Gans v. Parkview Plaza Partnership

• Decision Date: 05 December 1997
• Docket Number: No. S-95-699,S-95-699
• Parties: Vicki J. GANS, Appellant, v. PARKVIEW PLAZA PARTNERSHIP et al., Appellees.
• Court: Nebraska Supreme Court

Page 261

571 N.W.2d 261

253 Neb. 373

Vicki J. GANS, Appellant, v. PARKVIEW PLAZA PARTNERSHIP et al., Appellees.

No. S-95-699.

Supreme Court of Nebraska.

Dec. 5, 1997.

Syllabus by the Court

1. Summary Judgment. Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Summary Judgment: Appeal and Error. To the extent questions of fact are involved, an appellate court, in reviewing a summary judgment, views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

3. Negligence. For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty.

4. Negligence. Duty is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; in negligence cases, the duty is always the same, to conform to the legal standard of reasonable conduct in the light of the apparent risk.

5. Negligence. The question of whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular situation.

6. Negligence: Landlord and Tenant. Although a landlord is not an insurer of a tenant's safety, a landlord has a duty to protect a tenant against the foreseeable criminal acts of third persons.

7. Negligence. Foreseeability is a factor in establishing a duty and is a question of fact.

8. Negligence: Landlord and Tenant. If the place or character of a landowner's business, or the landowner's experience, is such that the landowner should reasonably anticipate careless or criminal conduct on the part of third persons, the landowner may be under a duty to take precautions against it.

9. Negligence: Landlord and Tenant. While one prior incident may not be sufficient to impose a duty upon a landowner for the criminal act or acts of a third party, the controlling question is whether, under the facts presented, one incident constitutes sufficient notice to make the criminal act or acts sued upon reasonably foreseeable.

10. Negligence: Landlord and Tenant: Liability. While liability is to be imposed only where there has been a history of criminal activity such as to make it foreseeable that such activity would occur in the future, it does not necessarily follow that the prior similar criminal activity must have taken place at the premises; it is required only that the criminal act or acts occurring near the premises in question give notice of the risk that crime may travel to the premises of the business owner.

11. Negligence. It is the totality of the circumstances, not solely the number or location of prior incidents, that must be considered in determining foreseeability.

12. Negligence. In order to make the risk of attack foreseeable, the circumstances to be considered must have a direct relationship to the harm incurred.

13. Summary Judgment. On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists.

14. Negligence. The law does not require precision in foreseeing the exact hazard or consequence which happens; it is sufficient if what occurs is one of the kinds of consequences which might reasonably be foreseen.

15. Negligence: Liability. It suffices to charge a person with liability for a negligent act if some injury to another ought reasonably to have been foreseen as the probable result thereof by the ordinarily intelligent and prudent person under the same circumstances, even though the specific injury might not be foreseeable.

16. Negligence. The risk reasonably to be perceived defines the duty to be obeyed.

T.J. Hallinan, of Cobb & Hallinan, P.C., Lincoln, for appellant.

J. Joseph McQuillan, Jon J. Puk, and Scott A. Calkins, of Walentine, O'Toole, McQuillan & Gordon, Omaha, for appellees Huffman & Associates and Overland Managment Co.

WHITE, C.J., and CAPORALE, WRIGHT, CONNOLLY, GERRARD, and McCORMACK, JJ.

CAPORALE, Justice.

I. STATEMENT OF CASE

The plaintiff-appellant, Vicki J. Gans, alleges she sustained damages as the result of a sexual assault perpetrated upon her at her place of employment with the defendant-appellee Avon Products, Inc., as the proximate result of the negligence of the defendants-appellees Parkview Plaza Partnership and Overland Management Co., and for which Avon has paid her certain subrogated workers' compensation benefits. The district court sustained the summary judgment motion filed by Parkview and Overland, thereby dismissing Gans' action. Gans appealed to the Nebraska Court of Appeals, asserting, in summary, that the district court erred in concluding that Parkview and Overland owed her no duty and there thus existed no genuine issues of material fact. The Court of Appeals affirmed. See Gans v. Huffman & Assocs., 97 NCA No. 14, case No. A-95-699, 1997 WL 206008 (not designated for permanent publication). Gans thereupon successfully petitioned for further review by this court. We now reverse the judgment of the Court of Appeals and remand the cause with directions.

II. SCOPE OF REVIEW

Summary judgment is proper only when the pleadings, depositions, admissions, stipulations, and affidavits in the record disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Billups v. Troia, 253 Neb. 295, 570 N.W.2d 706 (1997); Schendt v. Dewey, 252 Neb. 979, 568 N.W.2d 210 (1997). To the extent questions of fact are involved, an appellate court, in reviewing a summary judgment, views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Gerdes v. Klindt, 253 Neb. 260, 570 N.W.2d 336 (1997); Schendt, supra; Cunningham v. Prime Mover, Inc., 252 Neb. 899, 567 N.W.2d 178 (1997).

III. FACTS

On January 25, 1988, Avon promoted Gans to the position of district manager, and she and three other district managers, Janet Hylen, Cynthia Louise Sherwood, and Michael Knox, decided to lease office space together. In the fall of 1988, the four visited the Parkview office building in question, decided to rent space, and moved in sometime at the end of 1988 or the beginning of 1989. They initially occupied suites 5 and 6, but without signing a new lease, moved to suite 8 in May or June 1990.

In the spring of 1989, an engineering business at the office building was broken into, and computer equipment was stolen. As a result, the office building tenants pooled their resources and installed a security system, which included multiple motion sensors in the hallway and in various suites. The last person to leave the building at night turned the system on, and the first person to arrive the following morning disarmed the system. In order to hear when people entered the door to suite 8, the Avon managers hung a bell on the door.

Mary Ann Ross, an Avon sales representative who lived across the street from the office building, testified that "the area was not safe at night to be in." According to her, "[t]here had been rapes and different things going on in the area. There had been people breaking into people's cars at the apartment complex and things...." Others testified that a sexual assault occurred in a parking lot one block away from the office building.

After the four Avon managers moved to suite 8 but before Gans was raped, Gans twice complained to the maintenance man at the office building, Edward Camden, about the lock on the door of suite 8, telling him that she and her comanagers were unable to turn the lock from the inside, that they sometimes worked in the office alone at night, and that they did not feel safe. On more than one occasion, Sherwood called Steven Huffman, the agent for Overland and part owner of the office building, and complained about the lock on the door of suite 8. Cathy Irving, an Avon manager, stated that the door was very difficult to lock from the inside because the key would hit the doorjamb as it turned. Janet Christline, another Avon manager, testified that the door to suite 8 was impossible to unlock from the inside because the metal doorframe prevented the key from turning. Ross testified that on several occasions she saw others unsuccessfully trying to lock the door from the inside, but had never seen anyone succeed. The lock was never repaired.

On December 3, 1990, Hylen left the office at 4:45 p.m., leaving Gans alone to place some telephone calls. An hour later, Gans heard the bell on the door ring and saw a man enter the office. She rose from her desk to greet him, whereupon he shoved Gans against a wall. He then beat and raped her.

Overland manages a number of properties. Huffman is employed by Overland and also has an ownership interest in each of the properties Overland manages. According to Huffman, Overland took care of the outside maintenance of the office building, such as the air conditioning and heating, and the tenants cared for the inside, such as painting, changing inside lights, and changing locks. When asked whether Overland ever changed the locks, Huffman responded that "[s]ometimes I'd do it as a favor, you know, for a tenant." Huffman testified that when the Avon managers moved into the office building, Overland changed the locks on their suites. Huffman also testified that when the managers asked to move into suite 8, he informed them that Overland would not make any improvements....