Daily Development for
Wednesday, September 9, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD'S LIABILITY FOR INJURY TO TENANTS; THIRD PARTY CRIMINAL ATTACKS: Possible criminal assault sufficiently "foreseeable" to trigger a duty of care on landlord when there has been one burglary in the building and landlord has no actual or constructive knowledge of any other assaults, but is aware that lock to tenant victim's office is malfunctioning.

Gans v. Parkview Plaza Partnership, 571 N.W.2d 261 (Neb. 1997).

A tenant in a landlord's office building was beaten and raped in the early evening. The only history of criminal activity in the building or in the immediate vicinity had been a burglary a year earlier. However, in addition to the one earlier burglary, the landlord had been informed several times that the lock on the tenant's door was difficult to operate and, furthermore, the landlord's building was located at the end of a deadend street, making it a relatively easy target for criminal activity. Under these facts, the court ruled that the landlord could found negligent and held liable for damages to the tenant.

Comment: This seems to be a bootstrapping decision. Keep in mind that the issue here is what level of duty is necessary to get around the fact that there is an intervening independent cause here - the criminal actor. Normally there must be some basis upon which the party alleged to have a duty is supposed to make a judgment that a specially hazardous situation exists. Otherwise there is no duty to anticipate criminal attacks. Typically the courts are conservative here. Many require evidence of similar prior criminal attacks on the premises in which the attack occurred. Most at least require evidence of similar prior attacks in the immediate vicinity of the premises.

Here we had some burglaries, but no prior sexual attacks, and no significant criminal activity in the area. But the property was at a dead end street in a "dangerous appearing" neighborhood.

Unless the landlord had a duty to be careful, it is not liable for intervening criminal acts, and the usual rule is that the duty arises from knowledge of dangerous conditions. The court appears to focus on the general neighborhood circumstances as the basis for the heightened duty. Even that goes beyond many courts. In fact the court really seems to view the faulty lock as part of the "dangerous environment," rather than the breach itself. The alleged negligent act itself - the failure to fix the lock - becomes a basis for the duty, because the broken lock is part of the dangerous environment postulated by the court. This is wrong. In any event, it does appear to be a significant extension of premises liability in Nebraska. Pull out the liability insurance policy, folks time to review coverage!!

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