Erickson v. Curtis Inv. Co.
| Citation | 432 N.W.2d 199 |
| Decision Date | 29 November 1988 |
| Docket Number | No. C7-88-1177,C7-88-1177 |
| Parties | Garnet ERICKSON, et al., Appellants, v. CURTIS INVESTMENT COMPANY, et al., Defendants and Third-Party Plaintiffs, Respondents, Leadens Investigation and Security, Inc., and State of Minnesota, Respondents, Thomas Sabo, Defendant, Nu-Way House, Inc., Third-Party Defendant, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
1. Respondents CIC, AAP, AMP, and Leadens owed a duty to Erickson to provide reasonably safe parking conditions.
2. Respondents breached that duty.
3. There was a causal relationship between the breach and the assault.
4. The State of Minnesota is immune from liability for Sabo's release.
5. Nu-Way House had no duty to control Sabo in this case.
Robert L. McCollum, Lane Kirchner, McCollum & Daly, Bloomington, Gary J. Gordon, Fetterly & Gordon, Minneapolis, for Garnet Erickson, et al., appellants.
James F. Dunn, Janet S. Stellpflug, Saint Paul, for Curtis Investment Company, et al., defendants and third-party plaintiffs, respondents.
Richard Mahoney, Minneapolis, for Leadens Investigation and Security, Inc., respondent.
Hubert H. Humphrey, III, Atty. Gen., Mary Ann Bernard, Sp. Asst. Atty. Gen., St. Paul, for State of Minn., respondent.
Deborah L. Crowley, Minneapolis, for Nu-Way House, Inc., third-party defendant, respondent.
Heard, considered and decided by CRIPPEN, P.J., and FORSBERG and LOMMEN *, JJ.
This is an appeal from the trial court's grant of summary judgment in favor of respondents State of Minnesota, Curtis Investment Company (CIC), Allright Parking Minnesota, Inc. (APM), Allright Auto Parks, Inc. (AAP), and Leadens Investigation and Security, Inc. (Leadens). It is also a cross-appeal by CIC, APM, and AAP from the trial court's grant of summary judgment dismissing third-party claims against Nu-Way House, Inc. (Nu-Way). We affirm in part and reverse in part.
Appellant Garnet Erickson was assaulted and raped at about 5:00 p.m. on December 7, 1983, at the Curtis Parking Ramp in downtown Minneapolis. Erickson worked downtown and was a monthly contract parker at the Curtis Ramp. The ramp was attached to the Curtis Hotel by a skyway. CIC owned and operated the Curtis Hotel and owned the Curtis Ramp. CIC had leased the Curtis Ramp to APM, a subsidiary of AAP. Leadens was hired by CIC to provide security guards for the hotel.
The alleged rapist, Thomas Sabo, was out on parole when he allegedly raped Erickson. Sabo was referred to Nu-Way for alcohol treatment by the Minnesota Department of Corrections.
1. Was there a duty on the part of CIC, APM, AAP, and Leadens to provide adequate security measures in the parking ramp?
2. If a duty so exists, is there material issue of fact as to its breach?
3. Was there a material issue of fact as to a causal relationship between the alleged breach of duty and the assault?
4. Was the State of Minnesota immune from liability for a decision to parole Sabo?
5. Was there a duty owed by Nu-Way to control Sabo's conduct?
Courts vary in their approach to the duty of possessors of property to protect others from crime. Some courts refuse to recognize any duty at all to protect patrons from the criminal acts of third persons merely because they occur on a business' property. Shaner v. Tucson Airport Authority, Inc., 117 Ariz. 444, 448, 573 P.2d 518, 522 (1977); Davis v. Allied Supermarkets, Inc., 547 P.2d 963, 965 (Okla.1976). Other courts recognize that a landowner may be under a duty to protect others from crime under certain carefully limited "special" circumstances. Some courts hold, for example, that no duty arises unless the landowner knows or has reason to know that "acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee." Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn.1975); Henley v. Pizitz Realty Co., 456 So.2d 272, 276-77 (Ala.1984). In Schmanski v. The Church of St. Casimir of Wells, 243 Minn. 289, 67 N.W.2d 644 (1954) the Minnesota court held:
[T]he occupant of premises, although not an insurer of their safe condition, is bound to exercise ordinary or reasonable care to keep them in a safe condition for those who come upon them by his express or implied invitation. Such duty of reasonable care includes the duty of making the premises safe as to dangerous conditions or activities upon the premises of which the occupant knows or of which he ought to have knowledge in the exercise of reasonable care.
Id. at 293, 67 N.W.2d at 647 (citing Zuercher v. Northern Jobbing Co., 243 Minn. 166, 171, 66 N.W.2d 892, 896 (1954)) (emphasis added); see also Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.1983) ().
Yet, other courts hold that a criminal attack may be sufficiently foreseeable to ground a duty to prevent it if and only if substantially similar crimes have occurred on the premises in the past. See e.g., Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982) (). Similarly, in Roettger v. United Hospitals of St. Paul, 380 N.W.2d 856 (Minn.Ct.App.1986), a local hospital in the Twin Cities was found negligent for its inadequate security procedures when a trespasser assaulted a patient. The jury concluded that the hospital's failure to provide adequate security on the patient's floor was a substantial factor in bringing about the patient's injuries. Id. at 862. This court affirmed the verdict, recognizing that the hospital owed a duty of care to take reasonable steps to ensure the safety of Roettger while on the hospital premises.
We believe that such a duty exists in this case. First of all, there is evidence that this is a high crime area and that crimes had been committed both in the Curtis Hotel and ramp. Secondly, concern was expressed by Curtis about the number of "street" people and crime in the area. While there were no reported rapes in the ramp, there were many crimes against property. The security expert's testimony and common sense clearly indicates that property crimes can easily escalate to violent crimes. An interrupted thief is unpredictable and can easily turn on the one who interrupts. The rape was a foreseeable event.
Respondents rely strongly on Pietila v. Congdon, 362 N.W.2d 328 (Minn.1985), contending that foreseeability is lacking. But Pietila involved a private residence unlike this case of Roettger. As stated in Roettger,
Pietila is easily distinguished from the present case; it involved a private residence where the defendants neither acknowledged nor undertook any special duty to deter crime on the premises. Here, United is a large urban hospital that had hired a security staff to protect its patients and employees.
CIC, APM, and AAP had a duty to provide a reasonably safe parking ramp. As the security firm hired by CIC, Leadens had a duty to perform their security function in a satisfactory manner.
There are sufficient facts asserted by appellants to raise a material issue of fact as to causation. First of all, a consultant testified that Curtis failed in providing adequate patrol and adequate lighting. Curtis failed to control the ramp's perimeters and elevator areas. Experts also testified to the lack of training of Leadens security people. Erickson further argues that Leadens failed to maintain a regular foot patrol schedule, or even utilize existing hardware such as punch clock devices to ensure patrolling. As to APM, there were also no signs alerting possible criminals of the existence of security or emergency communicators (telephones or emergency buttons) to alert security personnel nor was there closed circuit televisions. Many other security breaches were listed or noted by the consultants.
Moreover, the security guard on duty may have been negligent in not detecting the rape. The alleged rapist, Thomas Sabo, stated that he never saw a security person and if he had, he would have left. He also said the ramp was so dark, you could barely see but a few cars away. Therefore, there is certainly a fact issue as to a causal relationship between the breach of duty and the sexual assault.
Leadens also argues that it was an agent of CIC and...
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