Jane DOE, Plaintiff-Appellee, v. LINDER CONSTRUCTION COMPANY, INC., Linder Realty Company, Inc., Elwood Carpenter and Pattie Rollins, Defendants-Appellants, and Robert Linder, Linder Development Company and Idlewild Court Homeowners’ Association, a.k.a. and d/b/a Idlewild Court Homeowners’ Association, Defendants.
Supreme Court of Tennessee, at Nashville.
Dec. 21, 1992.
845 S.W.2d 173
Douglas Fisher, Thomas Pinckney, Nashville, for defendants-appellants.
OPINION
REID, Chief Justice.
This negligence action results from the rape of the plaintiff-appellee by two men who are not parties to the suit. The trial court granted the defendants-appellants’ motion for summary judgment, and the Court of Appeals reversed and remanded for a jury trial.
The complaint charges that the defendants negligently allowed a key to the plaintiff‘s residence to be stolen by other parties who, thereby, gained access to her residence and raped her. The plaintiff, who is the purchaser of a residence in a “planned unit development,” sued Linder
The trial court found that the criminal assault was an independent intervening act and dismissed the complaint. The Court of Appeals held that the case presents issues of fact for the jury. This Court‘s review of the evidence shows that the trial court properly granted summary judgment in favor of the defendants.
FACTS
Although the plaintiff-appellee insists that there is “significant disagreement as to the inferences to be drawn” from the facts, the essential facts are not disputed. Linder Construction Company contracted with Samuel Carpenter, the son of its construction supervisor, Elwood Carpenter, for the painting and wallpapering of houses as they were completed in the 35-lot development. At the time of the assault, Samuel Carpenter had been working for Linder Construction Company for approximately 14 months as an independent contractor and had been paid on the basis of work done. With the seller-builder‘s knowledge and permission, he frequently worked at night and on weekends. Carpenter apparently had problems with alcohol and had three convictions of DUI. He admitted to the occasional use of drugs. The record discloses no other evidence of bad character or criminal conduct.
Several months before the assault, while Samuel Carpenter was painting the interior of a house that subsequently became a “model home” and the office of the realty company, the locks and keys for the outside doors of the house were delivered by the supplier. The supplier stored them in the fireplace of the house. Carpenter,
When a house in the development was sold, Rollins would offer to keep a key on behalf of the seller so that “punch list” items, agreed upon by the seller and the buyer at the time of sale, could be completed while the purchaser was at work or otherwise away from the residence. These “pass keys” were kept in the closet of Rollins‘s office in the model home, and the key to each house was tagged with a number corresponding to the lot number on which the house was located. The procedure whereby the keys were used was clearly established and followed by Elwood Carpenter, who, inaccurately described in the dissent as “the on-site superintendent,” Dissent (Daughtrey, J.) at 187, a landlord-tenant term, was the construction supervisor of the project and, as such, was responsible for the “punch list” items agreed to at closing. Carpenter would take the keys needed that day from the office closet, put them onto his own key ring, and at the end of each day, return the keys to the box in the closet. The model home was locked at night and at all other times except when Pattie Rollins or another realtor was present. Although some buyers decided against allowing Rollins to keep a key to their house, that arrangement was made by the plaintiff and Rollins when her sale was closed. The arrangement, which is described in the plaintiff‘s brief as “a normal business practice,” was for the mutual convenience of the defendants and the plaintiff.
About a week before the plaintiff was assaulted, Clinton Osborne came to Nashville from Ohio to visit his cousin Samuel Carpenter. Osborne worked some with Samuel Carpenter painting, but he mostly just “goofed off.” Osborne, described in the dissent as a “dangerous person,” Dissent at 189, which in hindsight is accurate, had served a penitentiary sentence in Ohio for assault and, unknown to Samuel Carpenter or the defendants, was a fugitive when he came to Tennessee. The extent of the defendants’ knowledge about Osborne was that Elwood Carpenter knew he had served time in prison in Ohio.
On the night of the assault, Samuel Carpenter used his key to enter the model home. After locating the box of pass keys, he identified the key tagged with the lot number of the plaintiff‘s house and took it. He and Osborne then entered the plaintiff‘s house with the pass key and raped her. Both men were convicted of the crime.
The trial court found that the criminal assault was not reasonably foreseeable under the circumstances and granted the defendants’ motion for summary judgment. The Court of Appeals found that these facts were sufficient to present jury questions with regard to the handling and storage of the key to the model home, the control of the “pass keys,” and the “employment” of Samuel Carpenter, a person “of known irresponsible character.”
STANDARD OF CARE
The plaintiff asserts this is a case of first impression in Tennessee. Apparently there is no reported decision from this or any other jurisdiction in which a plaintiff has undertaken to impose liability under circumstances similar to those presented in this case. Both the plaintiff and the dissent characterize the case as “unique.” Dissent at 194.
In attempting to establish the duty of care owed the plaintiff by the defendants, the plaintiff, and the dissent, acknowledge that the decisions of Tennessee courts provide no precedent and rely upon “recent developments in this area of the law.” The dissent advocates that Tennessee join the “revolution” in this area of the law,
The duty owed the plaintiff by the defendants was, as in all cases, that of reasonable care under all of the circumstances. The duty due the plaintiff arose from the contractual arrangement whereby a key to the plaintiff‘s residence was retained by the seller for the mutual benefit of the plaintiff and the defendants. The duty, though much more limited, may be compared to that of a landlord, who, by agreement and for the parties’ mutual benefit, has access for a limited purpose to a tenant‘s premises.
As stated previously, there appears to be no reported decision in which the purchaser of a residence sued the seller for the criminal assault committed by third parties. The Court of Appeals in Tedder v. Raskin, 728 S.W.2d at 349, in an excellent opinion written by Judge Cantrell, reviewed the development of the common law in this state regarding the duty of landlords to protect tenants against the criminal acts of third parties. In that case, tenants brought a negligence action against the landlord for injuries sustained when a bullet fired during a robbery in the adjoining apartment came through the wall and struck the plaintiff‘s minor child. The plaintiffs claimed that the defendant breached a duty to provide them a reasonably safe place to live by failing to protect the plaintiffs and their child from dangers inherent in living next door to an alleged drug dealer. The Court of Appeals affirmed the trial court, which had granted a directed verdict for the defendants.
The court approved the succinct statement of the standard of care required of innkeepers in Zang, 643 S.W.2d at 667, as the standard applicable to landlords, as follows:
The measure of the liability of the possessor of land to invitees is due care under all the circumstances including the nature and use of the land, the nature of the invitation, the nature of the relationship with the invitee, the opportunity of the possessor and the invitee to know and avoid existing or probable dangers, and any and all other factors which would challenge the attention of the possessor and/or invitee to the probability of danger to the invitee and produce the precautions which a reasonably prudent person would instigate under the same or similar circumstances. (Emphasis added).
Tedder, 728 S.W.2d at 348 (quoting Zang, 643 S.W.2d at 663). The Tedder court then stated that ordinary principles of negligence apply to landlord-tenant situations and, further, that the landlord is not an insurer but can be held liable when his or her failure to exercise reasonable care under the circumstances was the proximate cause of injury to the tenant.
If the defendants failed to exercise reasonable care under the circumstances then they breached their duty to the plaintiffs. The term reasonable care must be given meaning in relation to the circumstances. McCormick v. Waters, 594 S.W.2d 385, 387 (Tenn. 1980). Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury. Leach v. Asman, 130 Tenn. 510, 514, 172 S.W. 303 (1914). The risk involved is that which is foreseeable; a risk is foreseeable if a reasonable person could foresee the probability of its occurrence or if the person was on notice that the likelihood of danger to the party to whom is owed a duty is probable. Foreseeability is the test of negligence. If the injury which occurred could not have been reasonably foreseen, the duty of care does not arise, and even though the act of the defendant in fact caused the injury, there is no negligence and no liability. See Spivey v. St. Thomas Hospital, 31 Tenn. App. 12, 211 S.W.2d 450, 456 (1948). “[T]he plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the [defendant‘s] power more probably than not would have prevented the injury.” Tedder, 728 S.W.2d at 348. Foreseeability must be determined as of the time of the acts or omissions claimed to be negligent.
Negligence already has been defined as conduct which falls below a standard established by the law for the protection of others against unreasonable risk of harm. The idea of risk in this context necessarily involves a recognizable danger, based upon some knowledge of the existing facts, and some reasonable belief that harm may possibly follow. Risk, for this purpose, may then be defined as a danger which is apparent, or should be apparent, to one in the position of the actor. The actor‘s conduct must be judged in the light of the possibilities apparent to him at the time, and not by looking backward “with the wisdom born of the event.” The standard is one of conduct, rather than of consequences. It is not enough that everyone can see now that the risk was great, if it was not apparent when the conduct occurred. Prosser and Keeton, The Law of Torts § 31, p. 170 (1984) (footnotes omitted). With regard to the criminal acts of others, the Court in Tedder stated:
If the injury was not reasonably foreseeable, then the criminal act of the third party would be a superseding, intervening cause of the harm, relieving the landlord of liability.
Based upon the principles stated in Tedder, the duty owed the plaintiff by the defendants in this case is not that of an innkeeper to its guest or a landlord to a tenant, but only to exercise reasonable care in managing the key to the residence. The pertinent question is whether there was any showing from which it can be said that the defendants reasonably knew or should have known of the probability of an occurrence such as the one which caused the plaintiff‘s injuries. Corbitt, 496 S.W.2d at 918. Analysis of “all the circumstances” of this case shows that there was no rea-
Samuel Carpenter used two keys to accomplish the criminal acts that caused injury to the plaintiff. It is important to separate the issues involved in the handling of each key to determine whether evidence of negligence by the defendants may be found anywhere in the sequence of events leading up to the rape of the plaintiff.
The plaintiff claims, somewhat tentatively, that the defendants’ first negligence, characterized as “potential negligence,” was in allowing Samuel Carpenter to obtain possession of the key to the model home. The Court of Appeals agreed. However, the only evidence cited by that court in support of its conclusion that the defendants “reasonably knew or should have known of the probability of an occurrence such as the one that caused the plaintiffs injuries,” was that Samuel Carpenter was of “known irresponsible character.” The record shows that this “irresponsible character” consisted of DUI convictions, alcohol dependency, and the occasional use of drugs, none of which are shown to be probative of a propensity to commit violent crimes against property or persons. During the 14 months that Carpenter worked at the job site, there were no complaints made against him, and there is no evidence that he used the key for any unlawful purpose during that time. Even though the Court of Appeals based its reversal in part upon the negligent hiring of Samuel Carpenter, that argument is not asserted on this appeal.
Although the plaintiff mentions the “first key,” claiming its handling was “potential negligence,” her main insistence is that the defendants’ proximate negligence was their control of the “second key,” the key to her residence. In her statement of “undisputed facts,” from which she claims a jury could draw inferences of negligence, the plaintiff refers only to the location of the “pass keys” and persons who had access to those keys while the model home was open. The facts claimed by the plaintiff to constitute negligence are as follows:
[T]he Defendants stored the pass keys in a common area which was frequented by prospective buyers, construction workers, and staff.
[T]he model home was left unattended by the Defendants and unauthorized persons were allowed to enter the model home when no one was present.
[T]he pass keys were clearly identified by lot number and were stored in an unlocked closet in an unlocked box.
[N]o security procedures were instituted to control access to the pass keys and such keys were never inventoried.
These facts, even if found by a jury to be true, are not sufficient to support a finding that the procedures followed and security measures taken in handling the pass keys were less than reasonably prudent. The facts relied upon by the plaintiff show that keys tagged with appropriate lot numbers were kept in a closet that opened into an office located in a building containing several rooms, which were accessible to persons doing business with the occupants, the development builders and realtors. The persons who had access to the model home-office building were prospective purchasers of residences, suppliers, craftsmen, and others who ordinarily would be present at such a business location. Though they were present in the sales office, there is no showing that any of these persons had an opportunity to steal a key, nor is there any showing that such persons were inclined to steal a key. More importantly, none of the people doing business at the model home actually stole a key or harmed the plaintiff or anyone else. The key was not taken by a “dangerous character” or one engaged in “criminal activity.” In fact it was taken before the sales office had been completed and by a contract painter-paper hanger who lawfully was working on the premises, and about whom the worst that could be said was that he smoked marijuana and drank too much beer. Under these circumstances, it was not reasonably foreseeable that the contractor would commit two secret, separate acts, one unauthorized and one criminal, in order to obtain possession of a key to commit another criminal act. A reasonably prudent person under these cir-
The plaintiff insists that evidence of “unauthorized entries” into other occupied houses in the development was sufficient to establish that the assault was foreseeable. That evidence consisted of the plaintiff‘s testimony that others had complained that “there were problems with their homes.” The plaintiff was able to provide only the vaguest information about two incidents, the disappearance of a can of tuna and an unflushed toilet. According to the plaintiff, the toilet incident involved a house owned by Meyers. However, according to the construction superintendent, Meyers complained to him of the toilet incident, which occurred after all keys to the Meyers’ house had been returned to him. The superintendent also said that another purchaser, Syke, complained of a “forced entry,” rather than an “unforced entry,” and that some items had been stolen, not as the result of the claimed entry but from his yard. Even though the complaint charges that the defendants were negligent in failing to warn the plaintiff of these “unforced entries,” she stated in discovery that she learned of these events in casual conversations with the neighbors prior to the assault when she was out walking in the neighborhood. The plaintiff could not remember the names of any other persons who had complained. None of the owners testified.
Neither the trial court nor the Court of Appeals found the evidence of complaints by other purchasers to be significant. In fact neither court even mentioned it. The dissent‘s characterization of this testimony as evidence of “unauthorized,” but unforced entries and “breaches of security” dignifies it far beyond its worth. Dissent at 190. Holding that such tenuous circumstances may constitute notice that produces foreseeability and therefore duty would truly “revolutionize” the law of negligence. Finding circumstances such as minor thefts, unexplained use of a bathroom, and unsubstantiated rumors to be sufficient notice on which to base liability for subsequent criminal assaults is not the law in Tennessee or any other jurisdiction.
The dissent, despite the disclaimer that this is not a case involving a landlord and tenant, undertakes to impose on the defendants the same duty that rests upon a landlord in cases like Lay v. Dworman, 732 P.2d 455 (Okla. 1986), in which a tenant was assaulted by an intruder who gained entrance into her apartment through a door with a broken lock which the landlord had failed to repair after receiving notice, even though the landlord had knowledge that other assaults had occurred at the same apartment complex. Of course, all of the elements of a cause of action were present in that case. The duty arose from the landlord-tenant relationship, the acknowledged duty to repair, and the notice of danger. The proximate cause was the failure to repair.
In Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970), said by the dissent to be the seminal case in the development of landlord liability, the court held:
However, there is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee or the one in control.
439 F.2d at 483, Dissent at 191-92. The decision of the Court in McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991) is no authority for the plaintiff‘s position in this case. The legal principle affirmed in McClenahan is the same principle that controls the instant case, the foreseeability of injury caused directly by a criminal act. The foreseeability of probable injury resulting from the act of leaving the ignition key in an automobile stopped in a heavily traveled location was recognized in McClenahan. The Court then held that the fact that the automobile was parked on private property, and therefore not in violation of
Contrary to the plaintiff‘s contention, the Restatement (Second) of Torts § 323(a) (1965) does not support her position:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm....
The principle stated is not applicable to this case. The defendants did not offer to render any service to the plaintiff, they only agreed to complete the “punch list” items. The obligation assumed by the defendants did not extend to that of protecting the plaintiff from physical harm, and the defendants did not fail to perform any obligation assumed. This rule might find applicability to obligations assumed, according to the complaint, by the homeowners’ association, but not the builder-seller and its agents.
Simply put, there is no authority for holding that in the circumstances presented by this record the defendants were required to foresee that the painter-wallpaper hanger would steal a key to a building which later would become the sales office, that he would use that key in order to steal a key to one of the completed residences, and that he would use the second key to commit a criminal assault upon the occupant. There is no precedent or responsible authority which requires the builder-seller, under the circumstances of this case, to foresee a crime upon a crime upon a crime.
PROXIMATE CAUSE
In addition to the finding that the defendants’ conduct did not fall below the standard of care, another fatal flaw in the plaintiff‘s case is the lack of proximate causation, an essential element in proving a case of negligence. As stated in Tedder, “[t]he plaintiff must further prove that the [defendant‘s] failure to act was the proximate cause of the injury.” 728 S.W.2d at 348. This Court has held:
“An injury that is the natural and probable consequence of an act of negligence is actionable, and such an act is the proximate cause of the injury. But an injury which could not have been foreseen or reasonably anticipated as the probable result of an act of negligence is not actionable and such an act is either the remote cause, or no cause whatever, of the injury.”
Ward v. University of the South, 209 Tenn. 412, 354 S.W.2d 246, 250 (1962) (quoting Moody v. Gulf Refining Co., 142 Tenn. 280, 218 S.W. 817 (1919)). The facts upon which the plaintiff relies, even assuming they were acts of negligence, were not the proximate cause of the plaintiff‘s injury. “Proof of negligence without proof of causation is nothing.” Drewry v. County of Obion, 619 S.W.2d 397, 398 (Tenn. App. 1981). Proximate cause:
... is merely the limitation which the courts have placed upon the actor‘s responsibility for the consequences of the actor‘s conduct.... [T]he consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond. But any attempt to impose responsibility upon such a basis would result in infinite liability....
Prosser and Keeton on the Law of Torts, § 41, p. 264 (5th ed. 1984). “As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability. Some boundary must be set....” Id.
As previously discussed, the acts of rape were criminal acts of which the defendants had no warning and which they had no reason to believe would occur. As the court in Tedder held, “[i]f the injury was not reasonably foreseeable, then the criminal act of the third party would be a superseding, intervening cause of the harm, relieving the [defendants] from liability.”
So, the question that will determine [whether the proof is insufficient to warrant a jury finding favorable to the plaintiff] is whether or not there is any proof in the record from which it can be said from the facts that the owner or lessee of the Coliseum in Knoxville reasonably knew or should have known of the probability of an occurrence such as the one which caused plaintiff‘s injuries. We are of the opinion there is not.
In order for plaintiff to recover in this case, the proof must be such so that it can be said that it was reasonably foreseeable by the defendants that the plaintiff would be waylaid and robbed in the restroom. Reviewing the proof in the light most favorable to plaintiff as we must, (citation omitted), we are unable to find proof that would warrant such a conclusion. All of the proof shows that such an occurrence as complained of had never before happened in the Coliseum. Previous non-occurrence of an event, standing alone, does not necessarily mean that such event is not foreseeable. However, in the instant case, coupled with the previous non-occurrence there is the uncontradicted fact that the injury was caused by the sudden criminal attack of third persons, without any warning to the plaintiff or to anyone else. In Brodie v. Miller, [24 Tenn. App. 316, 143 S.W.2d 1042 (1940)], it was held that the law does not place the onerous duty upon an owner of anticipating the criminal acts of another, unless the criminal act is the natural and spontaneous result of the act or failure to act of the owner. The criminal act complained of by the plaintiff in this case cannot be said to be the natural or normal result of any act of the defendants.
496 S.W.2d at 917-918 (emphasis added).
It is important to emphasize again that the tortfeasor in this case was not a stranger to the defendants. He was a contractor whose duties, pursuant to his contract with the seller-defendant, required his presence in the building that became the model home and office of the defendants, when the key to that building, which later gave him access to the building after working hours, was stolen. The key was not taken, as claimed by the plaintiff, as a result of “the [defendants’ storing of] the pass keys in a common area frequented by prospective buyers, construction workers and staff,” nor as a result of “the model home [having been] left unattended by the defendants and unauthorized persons [having been] allowed to enter the model home when no one was present,” nor as a result of “the pass keys [having been] clearly identified by a lot number and stored in an unlocked closet in an unlocked box,” nor as a result of “no security procedures [having been] instituted to control access to the pass keys and such keys [never having been] inventoried.”
Instead, access to the plaintiff‘s residence was accomplished by the unauthorized taking from the defendants’ possession the key to the model home, the locking of which was one of the protections against theft of the pass keys. The taking of the key to the model home was the efficient means whereby access to the plaintiff‘s residence was accomplished. The key to the plaintiff‘s residence was obtained by unauthorized acts (characterized as criminal by both the plaintiff and the defendants) committed against the Seller-defendant with which the tortfeasor had a contractual relationship. Therefore, the facts which must be considered in determining whether the evidence presents a jury question, are those relating to the taking of the key to the model home.
The criminal acts of Carpenter and Osborne were unforeseen, intervening causes of the plaintiff‘s injuries. “If the defendant can foresee neither any danger of direct injury, nor any risk from an intervening cause, the defendant is simply not negligent.” Prosser and Keeton on the Law of Torts, § 44, p. 311 (5th ed. 1984). In Ward, the Court, in sustaining the dismissal of the complaint for failure to state a cause of action, stated:
The test of liability under the law of intervening cause requires a person to anticipate or foresee what usually will happen. It does not require him to anticipate and provide against what is unusual or unlikely to happen, or that which is remotely possible, but whether it was probable according to the usual experience of persons.
Ordinarily, the proximate cause of an injury is for the jury, but, where the facts are not controverted, the question of proximate or intervening cause is for the trial court. Brodie v. Miller, 24 Tenn. App. 316, 143 S.W.2d 1042, 1045 (1940) (citing Southeastern Greyhound Lines v. Groves, 175 Tenn. 584, 136 S.W.2d 512, 513 (1940)). The Brodie court stated:
Lastly, it is insisted that the question of proximate cause is a jury question and whenever the question is doubtful or debatable, that the court should submit it to the jury.... The remedy of leaving the doubtful questions to the jury does not seem to be adequate, for the court is better qualified to lay down the duties and responsibilities growing out of a conceded state of facts than the jury. We do not believe that it was intended by the discussion of the issue found in this case to change the practice in this state; here the trial judge is the witness of the law to the jury. And it is his duty to define the duties and responsibilities of the parties arising out of the theory of the plaintiff as well as of the defendant; the sole function of the jury is to decide the facts and to apply the principles as given them by the court.
143 S.W.2d at 1046. The relationship between the assault and the acts of the defendants claimed to constitute negligence is so problematic that there can be no liability as a matter of law.
STANDARD OF REVIEW
For a negligence case to go before a jury, the plaintiff has the burden to present facts sufficient to establish the necessary elements of negligence. The standard in a negligence case is that,
If, as a matter of law, the plaintiff has failed to allege or prove facts sufficient to establish notice, the existence of the duty to act, breach of the duty, or proximate cause, dismissal, summary judgment, or a directed verdict would be appropriate.
Tedder, 728 S.W.2d at 349 (Tenn. App. 1987). More succinctly, “[t]he plaintiff in a negligence case must offer some material evidence showing the existence of a duty and an injury proximately caused by a breach of that duty.” Id. The standard of review in this case, then, is whether there is any disputed genuine issue of material fact concerning the elements of the alleged cause of action. If not, the dismissal of the complaint must be affirmed.
Many cases in which the plaintiff was injured by the criminal acts of persons other than the defendant have been decided by the Tennessee appellate courts against the plaintiff for failure to present facts sufficient to establish the elements of negligence. For instance, in Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975), a shopper who was assaulted in a shopping center parking lot brought an action in negligence against the owners of the shopping center and the businesses located in the center. In affirming the trial judge‘s dismissal of the action upon finding no breach of duty and no proximate cause, the Court stated:
At common law, a private person or corporation, as distinguished from governmental units, had no duty whatsoever to protect others from the criminal acts of third parties. That general rule has remained steadfast in the tort law of this country, despite the exceptions that have appeared from time-to-time, where special relationships and special circumstances have combined to impose liability.
Cornpropst, 528 S.W.2d at 191. The Court then reviewed the law generally and the case of Railroad v. Hatch, 116 Tenn. 580, 94 S.W. 671 (Tenn. 1906) (absent reasonable grounds for an apprehension of danger the railroad would not be liable for an attack on one passenger by another), and stated:
Cornpropst, 528 S.W.2d at 192. Finally, the Court approved the following statement from Corbitt v. Ringley-Crockett, Inc., 496 S.W.2d 914 (Tenn. App. 1973), in recognizing one special circumstance:
We hold that if the owner is to be held liable for the sudden criminal acts of third persons there must be a showing that the owner was on notice in some manner of the imminent probability of the act. Otherwise, there can be no issue for jury determination. There is no such showing in this record. The Trial Court should have directed a verdict for the defendants.
CONCLUSION
To hold as negligence the failure to prevent the theft or unauthorized taking of a key by workers or others lawfully on a construction site, under the circumstances of this case, would place an unrealistic burden on contractors and other employers. As stated in Prosser:
On its face, the problem is one of whether the defendant is to be held liable for an injury to which the defendant has in fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which the defendant is not responsible. In its essence, however, it becomes again a question of the extent of the defendant‘s original obligation; and once more the problem is not primarily one of causation at all, since it does not arise until cause in fact is established. It is rather one of the policy as to imposing legal responsibility.
Prosser at 301. Even though the facts of this case are unique, the law of this state with regard to the legal issues presented is well settled.
The judgment of the Court of Appeals is reversed, and the judgment of the trial court granting summary judgments is affirmed. Costs are taxed to the appellee.
DROWOTA, O‘BRIEN and ANDERSON, JJ., concur.
DAUGHTREY, J., dissents.
exercise reasonable care under the circumstances.”
Id. (quoting Zang v. Leonard, 643 S.W.2d 657, 664 (Tenn.App.1982)). Continuing, the Tedder court said:
We do not perceive this extension of the common law as placing an undue burden on landlords. As in other negligence actions, the plaintiff will have to prove that the landlord was on notice of an unreasonable risk or likelihood of danger to his tenants caused by a condition within his control. Once notice sufficient to cause a reasonably prudent person to foresee the probability of harm is received, the duty to act arises and the failure to take reasonable steps to correct the problem within a reasonable time is a breach of that duty.
However, the plaintiff must further prove that the landlord‘s failure to act was the proximate cause of the injury. To meet this burden, the plaintiff must show that the injury was a reasonably foreseeable probability, not just a remote possibility, and that some action within the landlord‘s power more probably than not would have prevented the injury.... If the injury was not reasonably foreseeable, then the criminal act of the third party would be a superseding, intervening cause of the harm, relieving the landlord of liability.
Ultimately, the Court of Appeals held that plaintiff Pauline Tedder had failed to establish a duty on the part of the landlord, because the proof failed to establish notice, either actual or constructive, of a dangerous condition over which the landlord had control—specifically, that one of the tenants was dealing in drugs. The court also held that “a bullet fired during a struggle with a burglar going through a wall and injuring a person in the apartment next door is [not] a probable, ordinary, natural, or usual result of drug dealing” and that the injury to young Scotty Tedder was, therefore, not reasonably foreseeable. Id. at 350.
Although the plaintiffs in Tedder were not successful in getting their case to the jury, the decision nevertheless marks an important departure from the general rule of nonliability that prevailed in the landlord‘s favor under the common law. That path has been followed almost universally by the courts which have been asked to decide similar issues over the course of the last 20 years. Many have relied on Kline and its control analysis. Others have looked in addition to the formulation of the rule in the Restatement (Second) of Torts as a foundation for finding a landlord liable to a tenant for the criminal acts of another. In Section 323(a), the Restatement provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if . . . his failure to exercise such care increases the risk of such harm.
Restatement (Second) of Torts § 323(a) (1965).
Thus, in Lay v. Dworman, 732 P.2d 455 (Okla.1986), the Oklahoma Supreme Court was faced with a case in which a tenant was attacked in her apartment after notifying the landlord that the lock on her sliding glass door was defective. The landlord failed to act, despite knowledge of other assaults in the complex, and as a result an intruder gained access to the plaintiff‘s apartment and raped her. Invoking both Kline and § 323(a), the Oklahoma court said:
Aside from the duty of the landlord arising from traditional principles relating to the duty to maintain common areas of the premises, this case also requires consideration of the landlord‘s duty to maintain the actual security of the leased premises themselves.... [B]y retaining control over aspects of the premises such as door and window locks or alarm devices which directly relate to security, the landlord faces potential liability when the circumstances are such that a reasonable man would realize that a failure to
act would render one relying on those actions susceptible to criminal acts.
Id. at 458-59. See also Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill. Dec. 519, 526, 531 N.E.2d 1358, 1365 (1988).
The majority opinion treats the development of landlord-tenant law in this area dismissively, as irrelevant to the situation in this case, which did not, obviously, involve a true landlord-tenant relationship. But, just as obviously, the principles of liability applicable to a landlord are likewise applicable to the defendants in this case, to the extent that they exercised the function of a landlord in retaining both access to the plaintiff‘s residence and control of its security through possession of a duplicate key. Cf. Francis T. v. Village Green Owners Ass‘n., 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573, 576 (1986) (condominium association “owed plaintiff the same duty of care as would a landlord in the traditional landlord-tenant relationship,” where plaintiff, raped by intruder, alleged that association had provided inadequate security measures); see also Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla.App.1989), and other cases collected at Annot., Condominium Associations’ Liability to Unit Owner for Injuries Caused by Third Person‘s Criminal Conduct, 59 A.L.R.4th 489 (1988).
Research suggests that the facts in this record are unique among reported cases. Nevertheless, it is clear that because of the defendants’ possession of the duplicate key to the plaintiff‘s house, the parties had a “special relationship” of the kind contemplated in Cornpropst, even if that “special relationship” does not fall into the categories specifically mentioned in that case. Moreover, there is evidence from which a jury could find that the defendants knew (or reasonably should have known) that unauthorized but unforced entries had been made into various residences at Idlewild Court, under circumstances suggesting the wrongful use of a key.
It might be argued that the consequences of these unauthorized entries were relatively minor. There is no indication in the record, with one exception, of any great degree of property damage or loss, nor did the incidents result in the sort of violence against the person described in Kline. But the fact that the prior unauthorized entries at Idlewild Court did not result in personal injury or substantial property damage does not mean that they could be overlooked. If a landlord knows that crimes have occurred on the premises, the rule in Tedder requires that the landlord undertake whatever measures are reasonably necessary to avoid further such harm to tenants. If those prior crimes are serious ones, the landlord might be called upon to post a guard, increase the lighting in common areas, or install additional security devices. How much the landlord would be expected to do would depend entirely on the extent of the risk involved.
Here, we are concerned not with the landlord‘s duty to make common areas relatively safe for tenants, or even to provide adequate security measures for individual residences. Those security measures, in the form of deadbolt locks, had already been provided to Idlewild homeowners. But a deadbolt lock is only as good as the key to it is secure. Obviously, if the key to a lock falls into the wrong hands, the security of the residence itself is compromised.
Hence, when the question is one of wrongful use of a house key, even a relatively minor breach of security takes on major significance, because it demonstrates the fact that the lock (and therefore the residence) is not secure. Clearly then, it does not take a rape or robbery to trigger the duty of one in possession of a passkey or duplicate key to investigate instances of unauthorized entry and to take adequate precautions against future breaches of security. Even incidents as minor as those reported in this case—use of a toilet or theft of a can of tuna fish—are sufficient to put those in control of the keys on notice that some reasonable response on their part is required. When no response is forthcoming and an injury results from the very risk that the person in control should have taken steps to avoid, it is clear that the person guilty of failing to take action
This proposition of law is fully consistent with the Restatement rule of § 323(a). Indeed, the negligent handling of passkeys, as well as the failure to provide adequate locks and to maintain proper security in general, is now widely recognized as creating liability for injuries to a tenant caused by third persons. Only a cursory summary of these cases is necessary to make this point. Almost all of them rest on the principle, emphasized in the foregoing discussion, that if a landlord retains control of a portion of premises leased to a tenant, the landlord has a duty, as the party in control, to use reasonable care in exercising that control. This “control” clearly extends to the possession of passkeys, master keys, and duplicate keys.
For example, in Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519, 531 N.E.2d 1358 (1988), the injured plaintiffs were two women tenants in an office park who were attacked (one was killed) by a man previously employed on the premises as a construction worker. He had gained access by means of a passkey he had purloined while working on the site. The Illinois Supreme Court held that even in the absence of a general obligation to protect tenants under all circumstances, “[a] landlord may be held liable for the criminal acts of third parties when it ‘voluntarily undertakes to provide security measures, but performs the undertaking negligently, if the negligence is the proximate cause of injury to the plaintiff.‘” Id. 126 Ill.Dec. at 526, 531 N.E.2d at 1365 (citing Restatement (Second) of Torts § 324(a) (1965)). The court went on to hold that the operator of an office park, by retaining access to individual units through master keys, “assumed a duty to take reasonable precautions to prevent unauthorized entries by individuals possessing those keys,” to account for all outstanding keys, and “to take preventive measures to ensure that individuals who were given keys would not make unlawful use of them.” Id. at 528, 531 N.E.2d at 1367. The court was particularly critical of the fact that once the defendants knew that one or more keys were “outstanding and unaccounted for,” thus creating a risk of improper use, they nevertheless failed “to warn those rightfully on the premises of the danger or to take reasonable precautions to prevent foreseeable unauthorized entries by those with a master or grand master key.” Id. at 529, 531 N.E.2d at 1368.
In Center Management Corp. v. Bowman, 526 N.E.2d 228, 230-1 (Ind.App.1988), a tenant was permitted to recover for thefts from her apartment that were committed without any sign of forced entry, from which fact the court deduced that “a key must have been used.” An employee of the landlord testified “that all maintenance workers had access to master keys,” and the court took special note of police testimony that “other burglaries absent signs of forced entry had [previously] occurred at the apartment complex.” Id. at 231. The court noted that “the common-law rule that a landlord is not under a duty to protect a tenant from loss or injury due to criminal conduct by a third party” has been abrogated by recent decisions in various jurisdictions, and the court adopted a new rule, which it characterized as a “practical method” for determining the existence of a duty by a landlord under such circumstances:
[There are] three considerations for determining whether a duty would exist: 1) the foreseeability of the injury, 2) the magnitude of the burden of guarding against the injury, and 3) the consequences of placing that burden upon the defendant.
Id. at 230, (citing Morgan v. Dalton Management Co., 117 Ill.App.3d 815, 73 Ill.Dec. 313, 316, 454 N.E.2d 57, 60 (1983)).
Applying this rule to the facts, the Indiana court held that once the landlord has been put on notice by prior incidents involving unauthorized entry by probable use of a key, a duty arises to prevent further such conduct. Rejecting the defendants’ contention “that the consequences and magnitude of the burden to guard against another such occurrence were prohibitive” and “that terminating their employees’ use of the master keys would com
In perhaps the most succinct statement of the rule, in a case involving a painter who had been employed by the landlord and who later entered the tenant‘s apartment and strangled her, the United States Court of Appeals for the District of Columbia Circuit said:
[The tenant] had one set of keys for herself; another set was retained by the landlord. She was entitled to assume that the appellees would introduce no intruder into her apartment. She had a right to expect that the landlord would not give up his set of keys to a stranger or so negligently fail to guard them that they might fall into the hands of one bent on mischief.
Kendall v. Gore Properties, 236 F.2d at 678 (emphasis added).
There are numerous other cases involving negligent handling of keys. Naturally, some bear a closer resemblance to the facts of the case now before us than do others.4
Several of them deal with attacks on tenants by employees of the landlord, rather than by strangers. In Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644 (Mo.App.1987), the court recognized that there is no generalized “good Samaritan rule” creating a duty to protect against the criminal conduct of unknown third persons. But, the Court said,
... there are situations in which one might reasonably anticipate a danger from intentional or criminal misconduct because he has brought the victim into contact or association with a person or persons whom he knows or should know to be particularly liable to commit criminal acts, and under circumstances which afford a peculiar opportunity or temptation for such misconduct.
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The duty described above arises where “special relationships” or “special circumstances” exist such that an act or omission exposes someone to an unreasonable risk of harm through the conduct of another.... “Special relationships” include those in which a party entrusts himself to the protection of another and relies on that person to provide a place of safety. Such relationships are usually delineated as those of innkeeper-guest, common car
Id. at 645, 646 (emphasis added). See also Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla.App.1980) (higher standard of care imposed on landlord who provides employee with “access to the townhouse passkeys“); Ponticas v. K.M.S. Investments, 331 N.W.2d 907 (Minn.1983) (involving rape of tenant by manager of apartment complex who gained access to the plaintiff‘s residence by means of a passkey).
Based on all of the foregoing authority, one is led inexorably to the conclusion that as a matter of law, the defendants in this case, having retained a duplicate key to the plaintiff‘s home, ostensibly in order to make necessary repairs, and thus having voluntarily exercised a measure of control over the security of her premises, were under a duty to exercise reasonable care in the handling of the key in order to avoid harm to the plaintiff by third persons, including their own employees. In the end, what distinguishes this case from Cornpropst, and thus makes the narrow holding of Cornpropst inapplicable to the situation here, is the fact that this case clearly involves misfeasance, rather than the mere nonfeasance involved in Cornpropst. To the extent that he found to the contrary, the trial judge was simply wrong in his analysis.
The case also differs from Cornpropst in terms of the foreseeability of the risk involved and the defendants’ resulting duty to take steps to avoid that risk. Foreseeability is treated as a separate issue in the next section of this opinion because of its major relevance in this case to the question of proximate cause. But foreseeability is also relevant to the issue of duty, of which it is an important component. Under Tennessee law, if the injury to the plaintiff could not have been foreseen or anticipated by the defendant, then no duty of care arises and negligence cannot be established, as a matter of law. Spivey v. St. Thomas Hospital, 31 Tenn.App. 12, 27, 211 S.W.2d 450, 456 (1948). But, “the particular harm which actually befell [the plaintiff] need not have been foreseeable.” Id. at 28, 211 S.W.2d at 457 (emphasis added). “[I]f the defendant could have foreseen that some such harm of like general character might result to plaintiff from the defendant‘s acts, and that injury was within the reasonable range of the risk created by such acts, a duty exists.” Lancaster v. Montesi, 216 Tenn. 50, 56, 390 S.W.2d 217, 220 (1965) (emphasis added); see also Coatney v. Southwest Tenn. Elec. Membership Corp., 40 Tenn.App. 541, 549, 292 S.W.2d 420, 424 (Tenn.App.1956) (“While it may be true that the particular accident which resulted in the death involved in the instant case may not have been foreseeable as such, we must remember that the particular harm which actually did occur, need not have been specifically foreseeable, in order to make the defendant liable“).
Thus, awareness of prior incidents of unauthorized entry and thefts such as those at Idlewild Court may create a duty to avoid a foreseeable risk of harm. Under the rule followed by the great majority of courts, there is no requirement that the prior incidents be of the same kind or degree as the activity under review. Moreover, the reasonableness of the measures taken to avoid that harm will depend upon the circumstances of each case. Francis T. v. Village Green Owners Ass‘n., 723 P.2d at 577-579.
In this case, a reasonable response by the defendant to avoid the risk presented could have taken any one of several forms. Certainly a jury could find that from the time the defendants (or any one of them) knew of the prior incidents of unauthorized but unforced entry, they were under an obligation to investigate the circumstances of those entries, to locate and restrict the use of any outstanding passkeys or duplicate keys, and to secure and monitor the duplicate keys located in the model home, that is, to lock them up and permit their use only on a carefully controlled basis.
In any event, the burden on the defendants to prevent the plaintiff‘s injury would have been slight. As one of the rapists indicated in his deposition, if the box of keys or the closet in the model home had been locked on the night in question, the rape would never have occurred. It is true, of course, that a rape is not necessarily the result in every case of negligent handling of keys. But, as one court has noted, the low probability of a crime actually occurring must be balanced against the magnitude of the potential harm involved, in order to determine whether or not inaction under the circumstances was reasonable. See generally Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 224 N.W.2d 843 (1975). If the risk involves death or serious bodily injury to a number of persons, the law requires that some care must be exercised even though the probability is slight that the incident will occur. Id., 224 N.W.2d at 849.
Hence, I come to the inescapable conclusion that in this case, based on the evidence in the record, there was sufficient proof to submit the issue of the defendants’ breach of duty to a jury.
4. Foreseeability as an Element of Proximate Cause.
In speaking of causation, two of the country‘s leading authorities on negligence have noted that “[t]here is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” Prosser and Keeton, The Law of Torts § 41 (5th ed. 1984).
The law of Tennessee, like that of most jurisdictions, recognizes that in determining the existence of proximate cause, a criminal attack is generally held to constitute an intervening act. Such an intervening act will not relieve the defendant of liability, however, if it was reasonably foreseeable. Evridge v. Am. Honda Motor Co., Inc., 685 S.W.2d 632, 635 (Tenn.1985); Glenn v. Conner, 533 S.W.2d 297, 301 (Tenn.1976). Foreseeability, of course, is ordinarily a jury question, and, thus, unless the alleged criminal act was unforeseeable as a matter of law, summary judgment in the defendants’ favor is improper. Evridge, 685 S.W.2d at 636.
This Court‘s most recent discussion involving an intervening criminal act is found in McClenahan v. Cooley, 806 S.W.2d 767, 769 (Tenn.1991), in which we held that “[the] jury should be permitted to determine the issue of proximate causation in cases where the keys are left in the ignition of a parked automobile that is subsequently stolen and thereafter involved in an accident.” Obviously there is a close analogy, if not a clear parallel, between negligence in the handling of a car key, followed by theft of the car and resulting injury to an innocent plaintiff, as occurred in McClenahan, and negligence in the handling of a house key, followed by a burglary and resulting injury to the innocent plaintiff, as occurred in this case. Other courts that have held landlords liable to tenants for crimes committed by third persons have relied on their own McClenahan-type cases as authority. See, e.g., Paterson v. Deeb, 472 So.2d 1210, 1218 (Fla.App.1985); Kline 439 F.2d at 484.5
In McClenahan, we set out the general test for determining the existence of proximate cause, as follows:
Taken as a whole, our cases suggest a three-pronged test for proximate causation: (1) the tortfeasor‘s conduct must have been a “substantial factor” in bringing about the harm being complained of; and (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; and (3) the harm giving rise to the action could have been reasonably foreseen or anticipated by a person or ordinary intelligence and prudence.
The foreseeability requirement is not so strict as to require the tortfeasor to foresee the exact manner in which the injury takes place, provided it is determined that the tortfeasor could foresee, or through the exercise of reasonable diligence should have foreseen, the general manner in which the injury or loss occurred. The fact that an accident may be freakish does not per se make it unpredictable or unforeseen.’ City of Elizabethton v. Sluder, 534 S.W.2d 115, 117 (Tenn.1976). It is sufficient that harm in the abstract could reasonably be foreseen. Finally, proximate causation is a jury question unless the uncontroverted facts and inferences to be drawn from them make it so clear that all reasonable persons must agree on the proper outcome.
McClenahan, 806 S.W.2d at 775 (other citations omitted). Addressing the matter of the criminal act as an intervening cause, we said:
There is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result. An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial factor in bringing about the harm. ‘An intervening act will not exculpate the original wrongdoer unless it appears that the negligent intervening act could not have been reasonably anticipated.’
Id. (quoting Evridge v. American Honda Motor Co., 685 S.W.2d 632, 635 (1985) (citations omitted)). Finally, of prime importance on the question of the propriety of summary judgment in this case, we observed in McClenahan:
Just as in the case of proximate causation, the question of superseding intervening cause is a matter peculiarly for the jury because of foreseeability considerations.
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The basic issue is foreseeability, both as to proximate causation and superseding intervening cause, and that is a question of fact rather than of law upon which reasonable minds can and do differ....
Id. at 775-76 (citations omitted).
As we did in McClenahan, courts in other jurisdictions have had little difficulty with the question of proximate cause under factual circumstances similar to those in the case now before us. For example, the Supreme Court of Florida has aptly framed the analysis of foreseeability in this context:
Another way of stating the question whether the intervening cause was foreseeable is to ask whether the harm that occurred was within the scope of the danger attributable to the defendants’ negligent conduct. A person who creates a dangerous situation may be deemed negligent because he violates a duty of care. The dangerous situation so created may result in a particular type of harm. The question of whether the harm that occurs was within the scope of the risk created by the defendants’ conduct may be answered in a number of ways. First, the legislature may specify the type of harm for which a tort-feasor is liable. Second, it may be shown that the particular defendant had actual knowledge that the same type of harm has resulted in the past from the same type of negligent conduct. Finally, there is the type of harm that has so frequently resulted from the same type of negligence that in the field of human experience the same type of result may be expected again.
Gibson v. Avis Rent-A-Car Systems, Inc., 386 So.2d 520, 522 (Fla.1980) (citations omitted) (emphasis in original).
In Paterson, 472 So.2d 1210, the Florida Court of Appeals applied the analysis in Gibson to a case involving an unknown assailant‘s sexual attack on a tenant who lived in a building with a broken lock on the outside front door and no lock at all on its rear door, giving intruders access to common areas of the building. The Paterson court noted that there was not a sufficient statutory basis for liability and no indication of prior incidents of the same kind. The court “conclude[d], however, that the type harm suffered by the plaintiff in this case has so frequently resulted from the same type of negligence, to wit, not providing security locks on doors and windows to prevent unauthorized entry by criminals, that in the field of human experience the same type of harm may be expected again.” Id. at 1218. Indeed, said the court:
[W]here the duty breached by a landlord has as one of its principal purposes the prevention of entry by unauthorized persons, the deliberate act of such person in committing sexual battery upon a tenant does not constitute an “independent intervening cause” that cuts off the chain of legal causation and insulates the landlord from liability.
Id. (citations omitted) (emphasis added). And, the court added, “[w]here reasonable persons might differ, the ultimate determination of foreseeability and legal cause are questions for the jury.” Id. Accord Dawson v. Sears, Roebuck & Co., 217 Tenn. 72, 80, 394 S.W.2d 877, 881 (1965).
Likewise, in a case involving a former employee who gained possession of a passkey through the landlord‘s negligence, used it to gain entry to a building, and ultimately murdered someone inside the building, the Illinois Supreme Court noted:
It is [the defendant‘s agents‘] contention, however, that the appellate court correctly held that the criminal attack on [the plaintiffs] was unforeseeable, as a matter of law, and therefore they did not owe a duty to guard against it. They say that although they might have had notice that master and grandmaster keys were outstanding, it was not foreseeable that an individual would use one and enter a tenant‘s office and assault those present, particularly in light of the fact that there had not been any violent crimes at the office park in the past.... [But] there were 17 incidents of criminal activity at the complex in the preceding two years. Though most were or involved minor thefts from the parking lot area, . . . several of the incidents involved burglaries from offices where there were no signs of forced entry.... We consider that knowledge that master and grandmaster keys were outstanding and unaccounted for and that a number of burglaries were committed on the premises that showed no sign of forced entry raised a genuine issue of material fact as to whether a reasonable person should have foreseen . . . the danger or risk of similar crimes in the future and would have taken reasonable precautions to guard against it....
Rowe v. State Bank of Lombard, 125 Ill.2d 203, 126 Ill.Dec. 519, 530, 531 N.E.2d 1358, 1369 (1988). The Illinois Supreme Court in Rowe then focused on the crux of the foreseeability question that is also presented in this case:
The purpose of having secure locks is to prevent entries by intruders and the accompanying criminal conduct.
Id., 531 N.E.2d at 1369 (emphasis added).
Judicial recognition that the commission of a criminal act such as theft, assault, or rape is the foreseeable result of a failure to maintain adequate security measures is re
In some of these cases, the courts were willing to conclude that the criminal attacks were foreseeable merely from the fact of lax security, but most involve a finding by the courts either that the premises were located in high crime area, making unauthorized entry and criminal attack foreseeable, see e.g., Kline, 439 F.2d 477, or that there had been prior incidents of crime in the area or on the premises, making further such activity foreseeable. See, e.g., Francis T., 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573 (1986). Moreover, the general rule is that knowledge of prior incidents is relevant to the issue of foreseeability of a later sexual assault even if the prior incidents involved lesser crimes, and even if those crimes were non-violent. Czerwinski v. Sunrise Point Condominium, 540 So.2d at 201; Paterson, 472 So.2d at 1218. Significant to the foreseeability question here, especially on the question of Elwood Carpenter‘s negligence in permitting Clinton Osborne to remain on the Idlewild Court premises, is the holding by one court that:
The jury, as finder of fact, could have found, as it did, that it was reasonably foreseeable that a person with a history of offenses of violence could commit another violent crime, notwithstanding the history would not have shown him ever to have committed the particular type of offense.
In holding that the injuries suffered by the plaintiff in this case could not have been reasonably foreseen, the majority seems to be troubled, essentially, not by the question of foreseeability, as that question is commonly understood, but by the relative infrequency with which a rape can be expected to occur as the result of conduct such as that exhibited by the defendants in this case. It is true that a rape does not occur every time house keys are carelessly maintained or a door is left unlocked. But the fact that a rape does not result in every such case does not answer the question of foreseeability, as the cases discussed above illustrate. As the Florida Supreme Court noted in its opinion in Gibson 386 So.2d at 522, the test is whether the harm that results from the negligence shown is harm that can be expected “in the field of human experience” to happen. We commonly lock our doors and secure our premises to prevent unauthorized entries, and for no other reason, because in our “field of experience” we recognize the risk that intruders might steal our property or threaten our safety.
Hence, to resolve the question of foreseeability in this case, one need only ask why Jane Doe locked her door on the night in question. She obviously locked it to keep out criminal assailants such as Sam Carpenter and Clinton Osborne. But for the defendants’ negligence, the security of her home would not have been breached, and she would not have been raped. To establish foreseeability, it is enough to show that the defendants knew or reasonably should have known that their conduct materially increased by risk of harm to the plaintiff in this regard. As previously noted, there is no requirement under Tennessee law that in order to be held liable, the defendants “must have [had] threatened specific criminal act by a specific person.” Zang v. Leonard, 643 S.W.2d 657, 664 (Tenn.App.1982).
Tedder v. Raskin, for example, involved a tenant who sought to hold her landlord liable in tort for injuries caused by a stray bullet that came through the wall of the plaintiff‘s apartment and struck her child as he lay sleeping in bed. The bullet had apparently been fired as the result of a struggle between the tenant in the next apartment and a man who was trying to rob him as the result of drug dealing between the two. Prior to the shooting, the plaintiff had complained to the apartment manager about congestion in the parking lot caused by a stream of people coming and going from the neighbor‘s apartment, and she had suggested to the manager that there might be drug dealing going on there. However, there were no reports of any sort of criminal offense on the premises, either major or minor, that would otherwise have put the landlord on notice of increased risk to the tenants. The Tennessee Court of Appeals held that the plaintiff‘s comment to the landlord was mere speculation and that she had failed to produce material evidence that the injury was “a reasonably foreseeable and probable result of the landlord‘s negligence.” Id. at 350. The court determined that “a bullet fired during a struggle with a burglar going through a wall and injuring a person in the apartment next door is [not] a probable, ordinary, natural, or usual result of drug dealing,” and is thus not foreseeable. Id.
Likewise, a California court has held that injuries resulting from a gun fight between unknown persons in a laundry room in an apartment building could not be reasonably anticipated. Totten v. More Oakland Residential Housing, Inc., 63 Cal.App.3rd 538, 134 Cal.Rptr. 29 (1976). Another court ruled that a heart attack induced by the throwing of a can of paint from the balcony of an apartment building down upon the plaintiff was not reasonably foreseeable. Gulf Reston, Inc. v. Rogers, 215 Va. 155, 207 S.E.2d 841 (1974).
The outcome of these cases is not surprising. However, my research has failed to reveal a recent reported opinion in which a court has been willing to say that sexual assault on a tenant is not reasonably foreseeable as a result of a landlord‘s lack of due care with regard to security. To the extent that the defendants in this case stood in the shoes of a landlord vis à vis their relationship to the plaintiff, the same result should pertain.
Based upon Tennessee case law, as well as persuasive authority from other jurisdictions, it seems clear beyond dispute that a jury could find foreseeability in this case. As noted above, the Tennessee courts have, for some time now, recognized that it is reasonably foreseeable that negligently leaving a key in the ignition of an unlocked car will result in injury or property damage to some other person, many miles away, at the hands of the thief who steals the car. But the likelihood of such an event occurring is no more or less foreseeable than the risk of personal injury or property damage resulting from negligence in connection with the key to a person‘s residence. The law encourages us to handle car keys with care, so that no one will steal a car and cause injury. House keys must be handled with the same care, so that no one will intrude and cause injury. The potential for harm to persons and property is equally apparent in either case. If the result of negligence with regard to car keys is reasonably foreseeable, so is the result of negligence with regard to house keys. And, the same conclusion inexorably follows in both instances: the jury should be given the opportunity to judge the facts and to assess liability.
5. Conclusion.
On the surface, this case raises ordinary negligence issues that can be resolved by the use of ordinary rules of tort law. However, it has a larger significance in that it
If this case is swept aside on the basis of summary judgment, we will have lost a valuable opportunity to benefit from the analysis developed by the many other courts that have addressed these issues in the two decades since Kline. The rulings in all these cases, as the Court of Appeals in Tedder noted, form a logical extension of the law and place no undue economic burden on the innkeeper, the common carrier, the landlord, or those, like the defendants here, who stand in the shoes of the landlord. In the words of one court:
In approaching the problem authorities have recognized that the duty [of care to avoid an unreasonable risk of harm through the conduct of another] is not determined so much by the foreseeability of the criminal act, but whether one party is in a superior position to be aware of the danger and to take measures to guard against it. In the final analysis the matter is one of policy.
Brown, 729 S.W.2d at 646 (citations omitted). And, an even more recent decision includes this message:
Although the foreseeability of a plaintiff‘s injury is important in the determination of whether a duty exists, the imposition of a duty does not depend upon foreseeability alone. As Dean Prosser stated, “[I]t should be recognized that ‘duty’ is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” Whether a duty exists depends on a consideration of the likelihood of injury, the magnitude of the burden to guard against it, and the consequences of placing that burden upon the defendant.
Rowe, 531 N.E.2d at 1371-72 (citations omitted).
The Illinois Supreme Court‘s holding in Rowe is fully applicable to the circumstances in Jane Doe‘s case:
Providing adequate security measures would have been relatively inexpensive.... The risk of unauthorized entry could also have been avoided by notifying those on the premises of the danger. In light of the risks [the defendants] created, it would not have been an insurmountable burden for [them] to assume.
We should hold in this case that summary judgment was inappropriate. Once the defendants voluntarily assumed possession of the duplicate key, undertook to provide repairs to Jane Doe‘s house, and permitted workmen to have access to the key and thus to the inside of her house to make those repairs, they owed Jane Doe a duty of reasonable care under the circumstances to protect against an increased risk of harm to her as the result of their actions. The questions of what care was reasonable, whether the defendants breached their duty of care, and whether the breach proximately caused the plaintiff‘s injury should have been submitted to a jury for determination.
I, therefore, dissent from the majority‘s ruling that the complaint in this case was properly dismissed on summary judgment.