#24464-a-JKM
2008 SD 8
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
ALEX ANDRUSHCHENKO and NATALIYA
ANDRUSHCHENKO, as Guardian
Ad Litem of D.A., a Minor, and
NATALIYA ANDRUSHCHENKO, Individually, Plaintiffs and Appellants,
v.
IVAN SILCHUK and LYUBA SILCHUK,
METZGER CONSTRUCTION, INC. and
M & M PLUMBING-HVAC, L.L.C., Defendants and Appellees.
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
* * * *
HONORABLE STUART L. TIEDE
Judge
* * * *
ROLLYN H. SAMP of
Samp Law Firm Attorneys for plaintiffs
Sioux Falls, South Dakota and appellants.
WILLIAM C. GARRY
SHAWN M. NICHOLS of
Cadwell, Sanford, Deibert & Garry, LLP Attorneys for appellees
Sioux Falls, South Dakota Silchuk.
ROY A. WISE of
Richardson, Wyly, Wise, Sauck,
& Hieb, LLP Attorneys for appellee
Aberdeen, South Dakota Metzger Construction.
MARK D. O’LEARY Attorney for appellee
Sioux Falls, South Dakota M & M Plumbing.
* * * *
ARGUED ON OCTOBER 3, 2007
OPINION FILED 01/30/08
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MEIERHENRY, Justice
[¶1.] Alex and Nataliya Andrushchenko (Andrushchenkos), as guardians ad
litem of their minor child D.A., and Nataliya Andrushchenko, individually, brought
suit against Ivan and Lyuba Silchuk (Silchuks), Metzger Construction, Inc., and M
& M Plumbing-HVAC, L.L.C. (M & M) (collectively defendants) for injuries that
D.A. sustained from scalding water in the Silchuks’ bathtub. The circuit court
granted summary judgment to the defendants. Andrushchenkos appeal. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
[¶2.] The circuit court was presented with certain undisputed facts. On
December 29, 2002, Silchuks invited Andrushchenkos and their three-year-old son,
D.A., over to their home for lunch. Early in the visit, D.A. turned on the faucets and
flooded the main floor bathroom. Later, the Silchuk children and D.A. went
upstairs to play. Mrs. Silchuk went upstairs and saw that D.A. was not playing
with the other children. He was playing by himself in another area of the room.
She closed the door to the bedroom where the baby was sleeping and rejoined the
adults on the main floor. The baby was sleeping in the master bedroom, with access
to the master bathroom, which had a whirlpool tub. She did not bring D.A.
downstairs with her nor report to his parents that he was playing alone upstairs.
Shortly thereafter, the adults heard D.A. scream. They ran upstairs and found him
in the bathtub in the master bathroom. He had evidently opened the door of the
baby’s room and entered the master bathroom. He turned on the hot water and
placed toys and other objects in the bathtub. He then either intentionally climbed
or accidentally slipped into the bathtub. The hot water caused severe burns. The
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water in the tub was approximately 160ºF. His burns required extensive treatment,
including plastic surgery.
[¶3.] Silchuks’ water heaters were installed as part of the construction of
their home a few months prior to the incident. Metzger Construction, as the
general contractor, hired M & M to install the water heaters. M & M claimed it set
the thermostats at 125° F.
[¶4.] Andrushchenkos alleged that the defendants were negligent. They
claim that 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.. They claim that Metzger had a duty to set the water heater
thermostats at 120° F. as established by the 2003 Uniform Plumbing Code and the
water heater manuals and that Metzger’s duty extends to third parties such as
D.A.. They also claim that M & M had a duty to warn Silchuks that the thermostat
setting had a high risk of scalding.
[¶5.] Silchuks, Metzger and M & M filed motions for summary judgment
after discovery. Andrushchenkos filed affidavits in opposition to the summary
judgment motion. Silchuks and Metzger objected to three of Andrushchenkos’
opposing affidavits: (1) police reports of the investigation of the incident, (2) a water
heater use and care manual and (3) a copy of the 2003 Uniform Building Code. The
circuit court sustained the objections to the three affidavits and their attachments
because of lack of foundation or relevancy.
[¶6.] The circuit court entered summary judgment for all defendants. The
court determined from the undisputed evidence that Andrushchenkos had not
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established that the defendants owed a duty to the injured child. As to defendants
Silchuks, the circuit court determined that as a social guest D.A. had the status of
licensee. Thus, Silchuks only owed a duty to warn of or make safe concealed
dangerous conditions known to them at the time D.A. sustained his injuries. The
court determined that Andrushchenkos had not produced sufficient evidence to
demonstrate that Silchuks knew of any alleged dangerous condition. Similarly, the
court rejected Andrushchenkos’ gratuitous duty theory. The court based its
determination on evidence that Ms. Andrushchenko admitted in her deposition that
she had not relinquished her responsibility to supervise D.A. while in
Andrushchenkos’ home. The court also found that Andrushchenkos had not
presented evidence that Silchuks had agreed to assume the responsibility to
supervise D.A.
[¶7.] As to Metzger and M & M, the circuit court determined that
Andrushchenkos had not presented evidence that they had violated any ordinance,
statute or industry standard, which would have created a duty to D.A. and that no
duty arose in common law. Andrushchenkos appeal and raise the following issues:
ISSUES
1. Whether the circuit court erred by not admitting exhibits offered
in opposition to the summary judgment motion.
2. Whether the circuit court erred in granting summary judgment
for defendants.
STANDARD OF REVIEW
[¶8.] “When reviewing a grant of summary judgment, ‘we must determine
whether the moving party demonstrated the absence of any genuine issue of
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material fact and showed entitlement to judgment on the merits as a matter of
law.’” Kling v. Stern, 2007 SD 51, ¶5, 733 NW2d 615, 617. “All facts and favorable
inferences from those facts must be viewed in a light most favorable to the
nonmoving party.” Hendrix v. Schulte, 2007 SD 73, ¶6, 736 NW2d 845, 847.
However, the nonmoving party must “present more than [u]nsupported conclusions
and speculative statements, [which] do not raise a genuine issue of fact.” Burley v.
Kytec Innovative Sports Equipment, Inc., 2007 SD 82, ¶34, 737 NW2d 397, 408
(quoting Paradigm Hotel Mortg. Fund v. Sioux Falls Hotel Co., Inc., 511 NW2d 567,
569 (SD 1994)). “Summary judgment is generally not feasible in negligence cases.”
Satterlee v. Johnson, 526 NW2d 256, 258 (SD 1995). “The existence of a duty is a
question of law that is reviewed de novo.” State Auto Ins. Co. v. BNC, 2005 SD 89,
¶20, 702 NW2d 379, 386 (citation omitted).
[¶9.] Evidentiary rulings are reviewed under an abuse of discretion
standard. Looks Twice v. Whidby, 569 NW2d 459, 460 (SD 1997).
ANALYSIS
1. Whether the circuit court erred by not admitting exhibits
offered in opposition to the summary judgment motion.
[¶10.] Andrushchenkos attempted to offer copies of police reports prepared by
the Sioux Falls Police Department and obtained by subpoena. Andrushchenkos
submitted the exhibits to show that the police investigation demonstrated that the
water temperature was 160° F. at the time of the scalding. The accompanying
affidavit was from Andrushchenkos’ attorney, not from the custodian of the records
or from the officers who made the reports. The court refused to consider the reports
because of lack of foundation.
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[¶11.] We have consistently held that the party submitting an affidavit has
the duty to lay the proper foundation to establish admissibility. An affidavit from
the custodian of the records or other qualified witness is necessary to establish
foundation. See DuBray v. South Dakota Dept. of Social Services, 2004 SD 130,
¶15, 690 NW2d 657 (holding it is the burden of the proponent to establish
trustworthiness and admissibility). The proper foundation for business records in a
summary judgment proceeding is an affidavit from a custodian of the records or
other qualified witness. In this case, the only evidence of admissibility was the
attorney’s affidavit. The general rule is that attorney affidavits should not be used
unless the matter is uncontested or a mere formality. We have explained use of an
attorney’s affidavit as follows:
[w]hen submitting affidavits in support of summary judgment
motions, an attorney’s affidavit is governed by the same rules of
admissibility in regard to personal knowledge and competency . .
. . Furthermore, an attorney’s affidavit should not be utilized for
summary judgment decisions unless the testimony therefrom
would be admissible at trial. . . . .the affidavits must not . . . give
evidence regarding matters that would be questions of fact.”
Maryland Cas. Co. v. Delzer, 283 NW2d 244, 249 (SD 1979).
Id.
[¶12.] Clearly, Andrushchenkos’ attorney was not the custodian of the police
reports, and the court did not abuse its discretion by sustaining the objection.
Additionally, none of the defendants contested that the water temperature was high
enough to scald. Regardless of the ruling, the court indicated it considered the
evidence of the water temperature because it came in through other admissible and
relevant sources. Thus, for purposes of the summary judgment ruling, the court
considered the evidence in the light most favorable to Andrushchenkos. The court
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took, as true, the fact that the water out of the tap was 160° F. and that the water
heater thermostats were on the highest setting.
[¶13.] Andrushchenkos also offered evidence that the proper thermostat
setting should have been lower than set by M & M. The evidence was in the form of
a manual Andrushchenkos’ attorney received from the water heater manufacturer,
Rheem, after a phone call to their service department. The attorney’s affidavit
included the following:
3. On October 17, 2005, I made a phone call to Rheem
Manufacturing’s Technical Support Line at 1-800-432-8273.
4. I spoke to Mr. Brock Adams, an employee and technical
support operator for Rheem Manufacturing.
5. Rheem manufacturing manufactures Richmond Water
Heaters. . . .
6. I gave Mr. Adams the model number of Defendant Silchuck’s
water heater as listed in the Police Report of Officer Spaeth.
7. Mr. Adams searched his database and sent to me via e-mail
.PDF copies of the Use and Care Manuals for Defendant
Silchuk’s water heater model for the years 1992 (sent as
Ap10960-i.pdf), 2000 (sent as Apl0960-10.pdf), and 2002 (sent as
Ap10960-11.pdf).
Copies of the manuals and Mr. Adams’s e-mail were attached to the Affidavit as
exhibits.
[¶14.] The use and care manual provided general safety precautions
concerning the water temperature settings and warned that water temperatures
over 125° F. could instantly cause severe burns or death from scalds. The manual
also indicated that at the highest setting the water temperature would reach 160°
F. Silchuks and Metzger objected arguing that the manual was irrelevant because
the Silchuks’ water heaters were different models than depicted in the manuals,
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and that the manuals contained inadmissible hearsay and lacked proper
foundation.
[¶15.] The circuit court ruled that the manuals lacked proper foundation. The
court did not abuse its discretion in making that ruling. The attorney’s affidavit
concerning who the attorney talked to and how the attorney retrieved the manual
involved questions of fact, especially since defendants challenged whether this was
the manual for the water heaters installed in Silchucks’ home. Using an attorney’s
affidavit in this manner also runs the risk of the attorney becoming a fact witness
in the case – clearly not allowed under the code of ethics. South Dakota Rules of
Professional Responsibility 3.7(a)(1) (“a lawyer shall not act as an advocate at a
trial in which the lawyer is likely to be a necessary witness unless: (1) the
testimony relates to an uncontested issue”). See also Maryland Cas. Co. v. Delzer,
283 NW2d 244, 249 (SD 1979) (“an attorney’s affidavit should not be utilized for
summary judgment decisions unless the testimony therefrom would be admissible
at trial.”) (citation omitted).
[¶16.] On appeal, the attorneys for Andrushchenkos argue that the use and
care manuals were self-authenticating and should have been admitted under SDCL
19-17-1(4) & (9). They claim each manual was self-authenticating because of its
title, its reference to contact information at the same address as the manufacturer,
its appearance, contents, substance, and internal patterns coupled with being
directed to the consuming public and not litigation. They claim the manual set the
standard by which Metzger and M & M were to install the water heaters and adjust
the thermostats.
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[¶17.] SDCL 19-17-1(4) & (9) set forth the requirements for a document to be
self-authenticating:
The requirement of authentication or identification as a
condition precedent to admissibility is satisfied by evidence
sufficient to support a finding that the matter in question is
what its proponent claims. By way of illustration only, and not
by way of limitation, the following are examples of
authentication or identification conforming with the
requirements of this section:
...
(4) Appearance, contents, substance, internal patterns, or
other distinctive characteristics, taken in conjunction with
circumstances.
...
(9) Evidence describing a process or system used to produce a
result and showing that the process or system produces
an accurate result.
SDCL 19-17-1(4) and (9) are identical to Federal Rules of Evidence 901(b)(4) and
(9). A review of the manual reveals nothing in its appearance or content that makes
it self-authenticating. In State v. Hatten, this Court stated that a proponent of self-
authenticating evidence “must make a prima facia showing that evidence is what it
purports to be.” 312 NW2d 469, 469-70 (SD 1981). In this case, an examination of
the manual makes no connection between the manual and the water heaters
installed in the Silchuks’ home. The names of the manufacturer and model number
are absent from the manual. Thus, the appearance and contents of the manual are
insufficient to support a finding that it is the manual for the water heaters in
Silchuks’ home under SDCL 19-17-1(4).
[¶18.] SDCL 19-17-1(9) also does not apply to the use and care manual. The
Federal Rule Committee Notes explain the application of rule 901: “Example (9) is
designed for situations in which the accuracy of a result is dependent upon a
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process or system which produces it. X rays afford a familiar instance. Among
more recent developments is the computer . . . .” Fed. R. Evid. 901, Advisory
Committee Notes. Andrushchenkos argued the water heater manual established
the relationship between water temperatures and scalds by way of a table
attributed to the Shriners Burn Institute. The circuit court found the table lacked
foundation. We agree. The table does not constitute the type of process referred to
in SDCL 19-17-1(9).
[¶19.] Andrushchenkos also offered evidence of the 2003 version of the
Uniform Plumbing Code, which they claimed set the water temperature standard at
120° F. The plumber who installed the water heaters testified that he set the water
heaters at 125° F. However, Andrushchenkos admitted that the 2003 version of the
Code was not in effect at the time the water heaters were installed. See Zens v.
Chicago, Milwaukee, St. Paul and Pacific R. Co., 479 NW2d 155, 158 (SD 1991)
(recognizing that guidelines adopted after an alleged act of negligence have no
tendency to prove the applicable standard of care). Thus, the 2003 Uniform
Plumbing Code, which had not been adopted by the City of Sioux Falls at the time
of D.A.’s injuries, was not relevant and had no tendency to establish a duty on the
part of M & M to set the water heater thermostats at a lower temperature.
[¶20.] The circuit court did not abuse its discretion when it refused to
consider the police reports, the water heater manual and the 2003 Uniform
Plumbing Code because Andrushchenkos failed to lay the proper foundation for
admissibility or to establish the relevance of the records.
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2. Whether the circuit court erred in granting summary
judgment because material facts were in dispute that
required resolution by a jury.
[¶21.] “In order to prevail in a suit based on negligence, a plaintiff must prove
duty, breach of that duty, proximate and factual causation, and actual injury.”
Fisher Sand & Gravel Co. v. South Dakota Dept. of Trans., 1997 SD 8, ¶12, 558
NW2d 864, 867. “A duty can be created by statute or common law.” Id. Typically,
existence of a duty is a question for the court to resolve. Hendrix, 2007 SD 73, ¶8,
736 NW2d at 847 (citing Erickson v. Lavielle, 368 NW2d 624 (SD 1985)). The
question involves “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.” Casillas v. Schubauer, 2006 SD 42, ¶14, 714 NW2d 84, 88.
Summary Judgment as to Silchucks
(a) Duty to Social Guests as Licensees
[¶22.] In our prior cases, we have retained the common law classifications of
trespasser, licensee, and invitee in determining landowner liability. See Musch v.
H-D Electric Cooperative, Inc., 460 NW2d 149, 150 (SD 1990). 1 The majority of
courts that retain the common law distinctions classify social guests as licensees.
See Restatement (Second) Torts § 330, 332. The general duty owed to licensees is
“to warn of concealed, dangerous conditions known to the landowner.” Luke v.
1. Many states have abrogated these classifications and have adopted a
standard of “reasonable care under the circumstances” for all possessors of
property. See Musch, 460 NW2d at 150. The parties have not requested we
reconsider our prior rulings or if SDCL 20-9-1 abrogated the common law
classifications and imposes a duty of ordinary care in all situations. The
issue was neither briefed nor argued to the Court.
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Deal, 2005 SD 6, ¶15, 692 NW2d 165, 169. The rationale for applying a lower
standard of care to social guests versus business invitees is that the social guest is
invited to the owner’s land as a favor and has no reasonable expectation that the
owner will make the land safer for the social guest than the owner does for himself.
The Restatement (Second) of Torts § 330 defines licensee as “a person who is
privileged to enter or remain on land only by virtue of the possessor’s consent.”
[¶23.] Thus, Silchuks had a duty to warn of any known concealed, dangerous
conditions. Silchuks’ duty depends on whether they knew of the dangerous
condition, and whether a reasonable person would have appreciated the danger the
water temperature posed. In a summary judgment proceeding, the moving party
has the burden of demonstrating the absence of any genuine issue of material fact
and entitlement to judgment as a matter of law. The evidence must be viewed in
the light most favorable to Andrushchenkos. As the nonmoving party,
Andrushchenkos must come forward with sufficient evidence, constituting more
than mere conjecture, that there were genuine issues of material fact. See Burley,
2007 SD 82, ¶34, 737 NW2d at 408. Here, Andrushchenkos failed to provide any
affirmative evidence that the Silchuks knew the temperature of the water was
excessively hot or that it presented a scalding danger. Andrushchenkos did not
dispute that M & M set the thermostats and they were not tampered with after
that. We need not determine if the temperature of the water met the requirements
of a hidden danger because the facts, viewed in the light most favorable to
Andrushchenkos, did not establish that Silchuks knew the water temperature
presented a danger about which they had a duty to warn social guests.
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(b) Undertaking of Special Gratuitous Duty
[¶24.] South Dakota recognizes the common law doctrine of gratuitous duty.
State Auto Ins. Co. v. BNC, 2005 SD 89, 702 NW2d 379. The common law
gratuitous duty rule is defined in Restatement (Second) of Torts, § 323, as adopted
by this Court:
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
The facts, viewed in the light most favorable to Andrushchenkos, do not support the
implied or express undertaking of a gratuitous duty to be responsible for the care of
D.A. while he was upstairs in the Silchuks’ home. The Andrushchenkos never
expressly or impliedly relinquished their obligation to supervise D.A.. See
Sunnarborg v. Howard, 581 NW2d 397, 399 (MinnApp 1998) (“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”).
[¶25.] The duty of the Silchuks to protect D.A. and to warn of known hidden
dangers is properly characterized as arising from D.A.’s status on Silchuks’ property
as a licensee. No additional duty arose under the facts of this case. D.A.’s parents
were present during the entire visit and were primarily responsible for the care and
supervision of the child. At no time had they relinquished their responsibility. See
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Sunnarborg,, 581 NW2d at 398-99 (“Generally, when a parent is present, the
responsibility to provide for a child’s care and safety rests with the parent, and a
third party does not stand in a special relationship to the child.”); OL v. RL, 62
SW3d 469, 475 (MoAppWD 2001) (it is the “acceptance of the custody and control of
a minor child [that] creates a relationship sufficient to support a duty of care.”).
[¶26.] The circuit court did not err in granting summary judgment for
Silchuks on the gratuitous duty claim.
Summary Judgment as to Metzger and M & M
[¶27.] Andrushchenkos argue the 2000 Uniform Plumbing Code, adopted by
the city of Sioux Falls, established a duty on the part of both Metzger and M & M.
However, the 2000 Code contains no language that would give rise to a duty not to
set a water heater thermostat above 120º F. The 2000 Code merely provided that
water heaters should not be set above a maximum temperature of 210º F.
Andrushchenkos only other proffered evidence that Metzger and M & M had a duty
not to set the thermostats above 120º F. was the water heater use and care manual,
which was not admitted into evidence. Thus, Andrushchenkos failed to provide
evidence of a statutory or common law duty to set the hot water heater thermostats
at or below 120º F.
[¶28.] Based upon the evidence, the circuit court did not err in determining
that Andrushchenkos failed to establish a duty. Summary judgment in favor of
Metzger and M & M was proper.
[¶29.] Affirmed.
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[¶30.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER,
Justices, concur.
[¶31.] SABERS, Justice, dissents.
SABERS, Justice (dissenting).
[¶32.] I dissent solely on the issue whether there are genuine issues of
material fact in relation to the negligence of Lyuba Silchuk.
[¶33.] The negligence of Lyuba must be viewed directly and not in
comparison to that of D.A.’s mother or father. It is obvious that D.A.’s mother and
father were negligent in permitting D.A., an aggressive three-year-old boy, to play
by himself for an extended period of time on a separate floor of the house, especially
knowing that he liked to turn on water faucets to the point of flooding on a prior
occasion.
[¶34.] Lyuba was not aware of D.A.’s propensity to turn on faucets because
D.A.’s mother did not tell her until later at the hospital. However, Lyuba was
aware that D.A. was playing by himself on a separate floor of the house for an
extended period of time. She knew he was an aggressive three-year-old boy because
he had done some damage in her house and she had warned his mother that she
would be responsible for any further damage. Lyuba was also aware that D.A.’s
mother ignored her warning and left D.A. to play by himself on a separate floor. To
an aggressive three-year-old boy, everything is an attractive nuisance, especially if
he is left alone on a separate floor for an extended period of time.
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[¶35.] All of these facts present genuine issues of material fact as to whether
Lyuba was directly negligent to D.A. That Lyuba would be entitled to contribution
from D.A.’s mother and father is immaterial to this lawsuit. That may be the
subject of another lawsuit. In addition, the relationship between Lyuba and D.A.
was such that the law will impose upon her a legal obligation of reasonable conduct
for the benefit of D.A. See Casillas v. Schubauer, 2006 SD 42, 714 NW2d 84
(defendant could have reasonably anticipated his bull would stray onto the
highway). Here, D.A., a three-year-old, is unlikely to be negligent in the eyes of the
law, see Doyen v. Lamb, 75 SD 77, 79, 59 NW2d 550, 551 (1953), and is entitled to
have a jury determine whether these genuine issues of material fact give rise to
liability for negligence on the part of Lyuba.
[¶36.] The question here is not whether a homeowner is liable to a three-
year-old boy when the negligence of the boy’s mother is greater than that of the
homeowner. The question here is whether a homeowner is liable to a three-year-old
boy when her negligence may have contributed to the boy’s injuries. Specifically,
under Casillas and these circumstances, the question is whether Lyuba’s conduct
was reasonable in relation to D.A. Therefore, summary judgment was premature
and improperly granted under these circumstances. This case should be reversed
and remanded for trial on this issue.
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Andrushchenko v. Silchuk
Court: South Dakota Supreme Court
Date filed: 2008-01-30
Citations: 2008 SD 8, 744 N.W.2d 850
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