Daily Development for Friday, August 4, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

LANDLORD LIABILITY; LIABILITY FOR INJURIES TO TENANTS; CRIMINAL ATTACKS: The simple act of leasing a mobile home space to persons who have known affiliations with juvenile gangs  is not an act of negligence that will render a landlord liable for subsequent injuries caused by such persons on premises. 

Castaneda v. Olsher, 2007 Westlaw 2164063 (Cal. 7/30/07)

Another tragic and all-too-often repeated story.  The stark words of the court convey it well:

On the night of his injury, plaintiff [a seventeen year old boy] attended a party outside the mobilehome park [where he lived with his grandmother]. Sometime after 1:00 or 2:00 a.m., he drove home with three friends. Plaintiff went inside his mobilehome briefly to let his sister know they were there, while his friends waited in the car. A few minutes later, another car, with four young men in it, pulled up behind plaintiff's car. Around the same time, two young men came out of the mobilehome across the street and, according to one of plaintiff's friends, Christina Sandoval, started "exchanging words and gang slurs" with the men in the second car. Sandoval recognized one of the men from the mobilehome as Manuel Viloria and saw what she thought was a gun in his hand. One of the men in the second car yelled, "Westside Centro, Westside Centro," while the men from the mobilehome called out, "Northside Centro." After a few minutes, as Sandoval and another friend started toward plaintiff 's home, "shots were fired." Plaintiff, who had reemerged from his home to his front porch area, was hit in the back.

Viloria, the young man involved in the altercation whom witnesses described as holding a gun, was the son of the owner of the mobile home across the street from plaintiff9s, and was known to management of the mobile home park to be Changing outD there, although his mother, who was on the lease, did not live there. 

Fortunately, Plaintiff did not die from his wound, but sued the mobile home park owners for his injuries on the claim that harboring a known gang member was an act of negligence that was the proximate cause of his injury.  He presented as a witness his grandmother who had had a conversation with defendant9s on-site manager, during which she complained about gang related vandalism and other gang activity within the park.  The manager told her that another gang member was moving in Cright across from you.D  When asked whether she could prevent this, the manager said she could not: she had talked to the owner, , but he had told her, "Go ahead and rent to them. Their money is as good as yours," or something to that effect.

There was other evidence of gang activity annoying to other tenants at or around the mobile home from which the shot was fired, and lots of evidence of gang presence around the mobile home park in general.  There had been two prior gunshot incidents.  One involved a shot fired outside the park that entered the park.  Another involved a young man attempting to hide a gun after a shooting incident outside the park.  The landlord had taken steps to evict his family after he was arrested, and he never returned to the park after his arrest. 

At the close of plaintiff's case, defendants moved for nonsuit, contending no duty was established and causation was unproven. Plaintiff argued Olsher had a duty "not to rent to [the Levarios] in the first place," to "remove them once he began to get complaints from the tenants that they constituted an annoyance," or, failing that, to take additional security measures such as hiring guards.  The trial court granted the nonsuit, but the Court of Appeals reversed, and this appeal ensued:

The California Supreme Court found for defendants and affirmed the granting of a nonsuit.  On these facts, landlord did not have a duty to refrain from renting to the tenant in question or to evict her.

CLandlords, including mobilehome park owners, ordinarily have no duty to reject prospective tenants they believe, or have reason to believe, are gang members. To recognize such a duty would tend to encourage arbitrary housing discrimination and would place landlords in the untenable situation of facing potential liability whichever choice they make about a prospective tenant. With regard to eviction, we agree that a residential tenant's behavior and known criminal associations may, in some circumstances, create such a high level of foreseeable danger to others that the landlord is obliged to take measures to remove the tenant from the premises or bear a portion of the legal responsibility for injuries the tenant subsequently causes. In the present case, however, the facts known to [the owner] did not make a violent gang confrontation involving these tenants so highly foreseeable as to justify imposition of a duty to undertake eviction proceedings.D

The court acknowledged that a landlord in California Cowes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord's control against foreseeable criminal acts of third parties.D  But the scope of that duty depends upon a number of factors, including the forseeability of the harm in question to the plaintiff in question and the burden of the measures that might be appropriate to protect against such harm.  Other issues, such as moral culpability of defendant and general public policy are also relevant, but usually less significant. 

The public policy considerations turned out to be quite significant here, as the court concluded that a high level of foreseeability of harm ought to be necessary to justify imposing on a landlord the duty to refuse to rent to a suspected gang member.  If such a duty generally existed, the court stated: CThe result in many cases would be arbitrary discrimination on the basis of race, ethnicity, family composition, dress and appearance, or reputation. All of these are, in at least some circumstances, illegal and against public policy and could themselves subject the landlord to liability [citations omitted].D

Interestingly, the court did not go on to conclude that refusing to rent to persons with known criminal records involving violence might not be within the landlord9s scope of duty.  It indicated simply that to go from knowledge of gang affiliations to a duty of inquiry about criminal background would be too burdensome on the landlord, cause delay and unfair treatment to many tenants, and might not result in much information about relevant criminal history, in light of the fact that many of the criminal records in question would be juvenile court records and not readily available to public inspection.  This analysis leaves open the question as to whether a landlord who has knowledge of possible criminal background concerning a tenant has a duty to research further. 

In fact, the evidence at the time of renting was sketchy as to whether the owner had ChardD evidence that he was renting to gang members, although his expressed attitude might be viewed as an effective rejection of any further inquiry into this question.  (CTheir money is as good as yours.D) But the court concluded that in fact there is never a duty of inquiry arising from gang membership alone.

As to whether there was a duty to evict the gang members once they had started to harass the other tenants, the court concluded that the conduct complained of was insufficienty related to serious injury of the type that plaintiff suffered to justify such a draconian step.  Perhaps the landlord might have hired security guards, but the court concluded that this precaution was unlikely to have prevented the rapidly escalating confrontation resulting in plaintiff9s injury.  There had been no specific evidence of gun violence associated with these juveniles at this location.  Enhanced lighting, also, likely would have had no effect here.

Comment 1: If this sounds like the court is embracing a Csitting duckD rule - saying that landlords have no duty to protect their tenants against gang activities unless and until a tenant gets injured -  you have the same sense as the editor.  It is an unfortunate reality in our society that poor families often are given little alternative than to live in circumstances that expose them to a relatively high risk of crime, and those who offer them accommodation had very little duty to protect them from this risk. 

Comment 2: The editor is no fan of solving social problems through tort liability, and so he must concur that liability ought to apply only in egregious cases.  This one comes close for the editor, in light of the callous attitude allegedly expressed by the owner, but unfortunately such evidence often is generated conveniently when a high dollar insurance backed claim is at stake, and may not be as reliable as one would like.

Comment 3: But the editor does believe that landlords ought to be permitted to refuse to rent to tenants on the basis of criminal backgrounds.  Such proactive activity is an important safeguard to low income tenants.  Whether or not there is a liability issue, landlords ought to be able to take the step to choose tenants who are least likely to be involved in criminal attacks or other offensive behavior toward their neighbors.  To those who argues that this stigmatizes convicted criminals and increases the risk of recidivism, the editor responds that public policies against recidivism ought not be implemented by exposing poor tenants and their families to a high risk of thuggery. 

Interesting, the issue is CliveD at the moment at the Uniform Laws Commissioners deliberations.  And ABA promoted statute was presented earlier this week that would have prohibited public housing authorities and other public landlords from denying housing to persons on the basis of their prior criminal records.  Landlords would have had to go through an involved administrative determination (involving the expenditure of time and money that the public housing authorities can ill afford) to exclude convicted criminals.  There is an obvious conflict between the ABA policy here and the Czero toleranceD policies that public housing tenants themselves believe is their best protection.  The editor threw himself under this train, and the issue has been put over for a year, and indications are that NCCUSL will not adopt this aspect of the proposed legislation.  But the story is interesting because it highlights the swirling countercurrents of policy here.  Poor people have tough lives.  So

 do ex cons.  There is no easy answer.   

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