Andrushchenko v. Silchuk, 24464.

CourtSupreme Court of South Dakota
Citation744 N.W.2d 850,2008 SD 8
Decision Date30 January 2008
Docket NumberNo. 24464.,24464.
PartiesAlex ANDRUSHCHENKO and Nataliya Andrushchenko, as Guardian Ad Litem of D.A., a Minor, and Nataliya Andrushchenko, Individually, Plaintiffs and Appellants, v. Ivan SILCHUK and Lyuba Silchuk, Metzger Construction, Inc. and M & M Plumbing-HVAC, L.L.C., Defendants and Appellees.

Rollyn H. Samp of Samp Law Firm, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

William C. Garry, Shawn M. Nichols of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for appellees Silchuk.

Roy A. Wise of Richardson, Wyly, Wise, Sauck, & Hieb, LLP, Aberdeen, South Dakota, Attorneys for appellee Metzger Construction.

Mark D. O'Leary, Sioux Falls, South Dakota, Attorney for appellee M & M Plumbing.


[¶ 1.] Alex and Nataliya Andrushchenko (Andrushchenkos), as guardians ad litem of their minor child D.A., and Nataliya Andrushchenko, individually, brought suit against Ivan and Lyuba Silchuk (Silchuks), Metzger Construction, Inc., and M & M Plumbing-HVAC, L.L.C. (M & M) (collectively defendants) for injuries that D.A. sustained from scalding water in the Silchuks' bathtub. The circuit court granted summary judgment to the defendants. Andrushchenkos appeal. We affirm.


[¶ 2.] The circuit court was presented with certain undisputed facts. On December 29, 2002, Silchuks invited Andrushchenkos and their three-year-old son, D.A., over to their home for lunch. Early in the visit, D.A. turned on the faucets and flooded the main floor bathroom. Later, the Silchuk children and D.A. went upstairs to play. Mrs. Silchuk went upstairs and saw that D.A. was not playing with the other children. He was playing by himself in another area of the room. She closed the door to the bedroom where the baby was sleeping and rejoined the adults on the main floor. The baby was sleeping in the master bedroom, with access to the master bathroom, which had a whirlpool tub. She did not bring D.A. downstairs with her nor report to his parents that he was playing alone upstairs. Shortly thereafter, the adults heard D.A. scream. They ran upstairs, and found him in the bathtub in the master bathroom. He had evidently opened the door of the baby's room and entered the master bathroom. He turned on the hot water and placed toys and other objects in the bathtub. He then either intentionally climbed or accidentally slipped into the bathtub. The hot water caused severe burns. The water in the tub was approximately 160° F. His burns required extensive treatment, including plastic surgery.

[¶ 3.] Silchuks' water heaters were installed as part of the construction of their home a few months prior to the incident. Metzger Construction, as the general contractor, hired M & M to install the water heaters. M & M claimed it set; the thermostats at 125° F.

[¶ 4.] Andrushchenkos alleged that the defendants were negligent. They claim that Silchuks owed D.A. the duty of ordinary and reasonable care because of his status as an invitee and because of a gratuitous duty undertaken by Mrs. Silchuk to protect D.A. They claim that Metzger had a duty to set the water heater thermostats at 120° F, as established by the 2003 Uniform Plumbing Code and the water heater manuals and that Metzger's duty extends to third parties such as D.A. They also claim that M & M had a duty to warn Silchuks that the thermostat setting had a high risk of scalding.

[¶ 5.] Silchuks, Metzger and M & M filed motions for summary judgment after discovery. Andrushchenkos filed affidavits in opposition to the summary judgment motion. Silchuks and Metzger objected to three of Andrushchenkos' opposing affidavits; (1) police reports of the investigation of the incident, (2) a water heater use and care manual and (3) a copy of the 2003 Uniform Building Code. The circuit court sustained the objections to the three affidavits and their attachments because of lack of foundation or relevancy.

[¶ 6.] The circuit court entered summary judgment for all defendants. The court determined from the undisputed evidence that Andrushchenkos had not established that the defendants owed a duty to the injured child. As to defendants Silchuks, the circuit court determined that as a social guest D.A. had the status of licensee. Thus, Silchuks only owed a duty to warn of or make safe concealed dangerous conditions known to them at the time D.A. sustained his injuries. The court determined that Andrushchenkos had not produced sufficient evidence to demonstrate that Silchuks knew of any alleged dangerous condition. Similarly, the court rejected Andrushchenkos' gratuitous duty theory. The court based its determination on evidence that Ms. Andrushchenko admitted in her deposition that; she had not relinquished her responsibility to supervise D.A. while in Andrushchenkos' home. The court also found that Andrushchenkos had not presented evidence that Silchuks had agreed to assume the responsibility to supervise D.A.

[¶ 7.] As to Metzger and M & M, the circuit court determined that Andrushchenkos had not presented evidence that they had violated any ordinance, statute or industry standard, which would have created a duty to D.A. and that no duty arose in common law. Andrushchenkos appeal and raise the following issues:


1. Whether the circuit court erred by not admitting exhibits offered in opposition to the summary judgment motion.

2. Whether the circuit court erred in granting summary judgment for defendants.


[¶ 8.] "When reviewing a grant of summary judgment, `we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law.'" Kling v. Stern, 2007 SD 51, ¶ 5, 733 N.W.2d 615, 617. "All facts and favorable inferences from those facts must be viewed in a light most favorable to the nonmoving party." Hendrix v. Schulte, 2007 SD 73, ¶ 6, 736 N.W.2d 845, 847. However, the nonmoving party must "present more than [u]nsupported conclusions and speculative statements, [which] do not raise a genuine issue of fact." Burley v. Kytec Innovative Sports Equipment, Inc., 2007 SD 82, ¶ 34, 737 N.W.2d 397, 408 (quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 N.W.2d 567, 569 (S.D.1994)). "Summary judgment is generally not feasible in negligence cases." Satterlee v. Johnson, 526 N.W.2d 256, 258 (S.D.1995). "The existence of a duty is a question of law that is reviewed de novo." State Auto Ins. Co. v. B.N.C., 2005 SD 89, ¶ 20, 702 N.W.2d 379, 386 (citation omitted).

[¶ 9.] Evidentiary rulings are reviewed under an abuse of discretion standard. Looks Twice v. Whidby, 569 N.W.2d 459, 460 (S.D.1997).

1. Whether the circuit court erred by not admitting exhibits: offered in opposition to the summary judgment motion.

[¶ 10.] Andrushchenkos attempted to offer copies of police reports prepared by the Sioux Falls Police Department and obtained by subpoena. Andrushchenkos submitted the exhibits to show that the police investigation demonstrated that the water temperature was 160° F. at the time of the scalding. The accompanying affidavit was from Andrushchenkos' attorney, not from the custodian of the records or from the officers who made the reports. The court refused to consider the reports because of lack of foundation.

[¶ 11.] We have consistently held that the party submitting an affidavit has the duty to lay the proper foundation to establish admissibility. An affidavit from the custodian of the records or other qualified witness is necessary to establish foundation. See DuBray v. South Dakota Dept. of Social Services, 2004 SD 130, ¶ 15, 690 N.W.2d 657 (holding it is the burden of the proponent to establish trustworthiness and admissibility). The proper foundation for business records in a summary judgment proceeding is an affidavit from a custodian of the records or other qualified witness. In this case, the only evidence of admissibility was the attorney's affidavit. The general rule is that attorney affidavits should not be used unless the matter is uncontested or a mere formality. We have explained use of an attorney's affidavit as follows:

[w]hen submitting affidavits in support of summary judgment motions, an attorney's affidavit is governed by the same rules of admissibility in regard to personal knowledge and competency .... Furthermore, an attorney's affidavit should not be utilized for summary judgment decisions unless the testimony therefrom would be admissible at trial the affidavits must not ... give evidence regarding matters that would be questions of fact." Maryland Cas. Co. v. Delzer, 283 N.W.2d 244, 249 (S.D. 1979).


[¶ 12.] Clearly, Andrushchenkos' attorney was not the custodian of the police reports, and the court did not abuse its discretion by sustaining the objection. Additionally, none of the defendants contested that the water temperature was high enough to scald. Regardless of the ruling, the court indicated it considered the evidence of the water temperature because it came in through other admissible and relevant sources. Thus, for purposes of the summary judgment ruling, the court considered the evidence in the light most favorable to Andrushchenkos. The court took, as true, the fact that the water out of the tap was 160° F. and that the water heater thermostats were on the highest setting.

[¶ 13.] Andrushchenkos also offered evidence that the proper thermostat setting should have been lower than set by M & M. The evidence was in the form of a manual Andrushchenkos' attorney received from the water heater manufacturer, Rheem, after a phone call to their service department. The attorney's affidavit included the following:

3. On October 17, 2005, I made a phone call to Rheem Manufacturing's Technical Support Line at 1-800-432-8273.

4. I spoke...

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