Graham v. M & J Corp.

• Decision Date: 24 November 1980
• Docket Number: No. 14093.,14093.
• Citation: 424 A.2d 103
• Parties: Gloria GRAHAM et al., Appellants, v. M & J CORPORATION et al., Appellees.
• Court: D.C. Court of Appeals

424 A.2d 103

Gloria GRAHAM et al., Appellants, v. M & J CORPORATION et al., Appellees.

No. 14093.

District of Columbia Court of Appeals.

Argued December 13, 1979.

Decided November 24, 1980.

William I. Martin, Washington, D. C., for appellants.

Donald P. Maiberger, Washington, D. C., for appellees.

Before GALLAGHER, NEBEKER and MACK, Associate Judges.

GALLAGHER, Associate Judge:

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 O 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 reputation as a high crime area, and Ms. Graham told the rental agent of an attempted burglary through her window.

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 O 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, 61 U.S.App.D.C. 175, 58 F.2d 1076 (1932). See also, Levine v. Katz, 132 U.S.App.D.C. 173, 174, 407 F.2d 303, 304 (1968) (physical defect leading to plaintiff's injury). This duty has been extended to encompass situations where third party criminal acts injure tenants on the premises, when the criminal activity should have been foreseen by the landlord. E. g., Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969) (issue for jury whether decreased security measures make landlord liable for assault in apartment); Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S. App.D.C. 370, 439 F.2d 477 (1970) (assault in hallway of large building where security measures in effect at beginning of lease had been discontinued; liability based on lease as contract). On facts similar to these, in Spar v. Obwoya, D.C.App., 369 A.2d 173 (1977), we held that evidence was sufficient to uphold a negligence verdict against a landlord when a tenant was assaulted in his apartment hallway after an outer door lock had been broken for a week and tenants had complained about the front door security.

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" 141 U.S.App.D.C. at 376, 439 F.2d at 483 (emphasis in original). Appellees contend that the minor acts of trespass and vandalism in the foyer of which appellants complained to the rental agent are so different in scope from arson which caused the injuries that the prior events did not constitute notice. We think that a jury might conclude otherwise. Both parties admit that the neighborhood was high in criminal activity. It was alleged that the outer door did not close properly, facilitating entry to nontenants. Ms. Graham alleged she had informed the rental agent about a previous attempt at robbery through her window. These circumstances create a triable issue of fact as to whether the danger of a criminal assault by means of arson was sufficiently probable and predictable to create a duty in the landlord to take reasonable precautionary measures. In Spar v. Obwoya, supra at 177, the landlord was said to be put on notice by previous burglaries and the presence of unauthorized persons in the building.

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, 14 Ill.App.3d 97, 100, 302 N.E.2d 207, 209 (1973) (no duty to insure tenants' safety from another tenant's act of throwing TV over stair railing). Here, however, facts have been alleged which make the criminal's rightful access to the building an issue of fact for the jury. Ms. Harris stated in her deposition that Totten was ejected from the building under police supervision and that he had never had a key. The jury could conclude that he was no longer a guest, and that the tenants had as much legitimate expectation to keep him off the premises as they would any other intruder.

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 141 U.S.App.D.C. at 378-79, 439 F.2d at 485-86. No District of Columbia court has ever imposed on landlords "a general legal duty . . . to provide full time resident managers or to install locks on the front door of an apartment house." Ramsay v. Morrissette, supra at 512-13. What measures are reasonable under the circumstances is determined by a jury assessment of protective measures taken in buildings of similar character and class. Spar v. Obwoya, supra at 177-78; Kline v. 1500 Massachusetts Avenue Apartment Corp., supra 141 U.S.App.D.C. at 379, 439 F.2d at 486.

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, 439 F.2d at 483, as owing the duty of protection. The building here was not a "multiple unit apartment," so the duty owed may be less. For one thing, the tenants of a duplex might be able to exercise more control over their own safety. The controlling reason for imposing a tort duty in Kline was that the apartment tenant would find it impossible to provide the security in common areas. See Note, Landlord's Duty to Protect Tenants from Criminal Acts of Third Parties: The View from 1500 Massachusetts Avenue, 59 Geo. L.J. 1153, 1187 (1971) (degree of protection expected of landlord should increase with size of building because tenants' control over common areas decreases). It could also be found that the apartment dweller is in greater need of protection. See Comment, Landlord-Tenant Law: Landlord Held...