Dоnovan SMALL, As the Special Administrator of the Estate of Teresa Small, Deceased, Plaintiff and Appellant, v. The McKENNAN HOSPITAL, Art Canary, and Don Kinder, Defendants and Appellees.
No. 15342.
Supreme Court of South Dakota.
Argued Nov. 19, 1986. Decided April 1, 1987.
Rehearing Denied May 7, 1987.
403 N.W.2d 410
I have serious questions not only about this second sentence but wholly fail to see how the dividing of the retirement fund or pension plan as marital property “in effect destroys Kenneth‘s future livelihood and means of complying with the alimony award.”
The majority opinion reverses the alimony award and orders its elimination. In my opinion, this is error and I dissent. I would affirm the trial court in all respects except only that I would impose a constructive trust on the present value of the pension rather than a judgment.
I am authorized to state that Circuit Judge Konenkamp joins in this dissent.
Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiff and appellant; Gregory A. Eiesland of Lynn, Jackson, Shultz & Lebrun, Rapid City, on brief.
Paul T. Barnett of Siegel, Barnett & Schutz, Sioux Falls, for defendant and appellee McKennan Hosp.
John W. Bastian, Asst. Atty. Gen., Pierre, for defendants and appellees Art Cаnary and Don Kinder; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.
MORGAN, Justice.
Donovan 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 rеcent parolee from the South Dakota State Penitentiary, forced Teresa into his vehicle and shortly thereafter drove out of the parking ramp. Teresa was subsequent
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 purpose 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 occurred in or around the parking ramp since its complеtion 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 the ramp and reported being told by people that they would not park in the ramp due to the dangers involved.
The chiеf 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 contends 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 addrеss this issue. State v. Holland, 346 N.W.2d 302 (S.D.1984); Application of Northwestern Bell Tel. Co., 326 N.W.2d 100 (S.D.1982);
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 preventativе measures.” Representative cases supporting this theory are C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985) and Foster v. Winston-Salem Joint Venture, 50 N.C. App. 516, 274 S.E.2d 265 (1981) modified, 303 N.C. 636, 281 S.E.2d 36.
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 approximately 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, 368 N.W.2d at 446. The Foster court held that landowners are “responsible for protecting their business invitees from the foreseeable criminal action of third parties.” Foster, 274 S.E.2d at 267. The court went on, however, to hold that thirty-six reported criminal incidents in a seventy-six acre parking lot in the same year, involving six or seven assaults against the person, should not have placed defendants on notice that a dangerous condition existed. The Supreme Court of North Carolina on subsequent appeal reversed the summary judgment and remanded for trial on the merits. Foster, 281 S.E.2d at 38.
The California Supreme Court in Isaacs v. Huntington Memorial Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 (1985), was presented with a situation very similar to the case at hand. The Isaacs court refused to allow the lack of prior similar incidents to be determinative of foreseeability, opting instead for a “totality of the circumstances” test. The opinion is well reasoned and notes that the “prior similar incidents” rule “contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery.... Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his рroperty.” Isaacs, 38 Cal.3d at 125, 211 Cal.Rptr. at 361, 695 P.2d at 658.
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, 83 S.D. 584, 588, 163 N.W.2d 344, 346 (1968): “The duty to foresee a risk of harm is dependent upon all the surrounding facts and circumstances and may require further investigation or inquiry before action is taken.” See Johnson v. Straight‘s Inc., 288 N.W.2d 325 (S.D.1980). In light of the foregoing, we believe that the learned trial judge erroneously applied the “prior similar acts” rule in lieu of the “totality of the circumstances” rule.
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 аnd 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 brought 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, 372 N.W.2d 161, 167 (S.D.1985). Furthermore, “[t]he existence of a duty is a question of law to be determined by the court.” Id. In Barger for Wares, we examined the duty to control the conduct of a third person, namely, an employee. In that case, we quoted Restatement (Second) of Torts § 315 (1965) which provides:
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 instаnt 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 firеarms, 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 searching 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, 303 Md. at 248, 492 A.2d at 1304.
The facts in the instant case indicate that substantially similar arrangements were present between Kinder and Blair. Even though Blair was placed on maximum supervision status, he was allowed to live apart from the penitentiary and also was employed, though it appears he had not reported to his job prior to the killing. Blair was not supervised on a daily basis by Kinder. The maximum supervision status required Kinder to see Blair at least twice a month and also required a home visit and employment check each month. The supervision required by the Board‘s rules for maximum supervision does not rise to the degree of “taking charge” contemplated by § 319.
Donovan relies heavily on the case of Grimm v. Arizona Bd. of Pardons & Paroles, 115 Ariz. 260, 564 P.2d 1227 (1977), to support his argument that Kinder had a duty to control Blair. We do not find this case persuasive. The case involved the liability of members of the Board of Pardons and Paroles and its chief holding dealt with the sovereign immunity of those board members. In our view, the duties created by §§ 315 and 319 do not extend to include persons such as members of the Board of Pardons and Paroles and parole officers. We note that the Grimm case was severely limited in 1984 when the Arizona Legislature passed a statute granting immunity to employees such as board members of the Board of Pardons and Paroles and parole officers.
In addition to the duty of control argument, Donovan asserts that Canary had a statutory duty to Teresa under
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
The trial court erred in granting summary judgment to Hospital on the issue of foreseeability, therefore, we reverse аnd 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.
WUEST, C.J., SABERS, J., and FOSHEIM, Retired Justice, concur.
HENDERSON, J., concurs in part and dissents in part.
MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.
HENDERSON, Justice (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, 349 N.W.2d 444, 446 (S.D.1984); a special concurrence in Kryger v. Dokken, 386 N.W.2d 481, 484 (S.D.1986); and a special concurrence in Mitchell v. Ankney, 396 N.W.2d 312, 316 (S.D.1986).1 See also Nicholas v. Tri-State Fair & Sales Ass‘n, 82 S.D. 450, 454-55, 148 N.W.2d 183, 185 (1967).
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, 82 S.D. at 455, 148 N.W.2d at 186 (citing Camp v. Wood, 76 N.Y. 92, 32 Am. Rep. 282 (1879); Gray v. First Nat‘l Bank, 250 Minn. 539, 85 N.W.2d 668 (1957)). Teresa Small was a staff member, as was her mother, and she chose to leave her mother‘s car at the parking ramp because the parking ramp was open to the public and, as so pertinent here, particularly, to
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 requirеd. Facts suggest that Canary failed to perform his statutory duty, under
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 Parole Board of the character and tendencies of Rocky Blair was an obvious failure to perform his statutory duty. See
Furthermore, what does “maximum supervision” mean? If Blair, indeed, was placed on “maximum supervision status,” there should have been a mаximum 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 mission was simply to help her mother, could likely be thе 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
In closing, I do not believe that either Kinder оr 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