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D.1989) (“If reasonable persons, upon examining the evidence, might reach different conclusions, a motion for summary judgment should be denied and the case tried on the merits.”) (citation omitted).[¶ 34.] 2. D.1995) (Tipton I ) (“Strong evidence concerning any combination of these factors may be sufficient to impose liability on a government entity.”).[¶ 36.] 3. 887, 737 P.2d 1279, 1283 (1987) (noting that the “privity” necessary to impose liability despite the public duty doctrine refers to the relationship between the entity and any reasonably foreseeable plaintiff); Wytupeck v.
450, 136 A.2d 887, 894 (1957) (holding city responsible for injuries to minor and noting that the relationship between the parties is founded upon the foreseeability of harm to the person in fact injured) (paraphrasing Judge Cardozo's writing in Palsgraf v.
Additionally, it has put an emphasis on the illegality of underage drinking. D.1995) (“To establish a duty on the part of the defendant, it must be foreseeable that a party would be injured by the defendant's failure to discharge that duty.”); Mark, Inc. Kegs of beer were purchased and various students from Brown High School in Sturgis, South Dakota, were invited. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The situation on the Huck property constituted a nuisance as a matter of law. [¶ 1.] Charles and Ann Gleason (Gleasons) on behalf of their son, Michael Gleason (Michael), appeal the grant of summary judgment in favor of Deputies Dave Smith (Smith) and Brian Dean (Dean) (often collectively referred to as officers), and Lawrence County. FACTS AND PROCEDURE[¶ 2.] On December 31, 1994, Wayne Huck received permission from his father, David Huck (Huck), to have an underage drinking party on their leased premises located a few miles north of Whitewood, South Dakota. It is the jury, not the court, which is the fact-finding body. See also SDCL 35-9-1.1 (Class 2 misdemeanor when the minor is between eighteen and twenty-one years).[¶ 39.] The defendants had the power and the duty to abate the nuisance of an underage drinking party. Law § 309, which defines “nuisance” in part as any public nuisance known at common law and “whatever is dangerous to human life or detrimental to health.” See also Union County v. As noted, the Legislature has declared a place where alcohol is used in violation of the laws of the state a nuisance as a matter of law.8. At that time, Huck approached Smith's vehicle and the two conversed about the party. It is up to a jury to decide whether the defendants were derelict in their duty in failing to conduct further investigation. Every other nuisance is private.[¶ 40.] Failure to act when one has a duty to do so also constitutes a nuisance. It is usually a matter of time before violence erupts at a large party where alcohol is being consumed. THERE ARE GENUINE ISSUES OF MATERIAL FACT WHETHER DEFENDANTS' FAILURE TO ACT CONSTITUTED A BREACH OF DUTY.[¶ 45.] As noted, the defendants had the authority to stop the party. If the jury finds that the defendants possessed actual knowledge of the likelihood of violence breaking out at this party, whether they were obligated to act is another question for the jury. W.2d at 841 (“Actual knowledge of a dangerous condition tends to impose a special duty to do something about that condition.”); see also id. The conference opinion states that “[f]ailure to diminish harm is not enough.” Supra ¶ 21 (citing Tipton II, supra ). However, those “precautions” obviously did not eliminate other persons such as Michael from coming into contact with intoxicated minors. Smith then left the scene and met with other officers to discuss options regarding further investigation of the party. It is also for the jury to determine whether violence by an intoxicated minor was reasonably foreseeable based upon the defendants' observations of the party and further, whether that constitutes actual knowledge of the likelihood of violence. SDCL 21-10-1 defines what acts and omissions constitute nuisances: A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:(1) Annoys, injures, or endangers the ․ health, or safety of others;․(4) In any way renders other persons insecure in life, or in the use of property.(Emphasis added).[¶ 41.] One present at an underage drinking party is included in the class of persons intended to be protected by the nuisance statutes. 703, 705 (1895) (stating that when a statute confers a power to be exercised for the public good, “the exercise of the power is not merely discretionary, but imperative, and the words ‘power and authority’ in such case may be construed ‘duty and obligation.’ ”).[¶ 42.] Moreover, persons at the party came within the “ambit of the risk” created by any negligent failure to act on the knowledge of an illegal party. Whether the defendants should have acted to protect Michael and other persons present is a question for the jury.[¶ 43.] Based on the knowledge the defendants possessed after visiting the underage drinking party, there are genuine issues of material fact: 1) whether Michael and others similarly situated were within the class protected under the statutes; 2) whether Michael was a foreseeable plaintiff. “[P]ersons are generally not liable for failure to act, but once having acted, [they] must proceed without negligence.” Tipton v. at 844 (Wahl, J., concurring specially) (“[Defendants] had actual knowledge of a dangerous condition ․ such that a special duty was imposed on them to do something about the condition.”). It is true that Andrade stands for the proposition that failure to decrease the risk of harm can not be the grounds upon which duty is imposed. Since resolution of this action hinges on the jury's determination of disputed factual issues, i.e., whether the defendants had actual knowledge of the likelihood of violence, and if so, whether they breached a duty by not acting, summary judgment was improper. The defendants' reliance on this assurance was questionable because 1) they had never before met Huck, and 2) the gate was unlocked upon Smith's arrival. 447, 449 (1930) (“[W]here the municipality is authorized by the Legislature to abate nuisances, the authority carries with it the duty to exercise it, and where it either fails to adopt such ordinances as may be necessary to the reasonable performance of that duty, or to exercise reasonable diligence in enforcing them when adopted, it will be answerable to any private individual injured as a result of its default.”).7.