Martinko v. H-N-W Associates, H-N-W

• Court: United States State Supreme Court of Iowa
• Writing for the Court: LAVORATO; All Justices concur except LARSON, CARTER and SCHULTZ, JJ., who dissent, and NEUMAN; LARSON; CARTER
• Citation: 393 N.W.2d 320
• Parties: Albert F. MARTINKO, Administrator of the Estate of Michelle Martinko, Deceased, Appellant, v.ASSOCIATES, a Limited Partnership, d/b/a Westdale Mall; Westdale Associates d/b/a Westdale Mall Merchants Association; Ernest W. Hahn, Inc.; Harry Newman, Jr.; Leroy H. Brettin; Robert P. Lawrence; and Stephen E. Gordon, Appellees.
• Decision Date: 17 September 1986
• Docket Number: H-N-W,No. 85-1303

Page 320

393 N.W.2d 320 Albert F. MARTINKO, Administrator of the Estate of Michelle Martinko, Deceased, Appellant,
v.
H-N-W ASSOCIATES, a Limited Partnership, d/b/a Westdale Mall; Westdale Associates d/b/a Westdale Mall Merchants Association; Ernest W. Hahn, Inc.; Harry Newman, Jr.; Leroy H. Brettin; Robert P. Lawrence; and Stephen E. Gordon, Appellees. No. 85-1303. Supreme Court of Iowa. Sept. 17, 1986.

Mary K. Hoefer and Hugh G. Albrecht of Tom Riley Law Firm, P.C., Cedar Rapids, for appellant.

James F. Pickens, Cedar Rapids, for appellees.

Considered en banc.

LAVORATO, Justice.

The district court entered summary judgment in favor of the defendants, the owners, operators, and merchants' association of Westdale Mall Shopping Center in Cedar Rapids. See Iowa R.Civ.P. 237. The plaintiff, Albert F. Martinko, administrator of his daughter's estate, had sought damages for her death. He alleged that his daughter was killed on the defendants' premises and that they were negligent for not providing reasonable security for her safety.

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In granting the motion ¹ the court concluded the plaintiff did not generate a genuine issue of material fact on the defendants' duty to protect his daughter against the criminal conduct of third persons. The plaintiff now appeals from this judgment. We affirm.

Whether the defendants owed the plaintiff's daughter a duty is our only issue, which is an appropriate one for summary judgment. See Jacobs v. Stower, 243 N.W.2d 642, 643-44 (Iowa 1976). Principles governing the review of grants of summary judgment are summarized in Knapp v. Simmons, 345 N.W.2d 118, 121 (Iowa 1984):

Summary judgment is proper when there is no genuine issue of fact and the moving party is entitled to the judgment as a matter of law. The burden of showing the nonexistence of a material fact is upon the moving party. While an adverse party generally cannot rest upon his pleadings when the moving party has supported his motion, summary judgment is still not proper if reasonable minds could draw different inferences and conclusions from the undisputed facts. In this respect, summary judgment is functionally akin to a directed verdict; every legitimate inference that reasonably can be deduced from the evidence should be afforded the nonmoving party, and a fact question is generated if reasonable minds can differ on how the issue should be resolved.

(Citations omitted.) See Anderson v. Liberty Lobby, Inc., 477 U.S. ----, ----, 106 S.Ct. 2505, 2509-15, 91 L.Ed.2d 202, 211-17 (1986) (Fed.R.Civ.P. 56).

On December 19, 1979, Michelle Martinko drove to the mall, which had opened two months earlier, and parked in the southwest section of the adjacent parking lot. She was seen in the mall about 9:30 p.m., one-half hour before it closed and security personnel began patrolling the lot.

The next morning Michelle was found dead in her car, which was parked in the northwest section of the lot, fifty yards from the mall's nearest entrance. Her car was parked in this area around 10:00 the night before, the estimated time of death. It appears Michelle was killed inside the car, which apparently was not broken into. Her tragic death remains unsolved.

The plaintiff sought to impose liability on the defendants for his daughter's death under Restatement (Second) of Torts, section 344, at 223-24 (1965), which provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by the ... intentional harmful acts of third persons ... and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

The nub of this section is foreseeability:

Since [a] possessor [of land] is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care unless he knows or has reason to know that the acts of the third person are occurring, or about to occur ... if the place or character of his business, or his past experience, is such that he should reasonably anticipate ... criminal conduct on the part of third persons ... he may be under a duty to take precautions against it....

See Restatement, supra, comment f, at 225-26.

In Foust v. Kinley, 254 Iowa 690, 694, 117 N.W.2d 843, 846 (1963) we adopted section 348 of the Restatement, ² the predecessor

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to section 344. In that case a patron was struck in the head by a companion's golf club when he left a driving stall to retrieve some spilled golf balls. The district court sustained a motion for directed verdict. We affirmed the judgment because the plaintiff was injured "as a result of a sudden, isolated act which could not have been anticipated." 254 Iowa at 598, 117 N.W.2d at 848.

We agree with the plaintiff section 344 applies to the facts of this case. The important question is whether the defendants should have foreseen the attack on the...