This section contains the nature of the case and procedural background.

In 2002, CBM entered into a contract with the State to provide food services for inmates in the South Dakota State Penitentiary (Penitentiary) in Sioux Falls. P was employed by CBM in 2003 as a food service director. He primarily worked in the kitchen area of the Penitentiary's Jameson Annex. Inmate Stephens had a history of violence and had assaulted fellow inmates causing serious injuries. Inmate Stephens obtained an orange uniform from a laundry cart and put it on over his khaki uniform. He then approached the kitchen door. Inmates wearing either orange or white uniforms were allowed to work in the kitchen. Therefore, when the employee in the Central Control Room saw the inmate in the orange uniform at the kitchen door, she allowed him to enter the kitchen with no further attempt to identify him. No officer was assigned to the kitchen to provide security. P was working in the kitchen area at this time and had his back to the kitchen door when Inmate Stephens entered. Inmate Stephens obtained a four-foot metal stirring whisk in the size and shape of a boat oar and struck P's head and body ten to fifteen times. P sustained serious and permanent injuries and was hospitalized for approximately a month. He is unable to return to his previous level of employment. Ps sued for negligence and loss of consortium against Ds. Ds moved for summary judgment as to both the negligence and loss of consortium claims and for summary judgment on the breach of contract claim, alleging the security obligations in the contract were owed to CBM, rather than P or any other CBM employee. The circuit court granted Ds' motion, concluding that P's negligence claim was barred by SDCL 3-21-8 and 3-21-9(5), that those statutes were not violative of the South Dakota Constitution, and that P was not a third-party beneficiary under the contract between the State and CBM. P appealed. Ps assert that P was a member of the class that was to be benefited by the State's agreement to provide 'safety and security.'

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