Interrogatory Admissions Can Establish “Damage” and Trigger a Jury Question on Constructive Notice Under SDCL 31‑32‑10; Statutory Authorization Bars Municipal Nuisance Claims

Introduction

This commentary analyzes the Supreme Court of South Dakota’s decision in Mahmoudi v. City of Spearfish, 2025 S.D. 49. The case arises from injuries suffered by plaintiff Hamideh Mahmoudi, an ultra-marathon runner, who was cut and sprained her ankle when her foot became lodged in the partially exposed end of a metal culvert along Dahl Road in Spearfish. The culvert had been installed during City improvement projects in 1995–1996; there are no sidewalks along the road. In late 2016, shortly after the accident, the City exposed the pipe and cut off what it termed the “damaged end section.”

Mahmoudi sued the City for nuisance, negligence, and “recklessness” (treated as a claim for gross negligence). The City moved for summary judgment, asserting it owed no common-law duty and, absent a statutory violation, could not be liable for highway defects, and further arguing that nuisance is statutorily barred when the conduct is authorized by law. The circuit court granted summary judgment to the City on all claims. On appeal, the Supreme Court affirmed in part and reversed in part.

The opinion does several important things:

• Reaffirms that a municipality’s duty respecting highways is limited by SDCL 31‑32‑10 (Hohm v. City of Rapid City), and there is no broader common-law duty to design, construct, or generally inspect roads and culverts.
• Clarifies that a governmental defendant cannot walk back its own discovery admissions at summary judgment to defeat a genuine dispute—here, its interrogatory statement that the culvert had a “damaged end section” that was cut off after the incident. Those admissions, along with contextual facts, created a triable issue on whether the culvert was “damaged” and whether the City had constructive notice under SDCL 31‑32‑10.
• Holds that nuisance claims are barred under SDCL 21‑10‑2 where the City’s conduct—constructing and maintaining culverts and streets—is undertaken under express statutory authority (SDCL 9‑45‑1, 9‑45‑3), even if negligently performed.
• Affirms dismissal of gross negligence (willful/wanton) for lack of evidence of the required culpable mental state or a substantial probability of serious harm.

A special concurrence by Justice KERN questions whether Hohm unduly abrogated municipalities’ common-law duties, urges a closer look at the statutory history, and invites legislative clarification.

Summary of the Opinion

Chief Justice Jensen, writing for a unanimous Court (with one special concurrence), affirms in part and reverses in part:

• Negligence under SDCL 31‑32‑10 (Reversed and Remanded): The record contains genuine issues of material fact as to whether the culvert was “damaged” and whether the City had constructive notice. The City’s own interrogatory admissions that a “damaged end section” was cut off after the incident, combined with evidence of periodic municipal maintenance in the area and the nature of the injury, preclude summary judgment. The circuit court erred in discounting those admissions and in relying on a post‑repair photograph to infer “no damage.”
• Nuisance (Affirmed): SDCL 21‑10‑2 exempts conduct done under express statutory authority from being deemed a nuisance. Because the City’s street and culvert activities are expressly authorized by statute, a nuisance claim cannot lie here.
• Gross Negligence (Affirmed): The plaintiff did not produce evidence of willful or wanton misconduct—i.e., of a culpable mental state or a substantial probability of serious harm known to the City. At most, the proof supports ordinary negligence.

Analysis

1) Precedents Cited and Their Influence

• Hohm v. City of Rapid City, 2008 S.D. 65, 753 N.W.2d 895: Central to the City’s “no duty” position. Hohm holds that SDCL 31‑32‑10 defines the relevant municipal duty respecting highways and abrogates broader common-law duties. The Court treats the City’s argument as a “no duty” defense (not sovereign immunity), consistent with Hohm.
• Godbe v. City of Rapid City, 2022 S.D. 1, 969 N.W.2d 208; Wilson v. Hogan, 473 N.W.2d 492 (S.D. 1991): Confirm that SDCL 31‑32‑10 does not create a duty to design or construct safely in the first instance. The statutory duty is to guard within 48 hours of notice of “damage” and to repair within a reasonable time.
• Fritz v. Howard Twp., 1997 S.D. 122, 570 N.W.2d 240; Clementson v. Union Cnty., 256 N.W. 794 (S.D. 1934); Zens v. CMStP&P R. Co., 386 N.W.2d 475 (S.D. 1986): Establish that constructive notice suffices under SDCL 31‑32‑10 and is a jury question. The Court leans on this line to hold that whether Spearfish should have discovered the damage is for the factfinder.
• Werner v. Norwest Bank, 499 N.W.2d 138 (S.D. 1993); DFA Dairy Fin. Servs. v. Lawson Special Tr., 2010 S.D. 34, 781 N.W.2d 664: A party cannot contradict its own sworn statements to craft a more favorable factual record at summary judgment. This principle anchors the Court’s refusal to accept the City’s late pivot from its interrogatory admission that the culvert was damaged.
• SDCL 19‑19‑407 (akin to Fed. R. Evid. 407) and its Advisory Notes: The circuit court had characterized the City’s post‑accident cut‑off as an inadmissible “subsequent remedial measure.” The Supreme Court clarifies that observations of the pre‑remediation condition are not remedial measures, and even evidence of subsequent repairs can be admissible for other purposes (e.g., impeachment, control, feasibility, existence of duty), if disputed.
• Hedel‑Ostrowski v. City of Spearfish, 2004 S.D. 55, 679 N.W.2d 491; Loesch v. City of Huron, 2006 S.D. 93, 723 N.W.2d 694; Dohrman v. Lawrence Cnty., 82 S.D. 207, 143 N.W.2d 865 (1966); Vesely v. Charles Mix Cnty., 66 S.D. 570, 287 N.W. 51 (1939): Together, these cases support the proposition that statutorily authorized construction and maintenance of streets cannot be a nuisance and that negligence in street work is not itself a nuisance. The Court relies on this body of law to affirm dismissal of the nuisance claim under SDCL 21‑10‑2.
• Fischer v. City of Sioux Falls, 2018 S.D. 71, 919 N.W.2d 211: Defines gross negligence/willful or wanton misconduct as a qualitatively different tort requiring proof of a culpable mental state and a substantial probability of serious harm. The Court applies Fischer to affirm dismissal of gross negligence.
• Standard‑of‑review line: City of Sioux Falls v. Strizheus, 2022 S.D. 81; Burgi v. East Winds Court, Inc., 2022 S.D. 6; Berbos v. Krage, 2008 S.D. 68. These frame the summary judgment lens: doubts resolved against the movant and the movant’s burden to show no genuine issues.

2) The Court’s Legal Reasoning

a) Negligence under SDCL 31‑32‑10: Damage and Notice

SDCL 31‑32‑10 imposes a duty on the governing body responsible for the “highway, culvert, or bridge” once the facility is “damaged” or “out of repair” to the extent it endangers public travel and the body has notice of that danger. The duty is to erect guards within 48 hours of notice and to repair within a reasonable time. The statute does not impose a duty to design or construct safely in the first place.

The City’s summary judgment motion asserted a purely legal point—no common-law duty and no pleaded statutory claim. But the plaintiff answered that her allegations put SDCL 31‑32‑10 at issue and that the City’s own discovery showed damage and post‑accident repair.

Two evidentiary/legal pivots persuaded the Court to reverse:

• Admissions bind the movant: The City’s interrogatory answers stated that, after the accident, a City employee inspected the culvert and “cut off the damaged end section.” The City’s later suggestion—based on photographs submitted by the plaintiff—that “no damage is apparent” cannot erase the effect of its own prior sworn statements. Under Werner and DFA Dairy, a party may not contradict its own testimony to avoid a fact dispute without explanation or clarification of ambiguity. No such explanation was offered.
• Constructive notice is for the jury on this record: The Court emphasizes that whether a governing body “in the exercise of ordinary care” should have discovered the damage is a fact question (Fritz). The circumstances—a culvert partially exposed within the right‑of‑way, an injury consistent with a jagged edge or opening, and City crews’ periodic mowing, weed control, and snowplowing—permit a reasonable inference of constructive notice sufficient to reach a jury.

The circuit court erred by (1) labeling the City’s “damaged end” statement as conclusory, (2) treating the admission and repair as an inadmissible “subsequent remedial measure” (the City never raised a 407 objection and, in any event, other permissible uses exist), and (3) relying on a post‑repair photo to infer no damage at the time of injury.

b) Nuisance: SDCL 21‑10‑2’s Statutory Authorization Bar

South Dakota law provides that “[n]othing which is done or maintained under the express authority of a statute can be deemed a nuisance” (SDCL 21‑10‑2). Municipalities are expressly authorized to plan, construct, and repair streets and culverts (SDCL 9‑45‑1, 9‑45‑3). The Court holds that even if these activities are negligently performed, the nuisance label is unavailable. This conclusion tracks Hedel‑Ostrowski (park swing maintained under statutory park authority), Loesch (street repair/maintenance), Dohrman, and Vesely (negligent road work is not nuisance).

Greer v. City of Lennox—a mid‑20th century private‑nuisance decision involving a municipal dump’s impact on neighboring property—is distinguished as addressing nuisance as an exception to immunity-era negligence rules, not statutory authorization. The present case concerns conduct squarely within statutory authorization for the benefit of the public at large, and SDCL 21‑10‑2 controls.

c) Gross Negligence / Willful or Wanton Misconduct

Applying Fischer, the Court finds the record devoid of evidence that the City acted with a culpable mental state or that it subjectively appreciated a substantial probability of serious physical harm. A complaint‑driven maintenance program and the absence of a formal inspection policy over two decades, without more, reflect at most ordinary negligence. Summary judgment was therefore appropriate.

3) The Special Concurrence: A Signal on Municipal Duties

Justice KERN joins fully but pens a thoughtful concurrence questioning whether Hohm went too far in concluding that municipalities’ common-law duties respecting streets were abrogated by the 1915 liability statute and the 1939 narrowing of that statute (now SDCL 31‑32‑10). The concurrence builds a historical case:

• Common law distinction: Municipal corporations traditionally bore proprietary liability for street construction and maintenance (e.g., Bucholz; Conway; Williams), unlike quasi‑corporations (counties, townships), which had sovereign immunity absent statute (Bailey; Jensen v. Juul; Williams).
• Statutory evolution: The 1915 statute (ch. 210) broadly imposed duties and waived immunity for negligent road maintenance across cities, towns, townships, and counties. The 1939 codification (SDC § 28.0913) narrowed the actionable duty to guarding and repairing once “destroyed or out of repair.” But other statutes continued to impose duties (primarily on counties and townships). Waller read the 1919 predecessor as a liability statute; Reaney recognized the 1939 narrowing.
• 1986 reform: The Legislature repealed the specific highway liability statute (SDCL 31‑32‑11) and adopted SDCL 21‑32A‑1 (waiver to the extent of insurance/risk pool), arguably broadening the universe of potentially actionable duties again. The concurrence suggests Hohm may have overlooked the effect of 1986 reforms and invites legislative clarification.

Bottom line: While the Court applies Hohm in this case, the concurrence flags a live question about whether municipalities retain common-law duties beyond SDCL 31‑32‑10 in the modern statutory environment.

Impact

A) Litigation and Summary Judgment Practice

• Discovery admissions matter: Government defendants should assume interrogatory admissions can be outcome-determinative on summary judgment. Attempting to contradict prior sworn discovery without explanation risks reversal.
• Contextual evidence must be viewed in the light most favorable to the nonmovant: Courts should not rely on post‑repair photographs to negate pre‑injury conditions, especially when the movant’s own statements acknowledge damage.
• Subsequent remedial measures: While Rule 407 analogs bar the use of remediation to prove negligence, such evidence may be used for impeachment, control, feasibility, and related non‑negligence purposes. Observations of pre‑repair conditions are not themselves remedial measures.

B) Municipal Risk and Operations

• Complaint‑driven regimes carry risk: Absent a routine inspection program, periodic activities like mowing, weed control, and snowplowing can supply the “open view” necessary for a jury to find constructive notice of damage. Municipalities should consider risk‑based inspections, documentation, and hazard reporting protocols for roadside appurtenances such as culverts.
• Nuisance shield remains robust: SDCL 21‑10‑2 continues to foreclose nuisance claims for street and culvert work performed under statutory authority. Plaintiffs should focus on statutory negligence theories (SDCL 31‑32‑10), not nuisance, for roadway/culvert injuries.
• Gross negligence is exceptional: Evidence must show a subjective appreciation of a substantial probability of serious harm and a conscious disregard. Mere neglect or lack of policy is rarely enough.

C) Plaintiff-Side Strategy

• Plead and prove SDCL 31‑32‑10: Allege “damage” or “out of repair,” notice (actual or constructive), failure to guard within 48 hours, and failure to repair within a reasonable time. Consider negligence per se if unexcused violation is shown.
• Build the notice record: Use admissions, maintenance logs, mowing/plowing routes, photographs taken before any repairs, and eyewitness testimony to show visibility and duration of the condition.
• Differentiate design from damage: SDCL 31‑32‑10 does not cover design/construction criticisms. The theory must be that a previously lawful structure became damaged/out of repair and dangerous.

D) Doctrinal Trajectory

• Potential reevaluation of Hohm: The concurrence signals openness to legislative re‑examination of whether municipalities still have common‑law duties for streets in light of modern liability and insurance statutes. Until such change, SDCL 31‑32‑10 is the controlling duty for municipal roadway claims.

Complex Concepts Simplified

• SDCL 31‑32‑10: When a highway, culvert, or bridge is “damaged” or “out of repair” enough to endanger public travel, and the governing body gets notice, it must:
  • Within 48 hours of notice, erect guards/barriers sufficient to protect the public; and
  • Repair the damage or provide an alternative crossing within a reasonable time.
  The statute does not impose duties for initial design or construction.
• Constructive notice: Even if the City lacked actual knowledge, it can be deemed to have notice if the condition existed in a way that a reasonably prudent entity would have discovered it during ordinary operations (e.g., while mowing, plowing, or inspecting).
• Negligence per se: If a safety statute like SDCL 31‑32‑10 is unexcusedly violated, that can establish duty and breach as a matter of law. The plaintiff must still prove causation and damages.
• Statutory nuisance bar (SDCL 21‑10‑2): Acts done under express statutory authority cannot be labeled a “nuisance,” even if performed negligently. Municipal street and culvert work falls within this exemption.
• No‑duty vs. sovereign immunity: Here, the City did not assert immunity; it argued that, under Hohm, it owes no common‑law duty beyond SDCL 31‑32‑10. That is a “no duty” defense—an element of negligence—not an immunity defense requiring affirmative pleading.
• Gross negligence (willful/wanton): A qualitatively different tort than negligence. Requires proof that the defendant knew of a substantial probability of serious harm and acted (or failed to act) with a culpable mental state amounting to a conscious disregard of that risk.
• Subsequent remedial measures (SDCL 19‑19‑407): Post‑accident repairs generally can’t be used to prove negligence. But such evidence may be used for impeachment, to show control, feasibility, existence of duty, or similar issues if disputed. Observing damage pre‑repair is not the same as the remedial measure.

Conclusion

Mahmoudi v. City of Spearfish delivers two clear holdings and an important procedural clarification. First, the Court tightens summary judgment discipline: a litigant cannot disavow its own discovery admissions to erase a fact dispute. The City’s interrogatory acknowledgement that it removed a “damaged end section,” together with the circumstances of the incident and routine municipal activities around the culvert, created triable issues on “damage” and constructive notice under SDCL 31‑32‑10. Second, the Court reaffirms that nuisance is categorically unavailable when the conduct is undertaken under express statutory authority (SDCL 21‑10‑2), a significant shield for municipalities engaged in road and culvert work. Third, the opinion underscores that gross negligence requires more than long‑term neglect; it demands proof of a culpable mental state and awareness of a substantial probability of serious harm.

The special concurrence invites a broader conversation about whether municipalities’ common‑law duties concerning streets truly vanished with the advent and evolution of South Dakota’s statutory highway regime and 1986 liability reforms. For now, however, practitioners should assume that municipal roadway liability in South Dakota turns on SDCL 31‑32‑10’s guard‑and‑repair framework, proof of “damage” and notice (including constructive notice), and careful attention to evidentiary admissions and the permissible uses of post‑accident remedial evidence.