Lead Opinion
Appellants, the tenants and guests residing in a two-family building in a high crime area of the city, sued the landlord for injuries resulting from a fire deliberately set in the foyer of the building by the former paramour of one tenant. Appellants alleged that the landlord was negligent in blocking alternate exits and failing to provide a lock on the outer door of the foyer, despite his knowledge of previous criminal acts occurring in the common area of the building under his exclusive control. The trial judge granted the landlord-appellee’s motion for summary judgment, stating that, as a matter of law, (1) the landlord had no duty to foresee that a tenant’s rejected lover would commit criminal arson and (2) any violations of housing regulations were not the proximate cause of the injury. We reverse the grant of summary judgment because the existence of the landlord’s duty and causation are questions of fact for the jury.
In August, 1975, the two story building at 507 0 Street, N.W., was cited by the Department of Economic Development for numerous.continuing violations of the housing regulations, including an outer door which did not fit reasonably well within its frame and defective or missing hardware on the door. In the same month, Gloria Graham and family moved into the downstairs apartment and Priscilla Harris and family moved into the upstairs apartment.
Although there was no lock on the outer door, each apartment did have a lock on the inner door leading directly into the individual premises. The tenants frequently complained to the landlord about the absence of an outer door lock. They explained to the rental agent that intruders and strangers entered the foyer through the open door and committed acts of vandalism, such as removing the lights or fuses. Both tenants were aware of the neighborhood's reputa
A week before the fire, Ms. Graham told the rental agent that she had lost the key to her back door, and asked for a replacement, but none was provided. Ms. Harris had no rear exit because a rear stairway leading to her back door had been boarded up before her tenancy began.
The day before the fire, on Friday, June 5, 1976, Ms. Harris quarrelled with Tony Totten, her boyfriend of six years, and evicted him from her apartment, where he had been living. The police were called to supervise the eviction of Totten and his possessions. In deposition, Ms. Harris stated that the only people who had keys to her apartment were her son, niece and herself; she did not state that Totten had a key, but mentioned that he had entered her apartment on a former occasion by manipulating the lock with a screwdriver or case knife.
On the night of Saturday, June 6, Totten returned to 507 0 Street and poured and ignited an inflammatory liquid in the foyer. One boy was killed in the ensuing fire, several other people received serious burns, and others were injured by jumping from the windows. Totten subsequently pleaded guilty to second-degree murder.
Those injured in the fire brought a personal injury action against the landlord. They charged him with negligence in failing to provide an outer door lock and a replacement key for Ms. Graham’s back door, and in boarding up the rear stairway. The trial court granted summary judgment in favor of the landlord, stating in a Memorandum and Order that the landlord had no duty to foresee that a regular guest of a tenant might commit arson unless front door locks were provided. Moreover, concluded the court, the blocked staircase or missing back door key could not be said to be the proximate cause of the injuries. In granting the summary judgment motion, the trial judge also commented that the absence of an outer door lock was not the proximate cause of the injuries, because a former guest would have been able to gain access no matter how many locks were in place.
It is established in the District of Columbia that a landlord has a duty to use reasonable care to keep safe those common areas of the building retained under his control. Walker v. Dante,
Foreseeability is the key element in establishing the landlord’s duty. Whether the landlord could foresee the criminal activity which caused the injuries here is a question of fact. The Kline court defined “foreseeable” as “probable and predictable”
Appellees also argue that the landlord’s duty extends only to keep out unknown intruders, not guests of tenants. Similarly, the trial court stressed the fact that the arsonist had been allowed to live on the premises until the day before the fire, so that it was unreasonable to impose a duty on the landlord to keep him from injuring the tenants. If the arsonist had been another tenant, or had he been unquestionably a guest who possessed a key, then perhaps, as a matter of law, no duty could be imposed on the landlord to keep him from assaulting the tenants. See Trice v. Chicago Housing Authority,
For negligence to exist, the landlord not only must have foreseen the danger, but also he must have failed to take security measures reasonable under the circumstances. Spar v. Obwoya, supra at 177; Kline v. 1500 Massachusetts Avenue Apartment Corp., supra
Each of the three cases in the District of Columbia discussing the landlord’s duty involved a crime in an apartment building. The Kline court specifically singled out the landlord of an “urban multiple unit apartment dwelling” id. at 376,
Whether the landlord has a duty to provide rear exits must also be determined according to what is reasonable under all the circumstances. The District of Columbia Housing Code and Housing Regulations
If negligence is found, it must then be decided if the injuries were proximately caused by the landlord’s failure to provide a front door lock or rear exits. The issue of proximate causation is one of fact. Ramsay v. Morrissette, supra at 512 (both duty and causation are issues for jury); Kline v. 1500 Massachusetts Avenue Apartment Corp., supra
Totten’s intervening criminal act will not necessarily excuse the landlord from liability. In Spar v. Obwoya, supra, we accepted the Restatement of Torts § 448 test for causation where a landlord’s failure to provide a lock arguably permitted an intruder to enter the premises and assault tenant:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. [Restatement (Second) of Torts § 448 (1965) (emphasis supplied).]
See also, Johnston v. Harris, 387 Mich. 569, 572,
The foreseeability of the criminal activity is a decisive factor in determining causation, as it is in determining duty. Prosser says that the issue of causation is subsumed in the issue of duty. Where criminal acts operate on a background created by defendant, the real issue is whether the defendant should be responsible for the intervening criminal acts. “It is only where such misconduct was to be anticipated, and the risk of it was unreasonable, that liability will be imposed for such intervening acts.” W. Prosser, Law of Torts § 44, at 283 (4th ed. 1971).
Thus, the question of proximate causation depends on whether the crime was foreseeable. As we have said already in our discussion of duty, that determination is one for the trier of fact. Where reasonable men might differ over the question of whether an intervening force is a reasonable, foreseeable consequence of defendant’s conduct, the issue of probable cause should not be determined as a matter of law. See, e. g., Wright v. General Motors Corp.,
In conclusion, we hold that the trial court erred in granting appellees’ motion for summary judgment. The landlord could have been negligent in failing to foresee that a crime in the foyer would injure appellants, and in failing to take reasonable security precautions like those taken in housing of similar character and class. It is a question of fact for the jury whether negligence existed and whether such negligence proximately caused the tenants’ injuries. Consequently, we reverse so that these issues may be resolved at trial.
So ordered.
Notes
. The Kline case was reversed in favor of the tenant and remanded for a determination of damages only. The majority held that the landlord owed a duty of protection under tort law and contract law. Viewing the lease as a contract, the duty was measured by the security precautions in effect at the beginning of the lease. [Judge MacKinnon, dissenting, argued that insufficient facts were proved at trial to say that landlord had breached any duty owed.]
Dissenting Opinion
dissenting:
The majority’s decision intrudes upon the authority of the trial judge to make decisions of law. Restatement (Second) of Torts § 328B(b) (1965). The exceptional case in negligence law of assigning liability for the criminal acts of third persons should not be permitted to alter the traditional view that assignment of duty is first a question of law. Harper & James, The Law of Torts § 18.8 at 1058 (1956). This warning is particularly strong where negligence law is expanding in response to changing social conditions. See W. Prosser, The Law of Torts § 53 at 326-27 (4th ed. 1971). Whether the law should safeguard these appellants from the alleged omissions of the landlord requires consideration of several factors better left to the discretion and judgment of the court than to an often bewildered jury. See, e. g., Clarke v. O’Connor,
A recitation of the facts in this case mocks the possibility that the landlord may be assigned a duty to protect the tenants from the injuries they received from the fire. Although there was evidence that the apartment is located in a high crime area of the city, there was no evidence of reported crimes occurring in or around the apartment dwelling. Tony Totten, the arsonist, was a friend of the appellant Priscilla Harris for six years and had been living with her in the apartment on the second floor. There is no evidence that the landlord was aware of this relationship. Tony Totten was not named on the lease. During the days before the fire, Totten and Harris carried on a protracted lovers’ quarrel which was often violent and which presumably ended when Harris obtained the aid of the police to evict Totten the day before the fire. There is no evidence that the landlord had knowledge of this breach of their relationship, and there is certainly no reason to believe that the landlord knew anything of Totten’s personal character. On the night of the fire, Harris, having spoken with Tot-ten by phone that day and fearing his return, instructed a companion who was with her that night, Charlie Boomer, to help her look out for Totten’s car. Later, while Boomer slept in the bedroom, Harris was also wary of “sounds” in the night and in the apartment below. Totten, after having done some drinking, poured a flammable liquid in the first floor hallway and torched the building.
Appellants’ theory in this case is similar to that of the appellant in Kline v. 1500 Massachusetts Avenue Apartment Corp.,
Permitting the transfer of such a complex decision to a jury would set the law on the wings of chance. Landlords would face unpredictable, potential liability. Furthermore, the court warned that notice to the landlord was a key element because “[i]t would be folly to impose liability for mere possibilities.” Kline, supra at 483. The determination of adequate notice, with its attendant concerns for other policy factors, must be left to the court.
Similar decisions of this court have also emphasized that the landlord’s awareness of criminal activities puts him on notice to protect his tenants. Spar v. Obwoya, D.C. App.,
Similarly, Spar is not an appropriate guide because this court merely confirmed that the trial judge was correct in giving the case to the jury. The only discussion of foreseeability in that case goes to appellant’s contention that the failure to maintain the front door lock was not the proximate cause of the injuries. In that context, this court adopted the Restatement (Second) of Torts § 448 (1965). Spar, supra at 178. It is difficult for me to see how these two cases and their respective procedural dispositions require a jury consideration of foreseeability in order to determine the extent of the landlord’s duty. See discussion of proximate cause, infra, 112-113.
Of greater concern to me is the degree with which the facts of this case differ from those of Spar and Ramsay. This is simply not the same case. To hold a landlord liable for the injuries caused by an arsonist who lived with a tenant and was driven from the premises by her goes too far. Recitation of the dictum of Kendall v. Gore,
Rather, the facts of this case raise serious questions about whether liability for malicious arson would be objectionable as a
An Illinois court has also recognized the importance of public policy considerations in the question of landlord liability. “In determining whether a duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant must be taken into account. Imposition of duty does not depend on foreseeability alone.” Trice v. Chicago Housing Authority,
This court must examine relevant factors to determine whether a duty exists in this case. In addition to those factors suggested by Kline, other courts have weighed (1) the economic burden which liability would impose on the defendant, (2) the extent to which the risk is a normal one, relative to the defendant’s activities, (3) the relative capacity of the parties to bear the loss, (4) the public interest, and (5) administrative convenience.
A second factor is that the origin of the landlord’s duty to maintain safe premises is his ability to exercise greater control over the common areas of the dwelling due to his superior position. Kline, supra at 480-81. Under the facts of this case, the landlord does not possess this superiority relative to the harm against which appellants claim he must defend. The evidence indicates Tony Totten was well known to the members of the two families living in the building. There is no evidence that the landlord knew Totten was on the premises or that he had been evicted by Harris the day before the fire. In a two-family dwelling, the tenants’ control over their own safety increases because of their special awareness of circumstances against which they ought to guard; commensurately, the landlord’s obligation
A third factor for the court to consider is the legal relation between the landlord and the tenant. Kline, supra at 481-82. There was no special lease agreement imposing an obligation on the landlord to provide the security measures of which appellant complains or to provide security that would repel arsonists. Nor was there a decrease in the security that was in effect when the tenants undertook their lease. Although the Housing Regulations are implied in every lease, Javins v. First National Realty,
A fourth arguable factor is whether the landlord was aware of the risk or whether he ought to be aware of the risk. Kendall, supra at 680. Particular crimes as in Kline, Spar and Ramsay, or particular circumstances as in Kendall put the landlord on notice. Here, there is not even sufficient evidence of criminal conduct in the common areas to fulfill the notice requirements of Spar and Ramsay. In Kline there were twenty reported crimes in one year and twenty-five complaints of assault. In this case there are none. Furthermore, in DeFoe v. W. & J. Sloane, D.C.Mun.App.,
It is not yet the law in the District of Columbia that in a high crime area, absent evidence of prior crimes or criminal activity, there is an automatic duty to defend persons on the premises from criminal attack. Cook v. Safeway Stores, D.C.App.,
The Supreme Court in Lillie v. Thompson,
Another rationale of the majority for submitting the case to the jury is that the issue of proximate cause is a jury question. In general, that is correct and the cases cited support that proposition. But none of those cases is similar, to this one. This case, and any alleged duty, do not involve the issue of intervening cause. The confusion arises because in many cases the courts will speak alternatively in terms either of duty or proximate cause to circumscribe the liability of the defendant. Munson v. Otis, D.C.App.,
Summary judgment in negligence cases is rare. 6 Moore’s Federal Practice § 56.-15[.1-0] (1980); see also Turek v. Yellow Cab, D.C.Mun.App.,
. The court in Kline uses the language “actual and constructive notice.”
. Note, Landowner Owes Invitee No Duty to Provide Police Protection Against Criminal Attack, 63 Colum.L.Rev. 766, 768 (1963). See also W. Prosser, The Law of Torts § 31 at 152 (3d ed. 1964); Restatement (Second) of Torts §§ 291-93 (1965); Note, Landlord’s Duty to Protect Tenants From Criminal Acts of Third Parties: The View From 1500 Massachusetts Avenue, 59 Geo.L.J. 1153 (1971).
. There was ample evidence that the employer knew of the presence of thieves, tramps, ho-boes, and trespassers. In addition, he admitted that a woman was liable to get killed. Lillie v. Thompson,