Menendez v. PALMS WEST CONDO. ASS'N., INC.

• Decision Date: 02 June 1999
• Docket Number: No. 98-1326.,98-1326.
• Citation: 736 So.2d 58
• Parties: Julio MENENDEZ, Sr., and Vivian Menendez, individually and as guardians of Julio Menendez, Jr., and Julio Menendez, Jr., individually, Appellants, v. The PALMS WEST CONDOMINIUM ASSOCIATION, INC., Richard Seaberg and Beverly Seaberg, individually, and Clifford Miller and Barbara Miller, individually, Appellees.
• Court: Florida District Court of Appeals

736 So.2d 58

Julio MENENDEZ, Sr., and Vivian Menendez, individually and as guardians of Julio Menendez, Jr., and Julio Menendez, Jr., individually, Appellants, v. The PALMS WEST CONDOMINIUM ASSOCIATION, INC., Richard Seaberg and Beverly Seaberg, individually, and Clifford Miller and Barbara Miller, individually, Appellees.

No. 98-1326.

District Court of Appeal of Florida, First District.

June 2, 1999.

Rehearing Denied July 8, 1999.

William P. Thomas of William P. Thomas, P.A., Tamarac, and Neal W. Hirschfield of Hirschfield & Rafkin, Fort Lauderdale. Tammy de Soto Cicchetti of The Cicchetti Law Firm, Tallahassee, for Appellee The Palms West Condominium Association, Inc.

M. Kay Simpson and Vikki R. Shirley of Huey, Guilday & Tucker, P.A., Tallahassee, for Appellees Richard and Beverly Seaberg.

Hala A. Sandridge, David Moye, and Charles Tyler Cone of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for Appellees Clifford and Barbara Miller.

PADOVANO, J.

This is an appeal from a final summary judgment for the defendants in a premises liability action. The complaint was based on a claim that a landlord has a duty to install a viewing device in the front door of an apartment to protect the tenant from an attack by an unknown assailant. We agree with the trial judge that the defendants had no such duty under the lease or under the law that applies to this case. Therefore, we conclude that the trial court correctly entered summary judgment for the defendants.

Julio Menendez, Jr. and several other young men signed an agreement with the Palms West Condominium Association in August 1994 to lease an apartment in Tallahassee. Subsequently, Julio and his roommates moved into apartment 160 of the Palms West complex. This apartment is a condominium unit privately owned by two families. Richard and Beverly Seaberg own a one-half interest and Clifford and Barbara Miller own the other one-half interest. Palms West manages the unit under a separate agreement with the Seabergs and the Millers.

On April 18, 1995, Julio heard a knock at the front door of the apartment. He opened the door and allowed two or more people to come inside. It is not clear how many people were at the door or who they were. After Julio opened the door, someone in the apartment shot him in the head. As a result of the gunshot wound, he sustained severe and permanent brain damage. The door to the apartment was equipped with an operable lock but it did not have a viewing device such as a peephole or doorscope. The record does not disclose whether the people at the door identified themselves or if Julio otherwise knew who they were.

Following the injury, Julio and his parents, Vivian and Julio Menendez, Sr. filed an action for damages against Palms West, the Millers, and the Seabergs. The complaint alleged that all three defendants breached a duty of care by failing to provide adequate security on the premises. According to the complaint, the defendants had a duty to install a doorscope in the front door because the apartment is located in a high crime area and because injuries caused by the criminal acts of third parties were foreseeable. Additionally, the complaint alleged that Palms West had breached the lease agreement by failing to make necessary repairs to the premises, and that Palms West had violated section 83.51(2)(a), Florida Statutes, by failing to maintain safe conditions in the common areas of the complex.

The defendants answered the complaint, and each filed a motion for summary judgment. In these motions, the defendants argued that they had not breached a duty under the common law of negligence and that they had not violated the lease agreement or any statute. They argued that, in the absence of special circumstances not present in this case, a landlord has no duty to install a viewing device in the door of a tenant's apartment. The plaintiffs filed a response to the motion which was supported in part by the affidavit of Danny Johnson, a former division director of the Florida Department of Law Enforcement. Based on crime statistics, Johnson concluded that there had been a high number of burglaries and assaults at the Palms West complex. He stated in his affidavit that the defendants knew or should have known that the complex was located in a high crime area and that their failure to install a doorscope was a contributing cause of Julio's injury.

The trial court determined that the defendants were entitled to prevail as a matter of law because they had not breached any legal duty to the plaintiffs. This decision was based on the general rule that a landlord has no duty to protect a tenant from the criminal acts of third persons. Although there are exceptions to the rule, the trial court concluded that none of the exceptions applied in the circumstances of this case. The trial court entered a final summary judgment for all three defendants and the plaintiffs appealed to this court.

We begin with the familiar rule that a trial court may grant a motion for summary judgment only if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. See Fla.R.Civ.P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Smith v. Perry, 635 So.2d 1019 (Fla. 1st DCA 1994). The first part of this test, the absence of a material issue of fact, is easily established in the present case. The trial court determined that the defendants could not be liable on a theory of negligence because they did not have a duty to install a doorscope as the plaintiffs contend. This was a decision based on an issue of law, not an issue of fact. As the supreme court explained in McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), the duty element of negligence is a threshold legal question. The point we must decide, then, is whether the summary judgment meets the second part of the test in rule 1.510(c); that is, whether the trial court correctly determined that the defendants were entitled to prevail as a matter of law. As with other issues of law, we review this decision by the de novo standard of review.

The duty upon which the plaintiffs' claim was based is not one that arises as a matter of law from the relationship between the parties. Florida courts have held that a landlord has no general duty to protect a tenant from criminal attacks by third persons. See Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla. 3d DCA 1989)

; Whelan v. Dacoma Enters., Inc., 394 So.2d 506 (Fla. 5th DCA 1981). To impose such a duty, the tenant must allege and prove that the landlord had actual or constructive knowledge of prior similar acts committed on invitees on the premises. See Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA 1985). As we explained in Paterson, a "landowner should not be required to take precautions against a sudden attack which the landowner has no reason to anticipate." Id. at 1214-15.

In the present case, the trial court concluded that "[t]here is no evidence that any specific person had any actual or constructive knowledge of any fact that arguably would make the incident described in [the complaint] reasonably foreseeable." This conclusion is supported by the record. The affidavits and other documents submitted in response to the defense motions for summary judgment fail to establish that the...