H.B. By and Through Clark v. Whittemore

• Decision Date: 29 August 1996
• Docket Number: No. C0-94-2115,C0-94-2115
• Citation: 552 N.W.2d 705
• Court: Minnesota Supreme Court
• Parties: H.B. and S.B., minor children, By and Through Tracy CLARK, their parent and natural guardian, et al., Respondents, v. Willard McLean WHITTEMORE, Respondent, SLS Partnership, a General Partnership, Petitioner, Appellant, Faegre & Lyons Management Resources, Inc., a Minnesota corporation, d/b/a Faelon Properties, Petitioner, Appellant.

Page 705

552 N.W.2d 705

H.B. and S.B., minor children, By and Through Tracy CLARK their parent and natural guardian, et al., Respondents, v. Willard McLean WHITTEMORE, Respondent SLS Partnership, a General Partnership, Petitioner, Appellant Faegre & Lyons Management Resources, Inc., a Minnesota corporation, d/b/a Faelon Properties, Petitioner, Appellant.

No. C0-94-2115.

Supreme Court of Minnesota.

Aug. 29, 1996.

Syllabus by the Court

No special relationship exists between the resident manager of a trailer park and children residing in the park so as to enforce a duty on the manager to act for the protection of the children.

Hanson Lulic & Krall, Tony Krall, Michael M. Carter, Minneapolis, for Appellant Faegre & Lyons Management Resources, Inc.

Cosgrove, Flynn & Gaskins, Laurie A. Willard, Minneapolis, for Appellant SLS Partnership.

Jaspers, Moriarty and Walburg, P.A., Dennis Patrick Moriarty, Shakopee, for Respondents H.B. and S.B., By and Through Tracy Clark.

Bradford Colbert, Melissa Sheridan, LAMP Clinic, Saint Paul, for Respondent Willard McLean Whittemore.

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

OPINION

STRINGER, Justice.

In this case we are once again asked to consider whether requisite "special circumstances" exist to deviate from the general common law rule that one owes no duty to warn those endangered by the conduct of a third party. The complaint here alleged fraud and negligence claims against appellants, the owners and operators of the Eaton Mobile Home Park, arising out of incidents of sexual abuse of the respondent minor children perpetrated by another tenant in the trailer park. The district court granted appellants' motions for summary judgment on the negligence allegation, concluding that appellants did not have a duty to the minor children because they were not in a special relationship with them. ¹ The court of appeals reversed, concluding that when the children told the resident manager that they were being sexually abused by another tenant, a special relationship developed that gave rise to a duty to the children. We disagree and reverse.

Throughout the time of the incidents that concern us here, SLS Partnership, a General Partnership (SLS) owned the Eaton Mobile Home Park and contracted with Faegre & Lyons Management Resources, Inc., a Minnesota corporation doing business as Faelon Properties (Faelon), to manage it. Colleen Arndt was employed by Faelon as the resident manager. The family of two of the children, N.T. and K.T., moved to Eaton in 1983 when the park was owned by a company other than SLS. When SLS subsequently purchased the park, new rental agreements were executed with the tenants and copies of the park rules were provided to the tenants. The parents considered the rules to be standard mobile park regulations. Similarly, the mother of the other two children, H.B. and S.B., received a copy of the rental agreement and rules when she moved to the park in 1991, and additionally claims to have been assured by Arndt that the park was a good neighborhood for families.

The printed form Eaton rental agreement included a provision that "[t]he park shall not be liable for any injury, loss, damage, expense or cost arising from any act, default or omission of any other Tenant of the Park or of any other person, guest or visitor." The Eaton trailer park rules and regulations, as to which the tenants agreed to conform when they signed the rental agreement, contained a number of provisions relating to conduct of park tenants and guests. Section III, labeled "Conduct," provides: "You are responsible for the conduct of your children, guests and invitees" and "Noisy, unruly, abusive, offensive, lascivious conduct is not permitted." Under the "Miscellaneous" section, the rules provide for the processing of tenant complaints: "Any complaint you have about the park or other residents must be submitted to the park in writing and signed by you."

In November 1991, after the families of the children had moved to Eaton, Arndt received an application for a rental agreement from Willard Whittemore. During the application process, Whittemore told Arndt that several years earlier he had pled guilty to a charge of criminal sexual conduct after being accused of molesting several children at the trailer park where he then lived. Arndt approved Whittemore's rental application anyway, and in April of 1992 he moved into Eaton. During the summer of 1992 the four children, all girls between the ages of four and seven years old, began spending considerable amounts of time with Whittemore at his trailer. The parents were aware that their children often helped Whittemore in his garden, collected rocks with him, that he gave them treats, and that they visited his trailer nearly every day, playing, laughing, and singing with him.

In late July 1992, the children came to park manager Arndt's home and told her, in effect, that Whittemore had been touching them in an inappropriate sexual manner. Arndt responded by telling the children to tell their parents, but they did not tell their parents right away. The abuse continued for approximately another three weeks--until August 22, 1992, when S.B. told her mother about it, and upon S.B.'s mother reporting the abuse to the police, the matter was investigated. In interviews by police officers and medical personnel, the children reported that on more than one occasion Whittemore had touched and rubbed their genital areas, both under and over their underwear. Medical reports following examination of H.B. and S.B. were consistent with what the children disclosed. ² In Whittemore's police interview, he claimed that the children made up the story of abuse to retaliate against him because he had stopped giving them treats. ³

We review the summary judgment "to determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law." Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992). In so doing, we view the evidence in a light most favorable to the party against whom summary judgment was granted, and any doubts of the existence of a material fact are resolved in favor of the losing party. Id.

As to the existence of a duty--an issue we generally determine as a question of law for this court to decide de novo, Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985)--we first note the general common law rule that a person does not have a duty to give aid or protection to another or to warn or protect others from harm caused by a third party's conduct. Delgado v. Lohmar, 289 N.W.2d 479, 483 (Minn.1979). An exception to this general rule arises where the harm is foreseeable and a special relationship exists between the actor and the person seeking protection. Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989); Delgado, 289 N.W.2d at 483. Our first consideration then, is whether there was a special relationship between Arndt and the children that imposed a duty on Arndt to the children.

The circumstances bringing about a duty to another have been addressed by this court on numerous occasions. In Erickson we noted that the relationships upon which a duty has traditionally been imposed include those of an innkeeper and a guest, a common carrier and a passenger, and a hospital and a patient, but that the unique characteristics peculiar to a parking ramp also led to the conclusion that "[t]he operator or owner of a parking ramp facility has a duty to use reasonable care to deter criminal activity on its premises which may cause personal harm to customers." 447 N.W.2d at 168, 169-70. These characteristics included the downtown location, the scarcity of people, the ease of access from the street, the attraction of vandals and thieves to unattended cars generally, the many levels, pillars, stairwells, and rows of parked cars--all of which may provide hiding places. Id. at 169. The parking ramp presented a "particular focus or unique opportunity for criminals and their criminal activities, an opportunity which to some degree is different from that presented out on the street and in the neighborhood generally." Id. We therefore concluded that the ramp owner had a duty to use reasonable care to deter criminal activity on its premises.

Here, the court of appeals depended on Erickson and cited three factors in reaching its conclusion that Arndt owed the children a duty: first, that Faelon had held Arndt out as the local authority who would enforce the rules in the park and evict problem residents; second, that the children reported the abuse to Arndt because of her perceived position of authority; and third, that Arndt had prior knowledge of Whittemore's history of criminal sexual conduct. H.B. and S.B. v. Whittemore, 533 N.W.2d 887, 891 (Minn.App.1995). These circumstances, the court of appeals held, "created the necessary entrustment to establish a special relationship once the children reported the abuse to Arndt and sought her help." Id. The court concluded that the children entrusted themselves to Arndt because they believed that they should seek help from her and expected her to act to protect them in some way.

Instances where a special relationship has created a duty on the part of a defendant to protect a plaintiff typically involve some degree of dependence. See Restatement (Second) of Torts § 314A cmt. b (1965). Such a duty might exist on the part of one who has custody of another under circumstances where the party seeking protection is deprived of or lacks the capacity for normal opportunities of self-defense, as this court considered in Andrade v. Ellefson, 391 N.W.2d 836 (Minn.1986). In Andrade, the plaintiffs seeking protection were small children in a child care home who had little opportunity to protect themselves from their day care provider. There we held a duty existed on the part of Anoka County to protect the uniquely vulnerable children from the abusive day care...