*1
Charles Gleason, Ad Litem as Guardian
Charles Gleason, minor, Plain
of Michael S. Appellants,
tiffs and Johnson; PETERS;
Trevor Eric Christo Schleuning; Huck;
pher Paula David Defendants,
Wennberg,
Deputy Dave and Brian Smith Sheriffs
Dean; County, political Lawrence Dako of South
subdivision State
ta, Appellees. Defendants
No. 19795.
Supreme Court of South Dakota. 25, 1997.
Argued March 13, 1997. Aug.
Decided *2 Christensen, Deadwood,
Steven M. plaintiffs appellants.
Thomas Brady, Spearfish, E. for defen- appellees. dants and AMUNDSON, Justice. (Gleasons)
[¶ 1.] Charles and Ann Gleason son, (Mi- on behalf of their Michael Gleason chael), appeal grant summary judg- ment Deputies favor of Dave Smith (Smith) (Dean) (often and Brian Dean collec- tively officers), referred as and Lawrence County. affirm. We AND FACTS PROCEDURE 31, 1994, Wayne [¶ 2.] On December Huck permission father, received from his David (Huck), Huck to have an drinking party on premises their leased located a few Whitewood, miles north of South Dakota. Kegs purchased of beer were and various students from High Sturgis, Brown School Dakota, South were invited. As the students arrived, they charged entrance fеe they intended to drink supplied by the beer the Hucks. undisputed 3.] It is that two Lawrence
County police anonymous officers received an tip potential juvenile of a party near White- Deputy wood. Smith was the first officer to arrive at noticing the scene after a bonfire. He through gate drove an unlocked on the premises. time, Huck At ap- Huck proached Smith’s vehicle and the two con- party. versed about the Smith then left the scene and met with other officers to discuss options regarding investigation further of the initially spoke Smith with Dean and then the two deputy contacted the chief guidance. deputy suggested using The chief spotting scоpe to assist with the identifica- judgment matter of as a law.” in order to obtain tled tion individuals of the 6—56(c). appeal, officers were our task is probable On cause. SDCL 15 — so, priority only received genuine unable to do issue to determine to be investi- call another matter regarding fact and whether law of material exists gated forthwith. correctly applied. Whether *3 the court question a of law for exists is Meanwhile, the arrived at Michael
[¶4.] determine. alcoholic He did not drink Huck residence. during party. While
beverages before or omitted). (citations at 785 Fur Pe- there, by Trevor Michael was attacked thermore, trial if we affirm the court (Jоhnson), (Peters), and ters Eric Johnson Sparagon exists so. v. any reason to do Schleuning (Schleuning), other Christopher ¶ Inc., 3, Publishers, 33, Am. 1996 SD Native party. being After attending the students 125, 133. repeatedly, was driv- hit Michael and kicked residence. parents’ en friend to his DECISION there, emergency From he was taken to the hospital in a result of Sturgis. room As at a Public-Duty I. Rule. beating, Michael received two reconstruc- face incurred medi- surgeries tive on his public- that the argue Gleasons [¶ 8.] $40,000. of expenses cal in excess abrogated, because it duty rule should be Gleasons, Michael, on behalf of sued [¶ 5.] place jurispru in Dakota “has no South assault; Peters, Johnson, Schleuning for recently upheld disagree. dence[.]” We We supervise activity faffing Huck for public-duty of in application rule beverag furnishing alcoholic involved and for ¶¶ Tabor, SD 9- Tipton v. Town of minors; premises for es to the owner of the II), (Tipton citing N.W.2d Deputies party; host such a allowing Huck to supporting the various reasons doctrine. Dean, County for Smith and Lawrence promote these is to “account One of reasons trial court faffing stop the The offenders, ability police than for rather who granted summary judgment in favor of fail offenses.” through mistake to thwart Id. Smith, Dean, County on based and Lawrence ¶ “Otherwise, 10, 567 N.W.2d at law Tipton v. special duty test established culpability increasingly ir becomes breaker (S.D. Tabor, Town of liability not on the true relevant with focused I). grant (Tipton appeals Michael malefactors, on governments.” local parties, rais summary judgment of these particularly applicable to the case at This is ing following issues: hand, urge because to as Gleasons hold public duty I. rule should Whether hold would be to the officers accountable abrogated. the unforeseeable actions of lawbreakers sim II, when it the trial erred Whether court ply because officers were unable imposi- applied the factors relevant we underage drinking party. As liability on enti- government tion of stated, imposes ‘no “[generally, the law no ty, concluded that there was prevent per of a third misconduct ” genuine issue material fact. ¶ 12, at 357 (quoting Id. at son.’ Park, City Louis St. acraft Cr OF STANDARD REVIEW (Minn.1979)). 801, 804 the standard [¶ 6.] We addressed essentially urging this Gleasons are applied [¶ 9.] facts review to be under similar against to allow cause of action Tipton Court I: liability. county theory strict under “... Summary judgment granted shall be certainly in this case do not warrant facts depositions, if pleadings, answers Therefore, again a result. we decline file, such interrogatories, and on to admissions floodgates opportunity open affidavits, gether any, with the show abrogate public duty litigation аnd rule any materi genuine there is no issue as to al is enti Dakota. moving fact and that the South II. scene); I Factors. v. Town Stonington, [¶ 10.] Shore (1982) (hold Conn. 444 A.2d having abrogated pub Not interest would not be served doctrine, lic-duty we sec address Gleasons’ by second-guessing police officer’s exercise appeal. argue argument They ond creating of discretion and liability determining court the trial erred driver); arresting drunk City Robertson issue fact as genuine was no of material Topeka, 231 Kan. P.2d Smith, Dean, County and Lawrence (1982) (holding there special duty by was no possess special relationship with Gleasons. police officer to remove an unwanted special provides 12.] The rule person premises from another’s after even plaintiff must of duty show a breach receiving warning); Motyka City Am owed to as an individual rather than sterdam, him/her 15 N.Y.2d 256 N.Y.S.2d *4 community large to at in to estab order (1965) (holding 204 N.E.2d 637 ¶ liability. Id. lish at 567 at 358. municipality is failing not liable for entity states public This rule that “when a provide police protection); Coleman Coo particular person actively acts on behalf of a (1988) per, N.C.App. 7 S.E.2d injury, causing may impose liability the law (holding liability there was no for the failure government by because has its conduct provide police protection who witnesses already policy deploy made a decision its testify assailant); against were to Wueth protect such resources individual.” Id. Delia, N.J.Super. rich v. 382 A.2d (footnote omitted). (1978) (holding municipality that a is against not its protect liable for “failure to jurisdictions Other [¶ addressed 13.] propensity the criminal persons.”). third special duty imposed is law enforcement officers as a which serves basis We then [¶ examine the rele damages specific precedent Tipton for incurred to a class of vant in South Dakota. In I, summary A recognized may individuals. decisions those this Court be follows: certain government circumstances which a entity possesses special that results Ordinarily, a breach of general liability. properly In order to examine those prevent criminal police acts which owe to circumstances, adopted we four factors to be public impose liability upon does not applied determining county when whether a governmental employing unit for dam- protection “assumes to act for the of individ ages particular which as a citizens suffer uals”: Instead, only of the breach. result where “1) knowledge the state’s actual of the i.e., duty, special duty particularized condition; dangerous individual, police to an breached 2) by persons reliance municipality
will the
reasonable
be
liable for
held
conduсt;
representations
state’s
damages.... When the
element
reliance
present
not
present,
is either
at all or if
an
or statute that
forth
ordinance
sets
harm,
causally
related to the ultimate
clearly
mandatory
protection
acts
for the
underlying
inapplicable
this
concern is
particular
persons
of a
class of
rather than
special
exception
the invocation
whole;
public
as a
longer justified.
no
is then
failure
the state to use due care to
increasing
avoid
the risk of harm.”
McQuillin,
Eugene
Municipal Corporations
(3rd
(footnotes
53.04.50,
Ed.1993)
I,
§
at 179
Tipton
(quoting
to a risk. 1997 SD *6 1989) (citation omitted). Since defen ¶ 38, 567 at argue N.W.2d 366-67. Gleasons burden, dants summary did meet their presence strong this factor “has a in this judgment improperly granted was and we they misinterpret ease.” should reverse. meaning of the element. Rather than dem- how the onstrate officers failed to avoid in- 1. THERE ARE [¶ 30.] GENUINE IS- harm, creasing simply the risk of Gleasons SUES OF MATERIAL FACT argue the to officers failed use care. due WHETHER DEFENDANTS HAD AC- Even we assume it that is true the officers TUAL THE KNOWLEDGE OF PO- to failed use due care and were unable to TENTIAL FOR VIOLENCE BY any Michael, possible decrease harm to we DRINKING MINORS. stated, “[f]ailure to diminish harm is not (citation omitted). enough.” Id. Deputies It is undis- [¶ 31.] Smith and Dean were both puted by that no in proximity affirmative action the offi- close drinking to this “ to, increased, changed party cers ‘contributed they which both believed to be the juvenile the risk which would have gathering anony- otherwise exist- in the mentioned ” ¶ 39, Id. at (quoting ed.’ 567 telephone N.W.2d 367 mous call. Smith actually was Co., Telegraph Von Batsch v. American Dist. premises, saw the bonfire surrounded Cal.App.3d 175 Cal.Rptr. 222 246- “a large gathering people,” and was told (1985) (involving killing by by Huck that drinking, intruders “The kids are stayin’ after officers they’re failed to find evidence of intrud- here.” Smith and Dean re- ers)). All that is shown peatedly depositions here is that in their testified potential they “gut feeling” officers fаiled to eliminate the dan- suspicious had a and were ger being juve- of an assault underage drinking committed on going was on. Fur- thermore, undisputed nile at the “paren- facts in Huck told Smith there was exposed supervision”2 this case disclose the officers Mi- tal gate and that the would deposition, allowing In his he Smith testified that was aware of law minor drink anyone suspicion. up jury It is who was reasonable bar the exit to locked to were drinking. decide whether defendants derelict failing in in further their conduct “proba- claims he lacked Smith now investigation. jury It is for the to deter also investigate further to determine ble cause” by an mi mine whether violence intoxicated alcohol; juveniles consuming whether reasonably based nor was foreseeable however, deposition he admitted his party observations of the defendants’ suspicion reasonable that a believing “a further, actual whether constitutes being is the standard for committed” crime knowledge of the likelihood of violence. investigate potential an officer can justification for find Whether there is factual “The existence rea- criminal situation.3 injury suspicion question law which that Michael’s was foreseeable sonable fully presents jury question. this court.” State v. reviewable Westover East (S.D.1993). Lownes, Inc., Coop., Elec. River Power (S.D.1992); Safway demanding Peterson v. Steel suspicion is a less Reasonable (S.D. Co., only probable cause not than standard Scaffolds 1987). suspicion can be sense that reasonable information that is differ- established with court, jury, It is the not the which is the quantity or than that ent in content re- body. weighs fact-finding the contradic- cause, quired probable to establish inferences, judges tory evidence and suspicion that reasonable can the sense witnesses, credibility expert in- receives from that is less rehable arise information structions, and draws the ultimate conclu- probable cause. required than that show very sion as the facts. The essence of Whitе, Alabama v. 496 U.S. among its function is select from con- 2412, 2416, 110 L.Ed.2d S.Ct. flicting inferences and conclusions that (1990). it which considers most reasonable. available at 899. The information Cammack, Fajardo v. easily enough to establish defendants (S.D.1982) (Wollman, C.J., inviting concurring spe- suspicion further investi- reasonable Eve, (citations omitted). gation: they received cially) On New Year’s Ins. See Tri-State anonymous tip underage drinking of an Bollinger, Co. Minn. v. progress; (S.D.1991) observed bonfire (noting that facial lacerations large people”; gathering “a surrounded fight expect- in a “could be received drunken *7 drinking, kids are Huck told Smith “The tussle”); combat, fracas, Limpert ed in a or here”; also thеy’re stayin’ and Huck told (S.D.1989) (“If Bail, 48, v. 447 N.W.2d 50 “parental supervision,” Smith that there persons, upon examining reasonable the evi- obviously improbable an element of an adult dence, conclusions, might reach different summary judgment motion for should be de- merits.”) (cita- law, As a of nied and case tried on the [¶ matter the defendants 33.] omitted). possessed tion adequate information to establish duties.”) parent, discharge (quoting presence guardian, v. in the of a or of his State Burk alcohol spouse. man, (S.D.1979)). and He See SDCL 35-9-1 -1.1. con- "[A] 439 underage present, that if drinkers were ceded 10 police may appropriate officer circumstances spouses parеnts, guardians, be or there must appropriate approach per in an manner and present render the act of drink- also ing purposes investigating possibly son for of crimi was also of non-criminal. Dean aware this though probable even there no nal behavior is law. Boardman, an cause make arrest.” State (S.D.1978) (quoting 505-06 Ter by deposition did 3. that he not Dean testified Ohio, ry U.S. S.Ct. probable investigate because of lack of further (1968)). justifying "[I]n 20 L.Ed.2d cause, but later admitted that was the standard intrusion, particular police officer must be arrest, investigation. Soft, for See not State point specific and articulable facts able to ("A (S.D.1983) policе 329 N.W.2d cer, offi which, together with work, taken rational inferences may proper performing his official facts, reasonably ly from those warrant intru question persons the circumstances rea when necessary sonably proper it sion.” Id. at 506. indicate that duty attorney general 2. RELIANCE the call [¶ REASONABLE under of 34] not, agents or his or to see to as far it opinion, [¶ As noted conference 35.] may possible that all of the laws this attempt not to allege Gleasons do reliance. especially relating state and all laws prove plaintiffs inability reli- beverages faithfully alcoholic are executed suit. ance is not bar to See Andrade v. and enfоrced. (Minn.1986) Ellefson, 391 special (finding only when first factor added). (Emphasis that, Smith testified once partially conclusively met factor and third he of underage drinking, knows he has no established); Tabor, Tipton v. Town of option party.4 Legisla- The I) (S.D.1995) (Tipton ture emphasized importance enforcing of (“Strong concerning any evidence combina- relating beverages” “all laws to alcoholic tion of these factors be sufficient to Additionally, put SDCL 7-12-4. it an has impose liability government entity”). on a emphasis illegality of underage on drink- See, ing. e.g., SDCL 35-9-1: ARE 3. THERE GENUINE IS- MATERIAL SUES OF FACT give is a or Class misdemeanor to sell WHETHER MICHAEL WAS A any a beverage use as alcoholic bever- MEMBER THE OF CLASS PRO- age any person еigh- under the age BY THE TECTED STATUTES. years teen unless it is done in immedi- presence ate parent guardian of a or or plain language I in- 37.] spouse years twenty-one age over language structs of a statute not prescription duly or of a direction licensed dispositive any whether practitioner or healing nurse of the arts for particular persons: class of purposes. medicinal statutory language Sole reliance on in de- termining exists is need- (Class See also SDCL 35-9-1.1 misdemean- lessly arbitrary. restrictive A statu- or when the minor is eighteen between tory particular class reference to years). twenty-one persons very could well be inadvertеnt power The defendants had the any rather than the result reasoned to abate the nuisance of under- an analysis of municipal county responsi- or age drinking party. The situation bility. require analytical We frame- property Huck constituted nuisance as a accurately work that more measures a matter of law. See SDCL 35-10-17: public entity’s culpability the harm suffered. structure, Any conveyance, place or where Despite language, this manufactured, beverages alcoholic are that, opinion the conference concludes since sold, bartered, found, kept, given away, the statute raised Gleasons does men- in viоlation consumed used laws particular class, tion it was not intended to state, beverag- relating alcoholic protect Michael. es, beverages proper- and all alcoholic *8 empowered
[¶ Defendants were to same, ty kept maintaining and used in the party. provides: this SDCL 7-12-4 hereby is be a common nui- declared to sance, any person It who duty comply shall the the sheriff to and maintains such be of guilty with a attorney general all orders of the or common nuisance is of a Class times, agents his and at all whether on misdemeanor. underage coming
4. One the associated of concerns with sons such as Michael from into contact danger driving impaired drinking of is in an with intoxicated minors. The defendants' reli- may The condition. defendants have felt this questionable ance this assurance was because 1) by risk was alleviated Huck’s statement that Huck, 2) they never met had before and gate any person be would locked who was gate was unlocked Smith's arrival. Addi- drinking trying premises, and to leave the and tionally, they investigate when returned to highway patrol agreed who officers moni- Michael, yet asleep, assault on Huck was party. "pre- tor traffic near the those party ended. had not obviously per- not other cautions” did eliminate imposed may on non-owners party a be A as this constitutes nuisаnce such instrumentality alleged to control over “the 21-10-8: “public” See SDCL nuisance.5 Nui- constitute the nuisance.” AmJur2d affects at is one which public A nuisance (1989). person § “The sances at community or an entire the same time duty it is to a nuisance should whose abate number any or considerable neighborhood, resulting consequences from answer although the extent of the an- persons, of 118; § its continuance.” Cochrane cf. damage upon the inflicted indi- noyance or City Frostburgh, Mayor v. 81 Md. of of Every other nui- may unequal. be viduals (1895) that a (stating A. when stat- private. sance power exercised for the ute confers a to be has to act when one 40.] Fаilure public power is good, “the exercise of the a nuisance. SDCL so constitutes do discretionary, imperative, merely and the what acts and omissions con- 21-10-1 defines may ‘power authority’ in ease words and such nuisances:6 stitute ”). ‘duty obligation.’ be construed and unlawfully an doing A nuisance consists Moreover, party persons at [¶42.] duty, act, omitting to which perform or the risk” created came within the “ambit of act or omission either: by any negligent failure to act on the knowl (1) injures, endangers Annoys, or illegal party. Livingston an v. edge of See health, others; safety ... or of Everett, Wash.App. 751 P.2d City of (1988): 1199, 1201 (4) persons way any In renders other safety statutes intend to insure When life, proper- in the use of insecure in or public highways, a governmental of ty- knowledge of an actual violation officer’s added). (Emphasis persons of and creates care all property who come within the ambit of present drink- 41.] One at negligent risk created con- persons officer’s party is included in the class of duct. protected the nuisance intended to be (citations omitted). added) power (Emphasis had the statutes.7 Defendants usually a of liability matter time before violence duty to this Nuisance end it, ity significance constituting a carries with it the to exercise of this The public adopt the statute narrows the nuisance as whеre it either fails such ordinances persons protected to be its class of intended necessary performance the reasonable provisions. were If it meant extend duty, diligence or to exercise reasonable whole, protection it would not to the as enforcing adopted, them when it will be an- categories persons sense to list three make any private injured individual as a swerable "[Tlhis whom directed. court must as it is default.”). its result of Legislature meant what the statute sume phrases give says and its words and therefore York, City New 282 A.D. 7.See Runkel plain meaning man, In re Goss and effect.” Estate of (1953), City 123 N.Y.S.2d where 124, ¶ 6, 555 1996 SD failing to York was held liable for аbate New Clay County, (citing Nilson neighborhood when children known nuisance (S.D. 1995)). provides SDCL 2-14-1 injured playing dangerous, statutes, aban- while construing giving effect to our when building. The children were found to doned their "words used are to be understood in ordi ” persons plain language class intended to be nary As of SDCL come within the sense.... states, persons protected to be protected by are 21-10-3 the nuisance statutes. court “any "community,” "neighborhood," § or con on N.Y. Mult. Dwell. Law which relied persons.” Smith and siderable number Both part any public nui- defines "nuisance” in thirly peo testified that there were least Dean law "whatever is known at common sance party, ple present amounts to a at the which dangerous to human life detrimental persons.” number "considerable County Hoffman, See also Union health.” *9 (S.D.1994) 168, (analyzing 170 whether N.W.2d "Every municipality 6. SDCL shall 9-29-13: Cf. public by park was a nuisance mobile home power to declare what shall constitute examining park). of the As its effect on residents abate, prevent, remove the nuisance noted, place Legislature the has declared a Mayor City Wynkoop also v. & Coun- same.” See the laws of where alcohol is used in violation of 194, 447, Hagerstown, A. 449 159 Md. 150 cil of state nuisance a matter of law. the ("[W]here (1930) municipality the is authorized nuisances, Legislature by the to abatе the author-
491 acted, erupts party large being having [they] proceed at a where alcohol is once must with- Tabor, negligence.” Tipton the out consumed.8 Whether defendants should v. 1997 SD ¶96, II) (em- per- 13, protect (Tipton have acted to Michael and other 358 added). present question phasis jury. is a for the If jury sons the finds that the possessed knowledge defendants actual knowledge Based the the defen 43.] breaking the likelihood violence out at this. possessed after the visiting dants party, obligated whether were to act is drinking party, genuine are issues of Andrade, question another jury. the See material fact: whether Michael and others (“Actual 391 841 knowledge N.W.2d at aof similarly pro the situated within class dangerous impose condition spe- tends to statutes; tected under the whether Mi cial duty to something do about that condi- plaintiff. was a chael foreseeable As the tion.”); (Wahl, J., see id. at 844 concur- Champagne Spokane court noted v. Hu (“[Defendants] ring specially) had actual 887, Society, Wash.App. mane 47 737 P.2d knowledge dangerous of a condition ... such 1279, (1987), entity performing gov 1283 “an special duty that a imposed on them to may ernmental functions be held liable where condition.”). something do about the Wheth- plaintiff the demonstrates that otherwise er a duty defendant breached a and whether general duty to the has focused on the his breach in injury plaintiff resulted to the particular plaintiff entity and the breaches questions Koch, are for the jury. Laber v. duty.”9 (S.D.1986).10 490, 383 493 4. THERE ARE GENUINE IS- stopping party [¶ 46.] Whether the would SUES MATERIAL OF FACT have diminished risk of harm to Michael WHETHER DEFENDANTS’ FAIL- partygoers and other yet jury another URE ACT TO CONSTITUTED A question. opinion The conference states that BREACH DUTY. OF “[fjailure to harm is enough.” diminish not ¶ noted, Supra II, [¶45.] As the defendants had (citing Tipton supra). 21 It is authority stop true that proposition “[P]ersons are Andrade stands for act, generally not liable for failure that failure to decrease risk of harm can Trust, County See really Muhlenkort v. Union Land situated. this is a non-issue (S.D.1995) ("To 530 N.W.2d duty establish a under the nuisance stаtutes because defen- defendant, part on the of the it must be opportunity party dants had the at no injured by foreseeable that would be by assessing suing cost the real estate or discharge duty.”); defendant's failure to public duty owner. 21-10-6. SDCL rule Mark, Inc., Maguire Agency, Inc. v. Ins. stems, part, at least in concern from a that indi- (“Whether (S.D.1994) 229-30 viduals could affect the manner which limited duty depends foreseeability inju exists on the public resources are As this utilized. statute Elec., ry.”); see also Mid-Western Inc. v. DeWild clear, op- makes the defendants are afforded an Co., Grant Reckert & Assocs. portunity carry duty deplet- out their without (S.D.1993) ("We instruct trial courts to use Therefore, ing any resources. this concern is not legal concept foreseeability to determine present brought suit under the nuisance exists."); Champagne Spokane whether a v. statutes, jury, should considered Soc'y, Wash.App. Humane 737 P.2d jury withheld from as done the trial court. (1987) (noting "privity” that the nec essary impose liability despite public duty relationship doctrine refers to the between the 10.Ordinarily, question entity any reasonably plaintiff); foreseeable Here, question exists is a of law for court. Camden, Wytupeck City N.J. question upon answer rests substan (1957) responsible (holding city A.2d rightfully jury tial issues of fact are material injuries noting relationship to minor and that the Furniture, questions. Appliance Swiden Inc. v. & parties between the is founded the foresee of SD, (S.D. National Bank ability person injured) to the harm in fact writing Odie, 1984); City Gary accord N.E.2d Judge (paraphrasing Cardozo's in Pals ("Factual (Ind.Ct.App.1994) ques 1329-30 Co., graf Long Island R.R. 248 N.Y. tions be interwoven with the determination (1928)). N.E. 99 relationship, rendering of the of a existence question existence of a mixed of law and jury 9. The can also consider the defendants’ re- fact, ultimately to be resolved the fact-find policy sources and its resource allocation an- er.”) (citation omitted). swering question whether the defendants owed similarly Michael and others *10 I, duty is im- upon which grounds not be the Cracraft Park, on to state goes City Andrade posed. St. Louis harm the risk of (Minn.1979), this require. that failure decrease Since resolution of whether, duty assuming legal “goes to jury’s on hinges action determination exists, at 843 it was breached.” issues, i.e., disputed factual whether the de- states, added). As Andrade (emphasis knowledge of likeli- fendants had actual knowledge of by the be established can violence, so, hood of is axiomatic that dangerous condition. acting, summary breached cause, breach, proximate questions of judgment improper. should reverse was We jury all but damages are resolved and remand for trial on merits. the rarest cases. claim Gleasons’ essence [¶47.] reasonably been should have violence defendants, that
anticipated by it became it, against protect Michael
their perform
that their failure “strong
negligence. evidence” There factors, than four which more
three of the