Jack v. Fritts

• Decision Date: 24 March 1995
• Docket Number: No. 22183,22183
• Citation: 457 S.E.2d 431,193 W.Va. 494
• Court: West Virginia Supreme Court
• Parties: Sandra D. JACK, Plaintiff Below, Appellant, v. J. Russell FRITTS, Defendant Below, Appellee.

Page 431

457 S.E.2d 431

193 W.Va. 494

Sandra D. JACK, Plaintiff Below, Appellant, v. J. Russell FRITTS, Defendant Below, Appellee.

No. 22183.

Supreme Court of Appeals of

West Virginia.

Submitted Jan. 24, 1995.

Decided March 24, 1995.

Syllabus by the Court

1. "A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Syl. Pt. 3, Aetna Casualty & Sur. Co. v. Federal Ins. Co., 148 W.Va. 160, 133 S.E.2d 770 (1963).

2. "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

3. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

4. "In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981).

5. "One who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." Syl. Pt. 2, Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983).

6. "Under the common law of torts, a landlord does not have a duty to protect a tenant from the criminal activity of a third party. However, there are circumstances which may give rise to such a duty, and these circumstances will be determined by this Court on a case-by-case basis. A landlord's general knowledge of prior unrelated incidents of criminal activity occurring in the area is not alone sufficient to impose a duty on the landlord. However, a duty will be imposed if a landlord's affirmative actions or omissions have unreasonably created or increased the risk of injury to the tenant from the criminal activity of a third party." Syl. Pt. 6, Miller v. Whitworth, 193 W.Va. 262, 455 S.E.2d 821 (1995).

7. " 'In the absence of a special contract, the law imposes on a landlord the duty to exercise ordinary care to maintain in reasonably safe condition, premises owned by him and used in common by different tenants. * * * A family-apartment tenancy requires of the landlord the care due the ordinary family of normal habit.' Marsh v. Riley, 118 W.Va. 52, 188 S.E. 748 [ (1936) ]." Syl. Pt. 1, Lowe v. Community Inv. Co., 119 W.Va. 663, 196 S.E. 490 (1938).

8. "We have consistently recognized and applied the distinctions for liability purposes among trespassers, licensees and invitees." Syl. Pt. 1, Miller v. Monongahela Power Co., 184 W.Va. 663, 403 S.E.2d 406, cert. denied, 502 U.S. 863, 112 S.Ct. 186, 116 L.Ed.2d 147 (1991).

9. Since a tenant's social guest is nothing more than a licensee, a landlord owes only the minimal duty of refraining from willfully or wantonly injuring the licensee.

10. "There is, in a written or oral lease of residential premises, an implied warranty that the landlord shall at the commencement of a tenancy deliver the dwelling unit and surrounding premises in a fit and habitable condition and shall thereafter maintain the leased property in such condition." Syl. Pt. 1, Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114 (1978).

11. Neither the implied warranty of habitability established by this Court's decision in Teller v. McCoy, 162 W.Va. 367, 253 S.E.2d 114 (1978), nor the language of West Virginia Code § 37-6-30 (1978) concerning the landlord's obligation to maintain the leased property in a condition that meets applicable health, safety, fire and housing code requirements, imposes a duty upon a landlord to protect a tenant from injuries arising out of the criminal conduct of a third party.

Laura Coltelli Rose, Ronald M. Harman, Coltelli & Associates, Martinsburg, for appellant.

William Richard McCune, Jr., Tammy Mitchell Bittorf, Jackson & Kelly, Martinsburg, for appellee.

WORKMAN, Justice:

This case is before the Court upon the appeal of Sandra D. Jack from the June 22, 1993, order of the Circuit Court of Jefferson County, which granted the Appellee's, J. Russell Fritts', motion for summary judgment, and the July 2, 1993, order, which denied the Appellant's motion for sanctions pursuant to West Virginia Rule of Civil Procedure 11 (hereinafter also referred to as "Rule 11"). The Appellant contends that the following assignments of error were committed by the trial court: 1) The trial court erred in granting the Appellee's motion for summary judgment and denying the Appellant's motion for reconsideration; and 2) The trial court erred in denying the Appellant's motion for Rule 11 sanctions. Having reviewed the record, the parties' briefs and all other matters submitted before this Court, we conclude that a landlord owes no duty to a tenant's social guest to protect that guest from the criminal conduct of third parties. Therefore, we affirm the decision of the circuit court.

I.

On October 27, 1988, Sheila Meade, the Appellant's friend, ¹ was residing with her father in an apartment located at 309 West Washington Street in Charles Town, West Virginia. The apartment building was owned and operated by the Appellee, J. Russell Fritts. On that day, the Appellant entered the Appellee's apartment building to visit Ms. Meade. The Appellant was not an invited or expected guest of the Meades on that day, but the record established that she was a frequent visitor of the Meades.

When the Appellant arrived at Ms. Meade's apartment, Ms. Meade was either being assaulted by or had just been assaulted by Eddie Fletcher. It is significant to note that it is not known when or how the assailant entered the Appellant's apartment building; but, at the time of the incident, the exterior door to the apartment building was not locked. Further, at the time the assailant entered Ms. Meade's apartment, Ms. Meade had opened her apartment door to the assailant voluntarily, although she attempted to close the door on the assailant and was prevented from doing so by him. ² However, Ms. Meade, in her deposition, expressly stated that she had seen the assailant before and that, although she did not know that it was him at the door at the time she opened it, she would have voluntarily opened the door to him in any event. ³ The Appellant, upon entering the apartment, was also assaulted and injured by the assailant in the apartment. ⁴

II.

We have previously held in syllabus point three of Aetna Casualty & Surety Co. v. Federal Insurance Co., 148 W.Va. 160, 133 S.E.2d 770 (1963), that "[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law." Id., 133 S.E.2d at 771. "Summary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 4, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Finally, "[a] circuit court's entry of summary judgment is reviewed de novo." Id. at 190, 451 S.E.2d at 756, Syl. Pt. 1. Keeping these principles in mind, we now examine whether the circuit court properly granted summary judgment.

III.

The issue before the Court is one of first impression: whether a landlord has a duty to protect a tenant's social guest for injuries arising out of the criminal acts of a third party. Generally, the imposition of such a duty on a landlord is predicated upon a breach of contract or statute, or upon a showing of negligence. See 49 Am.Jur.2d Landlord and Tenant § 773.5 (Supp.1994). Because the Appellant in the present case maintains that imposition of a duty on the landlord arises not only under negligence principles, but also under West Virginia's warranty of habitability statute, we examine this issue utilizing both concepts respectively.

A.

"In order to establish a prima facie case of negligence in West Virginia, it must be shown that the defendant has been guilty of some act or omission in violation of a duty owed to the plaintiff. No action for negligence will lie without a duty broken." Syl. Pt. 1, Parsley v. General Motors Acceptance Corp., 167 W.Va. 866, 280 S.E.2d 703 (1981). If the plaintiff fails to establish the existence of a duty of care owed by the defendant to the plaintiff, then no case of prima facie negligence can be established. See Atkinson v. Harman, 151 W.Va. 1025, 1033, 158 S.E.2d 169, 174 (1967). The determination of whether the plaintiff is owed a duty of care by the defendant must be rendered as a matter of law by the court. See Parsley, 167 W.Va. at 870, 280 S.E.2d at 706.

The seminal case in West Virginia regarding the concept of duty in negligence actions is Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983). Relying upon the common law as enunciated in the Restatement (Second) of Torts § 321 (1965), we held in Robertson that "[o]ne who engages in affirmative conduct, and thereafter realizes or should realize that such conduct has created an unreasonable risk of harm to another, is under a duty to exercise reasonable care to prevent the threatened harm." 171 W.Va. at 611, 301 S.E.2d at 567, and Syl. Pt. 2. Further, this Court stated that while "foreseeability of risk is a primary consideration" in determining the scope of a duty an actor owes to another, "[b]eyond the question of...