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Date: 03-20-2002

Case Style: Sherry K. Smith, as Personal Representative of Mary K. Ross and as guardian of Kristian K. Ross v. Lagow Construction & Development Company et al.

Case Number: 2002 SD 37

Judge: Konenkamp

Court: Supreme Court of South Dakota

Plaintiff's Attorney: Robert L. Morris of Day, Morris & Schreiber Belle Fourche, South Dakota

John W. Burke of Barker, Wilson, Reynolds & Burke Belle Fourche, South Dakota Attorneys for plaintiff and appellant.

Defendant's Attorney: Richard J. Helsper and Victoria M. Duehr of Glover, Helsper & Rasmussen, Brookings, South Dakota, Attorneys for defendant and appellee.

Description: [1.] A tenant was murdered when hired killers used a key to enter her apartment. Shortly before her death, she told two apartment employees that one of her keys was missing. According to her mother, the tenant also asked to have her lock changed. Landlord policy prohibited tenants from changing their own locks and required a fee to change them. When the tenant's estate sued, the circuit court granted summary judgment, ruling that under these facts landlords owe no duty of protection to their tenants. We reverse because there are genuine issues of material fact, and although a landlord owes no general duty to tenants to protect them from crime, such a duty arises when a landlord's affirmative acts or omissions create a foreseeably high risk to the tenant.


[2.] Defendants Lagow Construction and Developing Company and Lloyd Property Management Company own and manage, respectively, the Westport Apartment complex in Sioux Falls, South Dakota. Westport is a low-income development. In 1994, Mary K. Ross rented an apartment at Westport for herself and her daughter. She received a copy of the apartment policies, detailing procedures for maintenance and repairs. One policy provision stated, "lock changes or additional locks are not permitted, it being understood that owner or manager may be required to enter in an emergency when no resident is present, such as fire or water coming through the ceiling." Tenants were required to pay a $45 fee to replace a lost key. This fee covered the cost of changing the lock, if a lock change was necessary. If a tenant could not afford the fee at the time the key was lost, the cost would be deducted from the tenant’s security deposit. A tenant could inform the manager by phone, in writing, or in person, that a key was lost and a lock change was needed.

[3.] When Ross's friend, Amy Power, experienced marital difficulties, Ross allowed Amy to live in the apartment. She gave Amy a key. From the limited facts in the record, it appears that in July 1995, Amy lost her key ring, which included the key to Ross's apartment. Ross informed the maintenance person, Watson Lewing, who in turn told his manager, Jodi Bentz, that one of the keys to her apartment was missing. The parties dispute whether Ross requested a lock change, however.

[4.] Lewing testified by deposition that he did not remember whether Ross requested a lock change. Bentz testified in her deposition that when Lewing informed her of Ross's missing key, she asked Lewing whether Ross wanted the lock changed, and he told her that Ross declined because Ross believed the keys would "turn up." The next day Bentz personally spoke with Ross and asked her whether she wanted the lock changed. Ross declined. Employees, Lewing and Monica Price, neither of whom now work for defendants, and Bentz, who still does, all testified consistently about the key loss and Ross's decision not to request a lock change.

[5.] On the other hand, the Ross estate offered the affidavit of Sherry Smith, Ross's mother. Her affidavit states that (1) she maintained frequent phone contact with Ross; (2) she spoke with Ross three days before the murder and Ross told her that she had requested a lock change; (3) Ross told her she needed money to pay for a lock change; and (4) she detected fear in Ross's voice, and Ross refused to discuss the Robert and Amy Power situation, telling her mother, "I do not want to talk about him; he's psycho."

[6.] In May 1995, before the key was lost, discord intensified between Amy and her husband, Robert Power. He decided that Ross was partially responsible for the difficulties in his marriage. That led him to contact Michael Smith. Together, they developed a plan for murder. See State v. Smith, 1998 SD 6, 573 NW2d 515. They hired two other individuals to commit the crime. Power gave Smith the apartment key, and he in turn gave it to the hired killers. On July 9, 1995, the two men entered Ross's apartment with the key and stabbed her to death. Robert Power was apprehended, and he pleaded guilty to first-degree murder. He was sentenced to life without parole in the state penitentiary.

[7.] It is unclear from the record how Robert Power obtained a key to the apartment. He may have made a copy for himself in February 1995, when Ross gave it to him to make a copy for her to give to her babysitter. He may have had access to the key in June 1995, when he and his wife left Ross's apartment and Amy thought she had lost her keys in the parking lot.

[8.] The Ross estate brought suit alleging negligent maintenance of the apartment complex. Defendants moved for summary judgment, asserting that they owed no common law duty to Ross because no special relationship existed. The circuit court granted summary judgment for defendants. The Ross estate appeals on the following issues: (1) "Whether defendant landlords' exclusive control over the lock on Ross's apartment door created a special relationship between Ross and defendant landlords." (2) "Whether defendant landlords owed Ross a duty of due care because it was reasonably foreseeable that she would be harmed."

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[10.] In some jurisdictions, the law has gradually moved toward expanding landlord liability in instances where violent criminal acts by third parties are foreseeable and preventable. W. Page Keeton et al., Prosser and Keeton on the Law of Torts 63 at 442-43 (5th ed 1984). Little in South Dakota law, however, suggests that landlords have a general duty to protect tenants from all criminal activity. Crime is everywhere, and proprietors ought not to bear the wholesale responsibility of protection simply because their tenants, like other members of society, become crime victims. Not even government law enforcement carries the burden of civil responsibility to victims if it fails to thwart criminal behavior. Gleason v. Peters, 1997 SD 102, 568 NW2d 482.

[11.] Most courts refuse to impose a broad duty on landlords to protect tenants from criminal acts committed by third parties on the premises. See Rowe v. Lombard, 531 NE2d 1358, 1364 (Ill 1988) (citing cases). As the West Virginia Supreme Court acknowledged, the notion of expanding the duty of landlords to secure people against crime tends to reach the absurd: “One can foresee landowners, proprietors of restaurants, stores, theaters, banks, schools, and, indeed, public buildings being civilly responsible for all crimes on their premises.” Miller v. Whitworth, 455 SE2d 821, 826-27 (WVa 1995) (quoting Clarke v. J.R.D. Management Corp., 461 NYS2d 168, 170 (NYCityCivCt 1983)).

[12.] On the whole, we recognize no general duty to protect one's fellow human beings from crime, and that rule equally applies to the ordinary relationship of landlord and tenant. If a duty exists for such protection, it must originate from some special relationship imposing an obligation to protect another from crime based on a position of dependence intrinsic to the relationship. A special relationship can occur between common carriers and passengers, innkeepers and guests, business owners and invitees, and employers and employees. See Restatement (Second) of Torts 314A (1965).

[13.] In granting summary judgment for defendants, the circuit court applied our special relationship test from Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, 41, 581 NW2d 527, 535. There, we confirmed that a landlord-tenant arrangement creates no special relationship, and, although landlords have a duty to maintain the safe physical condition of the common areas within their exclusive control, the tenant's window in that case was not under the exclusive control of the landlord. Id. at 42, 49. Here, because defendants did not have exclusive control over Ross's apartment lock, the circuit court held that defendants had no special relationship with Ross. We agree with this reasoning as far as it went. Ross herself gave Robert Powers access to her apartment key five months before he contracted to have her murdered. As defendants did not have exclusive control over her apartment lock, no special relationship existed here.

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[16.] A duty of protection occurs when a person's affirmative act or omission exposes another to greater harm. Section 302B of Restatement (Second) of Torts (1965) creates an exception to the general rule that one has no duty to protect another from crime.[1] It provides that such a duty may arise if a person's affirmative acts or omissions create a foreseeable high risk of harm from criminal assault. Thus, landlords who by their own affirmative acts or omissions create a high risk of harm from crime owe a duty to exercise reasonable care to protect tenants from that increased risk. However, it is not enough for liability purposes that landlords prohibit tenants from changing door locks and demand a fee for changing them. Landlord responsibility also depends on the foreseeability of a criminal act.

[17.] Foreseeability of high risk of harm is the basis for delineating the boundaries for a duty of protection. B. A. Glesner, Landlords As Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the Premises, 42 CaseWResLRev 679 passim (1992). Whether a duty exists is a question of law to be answered by the court. Tipton v. Town of Tabor, 1997 SD 96, 11, 567 NW2d 351, 357. "'A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.'" Id. at 12 (quoting Keeton et al., supra, 53 at 356).

[18.] Although foreseeability is a question of fact in some contexts, foreseeability in defining the boundaries of a duty is always a question of law. Poelstra v. Basin Electric Power Cooperative, 545 NW2d 823, 825-26 (SD 1996); Mark, Inc. v. Maguire Ins. Agency, Inc., 518 NW2d 227, 229-30 (SD 1994) (citations omitted). Foreseeability in the "duty" sense is different from foreseeability in fact issues bearing on negligence (breach of duty) and causation.

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[20.] In a majority of cases where a landlord was held liable for a criminal attack on a tenant, a known physical defect on the premises foreseeably increased the risk of that attack. See, e.g., Aaron v. Havens, 758 SW2d 446, 448 (Mo 1988) (inadequately secured fire escape); Braitman v. Overlook Terrace Corp., 346 A2d 76, 77 (NJ 1975) (defective deadbolt on apartment door); Duncavage v. Allen, 497 NE2d 433, 437 (IllAppCt 1986) (inoperable lighting; ladder left unattended near unlocked window). If landlords insist on the exclusive right to change locks, then they should have some duty to change those locks when they are no longer effective against foreseeable criminal activity.

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Click the case caption above for the full text of the Court's opinion.

Outcome: [21.] In sum, we reverse the summary judgment in this case and remand for further proceedings. A fact finder must decide whether Ross requested that her lock be changed. If she did not, then that would end the matter, because she was not obliged to change her lock, and defendants had no affirmative duty to protect her. If she did request a lock change, then the court must decide whether, based on all the circumstances, there was sufficient evidence to make it reasonably foreseeable that defendants' failure to act on her request put her at probable high risk of harm from an imminent criminal act. If it was not reasonably foreseeable, then no duty existed. If the court rules that it was reasonably foreseeable, then the fact finder must decide whether defendants were negligent in failing to act on her request and whether such negligence was the proximate cause of her death.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None

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