author: PER CURIAM.

text:
    2008 SD 63
    Jay Douglas HEINEN, Plaintiff and Appellee, v. Melissa Jo HEINEN, Defendant and Appellant.
    No. 24662.
    Supreme Court of South Dakota.
    Considered on Briefs May 19, 2008.
    Decided July 9, 2008.

      Carl F. Haberstick of Fosheim, Haber-stick & Hutchinson, Huron, South Dakota, Attorneys for plaintiff and appellee.
    Beverly J. Katz of Katz Law Office, Prof., LLC, Huron, South Dakota, Attorneys for defendant and appellant.
   PER CURIAM.

[¶ 1.] Melissa Heinen appeals the circuit court’s award of primary physical custody of her two children to her ex-husband, Jay Heinen, following her relocation to Vermillion from Huron. Because the record does not demonstrate an abuse of discretion by the circuit court, we affirm.

FACTS AND PROCEDURE

[¶ 2.] Melissa and Jay both resided in Huron. The couple had two children; N.H., born October 21, 1998; and Z.H., born May 11, 2001. Melissa and Jay were divorced in 2004. Based on their agreement, a shared parenting arrangement was adopted under which they shared custody of the children: visitation rotated, the children resided with Melissa for nine days and then Jay for five days.

[¶ 3.] Jay re-married in 2005. As a result of this marriage, two step-children lived with him. Additionally, Jay’s child from a prior marriage, the half-sister of N.H. and Z.H., also visited frequently.

[¶ 4.] Melissa had a series of relationships after the divorce involving at least one broken engagement. At the time of the hearing, she was again engaged to be married. She and her fiancé had dated for a while, had broken up, and then got back together. During that time, Melissa became pregnant and gave birth to a daughter. Melissa’s fiancé was the father of that child although he was not present for the birth: Melissa was dating another man at the time.

[¶ 5.] Following the most recent engagement, Melissa planned to move to Vermillion to live with her fiancé and their child. Based on this move, she filed a motion to relocate and requested that she be granted primary physical custody of the children as the current custody plan would not be practicable.

[¶ 6.] By all accounts both parents loved the children and were bonded with them. They were both involved in the children’s activities and education. The children were doing very well in school and had close Mends and family in Huron. The circuit court found that: both parents were involved in the children’s religious education and attended church with them, although Melissa was more involved than Jay; both were capable of providing for the medical needs of the children; the children were too young to indicate a parental preference; and the attachment to each parent appeared equal. Although Melissa had been the primary caretaker, her role was only slightly more involved than Jay’s: the circuit court characterized the difference as “minute.”

[¶ 7.] In reaching its custody decision, the circuit court found “[t]he minor children are bonded with both half sisters, and also their step siblings, however, the Court does not find that the bonding with their new half sister is to the extent presented by the mother’s testimony and her testimony to the extent of the bonding is not credible.” The court then articulated compelling factors that it found demonstrated the need for a change in custody that involved separation of the children from their .maternal half-sister. These factors included findings that the children would have approximately the same amount of contact with the half-sister that existed under the prior arrangement; there would remain significant contact under the visitation schedule; there was a difference in age and a “definite difference” in maturity and interests between the children and their maternal half-sister; a separation from the paternal siblings would occur by the move; and it was in the children’s best interests to remain in Huron.

[¶ 8.] The circuit court also relied on additional factors. It found that despite animosity between the parents, “one of the significant reasons the minor children have prospered [was] their stable relationship in the Huron community.” It further determined that Melissa had shown a lack of stability in her relationships, including with her present fiancé (now indicated to be her current husband in the briefs), and that Jay and his present wife had demonstrated a more stable home environment. The court finally found that: Jay’s present wife had a good relationship with the children and was involved in their care and upbringing; there was no evidence indicating whether Melissa’s fiancé would be of assistance and involved in the care and upbringing of the children; and the custody evaluators acknowledged that very little was known about the fíancé’s background. Based on all of the foregoing factors, the circuit court awarded primary physical custody to Jay with liberal visitation for Melissa. Melissa appeals.

ISSUE

[¶ 9.] Whether the circuit court abused its discretion in changing primary physical custody of the children to Jay.

[¶ 10.] The circuit court’s and this Court’s standards in a custody decision are well settled:

In deciding custody disputes between parents, “the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.” SDCL 25-4-45; Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 806). On appeal, we review a trial judge’s decision for error in incorrectly choosing, interpreting, or applying the law; for clear mistakes in fact findings; and for undue emphasis on matters not materially related to the child’s welfare. Fuerstenberg, 1999 SD 35, ¶ 35, 591 N.W.2d at 810. We expect that any decision will be balanced and methodical. Id. In considering the relevant evidence, courts should be cognizant of several “guiding principles.” Id. ¶ 23. These include parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings. See generally Fuerstenberg, 1999 SD 35, ¶¶ 23-32, 591 N.W.2d at 806-10.

Ameson v. Ameson, 2003 SD 125, ¶ 13, 670 N.W.2d 904, 909. Further, “[a] court is not bound to make a specific finding in each category; indeed, certain elements may have no application in some cases, and for other cases there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the children].” Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d at 53. Nevertheless, we recognize that custody determinations are not easy decisions, particularly in cases such as this where both parents are loving and bonded with the children.

It is a poignant reality that when parents contest the custody of their children, a court must make a choice. That choice is often difficult because between two loving parents there may be little to distinguish one over the other. Choosing between two satisfactory options falls within a judge’s discretion. Thus, in our review of an ultimate decision on custody, we decide only whether the court abused its discretion. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). Although we have repeatedly invoked stock definitions, the term “abuse of discretion” defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. See generally Adrian v. McKinnie, 2002 SD 10, ¶ 10, 639 N.W.2d 529, 533 (citations omitted). This standard is the most deferential of appellate review standards, but that does not mean that a judge’s custody decision will remain undisturbed. Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess their capabilities firsthand.

Ameson, 2003 SD 125, ¶ 14, 670 N.W.2d at 910.

[¶ 11.] Melissa contends that the circuit court abused its discretion by not placing enough importance on her role as the primary caretaker, and by failing to recognize the benefits of keeping the children with their maternal half-sibling and allowing the family unit to form in Vermillion. The circuit court, however, specifically addressed and considered Melissa’s role as the primary caretaker; the impact and considerations associated with separating the children from their maternal half-sister; and the advantages and disadvantages of moving the children to Vermillion. Moreover, a review of the circuit court’s detailed five-page single spaced memorandum decision, reflects that it addressed all appropriate factors, including a full consideration of the merits of both parents’ individual situation and the best interests of the children.

[¶ 12.] In weighing all appropriate factors, the circuit court indicated that stability was the primary area that it found compelling in this case. The circuit court found that Jay presented a more stable family unit, he was able to provide care for the children without necessitating daycare, and the children could remain in the same school without having to break friendships or establish new routines. On the other hand, Melissa had not secured employment in Vermillion, she planned to marry a man that was more of an unknown in the children’s lives, and her relationship with him had been unstable. Further, the circuit court noted that in this case there were half-siblings to consider on both sides, and there were compelling reasons to support the separation that would be necessitated under any circumstances by the move to Vermillion. On this record, there is no demonstration that the circuit court made a fundamental error in judgment, reached a decision outside the range of permissible choices, or acted arbitrarily or unreasonably.

[¶ 13.] Affirmed.

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

      . The settlement agreement incorporated into the divorce decree provided that “[t]he parties shall reside with said minor children in Beadle County, South Dakota, unless otherwise agreed. Each party shall act in accordance with SDCL 25-4A-17.” That statute provides in relevant part: "[i]f an existing custody order or other enforceable agreement does not expressly govern the relocation of the principal residence of a child, a parent who intends to change his or her principal residence shall, provide reasonable written notice ... to the other legal parent of the child.”

      . As stated in Fuerstenberg, factors to be considered related to stability include:
      (1) the relationship and interaction of the child with the parents, step-parents, siblings and extended families,

        (2) the child's adjustment to home, school and community,
      (3) the parent with whom the child has formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment; and
      (4) continuity, because when a child has been in one custodial setting for a long time pursuant to court order or by agreement, a court ought to be reluctant to make a change if only a theoretical or slight advantage for the child might be gained. Otherwise, the child’s sense of sustainment and belonging may be unnecessarily impaired. 1999 SD 35, ¶ 26, 591 N.W.2d at 808 (citations omitted).

      . The record indicates Melissa’s custody evaluator testified he did not interview the flaneé or inquire into his background; whereas Jay’s evaluator met with and interviewed Jay and his present wife and undertook a questionnaire designed to see how they functioned together as parents.


source: Caselaw Access Project

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

license: Public Domain

text:
    2008 SD 65
    Dean HOHM and Jean Hohm, as Guardians ad Litem and Conservators for Adam Hohm, Plaintiffs and Appellees, v. CITY OF RAPID CITY, a Municipal Corporation, Defendant, Third Party Plaintiff and Appellant, v. Charissa J. Hitchcock, Third Party Defendant.
    No. 24105.
    Supreme Court of South Dakota.
    Argued May 22, 2007.
    Decided July 16, 2008.
    Rehearing Denied Sept. 2, 2008.

      Steven J. Oberg, Thomas G. Fritz, Catherine M. Sabers, Lynn, Jackson, Shultz & Lebrun, P.C., Rapid City, for plaintiffs and appellees.
    John K. Nooney, Thomas, Nooney, Braun, Solay & Bernard, LLP, Rapid City, for defendant, third party plaintiff and appellant.
   ZINTER, Justice.

[¶ 1.] This case arises out of a one-car accident in a city park in Rapid City, South Dakota (the City). Adam Hohm (Adam) was severely injured when the car in which he was a passenger skidded off a street in the park and landed upside down in a nearby canal. Adam’s parents, Dean and Jean Hohm (Hohms), acting as Adam’s guardians and conservators, brought suit against the City alleging breach of various duties relating to streets. The City filed a series of motions to dismiss on the basis that it owed no duty to Adam. All of the City’s motions were denied and a jury entered a verdict for Hohms. The City appeals. Although we conclude that cities no longer owe the common-law duty applied by the circuit court, we apply our ruling prospectively and affirm the judgment.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Between nine and ten p.m. on December 27, 2000, sixteen-year-old Char-issa Hitchcock (Charissa) was driving her car on a slippery, snow-covered street through Canyon Lake Park in Rapid City. Adam, also age sixteen, was riding as a passenger in the car along with another teenage passenger. As Charissa drove through the park, she came to a sharp curve in the road and lost control of her vehicle. The car skidded off the street and landed upside down in a nearby canal. Charissa and the other passenger were quickly rescued from the vehicle, but Adam was trapped underwater in the car and was deprived of oxygen for a period of time. Adam suffered severe brain damage as a result of the accident.

[¶ 3.] Hohms sued the City claiming violation of duties regarding the construction and maintenance of streets, the erection of guards, and the posting of signs warning of known dangers. The City moved for summary judgment, directed verdict, JNOV, and a new trial, all on the basis that it owed no duty to Adam. The City’s motions were denied and, after a jury trial, a verdict was entered in favor of Hohms. The City appeals claiming that the trial court erred in denying its motions because it owed no duty to Adam. The existence of a duty in a negligence action is a question of law subject to de novo review by this Court. State Auto Ins. Companies v. B.N.C., 2005 SD 89, ¶20, 702 N.W.2d 379, 386.

DECISION

[¶ 4.] One of the elements of a negligence claim is a duty on the part of the defendant. Id. The trial court concluded that the City owed Adam common-law duties to construct and maintain its streets in a reasonably safe manner and to erect guards or other barriers against dangerous conditions. The trial court further concluded that the City had a statutory duty under SDCL 31-28-6 to erect signs warning of known dangers. The City first argues that any common-law duties it may have owed were extinguished in 1915 and 1939 by the enactment of statutes regulating the duty of cities, towns, counties, and townships regarding the construction and maintenance of streets and highways. This argument requires analysis of the development of the law of county, township, and municipal liability for negligence relating to streets and highways.

[¶ 5.] The duties of counties and municipalities as to highways were first addressed by this Court in Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219 (1894), a case involving damages caused by a defective bridge constructed by a county. The Court held in Bailey that, while municipalities were liable at common law for injuries resulting from defects in highways, counties were not liable in such cases in the absence of legislation making them liable. In explaining this difference, the Court drew the following distinction between counties and municipalities:

The ground upon which it is held that counties are not liable for damages in actions of this character is that they are involuntary political divisions of the state, created for governmental purposes, and are organized without regard to the consent or dissent of the inhabitants; and the theory upon which municipal corporations, proper, are held liable in such cases, is that they are voluntary associations created and organized at the solicitation of, and with the free consent of, the inhabitants, under the laws of the state, and that the benefits accruing to the people by such incorporation compensate them for the liability.

Id. at 399, 59 N.W. at 221 (emphasis added).

[¶ 6.] The Court based this distinction on principles of sovereign immunity that, in the common law, protected counties and townships, as political divisions of the State, from liability for neglect of duties regarding highways unless an action was expressly authorized by statute. See id. (citing Barnett v. Contra Costa Co., 67 Cal. 77, 7 P. 177 (1885)). The Court continued to utilize principles of sovereign immunity as a basis for distinguishing between common-law municipal liability and county and township liability in a number of subsequent cases. See Norberg v. Hagna, 46 S.D. 568, 572-78, 195 N.W. 438, 440 (1923)(municipal corporations are liable for damages caused by negligence when their duties are ministerial and are liable for negligence in permitting obstructions or defects in streets and highways); Jensen v. Juul, 66 S.D. 1, 5, 278 N.W. 6, 8 (1938)(counties, townships and school districts classified as quasi public corporations are instrumentalities of the State for the purpose of carrying into effect the functions of government and are not liable for damages caused by negligent performance of such duties unless a cause of action is expressly given by statute); Williams v. Wessington Tp., 70 S.D. 75, 77, 14 N.W.2d 493, 494 (1944)(counties and townships are political subdivisions of the State or quasi corporations exercising part of the State’s sovereign power and are not hable in the absence of a statute imposing liability for injuries caused by defective highways, while municipalities are liable for failure to use due care to keep streets in reasonably safe condition for public travel); Conway v. Humbert, 82 S.D. 317, 319, 145 N.W.2d 524, 526 (1966)(a municipal corporation has both governmental and corporate, private or proprietary powers and, when using governmental powers, it is not liable for tort because it is an agent of the State partaking of its sovereignty, yet it is liable for negligence when exercising its corporate or private powers); Bucholz v. City of Sioux Falls, 77 S.D. 322, 328, 91 N.W.2d 606, 610 (1958)(a municipality engaged in construction, repair or maintenance of streets and sidewalks acts in a corporate or proprietary capacity and is hable for injuries resulting from the negligence of its officers and agents).

[¶ 7.] Consistent with the holdings distinguishing county and municipal liability, this Court handed down a long line of decisions recognizing a common-law duty on the part of municipalities to keep, repair or maintain streets and sidewalks in a reasonably safe condition for public travel. See Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315 (1902); Jones v. City of Sioux Falls, 18 S.D. 477, 101 N.W. 43 (1904); Fritz v. City of Watertown, 21 S.D. 280, 111 N.W. 630 (1907); Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848 (1909); Connell v. City of Canton, 24 S.D. 572, 124 N.W. 839 (1910); Rowe v. Richards, 32 S.D. 66, 142 N.W. 664 (1913), overruled on other grounds, Ulvig v. McKennan Hospital, 56 S.D. 509, 229 N.W. 383 (1930); Keen v. City of Mitchell, 37 S.D. 247, 157 N.W. 1049 (1916); Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631 (1918); Ellwein v. Town of Roscoe, 42 S.D. 298, 174 N.W. 748 (1919); Stewart v. City of Watertown, 43 S.D. 489, 180 N.W. 945 (1921); Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281 (1921); Norberg, supra; Doolin v. City of Winner, 48 S.D. 400, 204 N.W. 899 (1925); Usletten v. City of Brookings, 59 S.D. 477, 240 N.W. 851 (1932); Drake v. City of Mobridge, 60 S.D. 79, 243 N.W. 429 (1932); Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525 (1932); Fenton v. Ackerman, 66 S.D. 465, 285 N.W. 516 (1939); Williams, supra; Kimball v. City of Sioux Falls, 71 S.D. 35, 20 N.W.2d 873 (1945); McCleod v. TriState Milling Co., 71 S.D. 362, 24 N.W.2d 485 (1946); Gurney v. Rapid City, 74 S.D. 194, 50 N.W.2d 360 (1951); Poppen v. City of Watertown, 74 S.D. 402, 53 N.W.2d 616 (1952); Bucholz, supra; Rapid City v. First Nat’l Bank of Black Hills, 79 S.D. 38,107 N.W.2d 693 (1961).

[¶ 8.] In contrast with the common-law duty of municipalities, the Court held that county and township duties as to highway maintenance were statutory. For example, in the early case of Hanigan v. Minnehaha County, 47 S.D. 606, 609, 201 N.W. 522, 523 (1924), this Court observed as to county liability that:

Prior to the adoption of chapter 210, Laws 1915, which chapter was the original source of said sections 8589 and 8590, it was the settled law of this jurisdiction, following the rule of the common law, that a county was not liable for damages caused by the neglect of its officers to keep in repair a bridge upon a public highway because there was no express statute creating such a liability. That doctrine was enunciated in [Bailey, supra.]

See also Williams, supra (stating, before 1915, there was no statute imposing liability on townships-which are generally treated the same as counties-but, by chapter 210, Laws 1915, townships (and counties) were made liable under certain circumstances for injuries sustained because of defects in highways).

[¶ 9.] This 1915 act, referenced in Han-igan, supra and Williams, supra, was the first legislation imposing liability for negligence in highway maintenance. It explicitly applied not only to townships and counties, but also to towns and cities and broadly provided:

§ 1. Guards Erected — Repairs made. It shall be the duty of the road supervisors of any township, town or city, and the county commissioners of any county not fully organized into civil townships, to keep all public roads and highways, culverts and bridges in such condition as to render them safe and passable and free from danger of accidents or injury to persons or property, while in the lawful use thereof, and in case such roads, highways, culverts or bridges shall become in whole or in part destroyed or out of repair by reason of floods, fires or any other cause, to such an extent as to endanger the safety of public travel, it shall be their duty upon receiving notice thereof to cause to be erected, for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defects, or across such roads or highways, of sufficient height, width and strength to warn and guard the public from accident or injury to the person or property thereof, and it shall also be their duty to repair the same within a reasonable time thereafter. It shall also be the duty of any such supervisors to protect any abandoned public road or highway with substantial guards as provided in this act. § 2. Penalty. Any such officer or officers, who shall violate the provisions of this act shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than ten ($10.00) dollars, nor more than fifty ($50.00) dollars, or by imprisonment in the county jail for a term of not less than five (5) days, nor more than ten (10) days, or both such fine and imprisonment.
§ 3. Damages. Any person shall have a cause of action against such city, town, township or county for injury to persons or property sustained by reason of any violation of the provisions of this act. § 4. All acts and parts of acts in conflict with this act are hereby repealed.

1915 S.D.Sess.L. ch. 210 (emphasis added).

[¶ 10.] The 1915 legislation went through various changes and modifications over the following years. It was first amended and codified at sections 8589 and 8590 of the Revised Code of 1919. Those sections retained the references to counties, townships, cities and towns and further retained broad duties relating to highways:

§ 8589. Guards Erected-Repairs. It shall be the duty of the governing body of every city, incorporated town and organized civil toumship, and of the board of county commissioners in territory not included in any such city, town or township, to keep the public highways, culverts and bridges in such condition as to render them safe, passable and free from danger of accident or injury to persons or property while in the lawful use thereof; and in case any highway, culvert or bridge shall become, in whole or in part, destroyed or out of repair by reason of floods, fires or other cause to such an extent as to endanger the safety of public travel, it shall be the duty of such governing body or board, upon receiving notice thereof, to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width and strength to warn and guard the public from accident or injury, and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert or bridge as provided in this article.
§ 8590. Violation-Penalty-Damages. Any officer who shall violate the provisions of the preceding section shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not less than ten nor more than fifty dollars or by imprisonment in the county jail not less than five nor more than ten days, or by both such fine and imprisonment; and any person who shall sustain injury to person or property by reason of any violation of such section shall have a cause of action against the city, town, township or county as the case may be.

SD Rev Code 1919, § 8589, § 8590 (emphasis added).

[¶ 11.] In 1939, these two sections of the Revised Code of 1919 were replaced by SDC § 28.0913. That act retained the reference to counties, townships, cities and towns, but limited those entities’ duties as follows:

In case any highway, culvert, or bridge shall become in whole or in part destroyed or out of repair by reason of floods, fires, or other cause to such an extent as to endanger the safety of public travel, it shall be the duty of the governing body or board under statutory duty to maintain such highway, culvert, or bridge upon receiving notice thereof to cause to be erected for the protection of travel and public safety, within twenty-four hours thereafter, substantial guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and to repair the same within a reasonable time thereafter. It shall also be the duty of such governing body or board to guard any abandoned public highway, culvert, or bridge in like manner.
Any person who shall sustain injury to person or property by reason of any violation of this section shall have a cause of action against the county, township, city, or town as the case may be for such damages as he may have sustained.

1939 SDC § 28.0913 (emphasis added).

[¶ 12.] The 1939 statutory changes were significant in two respects. First, they removed the broad duty imposed by § 8589 to keep public highways safe and free from danger, retaining only the limited duty to guard and repair highways that were destroyed or out of repair. See Reaney v. Union County, 69 S.D. 392, 395, 10 N.W.2d 762, 763 (1943). In Reaney, the county argued that these changes indicated an intention to narrow the scope of its liability for negligence in highway maintenance. This Court agreed holding: “The broad general duty to maintain a reasonably safe highway has been eliminated, and the specific duty to guard and repair a damaged or destroyed highway has been retained.... The conclusion is unavoidable that the liability of the county has been abridged by revision.” Id. at 396-97, 10 N.W.2d at 764. This conclusion was reaffirmed in Dohrman v. Lawrence County, 82 S.D. 207, 210, 143 N.W.2d 865, 867 (1966)(stating that in adopting the 1939 revision, the legislature curtailed the statutory duty to render highways safe and it is now established that a county’s obligation is confined to the specific duty to guard and repair a damaged or destroyed highway). To the extent these statutes were inconsistent with the common law, the common law was abrogated. This Court stated such revisions:

[I]mpliedly eliminated common law negligence in keeping and maintaining county roads as the base for a cause of action against [a] County. If in the spirit of so-called enlightened public policy changes in the governing statute are again deemed appropriate, we believe the legislature will be cognizant of the need and will not remain insensitive to its responsibility.

Id. at 212,143 N.W.2d at 868.

[¶ 13.] The development of these statutes abrogating the common law and imposing statutory liability for negligence in highway maintenance is also important because, as emphasized in the text of all statutes quoted above, the change applied not only to counties and townships, but also to cities and towns, a point not previously recognized in our jurisprudence. Relying on both changes, the City argues that the legislative inclusion of cities and towns in the statutes abrogated its common-law duties as to highway maintenance and subjected it to the new, limited statutory liability identical to that of counties and townships; i.e., that the narrowing of statutory duties in 1939, as recognized in Reaney, supra and Dohrman, supra, also applied to municipalities. If applicable to municipalities, the current successor to 1939 SDC § 28.0913, SDCL 31-32-10, limits liability like the 1939 legislation as follows:

If any highway, culvert, or bridge is damaged by flood, fire or other cause, to the extent that it endangers the safety of public travel, the governing body responsible for the maintenance of such highway, culvert, or bridge, shall within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger. The governing body shall erect a similar guard across any abandoned public highway, culvert, or bridge. Any officer who violates any of the provisions of this section commits a petty offense.

SDCL 31-32-10. Thus, the City contends that under the 1915, 1939, and current version of these statutes, its common-law duty was abrogated and its statutory duty is the same as counties and townships. The City further contends that, under SDCL 31-32-10 and the facts of this case, it owed no duty at all because the Rapid City street was not “damaged” or “abandoned” as required by that statute: rather, allegedly the street was defectively constructed, maintained, or lacked adequate warnings.

[¶ 14.] These contentions require us to address the effect of changes in statutes on the common law. There is no question that the common-law doctrine as set forth in Bailey predates any relevant statutory enactments on duties of a municipality concerning streets. The test for whether a statute overrides a previously recognized common-law doctrine was established in our first Territorial Code of 1877:

The evidence of the common law, including the law merchant, is found in the decisions of the tribunals.
In this state the rules of the common law, including the rules of the law merchant, are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23.

SDCL 1-1-24 (originally Rev.Code Terr. Dak, Civil Code §§ 5 & 6 (1877)). One of the methods of expressing the “will of the sovereign power” in SDCL 1-1-23 (originally Rev.Code Terr.Dak, Civil Code § 3 (1877)) to override the common law is “[b]y statutes enacted by the Legislature])]” Thus, in case of a conflict, the statute controls.

[¶ 15.] These principles have been reflected in the decisions of this Court.

As a general precept, common law is in force, except where it conflicts with the will of the sovereign power as expressed through the constitution, statutory enactments, and ordinances. SDCL 1-1-23, 1-1-24. See also McKellips v. Mackintosh, 475 N.W.2d 926, 929 (S.D. 1991). Where a statute is in derogation of common law, it should be “liberally construed with a view to effect its objects and to promote justice.” SDCL 2-14-12.

State v. Shadbolt, 1999 SD 15, ¶ 13, 590 N.W.2d 231, 233. In Burnett v. Myers, 42 S.D. 233, 173 N.W. 730 (1919), this Court considered whether a common-law cause of action remained in force despite the enactment of a statutory-based remedy. In holding that an analogous common-law cause of action for trespassing livestock did not survive, this Court adopted the following principles:

“When a statute revises the whole subject of a former one and is clearly designed as a substitute, the former law is repealed, although no express terms to that effect are used. Hillsborough County v. Manchester, 49 N.H. 57, 60; Opinion of Justices, 66 N.H. 629, 668-671, 33 A. 1076. ‘The rule does not rest strictly upon the ground of repeal by implication, but upon the principle that when the Legislature makes a revision of a particular statute, and frames a new statute upon the subject-matter, and from the framework of the act it is apparent that the Legislature designed a complete scheme for this matter, it is a legislative declaration that whatever is embraced in the new law shall prevail, and whatever is excluded is discarded. It is decisive evidence of an intention to prescribe the provisions contained in the later act as the only ones on that subject which shall be obligatory.’ Roche v. Jersey City, 40 N.J.L. 257, 262. The rule is the same when the common law is revised by statute. State v. Wilson, 43 N.H. 415, 419, 82 AmDec 163; State v. Morgan, 59 N.H. 322, 324.”

Id. at 234, 173 N.W. at 731 (emphasis added)(quoting Boston Ice Co. v. Boston & M.R.R., 77 N.H. 6, 86 A. 356, 360 (N.H. 1913)). The Court’s analysis in Burnett is instructive here:

It is true that so far as the substance of the right declared in said chapter [244, Laws of 1907,] is concerned, it is merely declaratory of the common law. But chapter 244 goes further than to merely restate the common-law right; it prescribes the method of procedure to secure the remedy; it assumes to cover the whole subject-matter of damages caused by trespassing animals, including the rules of practice to be followed in such cases. It is clear from the degree of minuteness with which the Legislature went into the whole subject, that the remedy provided was intended to be exclusive, and that it was the intent of the Legislature to repeal any existing provisions of that act.

Id. at 234-35, 173 N.W. at 731 (citations omitted).

[¶ 16.] Applying these principles to the original 1915 legislation on liability for negligence in highway maintenance, we observe that chapter 210 imposed duties on the road supervisors of “any township, town or city,” and on county commissioners to keep highways safe, passable and free from danger; to erect guards over substantial defects; and to complete repairs when such highways were destroyed or fell out of repair. 1915 SDSessL ch 210, § 1 (emphasis added). The act provided criminal penalties for its violation and a civil cause of action for persons injured as a result of noncompliance with its provisions. Id. at §§ 2 & 3. Finally, the act expressly provided that all other acts and parts of acts in conflict with it were repealed. Id. at § 4.

[¶ 17.] Clearly, the detailed provisions of chapter 210 express legislative intent to design a complete scheme of responsibility and liability for highway maintenance such that its requirements should be the only ones that were obligatory. Robinson v. Minnehaha County, 65 S.D. 628, 277 N.W. 324 (1938). Robinson stated:

From [chapter 210] there emerges an unmistakable legislative intent to definitely fix the respective duties of the several subdivisions enumerated with reference to public safety and travel on the highways, and to provide for the recovery of damages from a particular subdivision occasioning injury through failure to perform the statutory duty assigned to it.

Id. at 632, 277 N.W. at 326 (emphasis added).

[¶ 18.] Consequently, chapter 210 did not merely restate the common-law duty of municipalities as to maintenance of streets, it prescribed the new statutory duties for cities, towns, counties and townships, enacted criminal penalties, and created a civil cause of action for violation of those duties. To paraphrase the Court’s conclusion in Burnett, it is clear from the degree of minuteness with which the legislature went into the whole subject, that the act was intended to be exclusive, and that it was the intent of the legislature to repeal any other acts or provisions of common law pertaining to the same subject.

[¶ 19.] Even if we were to determine that some vestige of the common-law liability of municipalities survived the enactment of chapter 210 in 1915, we hold that it was fully abrogated by the 1939 statutory revisions that eliminated the broad duty to maintain reasonably safe highways and confined counties and townships, as well as cities and towns, to the more limited duty to guard and repair highways that are damaged or destroyed. See 1939 SDC § 28.0913; Reaney, 69 S.D. at 396-97, 10 N.W.2d at 764; Dohrman, 82 S.D. at 210, 143 N.W.2d at 867.

[¶ 20.] Based upon this history, cities’ common-law duties respecting streets were abrogated by these legislative enactments. The duties are now limited by statute, and any language in the decisions of this Court after 1939 recognizing a common-law duty on the part of municipalities with regard to streets or highways is hereby overruled. This would include the language regarding a common-law duty in: Williams, 70 S.D. at 77, 14 N.W.2d at 494 (citing Norberg, supra and Jensen, supra for “[t]he general rule ... that cities and towns are liable for injuries sustained in consequence of their failure to use due care to keep their streets in a reasonably safe condition for public travel.”); Kimball, 71 S.D. at 40, 20 N.W.2d at 875 (quoting City of Dallas v. Maxwell, 248 S.W. 667, 670 (Tex.Com.App.1923) for the statement that “ ‘the general rule is that a municipality is charged with the duty of exercising ordinary care to so construct and maintain its public highways as to render them reasonably safe for ordinary travel’”); McCleod, 71 S.D. at 367, 24 N.W.2d at 487 (citing Bohl, supra and other South Dakota cases holding that “[a] municipal corporation is charged with the duty of keeping its streets and sidewalks in a reasonably safe condition.”); Gurney, 74 S.D. at 197, 50 N.W.2d at 361 (citing Keen, supra and other South Dakota cases where this Court applied the rule that it is “[t]he duty of a municipality to keep its streets and sidewalks reasonably safe for the use of the public”); Poppen, 74 S.D. at 404, 53 N.W.2d at 617 (quoting Bohl, 15 S.D. at 624, 91 N.W. at 317, for the rule, “ ‘[t]he law does not require that the city shall do more than keep its streets and sidewalks in a reasonably safe condition’ ”); and Bucholz, 77 S.D. at 329, 91 N.W.2d at 610 (quoting Norberg, 46 S.D. at 573, 195 N.W. at 439, referring to the “ ‘law that requires a municipal corporation to keep its streets free from nuisances, and reasonably safe for those who lawfully use them’ ”). Although we tread reluctantly upon these precedents, as observed by Justice Brandéis in his dissenting opinion in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-06, 52 S.Ct. 443, 447, 76 L.Ed. 815 (1932)(Brandeis, J., dissenting), stare decisis is not an “inexorable command” and is not inflexible. Reconsideration of precedent is appropriate where a shift in position results from intervening development of the law through the growth of judicial doctrine or through further action taken by a legislative body. See Patterson v. McLean Credit Union, 491 U.S. 164, 173, 109 S.Ct. 2363, 2370, 105 L.Ed.2d 132 (1989). Such is the case here where comprehensive legislation was enacted following this Court’s early decisions recognizing a common-law duty on the part of municipalities and our subsequent decisions regarding municipalities did not discuss the legislation.

[¶ 21.] Hohms argue that any decision overruling these precedents should be applied prospectively only. Generally, unless a court declares otherwise, a decision has both prospective and retroactive effect. Burgard v. Benedictine Living Communities, 2004 SD 58, ¶ 9, 680 N.W.2d 296, 299. Courts, however, have inherent power to apply decisions prospectively only. Id. In determining whether a decision should be given only prospective effect, courts consider the following factors:

First, the decision to be applied nonret-roactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[w]here a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our eases for avoiding the injustice or hardship” by a holding of nonretroactivity.

Id. ¶ 10, 680 N.W.2d at 299 (quoting Brown v. John Morrell & Co., 511 N.W.2d 277, 278 (S.D.1994)(quoting Fisher v. Sears, Roebuck & Co., 88 S.D. 1, 4-5, 214 N.W.2d 85, 87 (1974)(quoting Chevron Oil Co. v. Huson, 404 U.S. 97, 106, 92 S.Ct. 349, 355, 30 L.Ed.2d 296, 306 (1971)))).

[¶ 22.] Today’s decision establishes a new principle of law by overruling the above precedents upon which litigants have relied and by deciding an issue of first impression whose resolution was not clearly foreshadowed. While it is suggested that our decisions in Gulbranson v. Flandreau Township, 458 N.W.2d 361 (S.D.1990) and Wilson v. Hogan, 473 N.W.2d 492 (S.D.1991) foretold this decision, we disagree. Neither of those cases addressed the issue in this case, ie., the effect of the statutes regulating liability for negligence in highway maintenance on the common-law liability of municipalities. In discussing a township’s liability in Gulbranson and the State’s waiver of immunity in Wilson, the Court did state that the limited statutory duties remaining under SDCL 31-32-10 apply to “public entities].” See Gulbranson, 458 N.W.2d at 362; Wilson, 473 N.W.2d at 496. Although a “public entity” includes a municipality (see SDCL 3-22-2(12)), we decline to view this choice of terminology as foreshadowing a decision that the liability statutes abrogated the common-law liability of municipalities. The common-law liability of municipalities rested on many years of settled precedent and its abrogation could not be so easily foreseen in the simple turn of a phrase.

[¶ 23.] We also decline to view the existence of the liability statutes themselves as foreshadowing this decision. See Baatz v. Arrow Bar, 426 N.W.2d 298 (S.D.1988); Brown, supra; Burgard, supra (resolution of issue foreshadowed by interpretation of existing statutes/statutory construction does not make new law but interprets existing law). Despite the long-standing existence of those statutes, this Court continued to affirm and reaffirm that municipalities had a common-law duty to maintain their streets in a reasonably safe condition. See Williams, supra; Kimball, supra; McCleod, supra; Gurney, supra; Poppen, supra; Bucholz, supra. The litigants and trial court were well placed in relying on this settled law. In light of those decisions, the liability statutes could not have foreshadowed today’s holding first recognizing the legislative abrogation of the common-law duty. This reliance on settled law also supports prospective application of this decision under the remaining Chevron Oil factors, i.e., the merits and demerits of the case and the inequities imposed by retroactive application. See Burgard, 2004 SD 58, ¶ 12, 680 N.W.2d at 301 (noting that the principal rationale for allowing prospective application is the reliance of the parties on the old rule of law). Based upon the foregoing factors, we hold that this decision is prospective only.

[¶ 24.] Thus, under our prior cases, we conclude that the trial court did not err in determining that the City had a common-law duty to safely maintain its streets. See Williams, 70 S.D. 75, 14 N.W.2d 493; Kimball, 71 S.D. 35, 20 N.W.2d 873 (the cases relied upon by the trial court). Given this conclusion and the fact that a general verdict was entered, we do not address the City’s additional arguments that it owed no duty to properly design, construct and maintain streets or to erect guards under SDCL 31-32-10, and that it owed no duty to warn of known dangers under SDCL 31-28-6. See Eberle v. Siouxland Packing Co., Inc., 266 N.W.2d 256, 258 (S.D.1978) (stating that if a general verdict is rendered and the jury could have decided the case on two theories, one proper and one improper, the reviewing court will assume the case was decided on the proper theory).

[¶ 25.] Affirmed.

[¶ 26.] GILBERTSON, Chief Justice, concurs.

[¶ 27.] KONENKAMP, Justice, and MILLER, Retired Justice, concur specially.

[¶ 28.] MEIERHENRY, Justice, concurs in result.

[¶ 29.] MILLER, Retired Justice, for SABERS, Justice, disqualified.

KONENKAMP, Justice

(concurring specially).

[¶ 30.] Today we examine for the first time the full extent of a 1939 statute on municipal liability for street maintenance and construction. We conclude that the Legislature has strictly limited municipal liability for city streets to instances where the city fails to provide guards for an “abandoned” highway or neglects to timely repair or guard a “highway, culvert, or bridge ... damaged by flood, fire or other cause[J” SDCL 31-32-10.

[¶31.] This is a sharp change in direction. Almost from the time of statehood, cities have been liable under the common law for negligence in failing to maintain streets in a reasonably safe condition for the traveling public. Beginning in 1915, however, and continuing in 1919, South Dakota “entered upon a new era of highway construction.” Hanigan v. Minnehaha County, 47 S.D. 606, 201 N.W. 522, 522 (1924). In those years, the Legislature began to enact “comprehensive” laws to divide among government entities responsibility and accountability on the construction and maintenance of highways. Id. Counties and townships, previously immune under the common law, were laid open to negligence liability, along with cities and towns, for failure to keep public highways “safe, passable and free from danger from accident or injury to persons or property.” Revised Code of 1919, § 8589.

[¶ 82.] As the Court capably explains here, once having embraced the entire subject of highway liability in the early twentieth century, the Legislature then acted to limit that liability in 1939, with the enactment of the predecessor to SDCL 31-32-10 (SDC § 28.0913). Legislative intent to abrogate a common-law rule may be shown expressly when the language “ ‘speaks directly’ to the question addressed by the common law.” Rios v. Nicholson, 490 F.3d 928, 931 (Fed.Cir. 2007) (quoting United States v. Texas, 507 U.S. 529, 534, 113 S.Ct. 1631, 1634, 123 L.Ed.2d 245 (1993)); see also Midlantic Nat’l Bank v. N.J. Dept. of Envtl. Prot., 474 U.S. 494, 501, 106 S.Ct. 755, 759, 88 L.Ed.2d 859 (1986); Isbrandtsen Co. v. Johnson, 343 U.S. 779, 783, 72 S.Ct. 1011, 1014-15, 96 L.Ed. 1294 (1952). From the language of the statute, it is clear the Legislature spoke directly to the question addressed by the common law.

[¶ 33.] South Dakota is not the only state to limit governmental liability for highway construction and design. As society became more mobile in the last century, with the increasing role motor vehicles played in every facet of American life, government officials struggled with ways to contain the costs of building and maintaining safe roads. See generally Don F. Vacearo, Annotation, Liability of Governmental Entity or Public Officer for Personal Injury or Damages Arising Out of Vehicular Accident Due to Negligent or Defective Design of a Highway, 45 A.L.R.3d 875 (1972). A sovereign power has the authority to limit its lawsuit liability. McKellips v. Mackintosh, 475 N.W.2d 926, 929 (S.D.1991). In South Dakota, common-law rules remain in force “except where they conflict with the will of the sovereign power,” embodied in our constitution and statutes. Id. (citing SDCL 1-1-24; SDCL 1-1-23).

[¶ 34.] A troubling question arises: Why are we only discovering now that a statute enacted almost seventy years ago must be given effect after today? The answer is that until today, this Court has never been called upon to decide whether a municipal corporation’s common-law duty to maintain streets in a reasonably safe condition has been abrogated by legislation. While there have been cases examining the language of the 1939 statute, along with its predecessors and later amendments, no case involved a claim against a municipality where that statute was raised.

[¶ 35.] Nonetheless, there remains a considerable body of law retaining municipal common-law liability, and today’s opinion should be read narrowly. This Court has recognized causes of action against municipalities for negligence arising from many functions other than the duty to maintain streets. See Elkjer v. City of Rapid City, 2005 SD 45, 695 N.W.2d 235 (defective water service lines); Pierce v. City of Belle Fourche, 2001 SD 41, 624 N.W.2d 353 (city owed a duty of reasonable care in the operation of its airport); Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986) (maintenance of a city pool); Rikansrud v. City of Canton, 79 S.D. 592, 116 N.W.2d 234 (1962) (maintenance of sewer or water utilities); Bucholz v. City of Sioux Falls, 77 S.D. 322, 91 N.W.2d 606 (1958) (maintenance of a city hall); Orrison v. City of Rapid City, 76 S.D. 145, 74 N.W.2d 489 (1956) (maintenance of a swimming pool dressing room); Glirbas v. City of Sioux Falls, 64 S.D. 45, 264 N.W. 196 (1935) (maintenance of a swimming pool); Norberg v. Hagna, 46 S.D. 568, 195 N.W. 438 (1923) (municipality’s liability for placement of a diving board in a park swimming pool).

[¶ 36.] A question that should be left open here is what influence our ruling will have on our numerous precedents dealing with sidewalks. In today’s opinion, the Court explicitly overrules language mentioning municipal street and sidewalk liability in several cases, but ultimately some of these cases deal only with sidewalks. It is true that streets and sidewalks have often been referred to without distinction. Norberg, 46 S.D. 568, 195 N.W. at 440 (“A municipal corporation is liable for negligence in permitting obstructions or defects in its streets and sidewalks.”). A majority of cases have defined a sidewalk as a walkway that is part of the street. See Hos-kinson v. City of Iowa City, 621 N.W.2d 425, 428 (Iowa 2001) and cases cited therein. But even if sidewalks are to be considered as parts of streets, a question we should not reach now, not all so-called sidewalks are attached to or alongside streets. Id. Consequently, these issues must await another case.

[¶ 37.] Finally, it must be candidly acknowledged that our purported new rule here is, in actuality, merely dictum. Although we declare that, after today, munie-ipal common law liability for injuries arising out of negligent failure to keep • city streets in safe condition for travel stands abrogated by legislative enactment, our decision is entirely prospective. It does not resolve the issue here or apply to the parties in this case. “Obviously language purporting to overrule a case prospectively only is dictum, for it is inapplicable to the parties or the controversy before the court. In future cases the court will not be bound to follow this dictum, and therefore the overruling is but a myth.” Candler S. Rogers, Perspectives on Prospective Overruling, 36 UMKCLRev 35, 46-47 (1968). This, in no way, detracts from the legitimacy or fairness of our decision. Indeed, “[elementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly; settled expectations should not be lightly disrupted.” Landgraf v. USI Film Prods., 511 U.S. 244, 265, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994).

[¶ 38.] By understanding and acknowledging that our decision is dictum, we enable further development, refinement, and possible reexamination when the next case arises and we are called upon to actually apply the new rule. In the meantime, our Legislature will also have an opportunity to reconsider the 1939 law to decide if it truly wants to immunize the type of circumstances that occurred in this case.

[¶ 39.] MILLER, Retired Justice, joins this special writing.

MEIERHENRY, Justice

(concurring in result only).

[¶ 40.] I would affirm the trial court and not overrule our prior precedent. We have often commented on the legislature’s power to clarify or correct this Court’s interpretation of legislation. See State v. Schroeder, 2004 SD 21, ¶ 12, 674 N.W.2d 827, 831. Thus, had the legislature not agreed with our prior determinations, it could have clarified its intent over these many years. The cases overruled by the majority were written over forty years ago and closer to the time of the 1939 enactment. Under the doctrine of stare decisis, our prior decisions should stand.

[¶ 41.] In addition, the trial court instructed the jury on the duty imposed by SDCL 31-28-6. In that statute, the legislature mandated that “[t]he public board or officer whose duty it is to repair or maintain any public highway shall erect and maintain at points in conformity with standard uniform traffic control practices on each side of any sharp turn, blind crossing, or other point of danger on such highway, ... a substantial and conspicuous warning sign, which sign shall be on the right-hand side of the highway approaching such point of danger. A violation of this section is a Class 1 misdemeanor.” SDCL 31-28-6.

[¶ 42.] Even if the legislature meant to abrogate a common-law duty, as the majority has determined, the legislature did not absolve public entities of all duty to the public in regard to highways. The legislature clearly indicates in the statute that the public board or officer in charge of repairing or maintaining the public highways “shall erect and maintain ... a substantial and conspicuous” sign warning of sharp turns, hidden and/or other unknown dangers. Id. For the courts to ignore the mandatory nature of the statute and its clearly defined duty is to present a callous disregard of the legislature’s intent to protect the people of this state and others who use the highways and streets.

[¶43.] Likewise, by buying insurance and participating in risk pools, public officials have committed to compensating citizens who are injured because of the public entity’s negligence. See SDCL 21-32A-1. We should acknowledge and affirm the public entity’s decision to pay for the injuries it has caused.

      . SDCL 31-28-6 provides:
      The public board or officer whose duty it is to repair or maintain any public highway shall erect and maintain at points in conformity with standard uniform traffic control practices on each side of any sharp turn, blind crossing, or other point of danger on such highway, except railway crossings marked as required in § 31-28-7, a substantial and conspicuous warning sign, which sign shall be on the right-hand side of the highway approaching such point of danger. A violation of this section is a Class 1 misdemeanor.

      . "Highway” is a generic term in South Dakota law defined to include "[ejvery way or place of whatever nature open to the public, as a matter of right, for purposes of vehicular travel[.]” SDCL 31-1-1. "Highways” include city streets. See City of Belle Fourche v. Dittman, 325 N.W.2d 309, 313 (S.D.1982). See also SDCL 31-1-4 ("highways” of the State include streets and alleys within the limits of municipal corporations).

      . Over the years, the Court also noted some confusion in its decisions on sovereign immunity as it related to municipalities. See Bu-cholz, 77 S.D. at 326, 91 N.W.2d at 608 (noting that while the distinction between governmental and corporate or proprietary functions is recognized in nearly all jurisdictions in determining the tort liability of municipalities, difficulty often arises in application of the rule and holdings have not been uniform and consistent); Conway, 82 S.D. at 326, 145 N.W.2d at 530 (Homeyer, J., specially concurringXnoting that the decisions of this Court attempting to distinguish between proprietary and governmental functions and predicating liability and nonliability therein are not clear and the distinction in many instances is without logic and confusing).

      . As part of the common-law duty to keep streets and sidewalks reasonably safe, some of these cases recognized duties to construct streets and sidewalks so that they were reasonably safe (see Smith, supra), to guard against dangers {see Rowe, supra) and to provide warnings of defects (see Drake, supra).

      . The specific language of the 1939 law imposed the duty on “the governing body or board under statutory duty to maintain such highway[.]” 1939 SDC § 28.0913. In 1939, the governing body or board under statutory duty to maintain a city’s streets would have been the governing body or board of the municipality. See 1939 SDC § 45.0201(94)(mu-nicipalities empowered to establish, improve and repair roads, streets, alleys and sidewalks).

        . Hohms suggest that if the common-law duty is abrogated, we should also abrogate Orrison v. City of Rapid City, 76 S.D. 145, 74 N.W.2d 489 (1956). Orrison involved a suit against a municipality for negligent maintenance of the floor of a dressing room at a city swimming pool. In setting forth the duty of the city, this Court cited various authorities, including one of its prior decisions on street maintenance, in holding that the city had a duty to maintain the floor in a reasonably safe condition. See id. at 152, 74 N.W.2d at 492 (citing Smith, 23 S.D. 352, 121 N.W. 848). The case before us today is not a swimming pool case, and because the language in Orrison was confined to swimming pools and made no reference to streets, we see no need to overrule it. Similarly, we express no opinion today on a city's common-law duty relating to sidewalks or other non-highway matters.

      . This Court has repeatedly recognized the common-law duty of municipalities to maintain streets and sidewalks in a reasonably safe condition. Bohl v. City of Dell Rapids, 15 S.D. 619, 91 N.W. 315 (1902); Jones v. City of Sioux Falls, 18 S.D. 477, 101 N.W. 43 (1904); Fritz v. City of Watertown, 21 S.D. 280, 111 N.W. 630 (1907); Smith v. City of Yankton, 23 S.D. 352, 121 N.W. 848 (1909); Connell v. City of Canton, 24 S.D. 572, 124 N.W. 839 (1910); Rowe v. Richards, 32 S.D. 66, 142 N.W. 664 (1913), ovemiled on other grounds, Ulvig v. McKennan Hosp., 56 S.D. 509, 229 N.W. 383 (1930); Keen v. City of Mitchell, 37 S.D. 247, 157 N.W. 1049 (1916); Gellenbeck v. City of Mobridge, 40 S.D. 157, 166 N.W. 631 (1918); Stewart v. City of Watertown, 43 S.D. 489, 180 N.W. 945 (1921); Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281 (1921); Doolin v. City of Winner, 48 S.D. 400, 204 N.W. 899 (1925); Usletten v. City of Brookings, 59 S.D. 477, 240 N.W. 851 (1932); Drake v. City of Mobridge, 60 S.D. 79, 243 N.W. 429 (1932); Hermandson v. City of Canton, 60 S.D. 367, 244 N.W. 525 (1932); Fenton v. Ackerman, 66 S.D. 465, 285 N.W. 516 (1939); Kimball v. City of Sioux Falls, 71 S.D. 35, 20 N.W.2d 873 (1945); Gurney v. Rapid City, 74 S.D. 194, 50 N.W.2d 360 (1951); Poppen v. City of Watertown, 74 S.D. 402, 53 N.W.2d 616 (1952); Brandner v. City of Aberdeen, 78 S.D. 574, 105 N.W.2d 665 (1960), abrogated on other grounds, Mount v. City of Vermillion, 250 N.W.2d 686 (S.D.1977); Luther v. City of Winner, 2004 SD 1, 674 N.W.2d 339 (claim against city for injury caused by a dangerous sidewalk); Loesch v. City of Huron, 2006 SD 93, 723 N.W.2d 694 (bicyclist injured while riding on a city street); see also Budahl v. Gordon and David Assocs., 323 N.W.2d 853 (S.D.1982) (Henderson, J., concurring specially).

      . Even as recently as two years ago we let stand a personal injury suit against a city on a claim that a bicyclist was injured by the city's negligence in failing to maintain its streets in a reasonably safe condition. Loesch, 2006 SD 93, ¶ 12, 723 N.W.2d at 698. But there again, SDCL 31-32-10 was not raised. Id.

      . Gurney, 74 S.D. at 197, 50 N.W.2d at 361, Poppen, 74 S.D. at 404, 53 N.W.2d at 617, and Rapid City v. First Nat' Bank of the Black Hills, 79 S.D. 38, 40, 107 N.W.2d 693, 694 (1961) are sidewalk cases. Bucholz, is a city shooting gallery case. 77 S.D. at 324, 91 N.W.2d at 607. Although the Court does not intend to overrule these cases entirely, that point should be made explicit.

      . It is important to point out, however, that our prospective ruling may be more properly labeled "judicial dictum.” "Judicial dicta are conclusions that have been briefed, argued, and given full consideration even though admittedly unnecessary to decision. A judicial dictum may have great weight.” Ceno Metal Products v. Marshall, 620 F.2d 964, 978 n. 39 (3d.Cir.1980). Thus, in future cases this Court may choose to be bound by this new rule as a matter of sound judicial policy. See Walter v. Schaefer, Prospective Rulings: Two Perspectives, Sup.Ct.Rev. 1, 22 (1982). See also Bradley Scott Shannon, The Retroactive and Prospective Application of Judicial Decisions, 26 HarvJ.L. & Pub.Pol'y 811 (2003).


author: MEIERHENRY, Justice.

text:
    2008 SD 67
    STATE of South Dakota, Plaintiff and Appellee, v. Timothy James BERGEE, Defendant and Appellant.
    Nos. 24564, 24565.
    Supreme Court of South Dakota.
    Argued May 21, 2008.
    Decided July 16, 2008.

      Lawrence E. Long, Attorney General, Gary Campbell, Assistant Attorney General, Pierre, SD, for plaintiff and appellee.
    Brad A. Schreiber of Schreiber Law Firm, Belle Fourche, SD, for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] A jury found Timothy Bergee guilty of Distribution of a Controlled Substance; Possession of Controlled Substance; Possession of Marijuana Less than Two Ounces; Driving While License Suspended; and Possession of Drug Paraphernalia. Bergee appeals the conviction, and we affirm.

FACTS

[¶ 2.] During the month of February, within the span of seven days, eight Belle . Fourche businesses were burglarized. All of the businesses were on or near Fifth Avenue, also known as U.S. Highway eighty-five. In six of the burglaries, the perpetrators entered the establishments via the back or side entrance or window.

[¶ 3.] Concerned about the prospect of future burglaries, Belle Fourche Police Captain Larry Roberdeau called upon reserve officers to increase patrol activities and positioned unmarked vehicles to stakeout different locations around town. Three days after the last reported burglary, Officer Russell Waterbury was patrolling Fifth Avenue, and Officer Paul Sutter was watching for suspicious activity atop a hill with binoculars. From his vantage point, Sutter could observe Fifth Avenue and parts of the Big D gas station and its surrounding parking lot. The Big D was closed for the night.

[¶ 4.] A little before 1:00 a.m. Sutter observed a truck drive out of the Big D’s parking lot with its headlights off. He reported his observation to Waterbury, who immediately drove to the parking lot to investigate. As Waterbury arrived at the parking lot, a second car driven by Bergee emerged from behind the Big D and drove toward Fifth Avenue.

[¶ 5.] Concerned about the late-night suspicious activity in light of the recent rash of Fifth Avenue burglaries, Waterbury stopped Bergee’s vehicle before it could leave the parking lot. Waterbury drove his vehicle along side the Bergee vehicle; and from the driver’s seat of his patrol car, Waterbury spoke to Bergee. Waterbury inquired into Bergee’s identity and purpose for being behind the closed gas station at such a late-night hour. Ber-gee claimed to have met a friend behind the Big D and now was on his way back to North Dakota. Waterbury then requested Bergee’s driver’s license. At that point, Bergee became very nervous and jumpy. He spoke quickly and appeared to be in a hurry. He also avoided eye contact with Waterbury. Bergee admitted that he did not have a driver’s license; however, he did provide his name and birth date.

[1f 6.] Waterbury then called in a license plate and driver’s license check. The driver’s license check revealed that three states had suspended Bergee’s driving privileges. Waterbury informed Ber-gee that he would have to issue a citation for Driving Under a Suspension, a violation of SDCL 32-12-65(2), and that Bergee would not be permitted to drive the vehicle any further. Nevertheless, Bergee stated, “Just give me the ticket ... I need to get home to [North Dakota,]” and, “I need to get home [to North Dakota].” These statements along with his suspicious demeanor amplified Waterbury’s suspicions. Based on his training and experience, Waterbury believed that Bergee had drugs or contraband inside the vehicle. Waterbury then contacted Sutter for assistance. Sut-ter was a certified drug dog handler and had his drug dog, Brook, with him on patrol. Sutter arrived at the location within a couple of minutes and took Brook out of his vehicle. Brook immediately indicated that she smelled the scent of a controlled substance by vigorously scratching on Bergee’s driver side door. Brook was pulled back and permitted another chance to inspect the vehicle. Again, she scratched the driver side door indicating that a controlled substance odor was emanating from the scratched area.

[¶ 7.] After Brook’s performance, the officers asked Bergee if he had anything that they should know about in the vehicle. Bergee responded that he had “a little [personal stuff] in a green container.” The green container held a green leafy substance and a white powdery substance along with drug paraphernalia. The leafy substance field tested positive for marijuana, and the white powder later tested as methamphetamine. After a more thorough search of the vehicle, the officers found nine more grams of methamphetamine.

[¶8.] Bergee moved to suppress the drug evidence as fruit of an unlawful detention and the alleged unreliability of the drug dog. Both requests were denied. Bergee appeals claiming that the trial court erred by denying Bergee’s Motion to Suppress. He claims that the stop and subsequent search of his vehicle violated his rights under the United States and South Dakota Constitutions. US Const amend IV; SD Const art VI, § 11. He also claims that the trial court erred in its determination concerning the reliability of the drug dog and its failure to grant his motion for a drug dog expert.

DECISION

Whether the officer had reasonable suspicion to stop Bergee’s vehicle.

[¶ 9.] Bergee contends that Officer Waterbury lacked reasonable suspicion to stop his vehicle, and therefore the stop constituted a violation of his constitutional right to be free from unreasonable search and seizure. He further claims that all evidence derived from the stop must be suppressed as a result of the constitutional violation. “Our review of a motion to suppress based on an alleged violation of a constitutionally protected right is a question of law examined de novo.” State v. Hayen, 2008 SD 41, ¶ 5, 751 N.W.2d 306 (quoting State v. Muller, 2005 SD 66, ¶ 12, 698 N.W.2d 285, 288 (citations omitted)).

[¶ 10.] Brief investigatory traffic stops are permitted when based on objectively reasonable and articulable suspicion that criminal activity has occurred or is occurring. See id. “While the stop may not be the product of mere whim, caprice or idle curiosity, it is enough that the stop is based upon ‘specific and articu-lable facts which taken together with rational inferences from those facts, reasonably warrant the intrusion.’ ” Muller, 2005 SD 66, ¶ 14, 698 N.W.2d at 289 (citation omitted). “[I]n making a reasonable suspicion determination, we must ‘[l]ook at the ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.’ ” State v. Aaberg, 2006 SD 58, ¶25, 718 N.W.2d 598, 604 (Zinter, J., concurring) (emphasis added) (quoting State v. Kenyon, 2002 SD 111, ¶ 15, 651 N.W.2d 269, 273-74 (quoting United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 750-51,151 L.Ed.2d 740, 749 (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 694-95, 66 L.Ed.2d 621, 628-29 (1981)))). The “investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop.” Hayen, 2008 SD 41, ¶ 7, 751 N.W.2d 306 (citation omitted).

[¶ 11.] In this case, Waterbury had reasonable suspicion to make the inquiry. He knew that eight establishments had been burglarized within the past two weeks on or near this Fifth Avenue location. He knew that six of these break-ins happened on the back or side portion of the business. He had just received Officer Sutton’s observation that a vehicle had left the Big D’s parking lot with its lights off. He immediately drove to the Big D’s parking lot and saw Bergee’s vehicle emerge from behind the closed gas station at 1:00 a.m. Based on his information and knowledge, Waterbury stopped the vehicle to investigate the driver’s identity and the purpose for being behind the Big D at this late-night hour. Considering the totality of the circumstances, Waterbury was objectively justified in suspecting that a crime may have occurred. Thus, he had reasonable suspicions for the investigative stop. Furthermore, after observing Ber-gee’s nervous demeanor and admission to driving without a license, Waterbury was justified in continuing the stop until the citation and any other relevant matters were satisfied. See United States v. Dawdy, 46 F.3d 1427, 1429 (8th Cir.1995) (citation omitted) (stating that “[Qactors that may reasonably lead an experienced officer to investigate include time of day or night, location of the suspect parties, and the parties’ behavior when they become aware of the officer’s presence”). The trial court did not err in finding that the officer had reasonable articulable suspicion to stop Bergee’s vehicle.

Whether the subsequent search of Bergee’s vehicle was unconstitutional.

[¶ 12.] Next, Bergee claims that the search of the vehicle lacked probable cause because Brook, the certified drug dog, lacked reliability. Even if we were to assume that the dog was unreliable, Ber-gee’s admission to Officer Sutton that he had drugs in the vehicle constituted probable cause for the search. After the drug dog had twice signaled that Bergee’s vehicle contained the odor of controlled substance(s), Sutter asked Bergee if there was something in the vehicle that the police should know about. Bergee put his head down, sighed and exclaimed to the officers that “I got a little [personal stuff] in a green container” and then pointed to a container where marijuana and methamphetamine were located. The circumstances surrounding this comment were sufficient for the officer to conclude that Bergee was admitting to possessing illicit items in the vehicle. See State v. Beckett, 383 N.W.2d 66, 69 (Iowa Ct.App.1985) (quoting State v. Hamilton, 236 N.W.2d 325, 330 (Iowa 1975)) (“Admissions by-adoption or acquiescence can only be established by ‘the totality of circumstances viewed in terms of probable human behavior.’ ”).

[¶ 13.] Based on our determination that the reliability of the drug dog was irrelevant to the constitutionality of the search, we need not discuss Bergee’s claim that the trial court abused its discretion in denying Bergee’s motion for a drug dog expert. We affirm.

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