Daily Development for
Friday, December 5, 1997
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
CONDOMINIUMS; ASSOCIATION LIABILITY; TORT CLAIMS: With respect to common areas under its exclusive control, a condominium association has the same duties as a landlord; such duties extend to protect the unit owners, their tenants, and those on the land with their consent and cover the physical conditions on the land, dangerous activities on the land, and use of reasonable care to prevent harm from criminal intrusion.
Martinez v. Woodman IV Condominiums, 941 P.2d 218 (Ariz. 1997).
Plaintiff was attending a graduation party at defendant Association's condominium complex. Plaintiff was a guest of the tenant of a unit owner. After fifteen minutes at the party, plaintiff and two party-goers returned to the complex's parking lot to check on their cars. One of the friends found a group of "ruffians" sitting on and in his car. Apparently there was some sort of confrontation. As plaintiff was running away, he was shot in the back. The shooting occurred an hour before the condominium security came on duty. The opinion is vague, but it appears that the security guard worked from 8 P.M. or 9 P.M. through the night, and had had success dispersing such "ruffians" in the past.
Plaintiff brought a damage action against defendant Association, claiming it retained control over the parking lot and that the hiring of a second guard for the "swing shift" would have prevented the alteration from occurring. The Court of Appeals found that plaintiff was a licensee and could not recover under Restatement of Torts § 315. The Court of Appeals further held that defendant did not assume a duty to protect plaintiff, create or encourage his contact with the group in the parking lot, or act in any other way so as to justify imposing on defendant a duty to protect plaintiff.
The Arizona Supreme Court concurred in the lower court's decision, that Sec. 315 of the Torts Restatement does not impose a duty here. But then, citing other Restatement sections the higher court went on to conclude that the association, as the party in control of the condominium property, had the same duty as a would a residential landlord to protect tenants and tenants' guests. This included a duty to maintain the common areas in a safe condition free from dangerous conditions. Disagreeing again with the Court of Appeals, the court here held that the presence of "criminal elements" constituted a "dangerous condition" within the meaning of the Restatement.
Having held that the association had a duty to protect against potential criminal attackers, the court then proceeded to the question of whether the evidence presented would support the conclusion as a matter of summary judgment that the defendant satisfied that duty. The court held that evidence that the plaintiff had prior knowledge of the presence of "ruffians" on its property and that it had been advised by its own guard force to maintain a 24 hour guard presence was sufficient to raise a colorable claim that defendant had been negligent in failing to provide such guard service. Therefore, the court overruled the granting of summary judgment.
Comment 1: At this point the association's insurer will pay off. It hardly wants to go to a jury with a severely injured and totally innocent criminal attack victim as a plaintiff. The court certainly was aware of the existence of the "bottom line" in its analysis, and knew that it was dictating the settlement with its decision.
Comment 2: The use of the "dangerous condition" analysis in connection with the presence of potential criminal attackers is a relatively new idea, although there is some precedent for it. See Zuniga v. Housing Authority, 48 Cal. Rptr. 2d 353 (Cal. App. 1995) (Landlord who tolerates the continued presence of harrassing gangs on the premises and other criminal elements will be viewed as maintaining a "dangerous condition," and therefore will be liable to a tenant family whose members were murdered in a gang arson attack on their unit.) (This case was the DD for April 5, 1996). This theory opens the analysis to perhaps a wider spectrum of opportunites for plaintiffs. In the past, the general approach was that the plaintiff had to show that the defendant had reason to anticipate criminal attacks. There was no duty otherwise. Here, the plaintiff is aided in the duty analysis by the notion of dangerous condition. The plaintiff still must show that there is reason to believe that the presence of the "ruffians" is a dangerous condition, but this may be an end run around authority that had been quite conservative in finding that there was a duty to protect against criminal attacks generally.
Comment 3: In dealing solely with the question of whether there was a duty to anticipate criminal attacks, many other courts have found categorically that there is no such duty when there has been no history of such attacks. Ann M. v. Pacific Plaza Shopping Center, 25 Cal. Rptr. 2d 137 (Cal. 1993) (Shopping center operator has no duty to provide security guards in common areas absent evidence of prior criminal acts on premises or or other very compelling basis to foresee criminal activity.) (DD for 4/21/95) Some courts would even require evidence of prior criminal activity on premises, and not just in the neighborhood. By permitting the plaintiff to go to the jury with nothing more than the defendant's knowledge that young toughs occasionally hung out in the parking lot goes beyond the holdings in most other jurisdictions. Perhaps, again, this is due to the new application of the "dangerous condition" analysis. Note that the court is not only defining the standard for condominium associations, but for landlords generally.
Comment 4: It might be possible to predicate liability on another theory entirely. The landlord had maintained a 24 hour guard system, but had discontinued it for economic reasons. Perhaps plaintiff could argue that once the association assumes the function of providing guards, it must do so reasonably. The analysis of the case does not consider this argument, but it is there. Trujillo v. G.A. Enterprises, Inc., 43 Cal. Rptr. 2d 36 (Cal. App. 1995) (Business owner who would not otherwise have duty to protect patrons from criminal attacks by hiring security guards nevertheless has a duty, if it does hire such guards, to exercise due care in selecting competent guards.) (DD for 10/20/95) See also: Rockwell v. Sun Harbor Budget Suites, 1996 WL 608792 (Nev. 10/22/96) Apartment owner who utilizes security guards has *non-delegable* duty of care in selection of such guards, even if the guards are employees of a security service; Compare:Cassel v. Collins, 472 S.E.2d 770 (N.C. 1996) ( Security company that contracts to provide security guards for purpose of providing "as sense of security for residents" has no duty to invitees to protect them from criminal attacks, even when attack occurs in guard's presence.) (DD for 8/27/97) Simmons v. Chicago Housing Authority, 641 N.E. 2d 915 (Ill. App. 1. Dist. 1994) (A municipal housing authority that hires a security service to protect its "property" and not its residents is not liable to a tenant's visitor for her rape based upon its failure to properly select or train guards.)
Comment 5: The most frightening aspect of this case probably is one to which the court paid little attention. The duty that it identifies applies to all landowners, not just to parties making a business use of their premises. It is a duty to make safe dangerous conditions. Coupled with its very broad findings on foreseeability and negligence, this opinion is likely to lead to far broader liability for landowners of all kinds for their failure to expel threatening trespassers.
LANDOWNER'S LIABILITY; CRIMINAL ATTACKS: Landowner has duty to anticipate that trespassing criminal gangs will attack third parties on landowner's premises and may be liable for failure to retain security guards or take other measures to protect against such attacks.
Martinez v. Woodman IV Condominiums, 941 P.2d 218 (Ariz. 1997), discussed further under the heading: "Condominiums; Association Liability; Tort Claims." Although this case addresses the liability of condominium associations and, by analogy, landlords, the specific duty appears to be one that the court extends to parties solely on the basis of the duty to protect others from dangerous conditions on the land. Thus, it falls upon all landowners, and not just those making a business use of their property.
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