H.B. By and Through Clarke v. Whittemore
| Decision Date | 11 July 1995 |
| Docket Number | No. C0-94-2115,C0-94-2115 |
| Court | Minnesota Court of Appeals |
| Parties | H.B. and S.B., Minor Children, By and Through Tracy CLARKE, Their Parent and Natural Guardian, et al., Appellants, v. Willard McLean WHITTEMORE, SLS Partnership, a General Partnership, Faegre & Lyons Management Resources, Inc., a Minnesota Corporation, d/b/a Faelon Properties, Respondents. |
Syllabus by the Court
1. Owners and operators of a trailer park have a special relationship with the park residents, where they hold themselves out as the managers of the property and the enforcers of the rules of conduct in the trailer park, and vulnerable residents in fact seek assistance and entrust their safety to the manager by reporting sexual abuse.
2. Once residents have sought help from trailer park owners and operators who have actual knowledge of harm to the residents, the owners and operators have a duty to warn and protect park residents from a dangerous resident when the owners and operators have a special relationship with the residents and the danger is foreseeable.
Dennis Patrick Moriarty, Jaspers, Moriarty and Walburg, P.A., Shakopee, for appellants.
Bradford Colbert, Melissa Sheridan, LAMP Clinic, St. Paul, for respondent Whittemore.
Laurie A. Willard, Cosgrove, Flynn, Gaskins, & O'Connor, Minneapolis, for respondent SLS Partnership.
Tony R. Krall, Michael M. Carter, Hanson Lulic & Krall, Minneapolis, for respondent Faegre & Lyons Management Resources, Inc.
Considered and decided by HUSPENI, P.J., and NORTON and KLAPHAKE, JJ.
Appellant parents and their children challenge summary judgment on their negligence and fraud claims, arguing that respondents' failure to warn them of a dangerous resident resulted in the sexual abuse of the children. We affirm summary judgment on the fraud claim, but reverse and remand for trial on the negligence claim.
Appellants Tracy Clarke, David Tietze, and Pamela Tietze are parents who brought this action on behalf of their four minor children who were sexually abused by respondent Willard Whittemore. Appellants and Whittemore lived in the Eaton Mobile Home Park (the Park). Respondent SLS Partnership (SLS) owns the Park. SLS contracted with respondent Faegre & Lyons Management Resources, Inc., doing business as Faelon Properties (Faelon), to manage the Park. Faelon employed Colleen Arndt as resident manager of the Park.
SLS and Faelon issued rules and regulations to Park residents in order to preserve a "quiet and enjoyable atmosphere." The rules prohibited "abusive, offensive, [and] lascivious conduct." SLS and Faelon also set forth a grievance procedure in the Park whereby residents were required to notify the manager, here Arndt, of any violations of the rules and regulations. SLS and Faelon set out Arndt as the keeper of the peace who would enforce the rules.
In order to reside in the Park, the adult appellants went through an application and approval process, by which the resident manager checked their references and qualifications, their credit history and criminal background. The Tietze family went through this process in 1983, before SLS or Faelon owned or managed the property, but received a new set of Park rules and regulations when SLS, Faelon and Arndt took over.
Similarly, appellant Tracy Clarke and her children applied and were approved for residence in the Park in February 1991. At the time Clarke purchased the trailer on the property, she had only spoken with Arndt regarding the application procedure; she had not discussed with her the environment in the Park or any security concerns. When Clarke met with Arndt to finalize the rental agreement and residence in the Park, Clarke said Arndt told her that, Clarke interpreted the Park's written rules and regulations as an expressed assurance of a safe environment. She explained:
[A]ccording to my Rules and Regulations on the conduct, if you were unruly, noisy, you would be evicted. And since [Whittemore] hadn't been evicted I figured it was safe.
In April 1992, Whittemore moved into the Park. Like appellants, he had applied to become a resident. During the application process, Whittemore told Arndt that he had previously been convicted of criminal sexual conduct and had served time in prison. He explained that he had been accused of molesting several children at the previous trailer park in which he lived. Arndt approved Whittemore's application and allowed him to move into the Park.
Whittemore, age 74, became very popular with the children in the Park because he offered them candy, cookies, and small toys and trinkets. Unbeknownst to any of the parents, Whittemore repeatedly molested these children during their visits to his yard and home. The four minor appellants were between the ages of four and seven years old at the time of this abuse. Whittemore warned the children not to tell anyone about what he was doing with them.
In July 1992, the four children went to Arndt's home to tell her that Whittemore had been touching them. Arndt told the children to tell their parents about the alleged abuse, but did not speak to the parents or to Whittemore personally. The children did not speak with their parents until August 22, 1992 when S.B. complained to her mother, Tracy Clarke, that she had pain in her vaginal area. She also told Clarke that the children had told Arndt of the abuse in July. In addition to telling her mother, S.B. explained to Kim Huemoeller of the Midwest Children's Resource Center and to Officer Mike Backus that the group of children had complained to Arndt a few weeks before telling their parents.
During the police investigation, Officer Backus spoke with Arndt. She told him that Whittemore had divulged his prior criminal record before being approved for residence in the Park. The police investigation led to a criminal complaint charging Whittemore with five counts of criminal sexual conduct in the second degree. Whittemore pleaded guilty and is currently incarcerated for these offenses.
Appellants brought this action in April 1993 alleging that SLS and Faelon had a duty to protect and warn appellants that another resident in the Park had a history of criminal sexual misconduct. Appellants also alleged that SLS and Faelon were negligent for failing to take remedial action once they learned of the abuse. Further, appellants alleged that Faelon made false and fraudulent representations to appellants that the mobile home park was a safe and secure environment.
Upon SLS's and Faelon's first set of motions for summary judgment, the district court granted partial judgment against appellants on the negligence claims. After the second motion hearing, the court granted partial judgment against appellants on the remaining fraud claim. Appellants then moved the district court for entry of final judgment pursuant to Minn.R.Civ.P. 54.02. The court obliged and this appeal followed.
1. Did Faelon and SLS have a duty to warn and protect appellants from any danger that Whittemore presented to the Park community?
2. Do any genuine issues of material fact preclude summary judgment on the fraud claims?
Upon review of summary judgment, this court must determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn.1992).
Appellants contend that the negligence of Faelon and SLS, in failing to warn appellants of Whittemore's criminal history and of the abuse once Arndt had actual notice of it, and in failing to protect appellants, resulted in the repeated sexual abuse of the children.
To establish a claim for negligence, appellants bore the burden of showing: a duty, a breach of that duty, a causal connection between the breach of duty and injury, and injury in fact. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156 (Minn.App.1993), pet. for rev. denied (Minn. July 15, 1993). Whether a legal duty exists is usually an issue for the court to determine as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn.1985).
Generally, under common law, a person owes no duty to warn or protect others who may be endangered by a third party's conduct. Cairl v. State, 323 N.W.2d 20, 25 n. 7 (Minn.1982); see also Restatement (Second) of Torts § 314 (). The courts have created an exception to this rule, however, that recognizes a duty to warn and protect when: (1) the harm is foreseeable; and (2) a "special relationship" exists between either the defendant and the party whose conduct needs to be controlled, or between the defendant and the foreseeable victims of the third party's conduct. Cairl, 323 N.W.2d at 25 n. 7. A special relationship may arise when one person entrusts his or her safety to another person and that person accepts that entrustment. Erickson v. Curtis Investment Co., 447 N.W.2d 165, 168 (Minn.1989).
The court is "cautious and reluctant" to recognize a special relationship and impose a duty in business enterprises and, consequently, has rarely recognized landlord liability for criminal acts by third parties. Id. at 168-69 (); see also Ponticas v. K.M.S., Invs., 331 N.W.2d 907, 911 (Minn.1983) (). But see Spitzak, 500 N.W.2d at 157 ().
Here we have a rare case in which a special relationship existed in a...
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H.B. By and Through Clark v. Whittemore
...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 relationshi......