Gulf Reston, Inc. v. Rogers

• Decision Date: 28 August 1974
• Citation: 215 Va. 155,207 S.E.2d 841
• Parties: GULF RESTON, INC. v. Mrs. Charles J. ROGERS, Executrix of the Estate of Charles J. Rogers, Deceasedand Prospect Industries, Inc.
• Court: Virginia Supreme Court

Page 841

207 S.E.2d 841

215 Va. 155

GULF RESTON, INC. v. Mrs. Charles J. ROGERS, Executrix of the Estate of Charles J. Rogers, Deceasedand Prospect Industries, Inc.

Supreme Court of Virginia.

Aug. 28, 1974.

Richard W. Boone, Fairfax (Edward C. O'Connell, Carr, Bonner, O'Connell, Kaplan, Thompson & Diuguid, Fairfax, on brief), for plaintiff in error.

Adelard L. Brault, Thomas O. Lawson, H. Wise Kelly, III, Fairfax (Brault, Lewis, Geschickter & Palmer, Kelly, Louk, Lawson, Swinburne & Dixon, Fairfax, on brief), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, HARMAN and POFF, JJ.

I'ANSON, Justice.

Plaintiff, Mrs. Charles J. Rogers, ¹ executrix of the estate of Charles J. Rogers, deceased, instituted this action against the defendants, Gulf Reston, Inc., and Prospect Industries, Inc., to recover damages for the wrongful death of her decedent. Plaintiff alleged that Gulf Reston was negligent in not performing its duty to protect the decedent, one of its tenants, from a criminal act committed by a third person; and that Prospect Industries was negligent in leaving roofing materials on the roof of the apartment building owned by Gulf Reston and occupied by the Rogers family. The jury returned a verdict for Prospect Industries but against Gulf Reston in the sum of $75,538.31. Judgment was entered on the jury's verdict, and Gulf Reston is here on a writ of error to the judgment. Cross-error was not assigned by the plaintiff to the judgment entered on the jury's verdict in favor of Prospect Industries.

Gulf Reston contends that: (1) as a matter of law plaintiff's evidence failed to show that it (Gulf Reston) had breached any duty which proximately caused the death of Rogers; (2) the jury's verdict on the issue of liability was inconsistent and erroneous; and (3) the court erred in refusing certain instructions.

The evidence, which is without conflict, shows that the Rogers family lived in a large crescent shaped apartment building located adjacent to Lake Anne in Reston, Virginia. The building was owned by and under the management of Gulf Reston. On September 7, 1970, while Rogers was on his apartment patio, an unknown trespasser on the roof of the apartment building threw aluminum paint on him, covering his whole body. Rogers, who suffered from hypertension and arteriosclerosis, died approximately eleven days later due to a heart attack.

Both before and after Rogers and his family moved into their apartment, many instances of unauthorized access to the apartment roof occurred. Trespassers made use of built-in concrete flower boxes to gain access to the roof. In one instance some young boys dropped water bags from the apartment roof on the plaza of th shopping area located in the crescent of the apartment complex. One of Gulf Reston's managers quickly stopped the action. In other instances trespassers redirected lights on the roof, used the roof to dive or jump into Lake Anne, and on one occasion put a hold in the roof directly above Rogers' apartment. Incidents of unauthorized access to the roof were reported to Gulf Reston, which had employed a security force to prevent the trespassing, vandalism and theft. Fairfax County police also cruised the area in cars. Many charges of trespassing were brought against teenage trespassers.

Prior to the tragic incident of September 7, Prospect Industries, pursuant to a contract with Gulf Reston, had commenced repair work on the roof of the apartment complex. Employees of the company used a ladder to gain access to the roof. From August 28, 1970, when Prospect Industries temporarily ceased work, to September 7, the ladder was left erect against the building. When employees of Prospect Industries left the area on August 28, they left a five-gallon can of gilsonite, an aluminum paint, in the center of the roof. Prospect Industries had no knowledge that unauthorized people had on many occasions gained access to the roof, and Gulf Reston's agents, servants and employees did not know that the can of paint had been left on the roof.

Mrs. Rogers testified that while her husband was cooking steaks on his patio he saw two unknown young men climbing up to the roof of his apartment by way of the concrete flower box. She said her husband told them that the property was supervised by the police and they had better get down before they got into trouble, but they continued their climb to the roof and disappeared. The gilsonite paint was thrown on her husband about an hour later. Immediately after the tragic incident occurred, a young man was observed going down the ladder which was left against the building by the employees of Prospect Industries.

The principal issue in this case is whether the landlord owed the duty to protect the tenant from a criminal act of an unknown third party.

A landlord owes the duty to his tenants to exercise ordinary care and diligence to maintain in a reasonably safe condition areas over which he has control. However, a landlord is not an insurer of his tenant's safety. Wagman v. Boccheciampe, 206 Va. 412, 415--416, 143 S.E.2d 907, 909 (1965); Revell v. Dugan, 192 Va. 428, 433--435, 65 S.E.2d 543, 546, 26 A.L.R.2d 462 (1951). Traditionally, the obligation of the landlord is associated with maintaining the areas over which he has control in good repair and free of latent defects, rather than the duty to police.

As a general rule, a landlord does not owe a duty to protect his tenant from a criminal act by a third person. Goldberg v. Housing Authority, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962); Trice v. Chicago Housing Authority, 14 Ill.App.3d 97, 302 N.E.2d 207 (1973); ² Applebaum v. Kidwell, 56 U.S.App.D.C. 311, 12 F.2d 846 (1926). Cf. Kline v. 1500 Mass. Ave. Apt. Corp., 141 U.S.App.D.C. 370, 439 F.2d 477, 481, 43 A.L.R.3d 311, 315 (1970).

Restatement of Torts 2d, § 315, states in part that there is 'no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless . . . (b) a special relationship exists between the actor and the other which gives to the other a right of protection.' Sections 314(a) and 320 of the Restatement cite common carrier-passenger, business invitor-invitee, and innkeeper-guest as examples of special relationships. Although the landlord-tenant relationship is not mentioned, it is said that the above enumerated special relationships are not...