Erickson v. Curtis Inv. Co.

• Decision Date: 27 October 1989
• Docket Number: NU-WAY,No. C7-88-1177,C7-88-1177
• Citation: 447 N.W.2d 165
• Parties: Garnet ERICKSON, et al., Respondents, v. CURTIS INVESTMENT COMPANY, et al., Defendants and Third-Party Plaintiffs, Petitioners, Appellants, Leadens Investigation and Security, Inc., Petitioner, Appellant, Thomas Sabo, Defendant, v.HOUSE, INC., Third-Party Defendant.
• Court: Minnesota Supreme Court

Page 165

447 N.W.2d 165

58 USLW 2284

Garnet ERICKSON, et al., Respondents, v. CURTIS INVESTMENT COMPANY, et al., Defendants and Third-Party Plaintiffs, Petitioners, Appellants, Leadens Investigation and Security, Inc., Petitioner, Appellant, Thomas Sabo, Defendant, v. NU-WAY HOUSE, INC., Third-Party Defendant.

No. C7-88-1177.

Supreme Court of Minnesota.

Oct. 27, 1989.

Syllabus by the Court

1. A parking ramp owes a duty to use reasonable care to deter criminal activity on its premises which may cause personal harm to its customers.

2. In this case, the security firm hired to patrol the ramp by the ramp's owner owed a duty of care to ramp patrons who were customers of the ramp's lessee, and a question of fact exists on the discharge of that duty and on causation.

James F. Dunn, Janet S. Stellpflug, St. Paul, for Curtis Inv. Co., Inc., Allright Parking MN, Inc. and Allright Auto Parks, Inc.

Richard Mahoney, Victor E. Lund, Minneapolis, for Leadens Investigation and Sec., Inc.

Robert L. McCollum, Lane Kirchner, Bloomington and Gary J. Gordon, Minneapolis, for Garnet Erickson, et al.

Thomas Sabo, Minnesota Correctional Facility, Oak Park Heights, Stillwater, pro se.

Heard, considered, and decided by the court en banc.

OPINION

SIMONETT, Justice.

Does the operator of a commercial parking ramp owe a duty to a ramp customer to protect her from a trespassing rapist? We think so and affirm the court of appeals. As to the legal responsibility of the security firm hired to patrol the ramp, we hold, as did the court of appeals, that there are issues of fact on whether the security firm breached its duty and on causation.

Plaintiff-respondent Garnet Erickson was sexually assaulted and raped in the Curtis parking ramp in downtown Minneapolis late one winter afternoon as she was preparing to drive her car out of the ramp. The ramp was owned by defendant Curtis Investment Company. Curtis, in turn, had leased the ramp (reserving space for its own use) to defendant Allright Parking Minnesota, Inc., a Minnesota corporation, which is a wholly owned subsidiary of defendant Allright Auto Parks, Inc., a foreign corporation. Plaintiff Erickson and her husband sued Curtis and the two Allright corporations, plus defendant Leadens Investigation and Security, Inc., a security firm that had been hired by Curtis to provide certain security services. ¹

After discovery, the four defendants successfully moved for summary judgment. Plaintiffs appealed to the court of appeals. The appeals panel reversed the trial court, holding that Curtis and Allright Parking owed plaintiff a duty to provide her with a reasonably safe parking ramp. The panel also held there was a genuine issue of material fact whether Leadens, the security firm, had properly performed its security functions. Erickson v. Curtis Investment Co., 432 N.W.2d 199 (Minn.App.1988). We granted petitions for further review by the four defendants. Curtis and the two Allright corporations raise only the issue whether they owed Ms. Erickson a legal duty of care and, if so, what standards would discharge that duty. Defendant Leadens, on the other hand not only questions whether it owed a duty to Ms. Erickson but, if it did, further claims it had discharged that duty. ²

For some 6 months prior to the assault, Ms. Erickson had been a monthly contract parker at the Curtis Ramp. The ramp is a self-serve, multi-level parking facility, with approximately 330 parking spaces. It is across the street from the Curtis Hotel and connected to the hotel by an enclosed skyway at the second level. (The hotel has since been torn down.) The assault occurred on December 7, 1983. Ms. Erickson went to the ramp after work, at about 5 p.m. She took the elevator to the second level and went to her car, a Chevette hatchback, parked facing inwards. She saw no security guards. She claims the ramp was dimly lit. Ms. Erickson had started the engine when defendant Thomas Sabo opened the driver's door and forced himself inside. Ms. Erickson managed to scream before Sabo clamped his hand over her mouth and shut the door. A struggle ensued. At some point during this time, Ms. Erickson remembers two people getting into the car next to hers and driving off. Later, another car came or left in the stall next to her car. Sabo eventually forced Ms. Erickson into the back of the car and raped her. At one point Ms. Erickson managed to open a door and scream for help, and several times she briefly sounded the car's horn. After Sabo left, plaintiff restarted her car, defrosted the windows, and drove to the main level where she reported the crime to the booth attendant on duty. The security guard learned of the assault at 5:27 p.m. The assault, occurring during rush hour, had apparently lasted about 25 minutes.

In November 1982 Curtis had leased the ramp facility to Allright Parking, reserving about 146 spaces for its hotel guests and personnel plus some spaces rented to a car rental agency. It was the lessee's responsibility to operate the ramp. On the day of the assault, Allright Parking's manager believes he had walked through the ramp twice. At the time of the assault, an Allright employee was in the exit booth and the manager apparently was in his office. Access to the ramp from outside doors and the skyway could not be observed from the attendant's booth. The ramp did not have signs warning of security steps taken, nor was the ramp equipped with television monitors.

In May 1981 Curtis hired Leadens to provide security services for the hotel. At some point, Curtis told Leadens' guards to patrol the parking ramp also. If requested, the guards would also escort women hotel employees and patrons to their cars in the ramp. Robert Buchan, the guard on duty at the time of the assault, testified he patrolled the ramp once every hour, walking through the facility from the top level to the bottom. On the day of the assault Buchan began work at 4 p.m.; he had made two rounds through the ramp by the time he learned of the assault. His log shows he made his second round from 5:08 to 5:24 p.m. Apparently, then, he walked by the Erickson car during the assault. As he walked, Buchan would use a flashlight to look between the parked cars.

There had never been a report of a crime against a person in the ramp prior to the Erickson assault. (In June 1983, a Leadens guard had an altercation with a would-be thief, and in August 1983 two men attempting to steal from the ramp attendant harassed a woman who was calling the security guard.) There were, however, some 85 "security incidents" in the ramp over a period of 3 to 4 years. There were also hundreds of "security related incidents" reported in the Curtis Hotel over this period of time, although the relevancy of many of these incidents (such as asking intoxicated persons to leave the bar, damage to pop machines, altercations within hotel rooms) may be debatable. In addition, less than 2 months before the rape, the manager of the Curtis Hotel had written the 7th Ward council member reporting an increase in "street people" in the neighborhood, an increase in crime both inside and outside the hotel, and the concerns expressed by hotel customers and residents about their safety. In April 1983, similar concerns had been expressed at a public meeting.

Plaintiff's experts, in deposition testimony, criticized the security of the Curtis ramp in numerous aspects, including poor lighting, unmonitored access to the ramp from the street, failure to patrol the ramp more frequently, failure to post signs indicating presence of security, poor training and supervision of the security guards, and decreased security measures at a time when criminal activity appeared to be on the increase. One of the experts stated there is a potential for crimes of personal violence where property crimes occur.

Thomas Sabo, the alleged rapist, has an extensive history of criminal activity and drug abuse, and is alleged to have been intoxicated at the time of the assault. The attack on Ms. Erickson occurred some 8 or 9 hours after Sabo had been released from prison on the morning of December 7.

We will first discuss the duty of care of Curtis and Allright Parking. Apparently because of their mutual use of the ramp under the lease, Curtis and Allright Parking have filed a joint brief. For our purposes here, on the question of whether any duty is owed, we will treat them together.

I.

Does the owner-operator of a commercial parking ramp have a duty to provide security to protect its customers from criminal assaults by third parties?

If the law is to impose a duty on A to protect B from C's criminal acts, the law usually looks for a special relationship between A and B, a situation where B has in some way entrusted his or her safety to A and A has accepted that entrustment. This special relationship also assumes that the harm represented by C is something that A is in a position to protect against and should be expected to protect against.

Thus a duty to protect may be found in the innkeeper-guest and common carrier-passenger relationship. Analogous to the innkeeper-guest case is the hospital-patient relationship. See Sylvester v. Northwestern Hosp. of Minneapolis, 236 Minn. 384, 386-87, 53 N.W.2d 17, 19 (1952); Roettger v. United Hospitals of St. Paul, 380 N.W.2d 856, 859-60 (Minn.App.1986). On the other hand, while there may be a close relationship between a homeowner and a nurse companion, a private homeowner generally is not in a position to protect against third-party criminal activity and is not expected to provide such protection. Pietila v. Congdon, 362 N.W.2d 328, 333 (Minn.1985).

In this case we inquire whether the duty to protect should be extended to another kind of business enterprise, specifically, a commercial parking ramp. As to business enterprises generally, the law has been cautious and reluctant to impose a duty to protect. A mere merchant-customer relationship is not enough to impose a...