Small v. McKennan Hosp.
Decision Date | 08 March 1989 |
Docket Number | No. 16110,16110 |
Citation | 437 N.W.2d 194 |
Parties | Donovan SMALL, As the Special Administrator of the Estate of Teresa Small, Deceased, Plaintiff and Appellee, v. The McKENNAN HOSPITAL, Defendant and Appellant. |
Court | South Dakota Supreme Court |
Rick Johnson of Johnson, Eklund & Davis, Gregory, Gregory A. Eiseland and Jon C. Sogn of Lynn, Jackson, Shultz & LeBrun, Rapid City, for plaintiff and appellee.
Harvey C. Jewett and Paul T. Barnett of Siegel, Barnett & Schutz, Rapid City, for defendant and appellant.
On November 12, 1982, at approximately 7:30 p.m. Rocky Blair (Blair) abducted Teresa Small (Teresa) from the McKennan Hospital (McKennan) parking ramp, raped her twice and murdered her. Teresa's husband Donovan Small (Small), as special administrator of her estate, brought a negligence action against McKennan. In Small v. McKennan Hospital, 403 N.W.2d 410 (S.D.1987), we reversed the trial court's grant of summary judgment and remanded the case for trial on whether under the "totality of the circumstances" McKennan could have foreseen the abduction, rape, and murder. McKennan now appeals from the verdict in favor of Small. We affirm.
Teresa and her mother Kathy Smith (Smith) were employed at McKennan. At approximately 7:15 p.m. on November 12, 1982, Teresa drove her mother's car to McKennan to return it to the parking ramp. Small followed Teresa in his car. Because of traffic and road conditions, Teresa was about one block ahead of Small when she turned into the parking ramp. At 7:30 p.m. Small parked his car west of the entrance/exit onto the parking ramp. He was parked there about five minutes when a white Buick driven by a single male left the parking lot. The Buick stopped about a block down the street for a few minutes, made a U-turn and drove by Small.
Shortly thereafter, Small, concerned about miscommunications with Teresa, took the elevator to the third floor of the parking ramp. He observed Smith's car parked about 30 to 35 feet from the elevator doors. Since Teresa was not in the area, Small proceeded to check the stairwells and the elevator. He noticed a lot of cigarette butts in one area of the stairwell. There were human feces in one of the elevators. About this time Teresa's mother appeared and they both proceeded to look for Teresa. Small reached the fourth level of the parking ramp where he noticed four young men parked in a vehicle. He was near enough to observe that they were passing around a pipe of some type. He could smell marijuana. There was loud music emanating from their car radio. Small earlier had seen three young people sitting on the west side of the ramp. He noticed nothing unusual about their activity.
Small described the lighting in the parking ramp as "kind of yellowish, hazy, spooky light, real dim." The lights were recessed, creating shadows on the ramp. He continued to walk the various ramp levels until 8:30 p.m. when he decided to talk to security people at McKennan's front desk. During all of his search of the ramp area he never observed any security personnel. The receptionist at the front desk paged Willard Meyer (Meyer), who was in charge of security that night. Small advised Meyer that he could not locate his wife. They both proceeded to search further. Meyer advised Donovan to notify the police, who then joined the search and found Teresa's body.
McKennan is a large hospital located in a predominantly residential area in Sioux Falls, South Dakota. It covers approximately six square blocks and employs between 1,300 and 1,400 people.
McKennan's new four-story parking ramp opened in January of 1980. During construction, McKennan anticipated charging a fee for parking, so a guard booth was built at the point of entry/exit. An intercom system connected to the front desk was installed in the guard house. The guard house was never staffed because of budget considerations. McKennan employed one person each eight-hour shift to secure the hospital, its grounds, and the parking ramp.
The evidence reveals that there were problems in the ramp with vandalism and theft. Also, people were using the ramp to simply park, to drink alcoholic beverages, smoke marijuana, and generally to "party" because no one "bothered them there."
Rodney Heidenson (Heidenson) testified that on the night of November 12, 1982, he and Todd Steffens (Steffens) were on the McKennan ramp. Heidenson was sixteen years old at the time. They had arrived on the ramp between 6:30 and 7:00 p.m. to party, drink beer and smoke marijuana. They had been there "plenty" of times because nobody bothered them or ordered them to leave. They never at any time observed a security guard. Other kids went there for the same purpose, usually on Friday or Saturday nights.
On November 12 Heidenson and Steffens heard a scream. They looked around a little bit, returned to their car and left. They had been parked on the fourth ramp. Heidenson described the lighting as very poor, "You could barely see." They had to turn their headlights on. Heidenson stated they never thought of reporting the scream because they had a case of beer in the back seat and they were getting "high."
Testimony revealed that Teresa and her mother never parked in the ramp area during night shifts because it wasn't lit well and it seemed safer to go out the emergency room exit. They were aware of McKennan's escort service but never used it because they always walked out in groups. Shannon Schultz, who lived four blocks from the main entrance to McKennan, testified that she had experienced a burglary at her house. She considered the neighborhood unsafe and this was a strong reason for her moving from the area.
Blair testified that he had been released on parole eleven days prior to the death of Teresa Small. He owned a 1965 Buick automobile which, on November 12, 1982, he drove to McKennan approximately around ten or eleven o'clock a.m. He and a friend drank most of the day. That evening he parked on the ramp, drank whiskey and smoked marijuana. He had loud rock and roll music on his stereo. His car door or car window was open. He never saw a uniformed officer either on his first visit in the morning or that night.
Blair parked on the ramp for no particular reason except that it was "quiet, dark and lonely like." He did not recall how he chose Teresa as his victim. He did remember Teresa getting out of the car and proceeding toward the elevator. He grabbed her, put her in his car and drove out of the ramp. He was with her about an hour before he killed her.
Small called Charles A. Sennewald (Sennewald), a security consultant, as an expert witness. He testified that parking ramps are generally dangerous because of the many vehicles parked there. Parking ramps attract people who are looking to commit theft, vandalism and damage to vehicles.
In Sennewald's opinion there were at least four major areas where security controls were insufficient at McKennan. First, there was no access control in place in the McKennan ramp. Second, the recessed lighting failed to provide the necessary illumination of the parking ramp area. Third, there was no closed circuit television in use. Fourth, there was no systematic or routine or managed patrolling by the McKennan security staff. He opined that all of these factors contributed to the Teresa Small incident.
Sennewald indicated that the frequency of crime in Sioux Falls was 52 crimes for every one thousand people who lived in the city in 1982. The crime rate in South Dakota is one of the lowest in the United States. The average crime rate in South Dakota in 1982 was 26.4 crimes per one thousand residents. Crimes such as theft and vandalism can escalate into violent crimes, especially where the perpetrator is in danger of being apprehended. Further, if illegal activity is combined with alcohol and drugs, the risk of violence is inherently increased. Sennewald stated that in his opinion the security at the McKennan Hospital ramp was not adequate to protect the public against serious assault.
Howard Cone (Cone), McKennan's chief security officer, testified that each year from 1978 to 1982 he requested additional security personnel to better patrol the parking area, as well as surveillance cameras for the ramp area. Most of these requests were denied, and the number of security personnel decreased between 1981 and 1982. He admitted that there were problems with people using the ramp for parties and that there were problems with vandalism and theft. No incident reports were ever written up concerning the parties that persisted on the ramp, however. Security personnel were to visit the ramp area two or three times a night. Cone felt that the lighting was adequate in the ramp area.
In response to a "parking lot rapist" article appearing in the Sioux Falls Argus Leader, James G. Ward (Ward), assistant administrator in charge of security at McKennan, stated to a member of the media in 1980 that employees had been instructed about the danger, had been asked to report any unusual activity in or outside the building, and "We've been fortunate up to this point." He further testified that he had no personal apprehension of rape in the parking area but that "we were concerned." Ward testified that in his opinion the security measures and the lighting on the ramp were adequate on November 12, 1982.
Other testimony presented on behalf of McKennan indicated that the Sioux Falls Police Department considered the McKennan area as a low crime area. Ray Ricks (Ricks), McKennan's expert witness, testified that in his opinion the security measures at McKennan were reasonable and prudent prior to the incident on November 12, 1982.
In Small v. McKennan Hospital, supra, this court refused to allow the lack of prior similar incidents to be determinative of foreseeability, opting instead for a "totality...
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