PIERRE, S.D. (KELO) — In a decision publicly released Thursday, the South Dakota Supreme Court ruled a Sioux Falls family failed to show how the city government owed them a special duty when the building where they lived collapsed during a renovation project.
Emily, Christine and Michael Fodness sued the City of Sioux Falls. Officials had granted a permit to Hultgren Construction to renovate two adjoining structures at 136 South Phillips Avenue. The contractor hadn’t included any architectural or structural plans with the application. The Fodness family lived in an upstairs apartment.
On December 2, 2016, father Michael Fodness was downstairs when he felt the building shift and escaped. Christine wasn’t home. Emily was upstairs in bed and became trapped in wreckage on the first floor. She was rescued after four hours and suffered extensive injuries.
Justice Janine Kern wrote in the Supreme Court’s decision that the circuit court wasn’t wrong to dismiss the family’s action. She said they had failed to meet any of the four factors from a Tabor case known as Tipton.
“We have previously held that issuance of a building permit does not create a duty to a private individual which will support a negligence claim. Still, the City could owe a duty under the special duty exception to the public duty rule had the Fodnesses established a combination of the factors set forth in Tipton I. Because their complaint failed to plead facts sufficient to establish any of the
required factors, the circuit court did not err by granting the City’s motion to dismiss for failure to state a claim,” Kern wrote.
Read the Supreme Court’s decision below.