Cooke v. Allstate Management Corp.

Decision Date28 February 1990
Docket NumberCiv. A. No. 3:89-1476-15.
Citation741 F. Supp. 1205
CourtU.S. District Court — District of South Carolina
PartiesStacey D. COOKE, Plaintiff, v. ALLSTATE MANAGEMENT CORPORATION, d/b/a The Park Apartments, Defendant.

Joseph H. McCulloch, Jr., Swerling, Harpootlian & McCulloch, Columbia, S.C., for plaintiff.

Charles E. Hill, Robert A. Bernstein, Columbia, S.C., for defendant.


HAMILTON, District Judge.

This action arises out of a criminal assault that occurred at approximately 3:00 a.m. on September 15, 1988. Plaintiff was asleep in her apartment at The Park apartment complex in Richland County, South Carolina when an intruder entered her apartment through the sliding glass door to the balcony. Plaintiff alleges that the attacker was able to reach the balcony of her second floor apartment by using a ladder left nearby. The attacker attempted to rape plaintiff and stabbed her several times before fleeing. Henry Mack Taylor, Jr. pled guilty to first degree burglary and attempted criminal sexual assault.

Plaintiff has brought this action against Allstate Management Corporation, the corporation that managed The Park apartment complex, alleging two causes of action: negligence and fraud. The matter is currently before the court on defendant's motion for summary judgment on both causes of action. After considering the arguments by the parties, the record, and the applicable law, this court has determined that summary judgment is appropriate on plaintiff's fraud claim and on all of plaintiff's allegations of negligence except the claim that by leaving an unsecured ladder nearby, defendant undertook an affirmative act that it did not perform with due care. Rule 56, Fed.R.Civ.Proc.

I. Negligence
A. Introduction

Plaintiff alleges that defendant was negligent in:

1. failing to adequately light the outdoor common areas around the buildings;
2. failing to hire security guards;
3. failing to provide adequate locks on the sliding glass doors;
4. failing to warn of past assaults in the complex;
5. failing to have Henry Mack Taylor, Jr. removed from the premises;
6. failing to warn of Taylor's presence;
7. failing to examine and improve security measures;
8. failing to maintain maintenance equipment safely on the premises.

Complaint, para. 14.

Defendant argues that summary judgment is appropriate on the negligence cause of action on following grounds: (1) Exculpatory Clause — The lease contained a provision relieving defendant of liability; (2) Duty — South Carolina law imposes no duty on a landlord to provide protection against the criminal activities of third parties; (3) Proximate Cause — Even if a duty did exist, the criminal activity of a third party constitutes, as a matter of law, a superseding cause, severing the chain of causation.

B. Exculpatory Clause

The lease signed by plaintiff provides that defendants would not be liable for

any loss, injury or damage to person or property ... arising out of the failure of any appliance ... or caused by any casualty or catastrophe including without limitation ... criminal acts, or from any other cause whatsoever, whether or not due to negligent acts or omissions by You, your family and guests or by any third parties, including without limitation other occupants of this apartment, and you assume all risk and agree to indemnify Us from any such loss, injury, or damage.

Lease, para. 10. Defendant, emphasizing plaintiff's education, argues that this exculpatory clause is enforceable and bars plaintiff's cause of action based on negligence. Plaintiff argues that the clause is unenforceable, or, alternatively, that the clause should be narrowly construed in such a way as to allow plaintiff's allegation of defendant's negligence.

South Carolina law on exculpatory clauses in contracts makes clear that such clauses are disfavored:

Contracts that seek to exculpate a party from liability for the party's own negligence are not favored by the law. An exculpatory clause ... is to be strictly construed against the party relying thereon. "It will never be construed ... to exempt a party from liability for his own negligence ... in the absence of explicit language clearly indicating that such was the intent of the parties.

South Carolina Elec. and Gas Co. v. Combustion Engineering, Inc., 283 S.C. 182, 322 S.E.2d 453, 458 (Ct.App.1984) (holding that exculpatory clause limiting liability for negligent manufacture did not exculpate defendant from alleged negligent design).

The South Carolina Supreme Court has held that such clauses "may or may not be enforceable," depending upon considerations of public policy. The court has listed as examples of violations of public policy attempts to exculpate "for negligence in the performance of a duty of public service, or where a public duty is owed, or public interest is involved, or where public interest requires the performance of a private duty, or when the parties are not on roughly equal bargaining terms." Pride v. Southern Bell Telephone and Telegraph Co., 244 S.C. 615, 138 S.E.2d 155 (1964). See also Murray v. The Texas Co., 172 S.C. 399, 174 S.E. 231 (1934) ("even under the view that a person may under some circumstances contract against the performance of ... duties a party owes independent of the contract, he cannot do so where the interest of the public requires the performance thereof, or where, because the parties do not stand on a footing of equality, the weaker party is compelled to submit to the stipulation")

In the case most helpful for our purposes, the South Carolina Supreme Court interpreted an extremely broad exculpatory clause as not including negligent acts of the party who drafted the clause. The clause at issue in Murray v. The Texas Co. provided that an agent would hold the company harmless from "all claims, suits and liabilities of every character whatsoever arising from the existence or use of the equipment at said station." Id. 174 S.E. at 232. The court held that

the provision of a contract relieving one of the parties thereto of liability for his or its own negligence should be clear and explicit.... The defendant itself wrote the provision into the contract for its own benefit. It could have plainly stated, if such was the understanding of the parties, that the plaintiff agreed to relieve it in the matter from all liability for its own negligence, As it did not do so, we resolve all doubt, as we should, in favor of the plaintiff, and hold that it was not the intent of the parties to give to the contract as written the effect claimed by the company.


In light of the extremes to which the South Carolina courts have gone to avoid enforcing a broad reading of an exculpatory clause, this court is confident that the clause does not bar plaintiff's negligence claim. A close reading of the clause reveals that the clause does not explicitly exculpate defendant from liability for its own allegedly negligent acts. The clause does mention the negligence of the lessee and of third parties, while glaringly omitting any reference to the negligence of defendant. Although it does mention criminal acts, the clause does not tie those criminal acts to any negligence of defendant. Because this is a form contract, plaintiff did not have equal bargaining power, and most importantly, the clause does not explicitly include the negligent acts of defendant, this clause does not bar plaintiff's negligence claims.

C. Statutory Basis of Duty

Plaintiff argues that the South Carolina Residential Landlord and Tenant Act (SCRLTA) imposes upon a landlord the duty to provide protection against criminal assault. Plaintiff points specifically to S.C. Code Ann. § 27-40-440(a)(2), which requires that a landlord "do whatever is reasonably necessary to put and keep the premises in fit and habitable condition." Onto that section, plaintiff superimposes S.C.Code Ann. § 27-40-20(a), which provides that the SCRLTA "must be liberally construed and applied to promote its underlying purposes and policies," and S.C.Code Ann. § 27-40-20(b)(2), which encourages "landlords and tenants to maintain and improve the quality of housing." Plaintiff argues that these directives distinguish the S.C. Act from the acts of other jurisdictions in which arguments similar to plaintiff's have been rejected.

Defendant, on the basis of an interpretation of the Virginia Landlord/Tenant Act, argues that the duty of the landlord to keep the premises fit and habitable does not extend to protection against criminal activity. Defendant relies upon Deem v. Charles E. Smith Management, Inc., 799 F.2d 944 (4th Cir.1986), in which the court interpreted Va.Code § 55-248.13(a)(3). That section requires a landlord to "keep all common areas shared by two or more dwelling units of the premises in a clean and safe condition." The court interpreted the phrase "safe condition" as referring to the protection of the tenant "from injuries caused by failures of the building — collapsing stairs, faulty walls, dangerous windows." Id. at 946. The Act, the court concluded, did not impose any duty on the landlord to protect against criminal activity. Id.

The SCRLTA does not impose any duty on a landlord to protect tenants from criminal activity. The reasoning of the Deem court is sound, and applies to the S.C. Act. In fact, the word "safe," which was the basis of plaintiff's argument in Deem (and similar arguments in other jurisdictions), is absent from the SCRLTA. The S.C. Act uses the terms "fit" and "habitable." It is an even greater stretch to construe those terms to include protection against criminal activity than it was to so construe the word "safe." The South Carolina Residential Landlord and Tenant Act does not impose a duty on a landlord to provide protection to his tenants against criminal activity of third parties. See also Williams v. William J. Davis, Inc., 275 A.2d 231 (D.C. 1971); De Koven v. 780 West End Realty Co., 48 Misc.2d 951, 266 N.Y.S.2d 463 (...

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