Millea v. Erickson

#26832-a-LSW
2014 S.D. 34
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
PRUDENCE MILLEA, as Special
Administrator of the Estate of
Kimimila Win Sunny Sarah
Iron Cloud, (Deceased), Plaintiff and Appellant,
v.
JOLYN R. ERICKSON, Defendant,
and
KELLY LAUGHLIN, Individually
and as Property Owner, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE JANINE KERN
Judge
****
CHARLES ABOUREZK of
Abourezk & Zephier, PC
Rapid City, South Dakota Attorneys for plaintiff
and appellant.
JANE WIPF PFEIFLE of
Lynn, Jackson, Shultz & Lebrun, PC
Rapid City, South Dakota Attorneys for defendant
and appellee.
****
ARGUED ON APRIL 28, 2014
OPINION FILED 06/18/14
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WILBUR, Justice
[¶1.] Prudence Millea, special administrator of the estate of Kimimila Win
Sunny Sarah Iron Cloud (Kimi), brought a negligence action against both Jolyn
Erickson and Kelly Laughlin (Laughlin) for Kimi’s death. Laughlin filed a motion
for summary judgment arguing that he had no legal duty to Kimi. The circuit court
granted summary judgment to Laughlin. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] In August 2011, Jolyn Erickson, a 2011 high school graduate, lived
with her mother, Paula Myers, and her mother’s boyfriend, John Laughlin, in an
apartment on Lemmon Avenue in Rapid City, South Dakota (Laughlin/Myers
apartment). Laughlin, John Laughlin’s son, owned the apartment building on
Lemmon Avenue but lived in Gillette, Wyoming.
[¶3.] On August 2, 2011, Chelsea and O’Neil Iron Cloud asked Erickson to
babysit their ten-month-old daughter, Kimi. 1 It was decided that Erickson would
care for Kimi at the Laughlin/Myers apartment. 2 That same day, Laughlin was in
the Rapid City area performing roofing estimates and stopped at the
Laughlin/Myers apartment between 4:00 and 4:30 P.M. to have a sandwich and
watch television between jobs. Also during this time, Erickson’s friend, Elizabeth
Thornton, stopped by to visit Erickson. Kimi became upset, began to cry, and
appeared to be tired. Erickson was unable to comfort Kimi. Erickson testified that
1. Erickson had previously provided her babysitting services for the Iron Cloud
family.
2. The Iron Cloud family had recently moved from the Lemmon Avenue
apartment complex and was no longer residing there.
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she thought that Laughlin was “irritated,” “pretty ticked off,” or would “freak”
because Kimi continued to cry. Laughlin told Erickson that Kimi’s crying was
giving him a headache. 3 While she did feel “a little bit of stress or pressure” from
Laughlin, Erickson testified that Laughlin never made her afraid or anxious.
Laughlin suggested to Erickson that Kimi needed a nap.
[¶4.] Erickson testified that Laughlin suggested that Kimi be placed in her
car seat to nap. Erickson then placed Kimi in her car seat and buckled her in.
Laughlin testified that “it looked like she fastened some - - some portion of it.” He
further stated that “I definitely know she did the top [buckle].”
[¶5.] Erickson also testified that Laughlin suggested that Kimi be placed in
a bedroom. Erickson placed Kimi, who was still in her car seat, in a bedroom and
mostly closed the door behind her. While Erickson testified that she respected
Laughlin and listened to him when he gave her advice, Erickson testified that at no
time was Laughlin in charge of Kimi and that she made all of the decisions
concerning Kimi. Erickson testified at several points throughout her deposition:
Q. So even if [Laughlin] had suggested [putting the child in the
bedroom], you made the decision what the best thing to do was;
is that right?
A. Yeah.
....
Q. Was there any point when [Laughlin] was in charge of Kimi
during this day?
A. No.
....
Q. Okay. But at no time was [Laughlin] in charge of the baby?
3. In his brief, Laughlin states that “[f]or the purposes of summary judgment
only, Laughlin does not dispute Erickson’s statements.”
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A. No.
Q. And that was your decision, what to do with the baby?
A. Yeah.
[¶6.] Laughlin testified that he knew that Kimi was helpless at her age, and
that because of her age, she could not be left alone for long periods of time. He also
testified that he thought that Kimi, because of her age, should be checked on when
sleeping alone in a bedroom.
[¶7.] Laughlin and Thornton left the Laughlin/Myers apartment before 5:00
P.M. When they left, Erickson went to the bathroom, and while there, heard a loud
noise. Erickson went to the bedroom and observed that the car seat had tipped
forward and Kimi appeared to be lifeless. The bottom buckle of the car seat was not
latched, which then allowed the child to slip forward and catch her neck on the
upper strap. Erickson administered CPR and called 911. Kimi died from positional
asphyxiation.
[¶8.] Millea, as special administrator for Kimi’s estate, brought a negligence
action against both Erickson and Laughlin for Kimi’s death. Erickson never
answered the complaint and a default judgment was entered against her. Laughlin
filed a motion for summary judgment arguing that he had no legal duty to Kimi.
The circuit court granted summary judgment to Laughlin. Millea appeals arguing
that the circuit court erred in granting summary judgment to Laughlin.
STANDARD OF REVIEW
[¶9.] The standard of review of a summary judgment is well-settled. We
“determine whether the moving party demonstrated the absence of any genuine
issue of material fact and showed entitlement to judgment on the merits as a matter
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of law.” Andrushchenko v. Silchuk, 2008 S.D. 8, ¶ 8, 744 N.W.2d 850, 854 (quoting
Kling v. Stern, 2007 S.D. 51, ¶ 5, 733 N.W.2d 615, 617). “All facts and favorable
inferences from those facts must be viewed in a light most favorable to the
nonmoving party.” Id. (quoting Hendrix v. Schulte, 2007 S.D. 73, ¶ 6, 736 N.W.2d
845, 847). “However, the nonmoving party must ‘present more than unsupported
conclusions and speculative statements, which do not raise a genuine issue of fact.’”
Id. (quoting Burley v. Kytec Innovative Sports Equip., Inc., 2007 S.D. 82, ¶ 34, 737
N.W.2d 397, 408). “Summary judgment is proper in negligence cases if no duty
exists as a matter of law.” First Am. Bank & Trust, N.A. v. Farmers State Bank of
Canton, 2008 S.D. 83, ¶ 13, 756 N.W.2d 19, 25-26 (quoting Stone v. Von Eye Farms,
2007 S.D. 115, ¶ 6, 741 N.W.2d 767, 770). As a general matter, the existence of a
duty is a question of law that is reviewed de novo. Id.
DECISION
[¶10.] Millea contends that Laughlin interfered with Erickson’s care of Kimi
when Laughlin instructed Erickson to place Kimi in her car seat and in the bedroom
so that Kimi could nap. She asserts that based on the familial-like relationship
between Laughlin and Erickson, Laughlin had influence over Erickson such that
Erickson deferred to Laughlin in providing care for Kimi. Millea argues that by this
affirmative interference in Kimi’s care, Laughlin assumed a legal duty to provide
reasonable care for Kimi. Millea asserts that this duty either superseded Erickson’s
duty or joined with Erickson in a concurrent duty.
[¶11.] “In order to maintain a negligence action and before a defendant can
be found negligent, a plaintiff must prove a duty existed from the defendant to the
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plaintiff.” Hoekman v. Nelson, 2000 S.D. 99, ¶ 8, 614 N.W.2d 821, 823. “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. (quoting Tipton v. Town of Tabor, 1997 S.D. 96, ¶ 12, 567 N.W.2d 351,
357).
[¶12.] “In determining whether a duty exists, we examine whether ‘a
relationship exists between the parties such that the law will impose upon the
defendant a legal obligation of reasonable conduct for the benefit of the plaintiff.’”
First Am. Bank & Trust, 2008 S.D. 83, ¶ 16, 756 N.W.2d at 26 (quoting Casillas v.
Schubauer, 2006 S.D. 42, ¶ 14, 714 N.W.2d 84, 88). “Additionally, a duty can be
created by common-law or statute.” Id.
I. Statutory Duty
[¶13.] Millea directs this Court to SDCL 20-9-1, which Millea claims imposed
a duty upon Laughlin to provide reasonable care to Kimi. SDCL 20-9-1 provides:
“Every person is responsible for injury to the person, property, or rights of another
caused by his willful acts or caused by his want of ordinary care or skill, subject in
the latter cases to the defense of contributory negligence.” In examining SDCL 20-
9-1, we have previously said that “[t]his statute is ‘a simple codification of the
common law of negligence.’” Wildeboer v. S.D. Junior Chamber of Commerce, Inc.,
1997 S.D. 33, ¶ 13, 561 N.W.2d 666, 669 (quoting In re Certif. of Questions of Law
(Knowles v. United States), 1996 S.D. 10, ¶ 21, 544 N.W.2d 183, 188 (superseded by
statute on other grounds as stated in Peterson ex rel. Peterson v. Burns, 2001 S.D.
126, ¶37, 635 N.W.2d 556, 570)). SDCL 20-9-1 “simply recognizes the right of
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injured persons to recover from wrongdoers who fail to exercise ordinary care. It
does not define the circumstances under which the law imposes a duty on an alleged
tort-feasor[.]” Poelstra v. Basin Elec. Power Co-op., 1996 S.D. 36, ¶ 13, 545 N.W.2d
823, 826.
[¶14.] Millea has not provided this Court with any other authority to support
her contention that SDCL 20-9-1 imposes a duty upon Laughlin to provide care to
Kimi 4 and the statute does not define the circumstances under which the law
imposes a duty on Laughlin. Therefore, SDCL 20-9-1 does not provide a basis for
the imposition of the alleged duty in this case.
II. Common Law Duty
[¶15.] In addition, Millea directs this Court to common law to support her
contention that Laughlin had a duty to care for Kimi. This Court has recognized
that “there is no general duty to come to the assistance of a person [who is] . . .
unable to look out for himself[.]” Erickson v. Lavielle, 368 N.W.2d 624, 627 (S.D.
1985) (quoting Steckman v. Silvermoon, 77 S.D. 206, 211, 90 N.W.2d 170, 173
(1958)). “[O]nce a person . . . undertakes to render assistance[, however], the law
imposes on him the duty of reasonable care toward the assisted.” Id.
4. In her reply brief, Millea contends Thompson v. Summers supports her
argument that SDCL 20-9-1 imposed a duty on Laughlin, because the case
“cited to and relied upon this statutory section.” 1997 S.D. 103, 567 N.W.2d
387. We note that the Court in Thompson, like in Poelstra, was merely
acknowledging that SDCL 20-9-1 was the codification of the common law of
negligence. Id. ¶ 13, 567 N.W.2d at 392. In citing to SDCL 20-9-1, the Court
in Thompson did not provide for the circumstances under which the law
would impose a duty on an alleged tortfeasor, such as Laughlin. Millea’s
argument that SDCL 20-9-1 and Thompson provide authority to impose a
duty of care on Laughlin is unpersuasive.
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Special Relationship
[¶16.] Millea contends that Laughlin had a special relationship with Kimi
that gave rise to a duty to provide care or aid under Restatement (Second) of Torts
section 314A, subsection four. A special relationship exists under subsection four of
the Restatement (Second) of Torts section 314A when a person “who is required by
law to take or who voluntarily takes the custody of another under circumstances
such as to deprive the other of his normal opportunities for protection is under a
similar duty to the other.” Erickson, 368 N.W.2d at 627 (quoting Restatement
(Second) of Torts § 314A (1965) (emphasis omitted)).
[¶17.] This subsection of the Restatement does not apply to impose a duty on
Laughlin to care for Kimi. Based on the facts in this case, viewed in a light most
favorable to Millea, Erickson, and not Laughlin, made all decisions regarding Kimi’s
care. Erickson testified that Laughlin was never in charge of the child nor did
Laughlin agree to supervise the child. Laughlin did not, himself, place the child in
the car seat nor did he place the car seat in the bedroom, but rather, Erickson made
these decisions. Other than an argument that Laughlin, because of his age and
quasi-stepbrother-like role to Erickson, asserted authority over Erickson, and thus
took over Kimi’s care, Millea does not support her allegation with fact. See
Andrushchenko, 2008 S.D. 8, ¶ 8, 744 N.W.2d at 854 (stating that “the nonmoving
party must ‘present more than unsupported conclusions and speculative
statements, which do not raise a genuine issue of fact’”) (quoting Burley, 2007 S.D.
82, ¶ 34, 737 N.W.2d at 408)). The undisputed facts demonstrate that while
Laughlin made suggestions and Erickson respected Laughlin and listened to him
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when he gave her advice, Erickson testified that at no time was Laughlin in charge
of Kimi and that Erickson made all of the decisions concerning Kimi’s care. Thus, a
special relationship between Laughlin and Kimi under Restatement (Second) of
Torts section 314A, subsection four did not exist.
Gratuitous Duty
[¶18.] Millea cites to two sections of the Restatement—sections 323 and
324—to support her argument that Laughlin gratuitously undertook a duty of care
to Kimi when he intervened in the care of the child. Millea asserts that Kimi, as an
infant, was helpless, and that by undertaking this duty, Laughlin changed the care
that Erickson was providing for Kimi.
[¶19.] “South Dakota recognizes the common law doctrine of gratuitous duty.”
Id. ¶ 24, 744 N.W.2d at 858. We previously adopted the common-law gratuitous-
duty rule, which is defined in Restatement (Second) of Torts § 323:
One who undertakes, gratuitously or for consideration, to render
services to another which he should recognize as necessary for
the protection of the other’s person or things, is subject to
liability to the other for physical harm resulting from his failure
to exercise reasonable care to perform his undertaking if,
(a) his failure to exercise such care increases the risk of
such harm, or
(b) the harm is suffered because of the other’s reliance
upon the undertaking.
Id. (quoting Restatement (Second) of Torts § 323 (1965)). Additionally, section 324,
an application of section 323, provides:
One who, being under no duty to do so, takes charge of another
who is helpless adequately to aid or protect himself is subject to
liability to the other for any bodily harm caused to him by
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(a) the failure of the actor to exercise reasonable care to
secure the safety of the other while within the actor’s
charge, or
(b) the actor’s discontinuing his aid or protection, if by so
doing he leaves the other in a worse position than when
the actor took charge of him.
Comment a to section 324 states that the particular feature of section 324 “is that
the plaintiff is in a helpless position, which is an important factor in determining
whether the actor may discontinue the aid or protection which he has undertaken to
give.” Restatement (Second) of Torts § 324 cmt. a (1965).
[¶20.] The facts, viewed in the light most favorable to Millea, do not support
an implied or express undertaking of a gratuitous duty by Laughlin for the care and
responsibility of Kimi. Indeed, Erickson never expressly or impliedly relinquished
her duty to care for Kimi to Laughlin. See Andrushchenko, 2008 S.D. 8, ¶¶ 24-25,
744 N.W.2d at 858-59. 5 Erickson testified that she was in charge of the child and
5. Laughlin cites to this Court’s decision in Andrushchenko v. Silchuk, 2008
S.D. 8, 744 N.W.2d 850, to support his argument that he did not undertake a
gratuitous duty to care for Kimi. In Andrushchenko, the Silchuks invited the
Andrushchenkos and their three-year old son, D.A., over to their home. Id. ¶
2, 744 N.W.2d at 853. At some point during the visit, Mrs. Silchuk went
upstairs and noticed that D.A. was not playing with the other children. Id.
He was playing by himself in another area of the room. Id. Mrs. Silchuk
returned to the main floor, but did not bring D.A. downstairs with her nor
report to D.A.’s parents that D.A. was playing alone upstairs. Id. A short
time later, the adults heard a scream and discovered that D.A. had turned on
the hot water in the bathtub, climbed or fell in, and scalded himself. Id.
D.A.’s parents sued Silchuks for negligence claiming that the Silchuks owed
D.A. the duty of ordinary and reasonable care because of his status as an
invitee and because of a gratuitous duty undertaken by Mrs. Silchuk to
protect D.A. Id. ¶ 4. The circuit court entered summary judgment as to all
defendants and this Court affirmed. Id. ¶¶ 6, 28-29, 744 N.W.2d at 854, 859.
As to gratuitous duty, the Court determined that “[t]he Andrushchenkos
never expressly or impliedly relinquished their obligation to supervise D.A.”
Id. ¶ 24, 744 N.W.2d at 859 (citing Sunnarborg v. Howard, 581 N.W.2d 397,
(continued . . .)
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that she made the decisions regarding her care. Laughlin was never in charge of
Kimi. Again, Millea only makes a general argument that Laughlin, because of his
age and quasi-stepbrother-like role to Erickson, asserted authority over Erickson
and thus took over Kimi’s care from Erickson. This argument does not, however,
raise a genuine issue of material fact. See id. ¶ 8, 744 N.W.2d at 854 (quoting
Burley, 2007 S.D. 82, ¶ 34, 737 N.W.2d at 408). Moreover, the undisputed facts
demonstrate that Erickson was not anxious or afraid of Laughlin, and that while
Laughlin may have sounded irritated or made suggestions to her, Erickson testified
that at no time was Laughlin in charge of Kimi and that she made all of the
decisions concerning Kimi. Thus, Laughlin did not impliedly or expressly
undertake a gratuitous duty to care for Kimi.
CONCLUSION
[¶21.] Laughlin had no legal duty to care for Kimi. We affirm the circuit
court’s grant of summary judgment in favor of Laughlin.
________________________________________
(. . . continued)
399 (Minn. Ct. App. 1998) (stating “the responsibility for supervision of such
child may be relinquished or obtained only upon mutual consent, express or
implied, by the one legally charged with the care of the child and by the one
assuming the responsibility”)). The Court also noted that D.A.’s parents were
present during the entire visit and were primarily responsible for D.A.’s care.
Id. ¶ 25 (citing O.L. v. R.L., 62 S.W.3d 469, 475 (Mo. App. W.D. 2001)
(providing that it is the “acceptance of the custody and control of a minor
child [that] creates a relationship sufficient to support a duty of care”)).
Laughlin, like Mrs. Silchuk, never undertook a gratuitous duty to care for
Kimi. Kimi’s care was solely the responsibility of Erickson. Erickson never
expressly or impliedly relinquished her obligation. Thus, this Court’s
decision in Andrushchenko is instructive as to the outcome of the present
appeal.
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[¶22.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
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