#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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