Englund v. Vital

• Decision Date: 02 October 2013
• Docket Number: No. 26355.,26355.
• Citation: 838 N.W.2d 621,2013 S.D. 71
• Parties: Russell ENGLUND and Mary Englund, Individually, and as the Guardians Ad Litem of Gabrielle Englund, Plaintiffs and Appellants, v. Paul VITAL and Kristine Vital, Individually, and as the Guardians Ad Litem of Keenan Vital, Defendants, and Robert Smith, Defendant and Appellee.
• Court: South Dakota Supreme Court

838 N.W.2d 621

2013 S.D. 71

Russell ENGLUND and Mary Englund, Individually, and as the Guardians Ad Litem of Gabrielle Englund, Plaintiffs and Appellants,

v.Paul VITAL and Kristine Vital, Individually, and as the Guardians Ad Litem of Keenan Vital, Defendants,andRobert Smith, Defendant and Appellee.

No. 26355.

Supreme Court of South Dakota.

Argued March 18, 2013.

Decided Oct. 2, 2013.

Daniel K. Brendtro, Jeff Cole of Zimmer, Duncan & Cole, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

Richard L. Travis, Eric D. Denure, Lindsay K. Edwards of May & Johnson, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

WILBUR, Justice.

[¶ 1.] Twelve-year-old K.V. threw a softball-size rock that struck nine-year-old G.E. in the head. The parties disagree whether the incident was an accident or intentional. The incident occurred near the intersection of three backyards in Hartford, South Dakota. One backyard belonged to the rental home of K.V.'s parents,the Vitals; the second belonged to G.E.'s parents, the Englunds; and the third belonged to the Vitals' landlord, Robert Smith. Smith owned his own home, as well as the home next door, which the Vitals rented. Following the accident, the Englunds brought suit, individually, and as guardians ad litem for G.E., against K.V., the Vitals, and Smith. The claims against Smith included negligence and negligent rental. Smith moved for summary judgment, which the trial court granted. The Englunds appeal the trial court's grant of summary judgment in favor of Smith. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶ 2.] On July 7, 2008, twelve-year-old K.V. threw a softball-size rock that struck nine-year-old G.E. The rock struck G.E. in the forehead and her skull was severely damaged. Following the incident, G.E. was taken to the hospital where a titanium plate was inserted to repair her skull. G.E.'s parents indicated that her behavior changed as a result of her injury.¹

[¶ 3.] The parties disagree as to the circumstances whereby the rock was thrown. Prior to the incident, G.E. had been playing with K.V.'s younger sister, M.V. G.E. and M.V. had been building a “fort” in M.V.'s backyard. The children were not under adult supervision.² G.E. told her mother that she was running away from K.V. because he was chasing her with a rock. G.E. further told her mother that when she turned around to see if K.V. was still chasing her, she was hit with the rock. The Englunds also allege that K.V. may have washed off the rock before going to get help. Conversely, K.V. indicated that he was throwing rocks between two trees. He reported that after he threw the rock, he noticed G.E. run out from behind one of the trees. K.V. indicated that he yelled G.E.'s name to get her attention, but that when she turned around, she was hit by the rock. The parties agree that the rock came from the landscaping located alongside the Vitals' rental home.

[¶ 4.] At the time of the incident, G.E. and K.V. were neighbors. G.E. lived with her parents, the Englunds. K.V. lived with his parents, the Vitals. The Vitals and their landlord, Smith, lived in two separate homes directly behind the Englunds. Smith owned his home, as well as the property next door, which he rented to the Vitals. The backyards of all three properties were unfenced. There was evidence that the children had permission to play in Smith's backyard, which contained a swing set.

[¶ 5.] The parties disagree where the incident took place. G.E. indicated that she was on Smith's property when she was struck and that K.V. was standing near the lot line between the Vitals' rental property and Smith's home. K.V. stated that G.E. was running toward the side of her house when she was struck and that he was standing in his own backyard.

[¶ 6.] K.V. also indicated that a few weeks before the accident Smith saw K.V. throwing rocks at trees. According to K.V., Smith told him not to throw rocks toward Smith's house. The Englunds claim that Smith knew of K.V.'s propensity for rock throwing and that Smith agreed to remove the landscaping rocks from both his home and the Vitals' rental property. The Englunds also claim that prior to the incident, K.V. had lifted up a large piece of concrete “in a menacing manner” near a location where G.E. and M.V. were playing. The Englunds indicated that Smith had purchased a skid loader for the purpose of removing the rocks. Smith's wife, Katherine Smith, indicated that she and her husband had “talked about” moving the rocks, but that they “just [ha]dn't g[otten] to it yet.” Smith, however, indicated that the skid loader was purchased to assist with snow removal.

[¶ 7.] The Englunds brought suit, individually, and as guardians ad litem for G.E., against K.V., the Vitals, and Smith. The claims against Smith included: negligence, negligent rental, and punitive damages. The claim of negligent rental, however, was conceded by the Englunds. Smith moved for summary judgment. The motion was granted. The trial court held that Smith owed no duty to G.E. The order granting summary judgment in favor of Smith was certified as final under SDCL 15–6–54(b). The Englunds now appeal the grant of summary judgment in favor of Smith. Accordingly, this appeal is limited to the Englunds' claims against landlord Smith.

[¶ 8.] We address the following issues on appeal: ³

1. Whether the trial court erred in granting summary judgment based, in part, on its determination that Smith did not owe G.E. a duty of care based on his position as landlord.

2. Whether the trial court erred in granting summary judgment based, in part, on its determination that Smith owed no duty to protect G.E. from the alleged intentional or criminal conduct of K.V.

STANDARD OF REVIEW

[¶ 9.] Upon review of a grant of summary judgment, “[w]e 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.” Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745). “[A] material fact is one that might affect the outcome of the case [.]” Smith ex rel. Ross v. Lagow Constr. & Developing Co. ( Lagow ), 2002 S.D. 37, ¶ 9, 642 N.W.2d 187, 190. We view the evidence “most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists.” Brandt, 2013 S.D. 22, ¶ 7, 827 N.W.2d at 874 (quoting Jacobson, 2008 S.D. 19, ¶ 24, 746 N.W.2d at 745). Ultimately, “[o]ur task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.” Id.

DECISION

[¶ 10.] 1. Whether the trial court erred in granting summary judgment based, in part, on its determination that Smith did not owe G.E. a duty of care based on his position as landlord.

[¶ 11.] The Englunds argue that Smith, as the Vitals' landlord, owed a duty of care to G.E. “The landlord's liabilityhas been said to be one sounding in tort and based upon negligence[.]” Boe v. Healy, 84 S.D. 155, 159, 168 N.W.2d 710, 712 (1969) (citation omitted). “Negligence is the breach of a duty owed to another, the proximate cause of which results in an injury.” Janis v. Nash Finch Co., 2010 S.D. 27, ¶ 8, 780 N.W.2d 497, 500 (quoting Stone v. Von Eye Farms, 2007 S.D. 115, ¶ 6, 741 N.W.2d 767, 770). “The general rule regarding a landlord's liability is: a landlord, having parted with full possession of the premises to the tenant is not liable for injury to third persons caused by the tenant's negligence.” Clauson v. Kempffer, 477 N.W.2d 257, 259 (S.D.1991) (citations omitted); see also Hendrix v. Schulte, 2007 S.D. 73, ¶ 9, 736 N.W.2d 845, 848.

[¶ 12.] The Englunds argue that Smith owed G.E. a duty of care because he retained control over the Vitals' rental property. “The law of premises liability is based on possession and control.” Clauson, 477 N.W.2d at 259 (citing W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 57, at 386). Generally, “a lessor of land is not subject to liability to his lessee or others upon the land with the consent of the lessee ... for physical harm caused by any dangerous condition which comes into existence after the lessee has taken possession.” Id. (noting §§ 357 and 360–62 of the Restatement (Second) of Torts (1965) as exceptions).

[¶ 13.] The Englunds assert that Smith saw K.V. throwing rocks and allegedly told K.V. to stop, thus, demonstrating control over the Vitals' rental property. Yet, K.V.'s deposition testimony suggests that Smith was asserting control over his personal residence rather than the Vitals' rental property. In his deposition, K.V. testified:

Q. Had anybody ever talked to you about throwing rocks before this incident with [G.E.], saying that you shouldn't be throwing rocks?

A. Robert Smith had stated that he didn't want me to throw rocks toward his house.

Q. Robert Smith told you that?

A. Yes, sir.

Q. And that was before this incident with [G.E.]?

A. Yes, sir.

Q. Do you remember when that happened?

A. That was the same time I was throwing them at the tree sir.

Q. A couple weeks before?

A. Yeah.

Q. What did he tell you?

A. Well, I was throwing them at the tree, which is throwing them toward his house. So he didn't want me to hit his house on accident, sir, so he told me not to throw them toward his house.

Accordingly, even if Smith saw K.V. throwing rocks and asked him to stop, the evidence reflects that Smith was asserting control over his own residence, rather than the rental home then occupied by the Vitals.

[¶ 14.] The Englunds further argue that Smith demonstrated control over the Vitals' rental property by allegedly agreeing to remove the landscaping rocks from the Vitals' rental property and by purchasing a skid loader to remove the rocks....