Daily Development for Thursday, November 1,
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
LANDLORD/LIABILITY; INJURY TO TENANT VISITORS; CRIMINAL ATTACKS: Landlord had duty to take minimally burdensome measures to protect visitor to apartment complex from known threat of violence by gun-brandishing tenant.
Barber v Chang 151 CA4th 1456, 60 CR3d 760 (2007)
Barber, a former tenant in a small apartment complex owned by Chang, was shot by another tenant of the complex. Three weeks earlier, Chang had been advised by certified letter from another tenant of an incident in which the shooter brandished a gun and threatened a visitor and another tenant. Barber sued Chang for negligence for failure to adopt measures to reduce the risk of harm posed by a potentially violent tenant. The trial court granted Chang summary judgment on the ground he owed Barber no duty of care.
The court of appeal reversed. A landlord's general duty of maintenance includes the duty to take reasonable steps to secure common areas against foreseeable criminal acts. When the third-party crime is committed by a tenant, foreseeability turns on whether the landlord had notice of the tenant's propensity for violence. Chang failed to meet his initial burden of demonstrating he owed no duty, based on lack of notice, to take measures to reduce the risk of harm the shooter posed to others.
Evidence the shooter discharged the weapon in an earlier incident was not required. Prior similar criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location suffice to establish heightened foreseeability. The prior incident here, which demonstrated that the shooter committed the misdemeanor offense of brandishing a gun in an angry and threatening manner (Pen CC2=A7417(a)) and, if the gun was loaded, the felony offense of assault with a firearm (Pen C =C2=A7245(a)(1)), would alert a reasonably prudent landlord that the shooter posed a risk of serious injury to other tenants and invitees.
Barber, who visited the apartment complex periodically, was a foreseeable plaintiff. Because Chang knew Barber had a common law stepson and mother-in-law living in the complex, Barber's presence was reasonably foreseeable. Moreover, like any other visitor to the property, Barber was entitled to reasonable protection from harm on the premises.
Chang's summary judgment motion asserted Barber could not show the heightened foreseeability required to impose a duty to hire security guards. However, Barber based his theory of recovery on the general duty of the landowner to protect tenants and invitees from the risk of harm posed by a potentially violent tenant, an allegation broader than a specific duty to hire security guards. The general duty covers minimally burdensome measures reasonable under the circumstances, which may include investigating the incident to determine whether to evict the potentially violent tenant, threatening to evict the tenant, or calling police. The prior brandishing incident rendered the danger the shooter posed foreseeable enough that undertaking one or more minimally burdensome measures was not, as a matter of law, beyond the scope of a landlord's duty of maintenance.
Reporter=E2=80=99s Comment: The lesson landlords should probably take from it is to call 911 personally whenever one tenant complains about the dangerous behavior of another. But I fear (as apparently did the authors of the concurring opinion) a slippery slope may lie beyond that call. In this case, the tenant did make such a call and got nowhere. If the landlord receives a similar rebuff (which is likely because the incident is over and he was not a percipient witness), can he then sit back, or must he try harder? And what is "harder"? Should he call twice? Should he attempt to file a police report? Should he also speak to the offending tenant? If the offender denies everything, must the landlord then seek witnesses? If the offender admits it all, will a simple threat to evict if the behavior continues be enough? Even if it is not then carried out? With enough hindsight, the landlord will almost never be deemed to have taken enough minimally burdensome steps as to be exonerated, at leas
t at the summary judgment stage.
There is no indication of any appeal from this decision. Thus, it does not appear that the California Supreme Court will have the opportunity to consider it in light of Castaneda v Olsher 41 C4th 1205, 63 CR3d 99 (2007) (mobile home park lessor had no duty to protect tenant from gunshot from gang member where, although there had been prior harrassment from gang members, there had been no shootings on the premises.), which was decided by the California Supreme Court six weeks later. Would Castaneda have dictated a different result? That decision requires heightened foreseeability in order to fault a landlord for not evicting a possibly dangerous tenant, but the danger in Barber was pretty foreseeable; the untaken measures of calling the police or threatening to evict seem much less burdensome than an actual eviction would be. On the other hand, Castaneda also wanted (on the security guard issue) a causal connection between the hypothetical avoidance measure and the actual harm.
Would the Barber landlord have had a defense by showing that the suspected gang member, even if he was evicted and no longer resided there, might still come back and present the same threat to the plaintiff?
The reporter for this item was Roger Bernhardt of the Golden Gate Law School, writing in the California CEB Real Property Reporter. Reprinted with permission.
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