Englund v. Vital

#26355-a-LSW
2013 S.D. 71
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
RUSSELL ENGLUND and MARY
ENGLUND, INDIVIDUALLY, AND
AS THE GUARDIANS AD LITEM
OF GABRIELLE ENGLUND, Plaintiffs and Appellants,
v.
PAUL VITAL and KRISTINE VITAL,
INDIVIDUALLY, AND AS THE
GUARDIANS AD LITEM OF
KEENAN VITAL, Defendants,
and
ROBERT SMITH, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
****
THE HONORABLE KATHLEEN K. CALDWELL
Retired Judge
****
DANIEL K. BRENDTRO
JEFF COLE of
Zimmer, Duncan & Cole, LLP
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.
RICHARD L. TRAVIS
ERIC D. DENURE
LINDSAY K. EDWARDS of
May & Johnson, PC
Sioux Falls, South Dakota Attorneys for defendant
and appellee.
****
ARGUED ON MARCH 18, 2013
OPINION FILED 10/02/13
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WILBUR, Justice
[¶1.] Twelve-year-old K.V. threw a softball-size rock that struck nine-year-
old G.E. in the head. The parties disagree whether the incident was an accident or
intentional. The incident occurred near the intersection of three backyards in
Hartford, South Dakota. One backyard belonged to the rental home of K.V.’s
parents, the Vitals; the second belonged to G.E.’s parents, the Englunds; and the
third belonged to the Vitals’ landlord, Robert Smith. Smith owned his own home, as
well as the home next door, which the Vitals rented. Following the accident, the
Englunds brought suit, individually, and as guardians ad litem for G.E., against
K.V., the Vitals, and Smith. The claims against Smith included negligence and
negligent rental. Smith moved for summary judgment, which the trial court
granted. The Englunds appeal the trial court’s grant of summary judgment in favor
of Smith. We affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] On July 7, 2008, twelve-year-old K.V. threw a softball-size rock that
struck nine-year-old G.E. The rock struck G.E. in the forehead and her skull was
severely damaged. Following the incident, G.E. was taken to the hospital where a
titanium plate was inserted to repair her skull. G.E.’s parents indicated that her
behavior changed as a result of her injury. 1
[¶3.] The parties disagree as to the circumstances whereby the rock was
thrown. Prior to the incident, G.E. had been playing with K.V.’s younger sister,
1. Specifically, G.E.’s parents “noticed changes to her demeanor, concentration,
growth rate, her ability to handle complex tasks, and her response to
adversity.”
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M.V. G.E. and M.V. had been building a “fort” in M.V.’s backyard. The children
were not under adult supervision. 2 G.E. told her mother that she was running
away from K.V. because he was chasing her with a rock. G.E. further told her
mother that when she turned around to see if K.V. was still chasing her, she was hit
with the rock. The Englunds also allege that K.V. may have washed off the rock
before going to get help. Conversely, K.V. indicated that he was throwing rocks
between two trees. He reported that after he threw the rock, he noticed G.E. run
out from behind one of the trees. K.V. indicated that he yelled G.E.’s name to get
her attention, but that when she turned around, she was hit by the rock. The
parties agree that the rock came from the landscaping located alongside the Vitals’
rental home.
[¶4.] At the time of the incident, G.E. and K.V. were neighbors. G.E. lived
with her parents, the Englunds. K.V. lived with his parents, the Vitals. The Vitals
and their landlord, Smith, lived in two separate homes directly behind the
Englunds. Smith owned his home, as well as the property next door, which he
rented to the Vitals. The backyards of all three properties were unfenced. There
was evidence that the children had permission to play in Smith’s backyard, which
contained a swing set.
[¶5.] The parties disagree where the incident took place. G.E. indicated that
she was on Smith’s property when she was struck and that K.V. was standing near
the lot line between the Vitals’ rental property and Smith’s home. K.V. stated that
2. Paul and Kristine Vital were at work at the time of the incident. G.E.’s
mother, Mary Englund, was home at the time of the incident.
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G.E. was running toward the side of her house when she was struck and that he
was standing in his own backyard.
[¶6.] K.V. also indicated that a few weeks before the accident Smith saw
K.V. throwing rocks at trees. According to K.V., Smith told him not to throw rocks
toward Smith’s house. The Englunds claim that Smith knew of K.V.’s propensity
for rock throwing and that Smith agreed to remove the landscaping rocks from both
his home and the Vitals’ rental property. The Englunds also claim that prior to the
incident, K.V. had lifted up a large piece of concrete “in a menacing manner” near a
location where G.E. and M.V. were playing. The Englunds indicated that Smith
had purchased a skid loader for the purpose of removing the rocks. Smith’s wife,
Katherine Smith, indicated that she and her husband had “talked about” moving
the rocks, but that they “just [ha]dn’t g[otten] to it yet.” Smith, however, indicated
that the skid loader was purchased to assist with snow removal.
[¶7.] The Englunds brought suit, individually, and as guardians ad litem for
G.E., against K.V., the Vitals, and Smith. The claims against Smith included:
negligence, negligent rental, and punitive damages. The claim of negligent rental,
however, was conceded by the Englunds. Smith moved for summary judgment. The
motion was granted. The trial court held that Smith owed no duty to G.E. The
order granting summary judgment in favor of Smith was certified as final under
SDCL 15-6-54(b). The Englunds now appeal the grant of summary judgment in
favor of Smith. Accordingly, this appeal is limited to the Englunds’ claims against
landlord Smith.
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[¶8.] We address the following issues on appeal: 3
1. Whether the trial court erred in granting summary judgment
based, in part, on its determination that Smith did not owe G.E.
a duty of care based on his position as landlord.
2. Whether the trial court erred in granting summary judgment
based, in part, on its determination that Smith owed no duty to
protect G.E. from the alleged intentional or criminal conduct of
K.V.
STANDARD OF REVIEW
[¶9.] Upon review of a grant of summary judgment, “[w]e must 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 of law.”
Brandt v. Cnty. of Pennington, 2013 S.D. 22, ¶ 7, 827 N.W.2d 871, 874 (quoting
Jacobson v. Leisinger, 2008 S.D. 19, ¶ 24, 746 N.W.2d 739, 745). “[A] material fact
is one that might affect the outcome of the case[.]” Smith ex rel. Ross v. Lagow
Constr. & Developing Co. (Lagow), 2002 S.D. 37, ¶ 9, 642 N.W.2d 187, 190. We view
the evidence “most favorably to the nonmoving party and reasonable doubts should
be resolved against the moving party. The nonmoving party, however, must present
specific facts showing that a genuine, material issue for trial exists.” Brandt, 2013
S.D. 22, ¶ 7, 827 N.W.2d at 874 (quoting Jacobson, 2008 S.D. 19, ¶ 24, 746 N.W.2d
at 745). Ultimately, “[o]ur task on appeal is to determine only whether a genuine
issue of material fact exists and whether the law was correctly applied.” Id.
3. Because G.E.’s designation as a licensee or invitee is not determinative to the
outcome of this case, we decline to consider Appellant’s request that we
eliminate the distinction between invitee and licensee and adopt a duty of
reasonable care for all lawful entrants upon land.
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DECISION
[¶10.] 1. Whether the trial court erred in granting summary
judgment based, in part, on its determination that Smith
did not owe G.E. a duty of care based on his position as
landlord.
[¶11.] The Englunds argue that Smith, as the Vitals’ landlord, owed a duty of
care to G.E. “The landlord’s liability has been said to be one sounding in tort and
based upon negligence[.]” Boe v. Healy, 84 S.D. 155, 159, 168 N.W.2d 710, 712
(1969) (citation omitted). “Negligence is the breach of a duty owed to another, the
proximate cause of which results in an injury.” Janis v. Nash Finch Co., 2010 S.D.
27, ¶ 8, 780 N.W.2d 497, 500 (quoting Stone v. Von Eye Farms, 2007 S.D. 115, ¶ 6,
741 N.W.2d 767, 770). “The general rule regarding a landlord’s liability is: a
landlord, having parted with full possession of the premises to the tenant is not
liable for injury to third persons caused by the tenant’s negligence.” Clauson v.
Kempffer, 477 N.W.2d 257, 259 (S.D. 1991) (citations omitted); see also Hendrix v.
Schulte, 2007 S.D. 73, ¶ 9, 736 N.W.2d 845, 848.
[¶12.] The Englunds argue that Smith owed G.E. a duty of care because he
retained control over the Vitals’ rental property. “The law of premises liability is
based on possession and control.” Clauson, 477 N.W.2d at 259 (citing W. Keeton, D.
Dobbs, R. Keeton, D. Owen, Prosser and Keeton on the Law of Torts § 57, at 386).
Generally, “a lessor of land is not subject to liability to his lessee or others upon the
land with the consent of the lessee . . . for physical harm caused by any dangerous
condition which comes into existence after the lessee has taken possession.” Id.
(noting §§ 357 and 360-62 of the Restatement (Second) of Torts (1965) as
exceptions).
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[¶13.] The Englunds assert that Smith saw K.V. throwing rocks and allegedly
told K.V. to stop, thus, demonstrating control over the Vitals’ rental property. Yet,
K.V.’s deposition testimony suggests that Smith was asserting control over his
personal residence rather than the Vitals’ rental property. In his deposition, K.V.
testified:
Q. Had anybody ever talked to you about throwing rocks before
this incident with [G.E.], saying that you shouldn’t be throwing
rocks?
A. Robert Smith had stated that he didn’t want me to throw
rocks toward his house.
Q. Robert Smith told you that?
A. Yes, sir.
Q. And that was before this incident with [G.E.]?
A. Yes, sir.
Q. Do you remember when that happened?
A. That was the same time I was throwing them at the tree sir.
Q. A couple weeks before?
A. Yeah.
Q. What did he tell you?
A. Well, I was throwing them at the tree, which is throwing
them toward his house. So he didn’t want me to hit his house on
accident, sir, so he told me not to throw them toward his house.
Accordingly, even if Smith saw K.V. throwing rocks and asked him to stop, the
evidence reflects that Smith was asserting control over his own residence, rather
than the rental home then occupied by the Vitals.
[¶14.] The Englunds further argue that Smith demonstrated control over the
Vitals’ rental property by allegedly agreeing to remove the landscaping rocks from
the Vitals’ rental property and by purchasing a skid loader to remove the rocks. In
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viewing the facts most favorably to the Englunds, we assume that Smith agreed to
remove the rocks and purchased the skid loader in order to remove the rocks. Even
if Smith agreed to remove the rocks in the future, he had not yet asserted control
over the Vitals’ rental property. The evidence suggests that the Vitals remained in
control of the property they rented from Smith. Accordingly, the trial court properly
granted summary judgment, based in part, on the fact that Smith had parted with
possession of the Vitals’ rental property.
[¶15.] The Englunds further argue that Smith should be liable, as a landlord,
because his backyard constituted a common area. This Court has recognized
several exceptions to the general rule that a landlord is not liable for injury to third
persons so long as the landlord has “parted with full possession of the premises[.]”
Id. One such exception is “where the lessor retains in his control a common area of
the premises which the lessee is entitled to use as appurtenant to the leased
portion[.]” Id. (emphasis added) (citing Restatement (Second) of Torts § 360 (1965))
(additional citations omitted). If the lessor maintains such a common area he is:
subject to liability to his lessee and others lawfully upon the
land with the consent of the lessee . . . for physical harm caused
by a dangerous condition upon that part of the land retained in
the lessor’s control, if the lessor by the exercise of reasonable
care could have discovered the condition and the unreasonable
risk involved therein and could have made the condition safe.
Restatement (Second) of Torts § 360 (1965).
[¶16.] The Englunds’ position that Smith retained a common area under the
Restatement (Second) of Torts § 360 requires that G.E. was entitled to be on Smith’s
property. The legal definition of “entitled” is “[t]o grant a legal right to or qualify
for.” Black’s Law Dictionary (9th ed. 2009). Under this definition, G.E. was not
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entitled to use Smith’s yard. On the contrary, the Englunds indicate that Smith
allowed all of the neighborhood children to use his backyard swing set. 4 Further,
there is no evidence that the Vitals’ rental agreement created an entitlement
whereby the Vitals were allowed to use Smith’s backyard as appurtenant to their
rental home. Because neither the Vital children nor G.E. had a legal right to use
Smith’s backyard, it was not a common area as contemplated under the
Restatement (Second) of Torts § 360. Further, even if Smith’s backyard did
constitute a common area, the “dangerous condition” or rock did not come from the
common area. The parties agree that the rock thrown by K.V. came from the
landscaping alongside the Vitals’ rental home. Therefore, the trial court did not err
in finding that Smith did not maintain his backyard as a common area and that the
common area exception to the general rule of landlord liability did not apply.
[¶17.] The Englunds argue that Smith, as a landlord, undertook a duty to
repair when he allegedly agreed to remove the rocks. Another exception to the
general rule of landlord liability, as set forth in Restatement (Second) of Torts § 362,
is when a landlord purports to repair the land or actually “makes repairs on the
land while it is in the lessee’s possession and the lessor completes the repairs
negligently[.]” Clauson, 477 N.W.2d at 259 (citing Restatement (Second) of Torts §
362 (1965)). In order for Restatement (Second) of Torts § 362 to apply, the
landlord’s agreement to make repairs must have “made the land more dangerous for
4. Plaintiffs’ Statement of Disputed Facts and Additional Material Facts dated
August 23, 2011, provides: “Mr. Smith had a swing set in his backyard, which
he invited all of the neighborhood children to use.”
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use or given it a deceptive appearance of safety[.]” Restatement (Second) of Torts §
362 (1965). 5 Further:
The lessor is subject to liability if, but only if, the lessee neither
knows nor should know that the purported repairs have not
been made or have been negligently made and so, relying upon
the deceptive appearance of safety, subjects himself to the
dangers or invites or permits his licensees to encounter them.
Restatement (Second) of Torts § 362 cmt. d (1965).
[¶18.] Smith argues that Restatement (Second) of Torts § 362 is inapplicable
under the facts of this case. We agree. First, even if Smith agreed to remove the
rocks, his failure to do so did not make the land more dangerous for use. The
condition of the land remained the same. Second, again assuming that Smith
agreed to remove the rocks, his failure to do so did not give the land a deceptive
appearance of safety. Further, there was no evidence that the Vitals or their
neighbors, the Englunds, were under the impression that the rocks had been
removed. Therefore, the trial court did not err in concluding that Smith, as a
landlord, did not owe a duty to G.E. because he allegedly agreed to remove the
rocks.
5. In full, the Restatement (Second) of Torts § 362 provides:
A lessor of land who, by purporting to make repairs on the land
while it is in the possession of his lessee, or by the negligent
manner in which he makes such repairs has, as the lessee
neither knows nor should know, made the land more dangerous
for use or given it a deceptive appearance of safety, is subject to
liability for physical harm caused by the condition to the lessee
or to others upon the land with the consent of the lessee or
sublessee.
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[¶19.] 2. Whether the trial court erred in granting summary
judgment based, in part, on its determination that Smith
owed no duty to protect G.E. from the alleged intentional
or criminal conduct of K.V.
[¶20.] The Englunds argue that Smith had a duty to protect G.E. from
intentional or criminal conduct at his residence and rental property. “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.”
Lagow, 2002 S.D. 37, ¶ 12, 642 N.W.2d at 190-91. “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.” Id. ¶ 12, 642 N.W.2d at 191.
[¶21.] However, “[s]ection 302B of Restatement (Second) of Torts (1965)
creates an exception to the general rule that one has no duty to protect another
from crime.” Id. ¶ 16, 642 N.W.2d at 191. 6 “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.” Id. ¶ 16, 642 N.W.2d at 191-92. “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.” Id. ¶
16, 642 N.W.2d at 192. “Landlord responsibility also depends on the foreseeability
of a criminal act.” Id. Foreseeability is determined “by examining all the
6. The full text of Restatement (Second) of Torts § 302B provides:
An act or an omission may be negligent if the actor realizes or
should realize that it involves an unreasonable risk of harm to
another through the conduct of the other or a third person which
is intended to cause harm, even though such conduct is criminal.
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circumstances, including the landlord’s knowledge of prior criminal incidents on the
premises.” Id. ¶ 19, 642 N.W.2d at 192. “The prior incidents must be sufficiently
numerous or of such significance and similarity that the landlord was on notice that
there was probable danger to the tenants.” Id.
[¶22.] Relying on the Lagow case, the Englunds argue that Smith owed a
duty to G.E. In Lagow, a tenant was murdered in her apartment after her killers
had entered with a key. Id. ¶ 15, 642 N.W.2d at 191. The tenant had previously
told her landlord that she had misplaced her apartment key. Id. There was a
question of fact as to whether tenant had asked her landlords to change the locks or
whether she believed that the key would “turn up.” Id. Under tenant’s lease
agreement, the apartment locks could only be changed by her landlords. Id.
[¶23.] A full reading of Lagow makes clear that the landlord’s heightened
responsibility in that case came from the language of the lease agreement, whereby
the landlords exclusively controlled the tenant’s lock, and her safety from the
outside world. Here, even assuming that Smith agreed to remove the rocks, he did
not have exclusive control over G.E.’s safety, as in Lagow. There were other ways
that G.E. could have been protected from the alleged intentional or criminal acts of
K.V. The Englunds suggest that K.V.’s rock throwing was a well-known problem.
Accordingly, the Englunds could have limited G.E.’s ability to play in her neighbors’
backyard without adult supervision.
[¶24.] There is also a dispute as to whether Smith knew that K.V. was
throwing rocks. Viewing the facts in the light most favorably to G.E., we assume
that Smith had knowledge of K.V.’s propensity for rock throwing. Even if Smith
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were aware that K.V. was throwing rocks, the evidence does not suggest that K.V.
has previously thrown rocks at people. Accordingly, the alleged intentional or
criminal acts of K.V. were not sufficiently foreseeable. Therefore, the trial court did
not err in granting summary judgment based on its finding that the Englunds failed
to prove that Smith had a duty to protect G.E. from K.V.’s alleged intentional or
criminal behavior.
CONCLUSION
[¶25.] Viewing the evidence in the light most favorable to G.E., the record
reflects that Smith parted with full possession of the leased premises and did not
maintain a common area. Further, Smith’s alleged agreement to remove the rocks
did not make the “landscaping condition” more dangerous. Further, K.V.’s alleged
criminal act was not sufficiently foreseeable to Smith. Therefore, the trial court did
not err in concluding that Smith did not owe a duty of care to G.E. and in granting
summary judgment in favor of Smith.
[¶26.] Affirmed.
[¶27.] GILBERTSON, Chief Justice, and SEVERSON, Justice, concur.
[¶28.] KONENKAMP, Justice, concurs in result.
[¶29.] ZINTER, Justice, deeming himself disqualified, did not participate.
KONENKAMP, Justice (concurring in result).
[¶30.] This lawsuit raises the question of a landlord’s duty to protect neighbor
children from the injurious acts of tenant children. For reasons of public policy, and
under the particular facts of this case, that duty should be circumscribed.
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[¶31.] Considering the evidence in a light most favorable to the nonmoving
party, as the law requires, the record shows that the landlord knew his tenants’
twelve-year-old child had been throwing rocks. “A couple of weeks before the
incident,” the landlord had intercepted the child and told him to stop when the child
was throwing a rock toward the landlord’s house. And, based on other information
the landlord had, a fair inference can be drawn that he knew neighbor children
were endangered. Indeed, plaintiff father had seen the tenants’ child throwing
rocks twice and told the landlord both times. On another occasion, the tenants’
child was seen hoisting a large chunk of concrete near where other children were
playing. Recognizing the obvious danger, an adult told him to put the concrete
down. Again, the landlord was informed, and, at that point, he decided to remove
the landscape rocks from his property and the tenants’ property. Within a few days,
he bought a skid loader to perform the job. Three weeks later, however, with the
landscape rocks unremoved, the tenants’ child picked up a rock from the
landscaping material in the tenants’ yard and chased the child victim. She ran.
But when she turned to see if he had gone, he hit her in the head with the two-
pound, softball-sized rock, causing unconsciousness and serious cranial injury.
[¶32.] Plaintiffs assert, among other things, that the landlord was negligent
in his duty to prevent the tenants’ child from injuring the neighbor child by
“intentional or criminal conduct that [the landlord] knew of or could expect to occur
at his residence and rental property.” We must decide what duty the landlord had
in these circumstances. “A duty, in negligence cases, may be defined as an
obligation, to which the law will give recognition and effect, to conform to a
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particular standard of conduct toward another.” W. Page Keeton, et al., Prosser &
Keeton on the Law of Torts § 53, at 356 (5th ed. 1984). Negligence “is conduct which
falls below the standard established by law for the protection of others against
unreasonable risk.” Id. § 43, at 280; see also SDCL 20-9-1. Courts decide the
existence of a duty because it is “‘entirely a question of law, to be determined by
reference to the body of statutes, rules, principles and precedents which make up
the law. . . .’” Tipton v. Town of Tabor, 1997 S.D. 96, ¶ 11, 567 N.W.2d 351, 357
(quoting W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 37, at 236
(5th ed. 1984)) (additional citations omitted).
1. Control of the Premises
[¶33.] The rock used in this incident came from the tenants’ yard. Our Court
rules today that the landlord parted with full possession and control of this part of
the rental premises. Yet his possession of the premises, generally, is not at issue.
Rather, the question is whether the landlord retained control of the landscaping
rock appurtenant to the tenants’ premises. Viewing the evidence in a light most
favorable to the plaintiffs, the landlord retained control of the landscaping rock.
He, not the tenants, announced an intention to remove it and then took action by
obtaining a skid loader. By implication, the landlord’s undertaking to remove the
rock negates a conclusion that he parted with full control of this area. Thus, we
must take a step further to determine the question of duty.
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2. Foreseeability of Injury
[¶34.] We have often said that whether a duty exists in tort “depends on the
foreseeability of injury.” 7 See Mark, Inc. v. Maguire Ins. Agency, Inc., 518 N.W.2d
227, 229-30 (S.D. 1994) (citation omitted). The test is purely prospective. Deciding
foreseeability is not a function of predicting the past, for hindsight is not the
standard. In determining whether something was foreseeable, we do not ask what
actually happened, but what a reasonable person would have foreseen as likely to
happen. Leon Green, Foreseeability in Negligence Law, 61 Colum. L. Rev. 1401,
1417 (1961); Ballard v. Uribe, 715 P.2d 624, 628 n.6 (Cal. 1986). Here, the landlord
knew from personal knowledge and neighbor complaints that his tenants’ twelve-
year-old child had a proclivity for throwing rocks around the tenancy where other
children were playing. That noxious and unrestrained behavior certainly portended
likely personal injury. And the landscaping materials on the tenancy made rocks
readily available. Thus, contrary to the Court’s holding, it must be concluded that
this injury was foreseeable. Indeed, the landlord’s decision to remove the rocks in
reaction to complaints illustrates his anticipation of potential injury and only
bolsters the case for foreseeability. But foreseeability forms only part of the duty
analysis. Public policy also plays a “major” role in deciding questions of duty.
Kirlin v. Halverson, 2008 S.D. 107, ¶ 52, 758 N.W.2d 436, 453 (citation omitted).
7. We deal here with foreseeability in the duty sense, a question of law, which
focuses on whether the landlord should have acted to reduce the probability
of the tenant child striking a neighbor child with a rock. Once a duty is
found, the fact finder would then use foreseeability in the causation sense to
decide whether the landlord’s duty-required measures would have prevented
the incident that gave rise to the injury.
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3. Role of Public Policy
[¶35.] “No better general statement can be made than that the courts will
find a duty where, in general, reasonable persons would recognize it and agree that
it exists.” W. Page Keeton, et al., Prosser & Keeton on the Law of Torts § 53, at 359
(5th ed. 1984). Would reasonable persons recognize a duty on the landlord here to
protect a neighbor child? The Restatement of Torts, as a quasi codification of
common law tort duties, seems inadequate to this particular question. Plaintiffs
also cite as helpful authority Smith ex rel. Ross v. Lagow Construction & Developing
Co., 2002 S.D. 37, 642 N.W.2d 187. But that case is inapposite because it dealt with
a landlord’s duty to protect a tenant from a criminal attack in circumstances where
the landlord controlled an instrumentality for the tenant’s safety, a door lock.
Conversely, here we are dealing with the question of a duty to protect a neighbor
child from a tenant child. Plaintiffs also ask us to hold the landlord to a higher duty
of care by abolishing the common law distinction between licensees and invitees.
But, as the Court points out, the evidence is hardly clear on the victim’s location
and her legal status when she was struck by the rock while playing somewhere in
the common backyards.
[¶36.] What makes the duty question troublesome here is that the landlord is
being sued for negligently failing to protect a neighbor child from a risk the landlord
did not create. In these atypical circumstances, absent controlling authority, courts
examine several public policy factors, including “the closeness of the connection
between the defendant’s conduct and the injury suffered, the moral blame attached
to the defendant’s conduct, the policy of preventing future harm, the extent of the
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burden to the defendant and consequences to the community of imposing a duty to
exercise care with resulting liability for breach, and the availability, cost, and
prevalence of insurance for the risk involved.” Rowland v. Christian, 443 P.2d 561,
564 (Cal. 1968) (citing W. Page Keeton, et al., Prosser & Keeton on the Law of Torts
(3d ed. 1964); 2 Harper and James, The Law of Torts at 1052, 1435 (1956)). Five of
these elements — nexus of conduct and injury, moral blame, deterrence, burden,
and consequences on the community — advise against judicial recognition of an
affirmative duty on the landlord.
[¶37.] Nothing about ordinary rocks as landscape material suggests an
unreasonably dangerous condition. 8 Numerous homes and businesses have
landscapes adorned with stone and rock in diverse sizes and shapes. It was only the
tenants’ child who made the landscaping rocks dangerous here. If children want to
throw rocks, or similar objects, it would be extremely difficult to remove every
means to prevent such mischief. Rocks are often a natural aspect of the terrain,
even when not part of a designed landscape. If landlords of single-family residences
must bear a duty to prevent injury to children caused by rock-throwing tenant
children, there would be little way of knowing specifically all that might be required
8. Restatement (Second) of Torts § 360 (1965), dealing with a landlord’s liability
for a “dangerous condition upon that part of the land retained in the lessor’s
control,” would not apply here because the condition of the property itself was
not dangerous. See also Restatement (Second) of Property: Landlord &
Tenant § 17.3 (1977) (almost identical provision). Contrast our case with
Ruiz v. Victory Props., LLC, 43 A.3d 186 (Conn. App. Ct. 2012), where the
defendant landlord’s apartment building had a yard strewn with trash, rocks,
and broken pieces of concrete. A ten-year-old child carried a large rock from
the yard and threw it from a third-story window, injuring another child.
There, the court found a violation of the duty of care because the landlord
failed to maintain a safe common area on the premises. Id. at 194.
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to fulfill that duty. And, for children plainly intent on harming other children,
removing rocks from a tenancy would hardly present an obstacle to such intent.
Maintaining landscape rock on one’s property holds little nexus to the injury here.
[¶38.] As for moral blame, landscaping with rock bears no discernible moral
culpability, and the notion that landscaping this way should be deterred is
meaningless. On the burden question, liability on landlords and landowners for the
misuse of their landscaping rock by mischievous children could be substantial. And
the consequences on the community of imposing such a duty may well be
detrimental, especially if greater accountability for child misbehavior were to shift
to landlords and away from parents. 9 In some instances, of course, a landlord’s
superior knowledge of a tenant’s dangerousness might give rise to a duty to protect,
or at least to warn, those who might come in contact with the tenant. But that is
not our case. All these considerations suggest that reasonable persons would not
recognize a duty here under the facts most favorable to plaintiffs. Indeed, to impose
a duty in these circumstances would create a baneful extension of tort liability,
tending to make landlords insurers of the safety of persons harmed by the injurious
acts of their tenants’ children. 10
9. “In contrast to tort standards, public nuisance doctrine may create broad
landlord liability for tenants’ illegal activities. Nuisance doctrines, both
public and private, encompass a broad range of activities[.]” B. A. Glesner,
Landlords as Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability
on Landlords for Crime on the Premises, 42 Case W. Res. L. Rev. 679, 716
(Summer 1992).
10. Compare our case with the facts in Mayer v. Housing Authority of Jersey City,
202 A.2d 439 (N.J. Super. Ct. App. Div. 1964), aff’d by per curiam, 210 A.2d
617 (1965). A child was hit in the eye with a rock thrown by another
(continued . . .)
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[¶39.] Corollary legislative enactments also will not support finding a duty on
the landlord. When it comes to personal injury caused by a minor’s “malicious and
willful” acts, our Legislature has strictly limited the financial responsibility of the
minor’s parents to $2,500 plus taxable court costs. SDCL 25-5-15. Although no one
here characterizes the tenant child’s act as both “malicious and willful,” if parental
liability for these acts is legislatively so limited, how can we say that South
Dakota’s public policy requires that landlords should bear greater accountability
than the parents for a tenant child’s intentional acts?
4. Assumption of Duty
[¶40.] On the other hand, even though a duty may not exist in law, a duty
can be voluntarily assumed, and once assumed, a person must exercise reasonable
care in the performance of that duty. Did the landlord assume a duty to protect
neighbor children from his tenants’ rock-throwing child when he said he would
remove the landscape rock? The backyards held by the tenants, the injured child’s
parents, and the landlord were apparently all used as a common play area for the
children. In fact, the landlord’s yard had a swing set the children were allowed to
use. Plaintiffs assert that the landlord “recognized a danger and took initial steps
to remedy it, but then failed to follow through on his promise.” In Andrushchenko v.
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(. . . continued)
unknown child on a playground at the landlord’s housing project. There, the
opinion rested liability not on foreseeability, but on the duty prong. And the
court imposed liability, not because of the presence of stones on the
playground, but because the defendant, knowing that children were in the
habit of throwing stones, failed to take reasonable precautions (hiring
playground supervisors) to prevent stone throwing.
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Silchuk, 2008 S.D. 8, ¶ 24, 744 N.W.2d 850, 858, we dealt with the gratuitous duty
rule as defined in Restatement (Second) of Torts, § 323 (1965):
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.
[¶41.] As in Silchuk, the facts here taken in a light most favorable to
plaintiffs “do not support the implied or express undertaking of a gratuitous duty
to” protect a neighbor child. See 2008 S.D. 8, ¶ 24, 744 N.W.2d at 858-89. The
landlord’s failure to remove the rocks did not increase the risk of harm; that is, it
did not make the situation worse than it had been. A condition not intrinsically
dangerous does not become dangerous simply because the landlord had agreed to
remove it. And plaintiffs do not assert that they relied on the landlord’s promise as
a means to protect their child. Indeed, the injured child’s parents well knew of the
tenant child’s rock-throwing habits.
[¶42.] In these circumstances, the landlord had no legal duty to protect the
neighbor child from his tenants’ rock-throwing child.
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