by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
In connection with the posting on landowner's liability for congregating gangs, I here report a second, more recent, California case. In the first case, you will recall, the owner of an apartment complex was held not liable when gangs congregating on his property attacked the plaintiff on other property.
LANDLORD/TENANT; LANDLORD'S LIABILITY FOR CRIMINAL ATTACKS: Landlord who tolerates the continued presence of harrassing gangs on the premises and other criminal elements will be viewed as maintaing a "dangerous condition," and therefore will be liable to a tenant family whose members were murdered in a gang arson attack on their unit. Zuniga v. Housing Authority, 48 Cal. Rptr. 2d 353 (Cal. App. 1995) Compare:. Medina v. Hillshore Partners, 46 Cal. Rptr. 2d 871 (Cal. App. 1995) (Apartment owner has no duty to prevent criminal gangs from "congregating" on or around the premises and using it as a base for criminal attacks off premises.)
Comment: Perhaps the case is better explained on the basis of the special duty of a landlord to a tenant than on the basis of the general duty of a landowner, but I wouldn't count on it. Medina, another recent decision involving congregating gangs, emphasized the special arguments involving the lack of a duty regarding other premises. It would not justify a different result in this case, even if the victim was an invitee other than a tenant, such as a guest of a tenant.
What if the gangs are not congregating on the common area of an apartment complex, but rather in individual units? What if the landlord has leased the premises entirely to a single user, but that user permits gangs to congregate. Consider, in each case, that an attack occurs elsewhere on the premises.
Here are some interesting recent precedents: Frobig v. Gordon, 881 P.2d 226 (Wash. 1994) (Landlord has no duty to protect third parties from tenant's dangerous, but lawful, practice of keeping wild tigers. Injured party was business invitee of tenant.); Hao v. Campbell Estate, 869 P.2d 216 (Hawaii 1994). (A motorcycle racer injured while racing on a new track leased to the race operator has no claim against landlord where the track has not been opened to the public, but only to "qualified racers." ); Portillo v. Aiassa, 32 Cal. Rptr. 2d 755 (Cal. Ct. App. 1994); (Landlord has duty to inspect premises and ascertain that tenant's guard dog presents danger to delivery drivers serving tenant's
business.) All of the above cases are reporteed and discussed at greater length in the book 1994 SURVEY OF RECENT DEVELOPMENTS IN PROPERTY LAW. There are many other directly related cases reported there. To acquire the book - see below.
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