the manufacturer and model number are absent from the manual. Thus, the appearance and contents of the manual are insufficient to support a finding that it is the manual for the water heaters in Silchuks’ home under SDCL 19-17-1(4).

[¶ 18.] SDCL 19-17-1(9) also does not apply to the use and care manual. The Federal Rule Committee Notes explain the application of rule 901: “Example (9) is designed for situations in which the accuracy of a result is dependent upon a process or system which produces it. X rays afford a familiar instance. Among more recent developments is the computer....” Fed.R.Evid. 901, Advisory Committee Notes. Andrushchenkos argued the water heater manual established the relationship between water temperatures and scalds by way of a table attributed to the Shriners Burn Institute. The circuit court found the table lacked foundation. We agree. The table does not constitute the type of process referred to in SDCL 19-17-1(9).

[¶ 19.] Andrushchenkos also offered evidence of the 2003 version of the Uniform Plumbing Code, which they claimed set the water temperature standard at 120° F. The plumber who installed the water heaters testified that he set the water heaters at 125° F. However, Andrushchenkos admitted that the 2003 version of the Code was not in effect at the time the water heaters were installed. See Zens v. Chicago, Milwaukee, St. Paul and Pacific R. Co., 479 N.W.2d 155, 158 (S.D.1991) (recognizing that guidelines adopted after an alleged act of negligence have no tendency to prove the applicable standard of care). Thus, the 2003 Uniform Plumbing Code, which had not been adopted by the City of Sioux Falls at the time of D.A.’s injuries, was not relevant and had no tendency to establish a duty on the part of M & M to set the water heater thermostats at a lower temperature.

[¶ 20.] The circuit court did not abuse its discretion when it refused to consider the police reports, the water heater manual and the 2003 Uniform Plumbing Code because Andrushchenkos failed to lay the proper foundation for admissibility or to establish the relevance of the records.

2. Whether the circuit court erred in granting summary judgment because material facts were in dispute that required resolution by a jury.

[¶ 21.] “In order to prevail in a suit based on negligence, a plaintiff must prove duty, breach of that duty, proximate and factual causation, and actual injury.” Fisher Sand & Gravel Co. v. South Dakota Dept, of Trans., 1997 SD 8, ¶12, 558 N.W.2d 864, 867. “A duty can be created by statute or common law.” Id. Typically, existence of a duty is a question for the court to resolve. Hendrix, 2007 SD 73, ¶ 8, 736 N.W.2d at 847 (citing Erickson v. Lavielle, 368 N.W.2d 624 (S.D.1985)). The question involves “whether a relationship exists between the parties such that the law will impose upon the defendant a legal obligation of reasonable conduct for the benefit of the plaintiff.” Casillas v. Schubauer, 2006 SD 42, ¶ 14, 714 N.W.2d 84, 88.

Summary Judgment as to Silchucks

(a) Duty to Social Guests as Licensees

[¶ 22.] In our prior cases, we have retained the common law classifications of trespasser, licensee, and invitee in determining landowner liability. See Musch v. H-D Electric Cooperative, Inc., 460 N.W.2d 149, 150 (S.D.1990). The majority of courts that retain the common law distinctions classify social guests as licensees. See Restatement (Second) Torts § 330, 332. The general duty owed to licensees is “to warn of concealed, dangerous conditions known to the landowner.” Luke v. Deal, 2005 SD 6, ¶ 15, 692 N.W.2d 165, 169. The rationale for applying a lower standard of care to social guests versus business invitees is that the social guest is invited to the owner’s land as a favor and has no reasonable expectation that the owner will make the land safer for the social guest than the owner does for himself. The Restatement (Second) of Torts § 330 defines licensee as “a person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”

[¶ 23.] Thus, Silchuks had a duty to warn of any known concealed, dangerous conditions. Silchuks’ duty depends on whether they knew of the dangerous condition, and whether a reasonable person would have appreciated the danger the water temperature posed. In a summary judgment proceeding, the moving party has the burden of demonstrating the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. The evidence must be viewed in the light most favorable to Andrushchenkos. As the nonmoving party, Andrushchenkos must come forward with sufficient evidence, constituting more than mere conjecture, that there were genuine issues of material fact. See Burley, 2007 SD 82, ¶ 34, 737 N.W.2d at 408. Here, Andrush-chenkos failed to provide any affirmative evidence that the Silchuks knew the temperature of the water was excessively hot or that it presented a scalding danger. An-drushchenkos did not dispute that M & M set the thermostats and they were not tampered with after that. We need not determine if the temperature of the water met the requirements of a hidden danger because the facts, viewed in the light most favorable to Andrushchenkos, did not establish that Silchuks knew the water temperature presented a danger about which they had a duty to warn social guests.

(b) Undertaking of Special Gratuitous Duty

[¶ 24.] South Dakota recognizes the common law doctrine of gratuitous duty. State Auto Ins. Co. v. B.N.C., 2005 SD 89, 702 N.W.2d 379. The common law gratuitous duty rule is defined in Restatement (Second) of Torts, § 323, as adopted by this Court:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking if,
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking

The facts, viewed in the light most favorable to Andrushchenkos, do not support the implied or express undertaking of a gratuitous duty to be responsible for the care of D.A. while he was upstairs in the Silehuks’ home. The Andrushchenkos never expressly or impliedly relinquished their obligation to supervise D.A. See Sunnarborg v. Howard, 581 N.W.2d 397, 399 (Minn.App.1998) (“the responsibility for supervision of such child may be relinquished or obtained only upon mutual consent, express or implied, by the one legally charged with the care of the child and by the one assuming the responsibility”).

[¶ 25.] The duty of the Silehuks to protect D.A. and to warn of known hidden dangers is properly characterized as arising from D.A.’s status on Silehuks’ property as a licensee. No additional duty arose under the facts of this case. D.A.’s parents were present during the entire visit and were primarily responsible for the care and supervision of the child. At no time had they relinquished their responsibility. See Sunnarborg, 581 N.W.2d at 398-99 (“Generally, when a parent is present, the responsibility to provide for a child’s care and safety rests with the parent, and a third party does not stand in a special relationship to the child.”); O.L. v. R.L., 62 S.W.3d 469, 475 (Mo.App. W.D.2001) (it is the “acceptance of the custody and control of a minor child [that] creates a relationship sufficient to support a duty of care.”).

[¶ 26.] The circuit court did not err in granting summary judgment for Silehuks on the gratuitous duty claim.

Summary Judgment as to Metzger and M &M

[¶ 27.] Andrushchenkos argue the 2000 Uniform Plumbing Code, adopted by the city of Sioux Falls, established a duty on the part of both Metzger and M & M. However, the 2000 Code contains no language that would give rise to a duty not to set a water heater thermostat above 120° F. The 2000 Code merely provided that water heaters should not be set above a maximum temperature of 210° F. An-drushchenkos only other proffered evidence that Metzger and M & M had a duty not to set the thermostats above 120° F. was the water heater use and care manual, which was not admitted into evidence. Thus, Andrushchenkos failed to provide evidence of a statutory or common law duty to set the hot water heater thermostats at or below 120° F.

[¶28.] Based upon the evidence, the circuit court did not err in determining that Andrushchenkos failed to establish a duty. Summary judgment in favor of Metzger and M & M was proper.

[¶ 29.] Affirmed.

[¶ 30.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

[¶ 31.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 32.] I dissent solely on the issue whether there are genuine issues of material fact in relation to the negligence of Lyuba Silchuk.

[¶ 33.] The negligence of Lyuba must be viewed directly and not in comparison to that of D.A.’s mother or father. It is obvious that D.A.’s mother and father were negligent in permitting D.A., an aggressive three-year-old boy, to play by himself for an extended period of time on a separate floor of the house, especially knowing that he liked to turn on water faucets to the point of flooding on a prior occasion.

[¶ 34.] Lyuba was not aware of D.A.’s propensity to turn on faucets because D.A.’s mother did not tell her until later at the hospital. However, Lyuba was aware that D.A. was playing by himself on a separate floor of the house for an extended period of time. She knew he was an aggressive three-year-old boy because he had done some damage in her house and she had warned his mother that she would be responsible for any further damage. Lyu-ba was also aware that D.A.’s mother ignored her warning and left D.A. to play by himself on a separate floor. To an aggressive three-year-old boy, everything is an attractive nuisance, especially if he is left alone on a separate floor for an extended period of time.

[¶ 35.] All of these facts present genuine issues of material fact as to whether Lyuba was directly negligent to D.A. That Lyuba would be entitled to contribution from D.A.’s mother and father is immaterial to this lawsuit. That may be the subject of another lawsuit. In addition, the relationship between Lyuba and D.A. was such that the law will impose upon her a legal obligation of reasonable conduct for the benefit of D.A. See Casillas v. Schubauer, 2006 SD 42, 714 N.W.2d 84 (defendant could have reasonably anticipated his bull would stray onto the highway). Here, D.A., a three-year-old, is unlikely to be negligent in the eyes of the law, see Doyen v. Lamb, 75 S.D. 77, 79, 59 N.W.2d 550, 551 (1953), and is entitled to have a jury determine whether these genuine issues of material fact give rise to liability for negligence on the part of Lyuba.

[¶ 36.] The question here is not whether a homeowner is liable to a three-year-old boy when the negligence of the boy’s mother is greater than that of the homeowner. The question here is whether a homeowner is liable to a three-year-old boy when her negligence may have contributed to the boy’s injuries. Specifically, under Casillas and these circumstances, the question is whether Lyuba’s conduct was reasonable in relation to D.A. Therefore, summary judgment was premature and improperly granted under these circumstances. This case should be reversed and remanded for trial on this issue.

      . Many states have abrogated these classifications and have adopted a standard of “reasonable care under the circumstances” for all possessors of property. See Musch, 460 N.W.2d at 150. The parties have not requested we reconsider our prior rulings or if SDCL 20-9-1 abrogated the common law classifications and imposes a duty of ordinary care in all situations. The issue was neither briefed nor argued to the Court.