This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-96-600

Jane Smith, et al.,

Appellants,

vs.

Brutger Companies & Brutger Management Company,

subsidiaries of Brutger Equities, Inc.;

et al.,

Respondents,

Hegg Capital Company, Inc.,

Respondent.

Filed November 19, 1996

Affirmed in part, reversed in part, and remanded

Norton, Judge

Dakota County District Court

File No. C0-95-6264

Joseph M. Crosby, Crosby & Grimshaw, 701 Fourth Avenue South, Suite 300, Minneapolis, MN 55415 (for Appellants)

Lawrence J. Hayes, Jr., Lawrence J. Hayes, Jr. & Associates, 2600 Eagan Woods Drive, Suite 360, Eagan, MN 55121 (for Respondent Hegg Capital Company, Inc.)

Thomas H. Crouch, Kenneth W. Dodge, Meagher & Geer, P.L.L.P., 4200 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents Brutger Companies, Brutger Management Company and Management Dynamics Company)

Considered and decided by Schumacher, Presiding Judge, Norton, Judge, and Harten, Judge.

U N P U B L I S H E D O P I N I O N

NORTON, Judge

Appellants challenge summary judgment on their negligence claims against respondent landlord and apartment management company for injuries sustained when a third party broke into appellants' apartment and raped appellant, "Jane Smith." The district court correctly concluded that no special relationship existed between respondents and appellants so as to impose a duty on respondents to warn appellants or protect them from assault by an unknown third party. The district court improperly dismissed the negligent misrepresentation claim, however, by failing to consider the claim fully and by failing to apply the correct standard of duty. We affirm in part, reverse in part, and remand.

FACTS

Appellants Jane and Joe Smith[1] brought this suit against respondents Brutger Companies & Brutger Management Company (Brutger), Hegg Capital Company, Inc. (Hegg), and Management Dynamics Company (MDC), asserting that they were tenants at Woodridge Apartments, an apartment complex owned and/or managed by respondents. Two months after the Smiths leased an apartment at Woodridge, an unknown male forced entry into their garden level apartment and sexually assaulted Jane Smith. Another woman was sexually assaulted six days later in a garden level apartment of another building at Woodridge.

The lease agreement between the Smiths and Woodridge included a provision that:

MANAGEMENT is not responsible for the actions, or for any damages, injury or harm caused by third parties (such as other residents, guests, intruders or trespassers) who are not under MANAGEMENT'S control.

The lease also included the following damage and injury clause:

MANAGEMENT is not responsible for any damage or injury that is done to RESIDENT or his/her property, guests or their property that was not caused by MANAGEMENT. MANAGEMENT recommends that RESIDENT obtain Renter's Insurance to protect against injuries or property damage.

When the Smiths leased the apartment, a representative of Woodridge described the apartment complex's safety features. In his deposition, Joe Smith explained that the representative described Woodridge as having "a very safe environment." When asked whether he recalled if the representative had used the term "security facility," Joe Smith answered, "Yes I do," explaining:

A. I recall her telling me that she did -- that the property had security systems and then she described to me what they were.

Q. Did she ever describe to you any specific feature or system that she found out throughout the time living at Woodridge Apartments didn't exist?

A. No.

Woodridge has over 400 tenants. Prior to the sexual assault of Jane Smith, there had been no reported sexual assaults or other violent crimes against persons at Woodridge. The Smiths did, however, provide police reports of burglaries, break-ins, thefts, larceny, criminal damage to property, trespass, suspicious persons, and one incident of "shots heard" occurring over the 2-1/2 years from Woodridge's opening until the assault of Jane Smith. Seven property crimes, including several burglaries of the Woodridge office and property damage in the underground garage, occurred during the three months prior to the assault of Jane Smith.

On the night Jane Smith was assaulted, Joe Smith was away on business. In her deposition, Jane Smith explained that she checked the doors to the apartment to insure they were locked before going to sleep at around midnight. She left open and unlocked, however, a dining room window and the window in her son's room. The apartment had air conditioning, but Jane Smith chose not to use it. After Jane went to sleep, an intruder cut the screen in the dining room window, entered the apartment, and sexually assaulted her.[2]

D E C I S I O N

On appeal from summary judgment, this court determines whether any genuine issues of material fact exist and whether the district court erred in its application of the law. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). This court must view the evidence in a light most favorable to the party against whom summary judgment was granted. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We resolve all doubts and factual inferences in favor of the nonmoving party. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981).

1. Duty to warn and protect.

The Smiths contend that the negligence of respondents, in failing to warn the Smiths of criminal activity at Woodridge and in failing to protect them with adequate security, resulted in the sexual assault.

To establish a claim for negligence, a plaintiff bears the burden of showing: a duty, a breach of that duty, a causal connection between the breach of duty and injury, and injury in fact. Spitzak v. Hylands, Ltd., 500 N.W.2d 154, 156 (Minn. App. 1993), review denied (Minn. July 15, 1993). Whether a legal duty exists is generally an issue for the court to determine as a matter of law. Larson v. Larson, 373 N.W.2d 287, 289 (Minn. 1985); see also Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 169-71 (Minn. 1989) (determining, as matter of law, that parking ramp operator and its subcontractor owed duty to rape victim, but breach of duty is issue of fact for jury).

Generally, under common law, a person owes no duty to warn or to protect others who may be endangered by a third party's conduct. Cairl v. State, 323 N.W.2d 20, 25 n.7 (Minn. 1982); see also Restatement (Second) of Torts § 314 (1965) (no duty to take action to aid or protect others). The courts have created an exception to this rule that recognizes a duty to warn and protect when the harm is foreseeable and a "special relationship" exists between either the defendant and the party whose conduct needs to be controlled, or between the defendant and the foreseeable victims of the third party's conduct. Cairl, 323 N.W.2d at 25 n.7. The district court here determined that no special relationship existed between Woodridge and the Smiths to impose a duty on respondents to warn or protect Jane Smith. We agree.

Generally, a special relationship giving rise to a duty to warn is only found on the part of common carriers, innkeepers, possessors of land who hold it open to the public, and persons who have custody of another person under circumstances in which the other person is deprived of normal opportunities of self-protection.

Harper v. Herman, 499 N.W.2d 472, 474 (Minn. 1993) (holding boat owner had no special relationship and no duty to warn guest that boat was anchored in water dangerously shallow for diving).

The landlord-tenant relationship alone, without foreseeable harm, creates no duty to protect. See Spitzak, 500 N.W.2d at 157 (under special relationship doctrine, townhome development owners owed no duty to protect tenant from random criminal act by third party); Goodchild v. Jaks Partners, No. C7-95-968 (Minn. App. Nov. 21, 1995) (although one sexual assault had occurred in apartment complex in year preceding attack, plaintiff failed to show that landlord owed her duty of protection), review denied (Minn. Jan. 12, 1996); see also H.B. v. Whittemore, 552 N.W.2d 705, 709, 710 (Minn. 1996) (no special relationship existed to impose duty on trailer park manager to protect children from another resident who manager knew had prior conviction for child molestation). The supreme court has also recognized that courts in other states have held apartment complexes free of a duty to protect from criminal activity against visitors, despite prior criminal activity in and about the complex. Erickson, 447 N.W.2d at 168 (citing Goldberg v. Housing Auth., 186 A.2d 291, 299 (N.J. 1962)).

The Smiths claim, however, that a special relationship existed here because respondents operated Woodridge in such a way that the apartment complex was a magnet for crime. See Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477, 478-82 (D.C. Cir. 1970) (holding landlord's operation of highrise apartment in manner inviting crime created duty to protect tenants where security had deteriorated since tenant moved in and crime, including assaults, had increased); see also Erickson, 447 N.W.2d at 169 (holding parking ramp operator had special relationship to customers, because general characteristics of parking ramp present unique opportunity for criminal activity). The Smiths contend that the foliage and weeds and the lack of lighting on two sides of Woodridge, including the side of the building where their apartment faced, made Woodridge attractive to criminals. They focus on Investigator O'Brien's deposition testimony about the lighting at Woodridge and his comment that Woodridge was in a "very high crime area." They also provided affidavits of two other experts who stated that poor lighting created a more attractive target for crime at Woodridge. But an expert's opinion about a standard of care does not alone establish a duty to provide that care. Gabrielson v. Warnemunde, 443 N.W.2d 540, 545 (Minn. 1989); see Safeco Ins. Co. of Am. v. Dain Bosworth, Inc., 531 N.W.2d 867, 873 (Minn. App. 1995) (holding "affidavit from an expert cannot create a duty where none exists"), review denied (Minn. July 20, 1995).

Although O'Brien now cites the low lighting as an attraction to crime, the record contains no evidence that he or anyone else commented on the lighting prior to the assault on Jane Smith. The supreme court has cautioned against using this sort of retrospective analysis of safety when determining whether a defendant had a duty to protect against the crime of an unknown third party. Erickson, 447 N.W.2d at 169 (cautioning against "hindsight problem in duty to protect cases"). The test is not whether exterior darkness and landscaping around two sides of the building provided cover for criminals, but whether these features

present a particular focus or unique opportunity for criminals and their criminal activities, an opportunity which to some degree is different from that presented out on the street and in the neighborhood generally.

Id. Outside lighting and landscaping hardly compare to the interior characteristics of a parking ramp. Cf. id. (finding duty to protect where dimly lit interior of parking ramp held hundreds of unoccupied cars -- attractive targets of crime -- and provided places for criminals to hide); see also Spitzak, 500 N.W.2d at 157 (holding that characteristics of apartment complex are not similar to unique characteristics of parking ramp). The Smiths have failed to show that the darkness and landscaping around Woodridge provided a unique opportunity different from conditions presented in the neighborhood generally.

The Smiths next claim that Woodridge's proximity to subsidized housing somehow raises a risk of crime different from the surrounding neighborhood and warrants a duty to protect against crime. They also cite a series of property crimes and burglaries committed in the preceding months in and around Woodridge. A duty to protect does not follow simply from an allegation that the defendant's business is located in a "high crime" area. Errico v. Southland Corp., 509 N.W.2d 585, 588 (Minn. App. 1993), review denied (Minn. Jan. 27, 1994). Even assuming the truth of these facts, they do not provide the unusual circumstances to support a special relationship between the landlord and tenants here.

The Smiths argue that a special relationship exists here, because they entrusted their safety to respondents and respondents accepted this entrustment when Gorman held Woodridge out as a "security facility" with a "safe environment" and issued a tenant handbook to them that dealt with security issues. The facts here do not support their claim. First, Joe Smith explained in his deposition that the alleged reference to "security facility" referred to existing specific security systems in the complex. Further, the exculpatory clause in the lease agreement demonstrates that respondents did not accept responsibility for injuries by intruders.

The Smiths contend, however, that the exculpatory clause in the lease is unenforceable, because it is overbroad, ambiguous, and against public policy. We discern no ambiguity or violation of public policy. The exculpatory clause mirrors the general law regarding apartment landlord liability for the criminal acts of an unknown third party. Under the circumstances presented in this case, the exculpatory clause clarifies the relationship of the parties, making it undisputable that no entrustment of safety occurred regarding injury caused by criminal acts of an unknown intruder.

Finally, the district court concluded that no duty existed here because the assault of Jane Smith was not foreseeable. The existence of duty to protect a person against the criminal acts of a third person depends upon the foreseeability of such acts, as well as the relationship of the parties. Id. at 168-69. Foreseeability is generally an issue for the court to decide. Larson, 373 N.W.2d at 289.

The Smiths claim the sexual assault here was foreseeable, due to the escalating crime at Woodridge. We disagree. The foreseeability element requires foreseeability of similar crimes, rather than foreseeability of crime in general. See Spitzak, 500 N.W.2d at 158 (holding harm was not foreseeable where plaintiff failed to show that "series of similar incidents occurred at or around" apartment complex). We recognize that the supreme court determined a duty existed in Erickson even though no reports of a crime against a person existed prior to the sexual assault in that case. 447 N.W.2d at 167. But Erickson involved unique circumstances in a public parking ramp which, as we have explained, are not present in the residential complex here.

The district court properly granted summary judgment to respondents on the negligence claim.

2. Misrepresentation claim.

After entering partial summary judgment on the claims of failure to protect and failure to warn, the district court ordered a telephone conference on the upcoming trial and the remaining claim of negligent misrepresentation. The Smiths contend that, when respondents first moved to dismiss the misrepresentation claim during the telephone conference, they violated the notice requirements of Minn. R. Gen. Pract. 115 and Minn. R. Civ. P. 56.03. The record supports this claim.

The ten-day notice time in Minn. R. Civ. P. 56.03 is generally mandatory unless the adverse party clearly waives notice. Wikert v. Northern Sand and Gravel, Inc., 402 N.W.2d 178, 182 (Minn. App. 1987), review denied (Minn. May 18, 1987). The court can grant summary judgment sua sponte at a pretrial hearing if "there is no prejudice to the objecting party as a result of the lack of notice." Id. The court may grant summary judgment at a "pretrial or comparable hearing, after full discovery, on undisputed facts" when "the party against whom Summary Judgment was granted had an adequate opportunity to prepare for the Summary Judgment Motion." Tri-State Ins. Co. v. Bontjes, 488 N.W.2d 845, 848 (Minn. App. 1992).

The record before us does not demonstrate adequate notice. Despite respondents' argument that no prejudice occurred, the Smiths were prejudiced, because respondents' summary judgment motions and memoranda did not argue the misrepresentation claim, nor did the Smiths argue the misrepresentation claim in their responsive memorandum. Furthermore, the district court dismissed the negligent misrepresentation claim based on its prior conclusion that no duty existed,[3] but provided no further analysis of this issue.

The Smiths argue that the duty to protect Jane Smith from criminal activity has no relation to the duty respondents owed them in the context of negligent misrepresentation. One proves negligent misrepresentation by measuring the misrepresenter's "conduct against an objective standard of reasonable care or competence." Florenzano v. Olson 387 N.W.2d 168, 174 (Minn. 1986). This standard applies to one making representations "when supplying information, either for the guidance of others in the course of a transaction in which one has a pecuniary interest, or in the course of one's business, profession or employment." Id.

Because the district court did not apply this standard and did not sufficiently consider the negligent misrepresentation claim, we reverse summary judgment on the misrepresentation issue and remand for trial.

Affirmed in part, reversed in part, and remanded.

[ ]1 Appellants used these pseudonyms when filing this suit.

[ ]2 The Smiths allege in their complaint that the intruder came in through the "patio doors" of their apartment. But the record contains no evidence to support this allegation. The Smiths do not challenge the district court's finding that undisputed evidence demonstrated that the intruder entered through the window left open by Jane Smith.

[ ]3 The court first found that the Smiths had not stated a claim for fraudulent misrepresentation, because they had failed to state the claim with sufficient particularity under Minn. R. Civ. P. 9.02. Appellants do not contest this ruling.