Lead Opinion
Dоnovan Small (Donovan), plaintiff in this action, appeals from summary judgments granted to defendants McKennan Hospital (Hospital), Art Canary (Canary), and Don Kinder (Kinder). We affirm in part, reverse in part, and remand.
This case stems from the abduction, rape, and murder of Teresa Small (Teresa), the wife of Donovan. At about 7:30 p.m. on the night of October 12, 1982, Teresa was abducted by Rocky Blair as she entered the elevator on the third floor of the parking ramp at McKennan Hospital in Sioux Falls, South Dakota. Blair, who was a recent parolee from the South Dakota State Penitentiary, forced Teresa into his vehicle and shortly thereafter drove out of the parking ramp. Teresa was subsequently raped and murdered by Blair.
Prior to Teresa’s abduction, Blair was parked on the third floor of the hospital parking ramp. At the time he was consuming alcoholic beverages and smoking marijuana. Blair had been in the parking ramp anywhere from fifteen to forty-five minutes prior to the arrival of Teresa. Teresa was an employee of Hospital, however, her purрose for being in the parking ramp on this occasion was to deliver her mother’s car so her mother could drive home after work. Teresa did not enter the hospital, but rather proceeded to enter the elevator in an attempt to leave the parking ramp.
Hospital is located in an older residential section of Sioux Falls composed mainly of single-family dwellings. Deposition and affidavit testimony indicate that this area is considered a low-crime area. There were no other similar incidences that оccurred in or around the parking ramp since its completion in 1979. It is undisputed, however, that there were several incidents on the ramp including reports of stolen car batteries, stolen gasoline, smashed windows, broken antennaes, intoxicated and disorderly people, and lug bolts being taken off or loosened. In addition, from time to time the ramp had been littered with beer cans and alcoholic beverage bottles, and on one occasion human feces were found in the elevator. Security personnel, in deposition testimony, also stated that they were aware of two or three complaints about nurses being followed near the hospital and were also aware of an incident that occurred approximately twelve to fifteen years prior where a nurse was hit over the head and dragged toward a car. The security officers also reported incidents where they took knives away from people in and around the hospital. At least one security officer was concerned about the nurses’ safety at thе ramp and reported being told by people that they would not park in the ramp due to the dangers involved.
The chief security officer, according to his deposition testimony, requested increased security every year since his original employment but was turned down on
Donovan also presented an expert witness who outlined what he claimed to be serious shortcomings in security at the hospital and specifically the parking ramp. Information was presented to show that the lighting in the parking ramp did not meet industry standards. The expert also testified that in his opinion security at the parking ramp was inadequate and that the abduction was foreseeable.
Initially, we note that Hospital and Donovan disagree on Teresa’s status while she was in the parking ramp. Hospital contends that Teresa was a licensee while Donovan cоntends that she was an invitee. In its memorandum opinion, the trial court found that Teresa was an invitee. Hospital failed to file a notice of review on this finding by the trial court; thus, we will not address this issue. State v. Holland,
The issue we must address that concerns Hospital is the foreseeability of the abduction, rape, and murder of Teresa. The trial court was correct when it stated that “[t]he pivotal issue is the foreseeability of the incident.” Hospital and the trial court rely on authorities that establish prior similar acts as determinative in foreseeability questions. The trial court specifically stated “the test of foreseeability seems to depend on whether there were prior incidents which should have alerted the hospital to the necessity of instituting preventative measures.” Representative cases supporting this theory are C.S. v. Sophir,
Both Sophir and Foster involved facts somewhat similar to this case and resulted in summary judgment for the defendant. In Sophir, the Nebraska Supreme Court upheld summary judgment even though an identical incident occurred apprоximately two months prior. The Nebraska court pointed out that landlords are not insurers and that there is no duty to warn of a known danger. According to the Nebraska court: “The ordinary, reasonable person is aware or should be aware that open parking lots provide an optimum place for crime to occur.” Sophir,
The California Supreme Court in Isaacs v. Huntington Memorial Hosp.,
The Isaacs court also points out that various trial courts may differ as to what is a “similar” incident and may have trouble defining time and territory limits for purposes of determining foreseeability. The
We believe that strict adherence to the “prior similar acts” rule is unduly restrictive and places too great a burden on the plaintiff. As we noted in Ward v. LaCreek Electric Association,
Our inquiry may not end there, however. We must now determine whether the plaintiff has presented enough facts to create a jury question under the “totality of the circumstances” rule. We believe that testimony concerning the prior criminal activity in and around the parking ramp, coupled with the testimony of the expert, witness outlining the security inadequacies of the parking ramp, establishes a fact question for the jury on the issue of foreseeability. Furthermore, we also note at this point that Hospital was aware of the increased crime risk associated with parking ramps and hospital areas. This knowledge is demonstrated by the several advisories included in the staff newsletter by the hospital administration. Since the trial court applied the wrong test to determine foreseeability and as a result erred in granting summary judgment, we reverse and remand for trial.
In addition to the cause of action brоught against Hospital, Donovan brought a cause of action against Canary, the Executive Director of the Board of Pardons and Paroles, and Kinder, Blair’s parole officer. Donovan claims that Canary was negligent in preparing a report on Blair that was submitted to the Board of Pardons and Parole and that Kinder was negligent in supervising Blair while Blair was on parole. The trial court granted summary judgment for Canary and Kinder. Canary’s actions, according to the trial court, did not proximately cause the death of Teresa Small. In addition, the trial court held that Kinder was under no duty to Teresa since he did not “take charge of” or “control” Blair.
Initially, we point out “that the existence of a duty of care on the part of a defendant to a plaintiff is an essential element of a negligence action.” Barger for Wares v. Cox,
There is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
The special relations spoken of in § 315 are outlined in §§ 316-319. Section 319 has specific application to the instant case. “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Restatement (Second) of Torts § 319 (1965). We must determine if Canary and Kinder took charge of Blair.
In Lamb, suit was brought against a probation officer for failing to report alcohol-related offenses committed by a probationer subsequent to his probation. The probationer was convicted of armed robbery and sentenced to prison. After serving some prison time, the court placed the probationer on supervised probation for the remainder of his term. As part of his probation, he was to obey all laws, not possess any firearms, and participate in alcohol treatment. Probationer subsequently had several arrests for DWI and other alcohol-related offenses but the probation officer failed to report these offenses to the court supervising the probation. Probationer was ultimately involved in a vehicle collision that seriously injured a young child. At the time of the collision, probationer was under the influence of alcohol.
The Lamb court conducted a thoughtful and searсhing analysis on the issue of whether the probation officer had taken charge of the probationer and ultimately concluded that he had not.
Here, the relationship between the probation officers and the probationer was continuing in the sense that the probationer was placed on probation for an extended period of time. However, that does not mean that the officers had taken charge of the probationer. The probationer was essentially free to conduct his day-to-day affairs, and was responsible for reporting certain activities to his probation officers as they arose or as they were scheduled. In addition, unlike the more typical custodial situations, the officers were evidently not responsible for supervising the probationer on a daily basis. Therefore, because there was no custodial relationship involved in this case, we conclude that the officers did not take charge of the probationer.
Lamb,
Donovan relies heavily on the case of Grimm v. Arizona Bd. of Pardons & Paroles,
In addition to the duty of control argument, Donovan asserts that Canary had a statutory duty to Teresa under SDCL 24-15-2.
Although the parties disagreed on the adequacy and content of the commutation file prepared by Canary, we find that the file meets the requirements of SDCL 24-15-2. Contrary to the statements оf Donovan’s counsel at oral argument, statements from judges, state’s attorneys, and law enforcement personnel were included in the commutation file. The file also contained the complete criminal record of Blair as kept by the Federal Bureau of Investigation. The file contains Blair’s criminal history and a copy of the penitentiary record specifying each infraction of rules and the disciplinary action taken. In addition, the file shows conclusively that Canary enlisted the services of the sheriff, the state’s аttorney, and circuit judges who had information concerning Blair. We believe that the thirty-one page commutation file was adequate to meet the requirements of SDCL 24-15-2.
The trial court erred in granting summary judgment to Hospital on the issue of foreseeability, therefore, we reverse and remand for trial on that issue. We affirm the summary judgments granted to Canary and Kinder. We affirm in part, reverse in part, and remand to the trial court.
Notes
SDCL 24-15-2 states:
The executive director of the board of pardons and paroles in preparing each case history
(1) Adopt and implement a procedure by which a report will be completed to contain the life history of each inmate;
(2) Receive from the warden of the penitentiary a copy of the true record of each inmate which specifies each infraction of rules and the disciplinary action taken; and
(3) Enlist the services of any sheriff, state’s attorney, circuit judge, or other officer who may have knowledge concerning each inmate, or circumstances surrounding the commission of the crime for which he was sentenced, or his previous history.
Concurrence Opinion
(concurring in part, dissenting in part).
In concurring with the majority opinion on the reversal aspect of this decision, the effect of which is to declare that there is a question of fact for a jury to determine the liability of the hospital on a dangerous condition of premises — where an invitee is injured (in this case, abducted, raped, and murdered) — see: my continuum of legal theory as reflected in a dissent in Mortenson v. Braley,
From Nicholas, we learn that possessors of land are liable for injuries incurred during the course of business, to the public at large, if the land is held open for business purposes. There is an obligation to visitors or invitees “to provide safe arrangements for the entrance and departure of people.” Nicholas,
Canary’s deposition, inter alia, reflects his awareness of a state law which required that he assemble an adequate case history; purpose of same being to present adequate considerations to the Parole Board that it might determine if an inmate may safely be released to society or if continued confinement is required. Facts suggest that Canary failed to perform his statutory duty, under SDCL 24-15-1 and SDCL 24-15-2, in that the case history, which was prepared and sent to the Parole Board, was incomplete and inaccurate.
Concerning Parole Officer Kinder, he apparently met with Blair on one occasion for approximately five minutes on the day of Blair’s release. Blair, if he can be believed, testified that a parole officer never checked on him. There are repeated suggestions, in the depositions, that Blair violated various admonitions in his parole plan and yet he neither was chastised nor found in violation of the conditions of his parole. Kinder was apparently unaware regarding Blair’s employment status, and of Blair’s operation of an automobile in direct contravention of
It appears to me that the Board of Pardons and Paroles of this State undertook a statutory duty which it violated. It did not protect the public from a dangerous criminal and did not follow through, once it paroled Blair. Canary either knew, or should have known, that a person such as Rocky Blair was dangerous and likely to cause bodily harm to the general public if not properly controlled. His failure to fully inform the Parоle Board of the character and tendencies of Rocky Blair was an obvious failure to perform his statutory duty. See SDCL §§ 24-15-1 and 24-15-2. Likewise, Kinder’s failure to properly supervise Blair was a breach of his duty. See note 4 and accompanying text, supra. Surely, regarding both Canary and Kinder, questions of fact exist as to whether or not they were negligent in the performance of their respective duties. See Grimm v. Arizona Bd. of Pardons & Paroles,
Furthermore, what does “maximum supervision mean? If Blair, indeed, was placed on “maximum supervision status,” there should hаve been a maximum amount of supervision. If Kinder was not “taking charge” of Blair, then who did have charge of him for and on behalf of the citizens of the State of South Dakota?
I steadfastly maintain that Blair’s violent history, and turning him loose on the streets of Sioux Falls, carried with it a responsibility by public officials of this state to see that he was properly supervised. There is certainly a genuine issue of material fact as to whether these public officials violated their duty, lest a third person, like Teresa Small, an innocent young woman whose missiоn was simply to help her mother, could likely be the victim of bodily harm such as rape and murder. Indeed, had the public officials of this state exercised reasonable care, would Teresa Small be alive today? A jury in Minnehaha County should decide this and it should not be decided, on the strength of this record, by the trial court, in a fashion totally adverse to this deceased woman’s interest and in favor of the governmental unit. Under SDCL 24-15-1.1, “[tjhe prisoner remains an inmate under the legal custody of the department of charities and corrections until the еxpiration of his term of imprisonment.”
In closing, I do not believe that either Kinder or Canary can escape the dictates of the Restatement (Second) of Torts § 319, at 129 (1965), which provides: “One who takes charge of a third person whom he knows or should know to be likely to
. "As a general rule, the possessor of land owes an invitee or business visitor the duty of exercising reasonable or ordinary care for the benefit of the invitee's safety, and the possessor is liable for the breach of such duty.” Mitchell,
. The Executive Director of the Board of Pardons and Paroles is statutorily directed to compile "an adequate case history" of each defеndant, SDCL 24-15-1, and “shall ... [a]dopt and implement a procedure ... to contain the life history of each inmate" and "[e]nlist the services of any sheriff, state’s attorney, circuit judge, or other officer who may have knowledge concerning each inmate, or circumstances surrounding the commission of the crime for which he was sentenced, or his previous history." SDCL 24-15-2. Canary’s “cut file" supplied to the Parole Board did not include:
(1) Official Statement from Second Judicial Circuit regarding Blair’s plea of guilty and subsequent sentencing for a 1976 robbery in the seсond degree. This statement contained a handwritten Addendum by Judge Braith-waite. It states: “I would be opposed to defendant being released in the minimum time. Unless he gets straightened out and some ability to earn money, he’ll be in trouble as soon as he gets out. /s/ Braithwaite, Judge.”
(2) A 1976 Report prepared by a Court Services Worker noting, inter alia, that Blair needed a “limiting and controlled] placement,” had "exhausted all available placements within the juvenile system,” and should be “handled as an adult.”
(3) Official Statement from Second Judicial Circuit concerning Blair’s 1977 attempted escape from jail and his accompanying damage to public property. A comment on the printed form under the heading "Disposition. Behavior While Awaiting Trial” reads: "attitude problem, all around troublemaker, agitator, fails to comply with orders.” Judge Braith-waite commented that Blair was “cocky” and “immature.”
(4) Official Statement from Second Judicial Circuit regarding charges of robbery in the first degree and kidnapping lodged against Blair in 1978 and his subsequent sentence of seven years for the robbery charge. A comment on the printed form under the heading “Disposition. Behavior While Awaiting Trial” reads: “Rocky has been a continued problem everytime he comes out of prison.”
. The majority states that it is unpersuaded by Grimm v. Arizona Bd. of Pardons & Paroles,
. It is important to note that legal custody of a parolee remains in the warden of the penitentiаry. SDCL 24-15-13. Upon release, a parolee is to be supervised by "officers and employees as may be necessary to accomplish the proper supervision of parolees_" SDCL 24-15-14 (emphasis supplied). Parole may be revoked if a parolee fails to abide by conditions of parole, fails to report to the correctional services office, refuses to answer inquiries made by the correctional services office, or if the purposes or objects of parole are not being met. SDCL 24-15-20. In this case, Blair, almost immеdiately upon his release from prison, violated conditions of his parole. Yet, Parole Officer Kinder’s lax supervision resulted in Blair’s numerous violations going unnoticed and unreported. Parole Officer Kinder had a duty to adequately supervise Blair’s parole. See Rieser v. District of Columbia,