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Supreme Court says Mitchell woman can proceed with water damage suit

The South Dakota Supreme Court determined that a Mitchell woman can continue her suit against a landlord who the woman says caused water damage to her property through "malicious conduct."...


The South Dakota Supreme Court determined that a Mitchell woman can continue her suit against a landlord who the woman says caused water damage to her property through "malicious conduct."

Homeowner Kayla Fluth said she noticed water coming into her basement in 2013, and when she tore away the boards and sheetrock on one wall, she found heavy water damage. She contacted law enforcement on June 28 of that year when she saw water pooling in a nearby empty lot owned by Larry Weisser.

The house that had previously stood on that empty lot was torn down the previous year after Weisser's tenant set off a gas explosion in the house's basement, damaging it significantly and lifting it off its foundation.

According to the Aug. 29 Supreme Court opinion, Mitchell Water Distribution Department foreman Brian Wendelboe said he told Weisser that the water line for the house needed to be shut off by a licensed plumber, and that bending it over and hammering it shut could be used only as a temporary solution.

Weisser hired Schoenfelder Construction, Inc. to demolish the house. He had the water to the basement turned off and had the construction company hammer the water line shut.


During demolition work in July 2013, Krohmer Plumbing, also hired by Weisser, then attempted to permanently shut off water at the curb, but a tree growing in the way made the shutoff valve inaccessible.

Weisser reportedly did not contact the city to have the tree removed or the water valve shut off, and Schoenfelder said Weisser told the construction company to "finish the job, cover it up."

After Fluth reported the water pooling in the lot, Wendelboe told Weisser what was happening, the Mitchell Parks and Recreation Department cut down the tree in the way and Krohmer Plumbing was able to turn off the water. Since then, Fluth's house has not sustained any more water damage.

Fluth filed a suit against Weisser and Schoenfelder, accusing them of fraud and negligence and saying that the leak damaged property and caused mold to grow, posing a health risk to herself and her family.

The case was set to go to trial in June of 2016. Weeks before it was scheduled to start, the construction company offered to settle for $7,500, and Fluth accepted. She then filed an amended complaint that dismissed her claims against Schoenfelder and added claims of deceit and "intentional, willful wanton, and malicious conduct" against Weisser. When she was paid by Schoenfelder, she filed a satisfaction of judgment.

Later in 2016, Weisser moved for partial summary judgment, and the circuit court granted one of his motions, but denied the motion to dismiss Fluth's malicious conduct claim and request for punitive damages.

Weisser again filed for summary judgment, saying that because Fluth satisfied her claim with Schoenfelder, he was no longer liable. That time, the circuit court granted his motion. Fluth appealed that decision to the South Dakota Supreme Court.

The Supreme Court's Aug. 29 opinion not only concluded that Fluth could continue with her suit against Weisser, but affirmed some of the court's other decisions regarding Weisser's motions. Now, the circuit court will reconsider whether or not Weisser could be permitted to bring claims against Schoenfelder.

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