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Andrushchenko v. Silchuk

South Dakota Supreme Court
744 N.W.2d 850 (2008)


Ivan and Lyuba Silchuk invited Alex and Nataliya Andrushchenko (plaintiffs) and their three-year-old son, D.A., over to the Silchuks’ newly built home for lunch. Early in the visit, D.A. turned on the faucets in the main floor bathroom, flooding it. Lyuba warned D.A.’s mother that she would be responsible for any further damage. Meanwhile, D.A. went upstairs with the Silchuk children, but was playing by himself when Lyuba came up, closed the door to the master bedroom where the baby was sleeping, then went back downstairs. D.A. nonetheless ventured into the master bathroom, filled the whirlpool tub with scalding hot water and toys, then fell or climbed in, suffering extensive burns. The Andrushchenkos sued the Silchuks, as well as the homebuilder, Metzger Construction, Inc., and the plumbing contractor, M & M Plumbing-HVAC, L.L.C. (collectively, defendants). The Andrushchenkos claimed the Silchuks breached a duty of care as the property owners to ensure D.A.’s safety as an invitee, and because Lyuba undertook a gratuitous duty to protect him. The Andrushchenkos also claimed the plumbing installer negligently set the water heater at 160℉, instead of 120℉ as required by local building code, and failed to warn the Silchuks of the risk of scalding. The trial court granted summary judgment and the Andrushchenkos appealed.

Rule of Law


Holding and Reasoning (Meierhenry, J.)

Dissent (Sabers, J.)

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