Daily Development for
Wednesday, June 11, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

CONDOMINIUMS; NEGLIGENCE; DUTY OF CARE:; Condominium homeowners' association does not have a duty to protect social guests from criminal assault from unidentified assailants in the common area parking lot of condominium complex.

Martinez v. Woodmar IV Homeowners' Association, 930 P.2d 485 (Ariz. App. Div. 2 1996).

Social guest of one of condominium owners sued homeowners' association following a criminal attack on him within the common area owned by the association. The association was aware of prior criminal activity in the area and in the complex. The plaintiff alleged that the association had a duty to provide security protection. The trial court had granted summary judgment to the asssociation.

On appeal: Held: affirmed. that there was no duty to protect a social guest incumbent upon the homeowners' association. In order for such duty to exist, a "special relationship" had to exist between the homeowners' association and the social guest. Examples of such special relationships include carrier-passenger, innkeeper-guest, landlord-invitee, etc. There was not evidence of such a relationship. However, the Court did raise the possibility that if the homeowners' association "acted like a landlord in controlling the complex common areas," it might have certain duties to the owner of the condominium unit or even to the owner's tenant.

Comment 1: Most modern courts would impose upon a landowner a duty of reasonable care toward members of the public present in common areas on the notion that such persons were the landowner's invitees. Indeed, the court here confesses that there was a duty to protect the plaintiff from latent hazards in the area.

It would appear that the court would have imposed a duty on the association to protect its own residents. If that is the case, why not the plaintiff? Should not the law impose duty where there is a reasonable expectation of care? A number of courts have abandoned the classification doctrine for landowner's liability. At least with respect to owners who permit public use of their property, the editor sees no principled grounds to differentiate on the basis of the plaintiff's purpose in being there. There perhaps should be a separate rule for trespassers or others who come into prpoerty that is otherwise closed to the public. But this parking lot clearly did not fit that description.

Comment 2: The above comment should not necessarily be read as a criticism of the outcome here. The question of a landowner's duty in general to protect against criminal attacks is indeed a thorny one. But the editor does not see why a condominium occupant's social guests have less reason to expect protection than would the occupants themselves. Nor should the condominium have less reason to provide protection to such persons.

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