Lay v. Dworman, 60770
| Decision Date | 16 December 1986 |
| Docket Number | No. 60770,60770 |
| Citation | 732 P.2d 455,1986 OK 85 |
| Parties | Rhonda Lynn LAY, Appellant, v. Alvin DWORMAN; Daltex Capital Corporation, a Texas corporation; Willow Creek Condominiums, Inc., an Oklahoma corporation; Willow Creek I Neighborhood Association, Inc., an Oklahoma corporation; Willow Creek II Neighborhood Association, Inc., an Oklahoma corporation, Appellees. |
| Court | Oklahoma Supreme Court |
Parks & Beard by Michael J. Beard, Tulsa, for appellant.
Rhodes, Hieronymus, Jones Tucker & Gable by Richard M. Eldridge, Tulsa, for appellee Willow Creek Condominiums, Inc.
Knight, Wagner, Stuart, Wilkerson & Lieber by Mark S. Darrah and Alfred B. Knight, Tulsa, for appellee Willow Creek I Neighborhood Ass'n, Inc.
Appellant, Rhonda Lynn Lay, was assaulted and raped in her apartment in an apartment/condominium complex in Tulsa, Oklahoma. This suit was initiated against the parties owning interests in the complex at the time appellant rented her apartment and at the time of the assault. The petition and later amended petition sought recovery on two theories--negligence and breach of warranty. Appellant also sought the recovery of punitive damages, alleging that appellees were guilty of gross negligence in subjecting appellant to an unsafe residence. Demurrers were sustained to appellant's initial petition and to her amended petition on the ground that they had failed to state a cause of action. Upon the sustainment of the demurrer to the amended petition appellant elected to stand upon her pleading and the case was dismissed. Appellant then initiated the present appeal.
This case was initially assigned to the Oklahoma City Divisions of the Court of Appeals. The Court of Appeals affirmed the trial court's ruling without opinion in an accelerated docket disposition. Appellant subsequently petitioned this Court for writ of certiorari to review that disposition. We have previously granted certiorari.
We have previously stated the standard to be applied to determine the propriety of a trial court's ruling on a demurrer to a petition: 1
The Court, when confronted with a demurrer, has the duty to liberally construe the challenged petition and to take as true all the factual allegations and the reasonable inferences drawn therefrom. If the Court finds any fact stated in the petition which entitles the plaintiff to any relief, the Court must overrule the demurrer. Rotramel v. Public Service Co., 546 P.2d 1015, [1019] (Okl.1975); Johnson v. Steward, 397 P.2d 907 (Okl. [1964] ). The Court will not assume facts in favor of the petitioner which have not been averred, "since the law does not presume that a party's pleadings are less strong than the facts of the case warrant." Westheimer v. Byrne, 110 Okl. 107, 109, 236 P. 589, 591 (1925).
Appellant's theory of recovery in negligence averred the following facts; 1) that the trial court had jurisdiction over the subject matter and all of the parties; 2) that all of the named appellees had interests in the apartment complex; 3) that appellant was a sublessee of an apartment in the complex; 4) that appellees knew of criminal activities, including other rapes, in the apartment complex and that appellant had complained of a defective lock on a sliding glass door in her apartment; 5) that an intruder had gained access to her apartment and had raped her; 6) that appellees had been negligent in failing to repair the malfunctioning lock and in failing to provide appellant with a safe and secure residence; and 7) that as a result of this negligence appellant had suffered damages.
In order to state a cause of action for recovery under a negligence theory certain elements must be present. These elements are: the existence of a duty; a subsequent breach of that duty; and an injury to the plaintiff proximately flowing from the breach of that duty. 2
The present case, at threshold level, requires that this Court examine the question of a landlord's duty to protect a tenant from the criminal activities of third parties. In support of her position, appellant urges this Court to adopt an expanded view of this duty typified by the United States Court of Appeals for the District of Columbia in the case of Kline v. 1500 Massachusetts Avenue Apartment Corp. 3 In Kline, 4 the Court stated:
As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. We recognize that this rule has sometimes in the past been applied in landlord-tenant law, even by this court. Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlord-tenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.
But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to this tenants. (footnotes omitted)
In the oft-cited Kline case the District of Columbia Court reexamined the basic nature of the landlord-tenant relationship in reaching the conclusion that there was a duty to protect tenants from foreseeable criminal activities. In doing so the court concluded that the relationship of innkeeper-guest as recognized in the common-law courts was more attuned to the actual relationship of landlord-tenant as it exists in modern apartment dwellings. The court determined that the modern lease should be treated as a contract and that one of the terms implied in the contract was the innkeeper's duty to exercise reasonable care in protecting the guest/tenant.
Kline, however, dealt with an assault on a tenant in a common area of the apartment building. Upon consideration we do not feel that an expansion of the possible liability of a landlord of the magnitude imposed in Kline is either necessary or desirable. Under present Oklahoma law a landlord has the duty to use ordinary care to maintain the common portions of leased premises, over which he has retained control, in a safe condition. 5 In this regard the Restatement (Second) of Torts § 448 (1965), notes that:
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
This principle is clearly in accord with Oklahoma law. 6
Applying this principle to the landlord-tenant situation we can define the duty owed by the landlord as being a duty to use reasonable care to maintain the common areas of the premises in such a manner as to insure that the likelihood of criminal activity is not unreasonably enhanced by the condition of those common premises.
Aside from the duty of the landlord arising from traditional principles relating to the duty to maintain common areas of the premises, this case also requires consideration of the landlord's duty to maintain the actual security of the leased premises themselves. Where the premises provided are inadequately secured due to ineffective or defective materials, a duty on the part of the landlord to provide repairs or modifications would arise upon notification of the defect by the tenant. This duty arises from the landlord-tenant contract and from the implication that the landlord is to provide services under the contract in a diligent manner. 7 That the landlord must furnish these services is in turn necessarily implied under Oklahoma law in order to insure the reasonability of the contractual agreement. 8
The principles announced by the Tenth Circuit Court of Appeals, applying Oklahoma law, in the case of Missouri-Kansas-Texas Railroad Co. v. Ingram, 9 illustrate the coalescence of the duty resulting from the landlord's contractual retention of control over the premises and the principles stated in Restatement section 448: 10
Every person is under a duty to exercise due care in using that which he controls so as not to injure others, but in order for such duty to arise, the person to be charged therewith must have knowledge or notice that his act or omission involves danger to another.... (footnotes omitted)
Thus, by retaining control over aspects of the premises such as door and window locks or alarm devices which directly relate to security, the landlord faces potential liability when the circumstances are such that a reasonable man would realize that a failure to act would render one...
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