Small v. McKennan Hosp.

• Decision Date: 07 May 1987
• Docket Number: No. 15342,15342
• Citation: 55 USLW 2575,403 N.W.2d 410
• Parties: Donovan SMALL, As the Special Administrator of the Estate of Teresa Small, Deceased, Plaintiff and Appellant, v. The McKENNAN HOSPITAL, Art Canary, and Don Kinder, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 410

403 N.W.2d 410

55 USLW 2575

Donovan SMALL, As the Special Administrator of the Estate of Teresa Small, Deceased, Plaintiff and Appellant, v. The McKENNAN HOSPITAL, Art Canary, and Don Kinder Defendants and Appellees.

No. 15342.

Supreme Court of South Dakota.

Argued Nov. 19, 1986.

Decided April 1, 1987.

Rehearing Denied May 7, 1987.

Rick Johnson of Johnson, Eklund & Davis, Gregory, for plaintiff and appellant; Gregory A. Eiesland of Lynn, Jackson, Shultz & Lebrun, Rapid City, on brief.

Paul T. Barnett of Siegel, Barnett & Schutz, Sioux Falls, for defendant and appellee McKennan Hosp.

John W. Bastian, Asst. Atty. Gen., Pierre, for defendants and appellees Art Canary and Don Kinder; Mark V. Meierhenry, Atty. Gen., Pierre, on brief.

MORGAN, Justice.

Donovan Small (Donovan), plaintiff in this action, appeals from summary judgments granted to defendants McKennan Hospital (Hospital), Art Canary (Canary), and Don Kinder (Kinder). We affirm in part, reverse in part, and remand.

This case stems from the abduction, rape, and murder of Teresa Small (Teresa), the wife of Donovan. At about 7:30 p.m. on the night of October 12, 1982, Teresa was abducted by Rocky Blair as she entered the elevator on the third floor of the parking ramp at McKennan Hospital in Sioux Falls, South Dakota. Blair, who was a recent parolee from the South Dakota State Penitentiary, forced Teresa into his vehicle and shortly thereafter drove out of the parking ramp. Teresa was subsequently raped and murdered by Blair.

Prior to Teresa's abduction, Blair was parked on the third floor of the hospital parking ramp. At the time he was consuming alcoholic beverages and smoking marijuana. Blair had been in the parking ramp anywhere from fifteen to forty-five minutes prior to the arrival of Teresa. Teresa was an employee of Hospital, however, her purpose for being in the parking ramp on this occasion was to deliver her mother's car so her mother could drive home after work. Teresa did not enter the hospital, but rather proceeded to enter the elevator in an attempt to leave the parking ramp.

Hospital is located in an older residential section of Sioux Falls composed mainly of single-family dwellings. Deposition and affidavit testimony indicate that this area is considered a low-crime area. There were no other similar incidences that occurred in or around the parking ramp since its completion in 1979. It is undisputed, however, that there were several incidents on the ramp including reports of stolen car batteries, stolen gasoline, smashed windows, broken antennaes, intoxicated and disorderly people, and lug bolts being taken off or loosened. In addition, from time to time the ramp had been littered with beer cans and alcoholic beverage bottles, and on one occasion human feces were found in the elevator. Security personnel, in deposition testimony, also stated that they were aware of two or three complaints about nurses being followed near the hospital and were also aware of an incident that occurred approximately twelve to fifteen years prior where a nurse was hit over the head and dragged toward a car. The security officers also reported incidents where they took knives away from people in and around the hospital. At least one security officer was concerned about the nurses' safety at the ramp and reported being told by people that they would not park in the ramp due to the dangers involved.

The chief security officer, according to his deposition testimony, requested increased security every year since his original employment but was turned down on each occasion. He also acknowledged that lighting is a deterrent to criminal activity and stated that there was a "concensus of opinion that there maybe should have been more light in the [parking ramp]."

Donovan also presented an expert witness who outlined what he claimed to be serious shortcomings in security at the hospital and specifically the parking ramp. Information was presented to show that the lighting in the parking ramp did not meet industry standards. The expert also testified that in his opinion security at the parking ramp was inadequate and that the abduction was foreseeable.

Initially, we note that Hospital and Donovan disagree on Teresa's status while she was in the parking ramp. Hospital contends that Teresa was a licensee while Donovan contends that she was an invitee. In its memorandum opinion, the trial court found that Teresa was an invitee. Hospital failed to file a notice of review on this finding by the trial court; thus, we will not address this issue. State v. Holland, 346 N.W.2d 302 (S.D.1984); Application of Northwestern Bell Tel. Co., 326 N.W.2d 100 (S.D.1982); SDCL 15-26A-22. For purposes of this appeal, Teresa was an invitee.

The issue we must address that concerns Hospital is the foreseeability of the abduction, rape, and murder of Teresa. The trial court was correct when it stated that "[t]he pivotal issue is the foreseeability of the incident." Hospital and the trial court rely on authorities that establish prior similar acts as determinative in foreseeability questions. The trial court specifically stated "the test of foreseeability seems to depend on whether there were prior incidents which should have alerted the hospital to the necessity of instituting preventative measures." Representative cases supporting this theory are C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985) and Foster v. Winston-Salem Joint Venture, 50 N.C.App. 516, 274 S.E.2d 265 (1981) modified, 303 N.C. 636, 281 S.E.2d 36.

Both Sophir and Foster involved facts somewhat similar to this case and resulted in summary judgment for the defendant. In Sophir, the Nebraska Supreme Court upheld summary judgment even though an identical incident occurred approximately two months prior. The Nebraska court pointed out that landlords are not insurers and that there is no duty to warn of a known danger. According to the Nebraska court: "The ordinary, reasonable person is aware or should be aware that open parking lots provide an optimum place for crime to occur." Sophir, 368 N.W.2d at 446. The Foster court held that landowners are "responsible for protecting their business invitees from the foreseeable criminal action of third parties." Foster, 274 S.E.2d at 267. The court went on, however, to hold that thirty-six reported criminal incidents in a seventy-six acre parking lot in the same year, involving six or seven assaults against the person, should not have placed defendants on notice that a dangerous condition existed. The Supreme Court of North Carolina on subsequent appeal reversed the summary judgment and remanded for trial on the merits. Foster, 281 S.E.2d at 38.

The California Supreme Court in Isaacs v. Huntington Memorial Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 (1985), was presented with a situation very similar to the case at hand. The Isaacs court refused to allow the lack of prior similar incidents to be determinative of foreseeability, opting instead for a "totality of the circumstances" test. The opinion is well reasoned and notes that the "prior similar incidents" rule "contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery.... Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property." Isaacs, 38 Cal.3d at 125, 211 Cal.Rptr. at 361, 695 P.2d at 658.

The Isaacs court also points out that various trial courts may differ as to what is a "similar" incident and may have trouble defining time and territory limits for purposes of determining foreseeability. The California court also correctly notes that foreseeability is ordinarily a question of fact. Several other courts have also held that it was prejudicial error to grant summary judgment for defendants in cases with similar facts. Paterson v. Deeb, 472 So.2d 1210 (Fla.App.1985); Roettger v. United Hospitals of St. Paul, 380 N.W.2d 856 (Minn.App.1986). See also Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).

We believe that strict adherence to the "prior similar acts" rule is unduly restrictive and places too great a burden on the plaintiff. As we noted in Ward v. LaCreek Electric Association, 83 S.D. 584, 588, 163 N.W.2d 344, 346 (1968): "The duty to foresee a risk of harm is dependent upon all the surrounding facts and circumstances and may require further investigation or inquiry before action is taken." See Johnson v. Straight's Inc., 288 N.W.2d 325 (S.D.1980). In light of the foregoing, we believe that the learned trial judge erroneously applied the "prior similar acts" rule in lieu of the "totality of the circumstances" rule.

Our inquiry may not end there, however. We must now determine whether the plaintiff has presented enough facts to create a jury question under the "totality of the circumstances" rule. We believe that testimony concerning the prior criminal activity in and around the parking ramp, coupled with the testimony of the expert witness outlining the security inadequacies of the parking ramp, establishes a fact question for the jury on the issue of foreseeability. Furthermore, we also note at this point that Hospital was aware of the increased crime risk associated with parking ramps and hospital areas. This knowledge is demonstrated by the several advisories included in the staff newsletter by the hospital administration. Since the trial court applied the wrong test to determine foreseeability and as a result erred in granting summary judgment, we reverse and remand for trial.

In addition to the cause of action brought against Hospital, Donovan brought a cause of action against Canary, the Executive Director of the Board of Pardons and Paroles, and Kinder, Blair's parole officer. Donovan claims that Canary was negligent in preparing a report on Blair that was submitted to the Board of Pardons and Parole...