Lead Opinion
(on reassignment).
[¶ 1.] A tenant was murdered when hired killers used a key to enter her apartment. Shortly before her death, she told two apartment employees that one of her keys was missing. According to her mother, the tenant also asked to have her lock changed. Landlord policy prohibited tenants from changing their own locks and required a fee to change them. When the tenant’s estate sued, the circuit court granted summary judgment, ruling that under these facts landlords owe no duty of protection to their tenants. We reverse because there are genuine issues of material fact, and although a landlord owes no
Background
[¶ 2.] Defendants Lagow Construction and Developing Company and Lloyd Property Management Company own and manage, respectively, the Westport Apartment complex in Sioux Falls, South Dakota. Westport is a low-income development. In 1994, Mary K. Ross rented an apartment at Westport for herself and her daughter. She received а copy of the apartment policies, detailing procedures for maintenance and repairs. One policy provision stated, “lock changes or additional locks are not permitted, it being understood that owner or manager may be required to enter in an emergency when no resident is present, such as fire or water coming through the ceiling.” Tenants were required to pay a $45 fee to replace a lost key. This fee covered the cost of changing the lock, if a lock change was necessary. If a tenant could not afford the fee at the time the key was lost, the cost would be deducted from the tenant’s security deposit. A tenant could inform the manager by phone, in writing, or in person, that a key was lost and a lock change was needed.
[¶ 3.] When Ross’s friend, Amy Power, experienced marital difficulties, Ross allowed Amy to live in the apartment. She gave Amy a key. From the limited facts in the record, it appears that in July 1995, Amy lost her key ring, which included the key to Ross’s apartment. Ross informed the maintenance person, Watson Lewing, who in turn told his manager, Jodi Bentz, that one of the keys to her apartment was missing. The parties dispute whether Ross requested a lock change, however.
[¶ 4.] Lewing testified by deposition that he did not remember whether Ross requested a lock change. Bentz testified in her deposition that when Lewing informed her of Ross’s missing key, she asked Lewing whether Ross wanted the lock changed, and he told her that Ross declined because Ross believed the keys would “turn up.” The next day Bentz personally spoke with Ross and asked her whether she wanted the lock changed. Ross declined. Employees, Lewing and Monica Price, neither of whom nоw work for defendants, and Bentz, who still does, all testified consistently about the key loss and Ross’s decision not to request a lock change.
[¶ 5.] On the other hand, the Ross estate offered the affidavit of Sherry Smith, Ross’s mother. Her affidavit states that (1) she maintained frequent phone contact with Ross; (2) she spoke with Ross three days before the murder and Ross told her that she had requested a lock change; (3) Ross told her she needed money to pay for a lock change; and (4) she detected fear in Ross’s voice, and Ross refused to discuss the Robert and Amy Power situation, tеlling her mother, “I do not want to talk about him; he’s psycho.”
[¶ 6.] In May 1995, before the key was lost, discord intensified between Amy and her husband, Robert Power. He decided that Ross was partially responsible for the difficulties in his marriage. That led him to contact Michael Smith. Together, they developed a plan for murder. See State v. Smith,
[¶ 7.] It is unclear from the record how Robert Power obtained a key to the apartment. He may have made a copy for himself in February 1995, when Ross gave it to him to make a copy for her to give to her babysitter. He may have had access to the key in June 1995, when he and his wife left Ross’s apartment and Amy thought she had lost her keys in the parking lot.
[¶ 8.] The Ross estate brought suit alleging negligent maintenance of the apartment complex. Defendants moved for summary judgment, asserting that they owed no common law duty to Ross because no special relationship existed. .The circuit court granted summary judgment for defendants. The Ross estate appeals on the following issues: (1) “Whether defendant landlords’ exclusive control over the lock on Ross’s apartment door created a special relationship between Ross and defendant landlords.” (2) “Whether defendant landlords owed Ross a duty of due care because it was reasonably foreseeable that she would be harmed.”
Analysis and Decision
[¶ 9.] This case presents two questions, one factual, the other legal. First, did Ross request a lock change? And if so, second, what legal duty did defendants have in response to that request? On question one, bearing in mind that a material fact is one that might affect the outcome of the case, we conclude that a genuine material fact exists here. See Anderson v. Liberty Lobby, Inc.,
[¶ 10.] In some jurisdictions, the law has gradually moved toward expanding landlord liability in instances where violent criminal acts by third parties are foreseeable and preventable. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63 at 442-43 (5th ed. 1984). Little in South Dakota law, however, suggests that landlords have a general duty to protect tenants from all criminal activity. Crime is everywhere, and proprietors ought not to bear the wholesale responsibility of protection simply because their tenants, like other members of society, become crime victims. Not even government law enforcement carries the burden of civil responsibility to victims if it fails to thwart criminal behavior. Gleason v. Peters,
[¶ 11.] Most courts refuse to impose a broad duty on landlords to protect tenants from criminal acts committed by third parties on the premises. See Rowe v. Lombard,
[¶ 12.] On the whole, we recognize no general duty to protect one’s fellow human beings from crime, and that rule equally applies to the ordinary relationship
[¶ 13.] In granting summary judgment for defendants, the circuit court applied our special relationship test from Walther v. KPKA Meadowlands Ltd. Partnership,
[¶ 14.] On the other hand, the special relationship test is not the only rule applicable in this case. There are compelling reasons to depart from the restrictive common law conception of landlord liability for leasehold injuries. For many, especially the poor, a rental property may be the only home they will ever occupy. A home is a citadel, and its integrity depends, at least in part, on its locks. A locked door is the first defense to a violent world. Landlords who insist on control over, decisions on changing tenant locks may bear some limited responsibility to their tenants when locks need to be changed or repaired in the face of foreseeable imminent danger. We conclude that although nq special relationship was created in this circumstance, the policy controlling the changing of tenant locks placed defendants in a position of heightened responsibility to their tenants.
[¶ 15.] Mary K. Ross died when her killers used a key to her apartment. If her lock had been changed beforehand, perhaps she would not have died. Only defendants’ employees could have changed her lock. See Cain v. Vontz,
[¶ 16.] A duty of protection occurs when a person’s affirmative act or omission exposes another to greater harm. Section 302B of Restatement (Second) of Torts (1965) creates an exception to the general rule that one has no duty to protect another from crime.
[¶ 17.] Foreseeability of high risk of harm is the basis for delineating the boundaries for a duty of protection. B.A. Glesner, Landlords As Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises, 42 CaseWResLRev 679 passim (1992). Whether a duty exists is a question of law to be answered by the court. Tipton v. Town of Tabor,
[¶ 18.] Although foreseeability is a question of fact in some contеxts, foreseeability in defining the boundaries of a duty is always a question of law. Poelstra v. Basin Electric Power Cooperative,
[¶ 19.] In this summary judgment appeal, we cannot decide the question of duty because the record is incomplete, and we must view what limited facts we have in a light most favorable to the nonmoving party. Most courts fix the limits of foreseeability by examining all the circumstances, including the landlord’s knowledge of prior criminal incidents on the premises. The prior incidents must be sufficiently numerous or of such significance and similarity that the landlord was on notice that there was probable danger to the tenants. Faheen v. City Parking Corp.,
[¶ 20.] In a majority of cases where a landlord was held liable for a criminal attack on a tenant, a known physical defect on the premises foreseeably increased the risk of that attack. See, e.g., Aaron v. Havens,
[¶21.] In sum, we reverse the summary judgment in this case and remand for further proceedings. A fact finder must decide whether Ross requested that her lock be changed. If she did not, then that would end the matter, because she was not obliged to change her lock, and defendants had no affirmative duty to protect her. If she did request a lock change, then the court must decide whether, based on aH the circumstances, there was sufficient evidence to make it reasonably foreseeable that defendants’ faüure to act on her request put her at probable high risk of harm from an imminent criminal act. If it was not reasonably foreseeable, then no duty existed. If the court rules that it was reasonably foreseeable, then the fact finder must decide whether defendants were negligent in failing to act on her request and whether such negligence was the proximate cause of her death.
[¶ 22.] Reversed and remanded with instructions.
Notes
. Restatement (Second) of Torts § 302B cmt e (1965), provides, in part, that situations in which an actor is required to guard against criminal misconduct of others
*192 arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct; or where the actor’s own affirmative act has created or exposed the other to a recognizable high degree of risk of harm through such misconduct, which a reasonable man would take into account.
Restatement (Second) of Torts § 448 (1965) provides:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
Concurrence Opinion
(concurring in result).
[¶ 26.] I concur in the result, but not in the theory of the majority opinion. The theory espoused by the majority opinion violates Plaintiffs right to a jury trial. It allows the court, rather than the jury, to determine whether a failure to change the lock, if the jury determines a change was requested, resulted in foreseeability that someone might enter and harm the decedent. The question of foreseeabüity is a question of fact for the jury. I would rephrase the issue as: whether genuine issues of material fact exist concerning landlord’s duty to Ross, if any, to change the lock. Since genuine issues of material fact exist, we should reverse and remand for a jury trial.
[¶ 27.] The trial court erred in applying the special relationship two-pаrt test articulated in Walther,
[¶ 29.] Nothing in South Dakota lаw suggests that landlords have an affirmative duty to protect tenants from criminal activity. In some jurisdictions, however, the law has gradually moved toward enlarging landlord liability in instances where violent criminal acts by third parties are foreseeable and preventable. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 63 at 442-43 (5th ed. 1984).
[¶ 30.] Many courts pondering whether landlords are under a duty to protect then-tenants against criminal activities by third persons have held that no duty exists simply by reason of the relationship, but that a duty might arise under special circumstances. Landlord’s Obligation to Protect Tenant Against Criminal Activities of Third Persons, 43 ALR3d 331 § 2(a) at 335. Landlords who by their own negligent acts or omissions increase the risk of harm from crime owe a duty to exercise reasonable care to protect tenants from that increased risk. See Restatement (Second) of Torts § 302B (1965) (an exception to the general rule that one person has no duty to protect another from crime exists where that person’s affirmative acts or omissions have created a foreseeable high risk of harm from intentional misconduct). See also Restatement (Second) of Torts § 448 (1965) (criminal act of third person is superseding cause of harm to another unless defendants could have foreseen that their negligent conduct increased risk of crime). Foreseeability of harm then becomes the basis for delineating the boundaries for a duty of protection. B.A. Glesner, Landlords As Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises, 42 CaseWResLRev 679, 685 (1992).
[¶ 31.] It has been a well established principle, to date at least, that when a landlord reserves control over a portion of the premises, a failure to carefully maintain that area creates tort liability. Boe v. Healy,
[¶ 32.] Under this record, we must view the faсts in a light most favorable to the nonmoving party. Wilson v. Great N. Ry. Co.,
*195 1. The landlord exercised exclusive control over the changing of the lock.
2. The landlord was informed that a key had been missing.
3. The decedent’s only remedy was to request that the landlord change the lock.
4. The decedent told her mother that she had requested a lock change.
5. The decedent requested to borrow money to pay for the lock change.
6. The lock was not changed.
[¶ 33.] Assuming these facts as true, as required in summary judgment, there is a genuine issue of material fact and a jury question whether the rеquest was made to change the lock. It is for a jury to determine if the failure to change the lock, if it finds the change was requested, resulted in foreseeability that someone might enter and harm the decedent. The question of foreseeability is a question of fact for the jury. E.P.,
[¶ 34.] We should reverse and remand so the jury can determine genuine issues of material fact, proximate cause and foreseeability under proper instructions.
Dissenting Opinion
(dissenting).
[¶ 35.] I respectfully dissent.
[¶ 36.] Clearly, the general rule is that there is no duty to protect a person from the criminal acts of a third party. Our two-pronged test, expressed a mere three years ago in Walther, states that a duty to protect a person from the criminal acts of a third party can arise ONLY if: (1) a special relationship exists between the landowner and the injured party; and (2) the intentional сriminal acts were foreseeable. Walther,
[¶ 37.] 1. No special relationship existed.
[¶ 38.] A legal • obligation generally must come from one of three sources. First it can be created by enactment of a specific statute. SDCL 1-1-23. No statute creating a duty of due care between a landlord and tenant exists in this state. Second, the obligation can come from the common law. Id. We held in Walther, no such common law duty exists between a landlord and tenant.
[¶ 39.] 2. Forseeability.
[¶ 40.] Moreover, the Court’s analysis of forseeability is in error. The landlord-tenant relationship is not analogous to other relationships where a duty has been imposed. See Walther,
[a]n apartment building is not a place of public resort where one who profits from the very public it invites must bear what losses that public may create. It is of its nature private аnd only for those specifically invited. The criminal can be expected anywhere, any time, and has been a risk of life for a long time.
Id. (citations omitted).
[¶ 41.] This Court bases its decision on the issues of exclusive control and foreseeability. But Ross gave Robert Powers, who contracted for her murder, access to her apartment key five months before her death. Not only did Ross share control of the locks with Lagow, she voluntarily extended control to Amy Powers, as well. Ross made no allegation that Lagow had any notice of the problems between Robert and Amy Powers, or even that Amy Powers was a resident in Ross’s apartment. Amy Powers lost the key to Ross’s apartment unbeknownst to Lagow. Lagow certainly did not have exclusive control of the lock. Nor could Lagow foresee any problem when it was not even aware that an additional key had been given to a third person not party to the lease contract. See King v. Ilikai Properties, Inc.,
[¶ 43.] Normally the next step would be to determine if Ross showed sufficient facts to create a jury question on foreseeability by applying the totality of the circumstances test. Walther,
Conclusion
[¶ 44.] Today the Court disregards the distinction between tort and contractual duties and the two-pronged test articulated in Walther, which establishes when a duty between a landlord and tenant arises. Instead, the Court erroneously applies other principles of negligence to establish a duty between a landlord and tenant arising under “special circumstances.” Under its flawed reasoning, the legal rationale of this case as compared with Walther is that the landlord apparently has a duty to protect tenants from felonious criminals who enter through a tenant’s door, but not through a tenant’s window.
[¶ 45.] Perhaps there would be no difference in the ultimate amount of landlord liability in this case, whether based on tort or breach of contract if both were рroperly pled. That is unknown, however, because the contract issue has not been brought before this Court on this appeal and therefore, cannot be considered. What about the next missing-key ease where there is no clause or even a written lease on the subject? Does landlord liability still attach via tort principles as this Court holds today? If so, the “special circumstances exception” has just swallowed up the general rule of landlord tort non-liability with no legal basis to do so.
[¶ 46.] For the above reasons, I respectfully dissent.
[¶ 47.] MILLER, Retired Chief Justice, joins this dissent.
. The Court concedes this point when it declares, ''[l]ittle in Sоuth Dakota statutes and precedents, however, suggests that landlords have a general duty to protect tenants from all criminal activity.... Most courts refuse to impose a broad duty on landlords to protect tenants from criminal acts committed by third parties on the premises.”
. This is not to say that a special relationship between a landlord and tenant can never exist, only that one does not arise in this case. See, e.g., Flood v. Wis. Real Estate Inv. Trust,