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Landlord Liability for Criminal Activity on Its Premises

To What Extent is a Landlord Responsible for Ongoing Criminal Activity on the Premesis?
                              
A Lexis coworker recently was telling me that she had moved into an apartment community here in the Dayton, Ohio area, and that she then discovered after the fact that there appeared to be some level of criminal activity in the parking lot of the apartment community, even though the neighborhood was known as a low crime area. She is going to be married this month (on Halloween no less!) but she is currently living by herself, and she was upset because there had been a shooting recently in the apartment community.
 
A few days later, I found myself reading a blog post where the author stated that over the past twenty years there had been an increasing willingness by courts to hold landlords liable for injuries that were sustained as a result criminal acts that occurred on their property. The author referenced some case law from states along the East Coast, but I had not observed any similar movement by courts in Ohio towards greater liability for landlords.
 
I decided to do a quick search for case law on lexis.com, using our largest library, “Federal & State Cases, Combined” (fondly known as the Mega/Mega library to those of us who can remember using Classic LexisJ), to see what had been decided in the past six months. Although I don’t disagree with the blog author’s statement that there has been a pro-liability trend in the past twenty years, what I found was that the current reported cases will please counsel who represent landlords and their insurers, and will give heartburn to plaintiffs’ counsel. I will summarize several representative cases here.
 
In Zelmanski v. Golden Pin, 2009 Cal. App. Unpub. LEXIS 4133 (Cal. App. 2d Dist. May 27, 2009), the victim had been at a bowling alley, located in a shopping center, and was then stabbed to death in the shopping center parking lot shortly after the bowling alley had closed. His parents sued the bowling alley owner and the owner of the shopping center for wrongful death based upon negligence and premises liability. (The court noted that the assailant and his companions were all dressed in L.A. Dodger apparel – could someone sue Joe Torre?)
 
The bowling alley employed a security guard, who left the premises right at closing and testified that he did not see any problems in the parking lot. The defendants argued that they had no duty to maintain a security presence in the parking lot after the bowling alley closed. The court of appeal affirmed the trial court’s grant of summary judgment to the defendants. While “Businesses such as shopping centers, restaurants, and bars owe a ‘special- relationship-based’ duty to their tenants, patrons and invitees to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”, the court found that although the “plaintiffs presented evidence of fights and brawls on the premises, there was no evidence in the record that any weapons had ever been involved in these episodes, or that anyone had ever been injured in the parking lot at any time, including after hours, as a result of third-party criminal conduct.”
 
A few days later in a different division of the same court, summary judgment for the landlords in a somewhat similar case was reversed. In Thompson v. McDonald's, 2009 Cal. App. Unpub. LEXIS 4693 (Cal. App. 2d Dist. June 15, 2009), the victim was shot while working a drive-through window at a McDonald’s when the assailant opened the window from the outside. McDonald’s owned the building and leased it to its franchisor, which employed the victim.
 
In the four years preceding the shooting of the victim, there had been six robberies at the restaurant, including two involving the drive-through window. The court of appeal reversed the grant of summary judgment on the basis that McDonald’s failed to carry its initial burden of showing that there was no triable issue of material fact as to causation. The plaintiff had argued that McDonald’s should have utilized a security drawer instead of a window to accept payments from customers, and the court of appeal held that that “McDonald's offered no evidence that its use of an openable window -- instead of an unopenable window with a drawer -- was not a cause of the incident.” The trial court had found that there were triable issues as to McDonald’s duty of care, but that issue was not before the court of appeal, so its ruling is a very narrow, especially when you consider that almost all restaurants use the openable window that McDonald’s used here.
 
A university was found not to be liable for an attack in one of its parking garages in Bd. of Trs. v. DiSalvo, 974 A.2d 868 (D.C. 2009). The victim was stabbed during an afternoon robbery in one of the campus parking garages, and the victim and her husband sued the university for negligence on the basis that the university was liable for not taking adequate safety precautions to prevent the attack. A jury awarded damages to the plaintiffs, but the appellate court reversed, holding that the university did not have a heightened duty to protect the victim from the criminal attack of a third party because the university was not possessed of sufficient knowledge that a criminal attack by third parties upon the assault victim in its parking garage was reasonably foreseeable such that the university should have taken steps to protect her.
 
An apartment landlord was not liable for an assault and rape of one of its tenants who improperly installed a window air conditioner in Johns v. Hous. Auth., 297 Ga. App. 869 (Ga. Ct. App. 2009). The tenant’s air conditioner did not fill the entire window, so she filled the gap with a piece of cardboard. The assailant was thus able to remove the cardboard and the air conditioner and unlock an adjacent door. The tenant claimed that the landlord breached its duty to keep its tenants safe by failing to provide security and making repairs, but the court held that the attack was caused by the tenant’s failure to secure her own window. “Even if we were to agree with Johns that the attack in her apartment was foreseeable based on other crimes in the area, that the Housing Authority therefore had a duty to improve security in the complex, and that the Housing Authority breached that duty by not making the repairs or improvements Johns suggests, there is no evidence that any such breach led to her injuries. In this case, the intruder was apparently able to enter Johns' apartment because she left a rear window unsecured, not because the Housing Authority failed to do those acts enumerated by Johns.”
 
In a case with a somewhat bazaar set of facts, Neal v. Alfraihat, 2009 Ky. App. Unpub. LEXIS 579 (Ky. Ct. App. July 10, 2009), a tenant was unsuccessful in seeking to hold her landlord liable after she was bit in the face by a dog. The tenant lived in a four-family unit owned and managed by the defendants, and the tenant’s sister, the dog owner, broke into a vacant unit in the building and began to live there with her dog. The tenant was then bitten by her sister’s dog in the apartment parking lot, and she claimed that the defendants breached their common law and statutory duty to keep the common areas of the property in a safe condition. Summary judgment for the defendants was affirmed because there was no reason for the defendants “to have foreseen that someone would have broken into their vacant apartment and begun residing there. Even assuming it was foreseeable that a vacant apartment would be occupied by a squatter, it was not foreseeable that a vicious dog would also be on the premises. Therefore, Neal's claim that McGurk and Adams breached their duty to keep common areas free from reasonably foreseeable criminal activity fails because the criminal activity involved in this case was not reasonably foreseeable.”
 
The Supreme Court of New York, Bronx County, recently denied summary judgment to landlords in two separate cases, but the facts definitely were in favor of the victims. In Kelly v Norgate Bus. Assoc., 2009 NY Slip Op 51961U, 4 (N.Y. Sup. Ct. Sept. 17, 2009), a group of men, including the assailant, entered an apartment building through a door with a broken lock, walked past a security guard who did not question them, and then were loitering in the lobby of the apartment building, drinking liquor and smoking marijuana, when the victim, who was visiting a resident, was shot. In Caroline A. v. New York City Hous. Auth., 2009 NY Slip Op 51111U (N.Y. Sup. Ct. 2009), a thirteen year old girl was raped in her apartment building. The intercom system was not working and the victim could not call her mother to unlock the front door, so the victim had waited until another tenant with a key to the front door had opened the door, and then she and the assailant entered the building. The assailant then forced the victim to go onto the roof through an unlocked door where she was assaulted. In both cases, the apartments building were in high crime areas.
 
The victim in Xiao Yu Zhong v. Sunblossom Gardens, LLC, 2009 Tex. App. LEXIS 3010 (Tex. App. Houston 1st Dist. Apr. 30, 2009), who was stabbed in the parking lot of his apartment community, opposed his landlord’s motion for summary judgment on the basis that he had relied upon the landlord’s assurances of 24-hour security and an access-code gated entry, but that there were no security patrols, no security camera, the parking lot lights were frequently out, and the access-code gated entry was not working on the night of the assault. The court affirmed summary judgment for the landlord, finding that the victim’s affidavit did not refer “to any crime involving violence against a person, either on the premises or in the vicinity…. the two crimes described in the affidavits are analogous to the tire-slashing and car burglary and car theft crimes….When the claimant's injury is not sufficiently foreseeable to establish a duty in the premises owner, the owner necessarily lacks the requisite knowledge of the likelihood that the claimant would be injured. Sunblossom moved for no-evidence summary judgment in part on that basis, and appellants did not meet their burden to present competent evidence of any issue of material fact to establish knowledge.”
 
Personal injury law is of course state law specific, so victims may have greater opportunities to establish liability in other jurisdictions. Although the plaintiffs prevailed at the summary judgment stage in Thompson v. McDonald's, a case with a very unusual procedural problem, and in the two New York cases, where crime was rampant and security measures were not working, when one looks at the overall language of these cases, it is clear that victims have a high, and often impossible, burden to overcome in seeking damages against landlords for injuries from criminal activity.