Daily Development for Thursday, June 28, 2001

 

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

 

LANDLORD AND TENANT; CONSTRUCTIVE EVICTION; THREAT OF CRIMINAL ATTACKS:.  A landlord has no common law duty to protect a tenant from the criminal act of an unknown third party.

 

North Ridge Apartments v. Ruffin, 514 S.E.2d 759 (Va. 1999).

 

In an action for unlawful detainer, the tenant asserted that she wished to terminate her lease due to her "fear of crime" and because she "did not feel safe in the leased premises.  She was aware of drug sales and other criminal activity in and around the apartment building.  Other tenants in the building were "unruly and threatening" and there was trash and dog litter in the common hallways.

 

Tenant testified that she did not file written complaints, as required by the apartment rules and regulations, because she feared retaliation from the offending tenants.  Landlord testified that it responded to each of tenants oral complaints, employing security patrols and closing the security doors whenever they were found propped open.

 

In Virginia, constructive eviction requires intentional conduct by the landlord that permanently deprives the tenant of the beneficial enjoyment of the leased premises, and the tenant must completely abandon the leased premises within a reasonable time after the landlords conduct. The court found that the tenant had not met its burden, especially as a landlord has no common law duty to protect a tenant from the criminal act of an unknown third party.

 

Comment 1: To the extent that the case represents a holding that constructive eviction is not available unless the tenant has abandoned the premises, it reflects the prevailing common law rule.  But under the implied warranty of habitability in many jurisdictions, a tenant has the remedy to rescind the lease for conditions that make the premises uninhabitable.

 

Comment 2:  It is interesting that the court in this case did not find that the landlord had a duty to foresee and protect against criminal attacks based upon sale of drugs and threatening activity.  The case is probably consistent with the general trend in this area, since there was no history of violent attacks (as opposed to drug sales) or of other criminal activity that presented a danger to the tenant.  Further, there was no evidence of an specific threat to the tenant, although tenant subjectively concluded that she might be in danger.  Compare the two cases reported below under the heading "Landlord's Liability for Injuries to Tenant; Criminal Attacks," where courts found that landlords were liable if they should have perceived that there was in fact a danger

 

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT; CRIMINAL ATTACKS; FORSEEABILITY:  If the *volume* of prior crimes against property was such that it should have attracted the landlord's attention to the dangerous condition that resulted in the litigated incident, such crimes are relevant in determining the foreseeability of third party criminal acts from which landlord has a duty to protect its tenants, *even if prior crimes were crimes against property, and did not involve violence*.

 

Woodall v. Rivermont Apartments Limited Partnership, 520 S.E.2d 741 (Ga. App. 1999).

 

Tenant was shot during an armed robbery.  Tenant sued landlord and the property manager for negligently failing to keep the premises safe. Under Georgia law, a landlord has a duty to exercise ordinary care to protect tenants from foreseeable third party criminal acts.  Tenant sought to introduce evidence of 20 different property crimes that had occurred at the apartment complex during the preceding year, including burglaries, car thefts and breaking into cars and mailboxes.  Prior case law had established that (a) a crime against property will make a violent crime foreseeable if the nature of the property crime suggested that personal injury might occur, and (b) if an individual encountering someone committing a property crime has opportunities to escape the encounter, then the property crime, in and of itself, may not render it foreseeable that a violent crime would occur.  The trial court considered each property crime against that standard and ruled that none of them was relevant.  The appellate court considered the volume of such property crimes, reasoned that the extent of such crimes could indicate fundamental security problems and ruled such property crimes admissible.

 

Also see:  FPI Atlanta, L.P. v. Seaton, 524 S.E. 2d 524 (Ga. App. 1999), another recent Georgia case, where the court found that criminal acts of a different character than that causing plaintiff's injury nevertheless were sufficient to create a forseeable risk from which landlord should have protected tenant.

 

LANDLORD AND TENANT; LANDLORD'S LIABILITY FOR INJURY TO TENANT; CRIMINAL ATTACKS; FORSEEABILITY:  Landlord is liable for thirdparty criminal conduct where the risk of injury is reasonably foreseeable by landlord based on prior substantially similar, but not necessarily identical, criminal conduct.

 

 

FPI Atlanta, L.P. v. Seaton, 524 S.E. 2d 524 (Ga. App. 1999).

 

Tenant was kidnapped at gunpoint from his apartment and forced to return to his place of business in connection with a robbery.  Tenant sued landlord.  In Georgia, landlords are liable for the criminal conduct of third parties if it could reasonably have been foreseen because of prior criminal conduct that was substantially similar.  Landlord knew that, in the 5 year period prior to this kidnapping and robbery, there were 59 burglaries, 5 armed robberies, 1 robbery, 1 kidnapping, 2 murders, 2 aggravated assaults (pointing of a pistol), 2 aggravated assaults (shooting),1 simple battery, and 1 criminal trespass at the apartment complex.  [What a great neighborhood!]

 

Landlord asserted that it could not reasonably have foreseen that a tenant might be kidnapped from the premises for the purpose of opening a store or safe because that was one of the few violent acts that had not occurred at the apartment complex before.  The court noted that the prior criminal conduct need not be identical; it is enough "that the prior incident be sufficient to attract the [landlord's] attention to the dangerous condition which resulted in the litigated incident. . . . The type of violent crimes must be such that a reasonable person should reasonably foresee the risk of crime occurring to the tenants in their apartments."  (Citations omitted.)  The court held that, at the least, landlord was on notice that there was a substantial likelihood that someone would enter an occupied apartment and commit a violent felony.

 

Also see:  Woodall v. Rivermont Apartments Limited Partnership, 520 S.E.2d 741 (Ga. App. 1999), where a Georgia court found that numerous crimes against property created the risk of a violent attack, even where there was no history of violent crimes.

 

Comment: Increasingly, these criminal attack cases are becoming devices for wealth transfer, with very little additional thinking than that criminal victims probably need some money and landlord's insurers probably have it.  The fundamental problem is that once a duty is established, then the question of whether the duty has been satisfied is a matter of fact for the jury, and juries are increasingly becoming plaintiff's benefit plans. Thus, once the legal issues are resolved, and the plaintiff will get its jury, defendant feels enormous pressure to settle.  After all, like it or not, the tenant didn't cause the injury, and the jury is likely to conclude that the landlord must have been able to do something to prevent the attack. It's not hard for a plaintiff's trial lawyer to exploit that feeling.

 

Note that, once the landlord does undertake to do something affirmative to prevent criminal attacks, it often increases its risk of liability, since it is now liable when the crime protection system doesn't work as planned.

 

Here, for instance, the landlord already had retained security guards and had contracted to install security gate and security fencing.  The security guards in fact saw the car containing the three attackers enter the apartment complex and later saw the car parked.  He assumed that the occupants of the car were visiting some tenants.  The court comments that the guard should have seen that the method in which the car was parked was "designed for a quick getaway."

 

This was the sole evidence of the guard's ability to detect and prevent the crime, which clearly was carried out by relatively thoughtful design by persons who easily could have circumvented most security systems in any event.  Nevertheless, the court upheld not only the submission of the liability question to the jury, but also the submission of punitive damages.

 

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR CRIMINAL ATTACKS; LANDLORD'S CONTRIBUTION TO DANGER:  A landlord has a duty to protect a tenant from third party criminal acts if the landlords affirmative acts or omissions unreasonably created or increased the risk of injury to tenant from third party criminal acts.

 

Estate of Hough v. Estate of Hough, 519 S.E.2d 640 (W.Va. 1999).

 

After incidents of physical abuse and assault by husband, wife obtained a family violence protective order and exclusive possession of the family residence, a rented mobile home.  Shortly thereafter, husband rented a mobile home directly across the street from the family residence.  While mowing the lawn, wife was fatally shot by husband, who then took his own life.

 

Wife's estate sued mobile home park landlord, alleging that (a) as he was related to husband, he knew or should have known about the protective order when he rented the nearby mobile home to husband, (b) he took no action when wife informed him that she was terrified of husband and concerned for her own safety and the safety of her children, and (c) due to fear of husband, wife refrained from mowing the lawn until compelled to do so by landlord, who advised her to mow the lawn or move.

 

Although, generally, a landlord has no duty to protect a tenant from third party criminal acts, the court found that a landlord does have such a duty if landlord's affirmative acts or omissions unreasonably created or increased the risk of injury to tenant from third party criminal acts.

 

Comment: Note that other cases reported here would impose liability upon very broad notions of forseeability, which notions would operate here, and we wouldn't even get to the question of whether landlord's conduct actually increased the risk of crime.  See,   FPI Atlanta, L.P. v. Seaton, 524 S.E. 2d 524 (Ga. App. 1999) and Woodall v. Rivermont Apartments Limited Partnership, 520 S.E.2d 741 (Ga. App. 1999), both reported under the heading: "Landlord and Tenant; Landlord's Liability for Injury to Tenant; Criminal Attacks; Forseeability."

 

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