Smith ex rel. Ross v. LAGOW CONST.

• Decision Date: 13 March 2002
• Docket Number: No. 21530.,21530.
• Citation: 642 N.W.2d 187,2002 SD 37
• Parties: Sherry K. SMITH, as personal representative of Mary K. ROSS and as guardian of Kristian K. Ross, Plaintiff and Appellant, v. LAGOW CONSTRUCTION & DEVELOPING COMPANY and Lloyd Property Management Company, Defendants and Appellees.
• Court: South Dakota Supreme Court

642 N.W.2d 187

2002 SD 37

Sherry K. SMITH, as personal representative of Mary K. ROSS and as guardian of Kristian K. Ross, Plaintiff and Appellant, v. LAGOW CONSTRUCTION & DEVELOPING COMPANY and Lloyd Property Management Company, Defendants and Appellees.

No. 21530.

Supreme Court of South Dakota.

Argued January 10, 2001.

Reassigned August 10, 2001.

Reassigned November 9, 2001.

Decided March 13, 2002.

Robert L. Morris of Day, Morris & Schreiber, Belle Fourche, South Dakota, John W. Burke of Barker, Wilson, Reynolds & Burke, Belle Fourche, South Dakota, Attorneys for plaintiff and appellant.

Richard J. Helsper, Victoria M. Duehr of Glover, Helsper & Rasmussen, Brookings, South Dakota, Attorneys for defendant and appellee.

KONENKAMP, Justice (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 general duty to tenants to protect them from crime, such a duty arises when a landlord's affirmative acts or omissions create a foreseeably high risk to the tenant.

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 a 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 now 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, telling 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, 1998 SD 6, 573 N.W.2d 515

. They hired two other individuals to commit the crime. Power gave Smith the apartment key, and he in turn gave it to the hired killers. On July 9, 1995, the two men entered Ross's apartment with the key and stabbed her to death. Robert Power was apprehended, and he pleaded guilty to first-degree murder. He was sentenced to life without parole in the state penitentiary.

[¶ 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., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 211-12 (1986)

. Defendants' employees testified that Ross told them of the missing key, but that she declined to have her lock changed. Ross's mother, on the other hand, avers under oath that Ross said she did request a lock change. On the second question, we must define what legal duty exists under the particular facts of this case.

[¶ 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, 1997 SD 102, 568 N.W.2d 482.

[¶ 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, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358, 1364 (1988)

(citing cases). As the West Virginia Supreme Court acknowledged, the notion of expanding the duty of landlords to secure people against crime tends to reach the absurd: "One can foresee landowners, proprietors of restaurants, stores, theaters, banks, schools, and, indeed, public buildings being civilly responsible for all crimes on their premises." Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821, 826-27 (W.Va.1995) (quoting Clarke v. J.R.D. Management Corp., 118 Misc.2d 547, 461 N.Y.S.2d 168, 170 (N.Y.City Civ.Ct.1983)).

[¶ 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 of landlord and tenant. If a duty exists for such protection, it must originate from some special relationship imposing an obligation to protect another from crime based on a position of dependence intrinsic to the relationship. A special relationship can occur between common carriers and passengers, innkeepers and guests, business owners and invitees, and employers and employees. See Restatement (Second) of Torts § 314A (1965).

[¶ 13.] In granting summary judgment for defendants, the circuit court applied our special relationship test from Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 41, 581 N.W.2d 527, 535. There, we confirmed that a landlord-tenant arrangement creates no special relationship, and, although landlords have a duty to maintain the safe physical condition of the common areas within their exclusive control, the tenant's window in that case was not under the exclusive control of the landlord. Id. at ¶ 42, 49. Here, because defendants did not have exclusive control over Ross's apartment lock, the circuit court held that defendants had no special relationship with Ross. We agree with this reasoning as far as it went. Ross herself gave Robert Powers access to her apartment key five months before he contracted to have her murdered. As defendants did not have exclusive control over her apartment lock, no special relationship existed here.

[¶ 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...