Martinez v. Woodmar IV Condominiums Homeowners Ass'n, Inc.

• Decision Date: 24 June 1997
• Docket Number: No. CV-96-0494-PR,CV-96-0494-PR
• Citation: 189 Ariz. 206,941 P.2d 218
• Parties: , 246 Ariz. Adv. Rep. 5 Carlos MARTINEZ, Plaintiff/Appellant, v. WOODMAR IV CONDOMINIUMS HOMEOWNERS ASSOCIATION, INC., an Arizona non-profit corporation, Defendant/Appellee.
• Court: Arizona Supreme Court

Page 218

941 P.2d 218

189 Ariz. 206, 246 Ariz. Adv. Rep. 5

Carlos MARTINEZ, Plaintiff/Appellant, v. WOODMAR IV CONDOMINIUMS HOMEOWNERS ASSOCIATION, INC., an Arizona non-profit corporation, Defendant/Appellee.

No. CV-96-0494-PR.

Supreme Court of Arizona In Banc.

June 24, 1997.

[189 Ariz. 207] Fred J. Pain, Jr., Scottsdale, and John Greg Pain, Scottsdale, for Carlos Martinez.

Goldstein & McGroder, Ltd. by Philip T. Goldstein, Patrick J. McGroder, III, Phoenix, for Woodmar IV Condominiums Homeowners Association, Inc.

Durazzo & Eckel, P.C. by Patric E. Durazzo, Nancy J. Davis, Tucson, The Langerman Law Offices by Amy G. Langerman, Phoenix, for Amicus Curiae Arizona Trial Lawyers Association.

OPINION

FELDMAN, Justice.

Carlos Martinez (Plaintiff) was shot while running away from a group of youths who had gathered in the parking lot of the Woodmar condominium complex. Plaintiff claims the Woodmar IV Condominium Homeowners Association (Defendant) is liable for failing to prevent the attack. The claim was dismissed by summary judgment and the court of appeals affirmed, holding Defendant had no duty to protect Plaintiff. Martinez v. Woodmar IV Condominiums Ass'n, 187 Ariz. 408, 930 P.2d 485 (App.1996). We granted Plaintiff's petition for review because it presents an important issue of tort law and one not previously decided in Arizona. ¹ See Ariz.R.Civ.P. 21. We have jurisdiction under Ariz. Const. art. VI, § 5(3), and A.R.S. § 12-120.24.

FACTS AND PROCEDURAL HISTORY

Plaintiff was attending a graduation party at Defendant's 152-unit condominium complex. Plaintiff was a guest of the tenant of a unit owner. After fifteen minutes at the party, he and two other party-goers returned to the complex's parking lot to check on their cars. One of his friends found a group of local ruffians sitting in and on his car. A discussion ensued. As Plaintiff was running away from the altercation, he was shot in the back. The group scattered and no one has yet been apprehended and charged with the shooting.

From the descriptions given by Plaintiff and his friends, the live-in security officer for the complex recognized the group as a gang of young people from a neighboring complex that often would gather in the parking lot to sell drugs and participate in other unsavory activities. Usually, the security guard would disperse them when he saw them. However, because of budget constraints, Defendant employed only one guard, who patrolled the complex for eight hours a day--usually between eight or nine in the evening and five or six in the morning. The shooting occurred about an hour before the guard came on duty.

Plaintiff brought a damage action against Defendant, claiming it retained control of the parking lot and arguing that had Defendant hired a second guard for an earlier shift, the group would have been sent on its way before the altercation could have occurred. The trial court found no duty and granted Defendant's motion for summary judgment, which the court of appeals affirmed.

DISCUSSION

A. Characterization of duty

Apparently, the court of appeals saw this case as one of a landlord's duty to protect Plaintiff from the tortious acts of a third party--the gang. The court found Plaintiff was only a social guest and therefore to be treated as a licensee. The court concluded Plaintiff could not recover under the rubric of the RESTATEMENT (SECOND) OF TORTS ² § 315 (1965), which says there is

no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the [defendant] and the third person which imposes a duty upon the [defendant] to control the third person's conduct, or (b) a special relation exists between the [defendant] and the [plaintiff] which gives to the [plaintiff] a right of protection.

Martinez, 187 Ariz. at 409, 930 P.2d at 486, citing RESTATEMENT § 315. The court then held, "Woodmar did not assume a duty to protect plaintiff, create or encourage his contact with the group in the parking lot, or act in any other way so as to justify imposing on Woodmar a duty to protect plaintiff...." Id. at 410, 930 P.2d at 487.

We believe the court of appeals improperly characterized the case. Because no special relation of the type contemplated by RESTATEMENT § 315 existed between Plaintiff and Defendant or Defendant and the shooter, Defendant had no § 315 responsibility to control the shooter. This does not, however, free Defendant from liability for breach of any duty it might have had as the owner or possessor of land. That duty would exist because of Defendant's status with respect to the land and consequent power to prevent harm by exercising control over its property. We agree with the court of appeals' conclusion that Defendant had no § 315 responsibility or duty to control the shooter but do not believe Defendant was without a duty to use care to control its property.

B. Defendant's duty as possessor of common areas used by its owners and their guests

We focus on Defendant's status with relation to the land rather than the presence or absence of a special relationship between it and the tortfeasor or Plaintiff. We are concerned only with the question of whether Defendant, occupying a status similar to that of a landlord, had a duty of reasonable care to maintain the safety of its common areas because it had control over the land. In Petolicchio v. Santa Cruz County Fair & Rodeo Ass'n, we cited Frances T. v. Village Green Owners Ass'n, 42 Cal.3d 490, 229 Cal.Rptr. 456, 723 P.2d 573 (1986), for the proposition that in response to changed social conditions, courts may recognize a landowner's duty of reasonable care to protect against another's foreseeable criminal acts. 177 Ariz. 256, 261, 866 P.2d 1342, 1347 (1994). In Frances T., the California court found a condominium association ³ could be held liable as a landlord when it had actual knowledge of inadequate lighting and the hazardous condition it created, yet failed to remedy the condition that led to the plaintiff's rape and robbery. In the present case, the court of appeals noted Frances T. and stated: "Assuming without deciding that Woodmar acted like a landlord in controlling the complex common areas, it might have had some duty to protect an owner of a condominium unit or the owner's tenant." Martinez, 187 Ariz. at 409, 930 P.2d at 486. However, the court distinguished between a condominium owner and a social guest/licensee, holding any duty owed to a unit owner would not extend to Plaintiff. Id.

We believe this distinction is contrary to existing law when, as in this case, the danger causing the injury is located on property in the exclusive control of the landlord or condominium association. In Arizona, if there is no statute or case law on a particular subject, we have traditionally followed the Restatement of Laws. RESTATEMENT § 360 states:

A possessor of land who leases a part thereof and retains in his own control any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sublessee for physical harm caused by a dangerous condition upon that part of the land retained in the lessor's control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.

(Emphasis added.) RESTATEMENT (SECOND) OF PROPERTY § 17.3 contains an almost identical provision. ⁴ With respect to common areas, § 360 was followed in Dolezal v. Carbrey, 161 Ariz. 365, 778 P.2d 1261 (App.1989) (landlord's duty of care extended to social guests of tenant). As was noted by PROSSER & KEETON, landlord liability extends to areas where "the landlord has retained control over that aspect of the premises responsible for the injury." W. PAGE KEETON, ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 63, at 442 (5th ed.1984).

We note Defendant in this case is not a lessor but a new type of possessor--a condominium association that has retained in its control common areas, such as the parking lot, that unit owners are entitled to use as appurtenant to their unit. We couple this with the introduction to Part Six of the RESTATEMENT (SECOND) OF PROPERTY, which addresses the tort liability of landlords, stating: "In condominiums, the tort problem is the same as in any other case of the tort liability of the possessor of land to others."

The element of control, we believe, is essential to a finding of duty for the condominium association. Like a landlord who maintains control and liability for conditions in common areas, the condominium association controls all aspects of maintenance and security for the common areas and, most likely, forbids individual unit owners from taking on these chores. Thus, if the association owes no duty of care over the common areas of the property, no one does because no one else possesses the ability to cure defects in the common area. We do not believe the law recognizes such a lack of responsibility for safety. We therefore hold that with respect to common areas under its exclusive control, a condominium association has the same duties as a landlord. Frances T., 229 Cal.Rptr. at 461, 723 P.2d at 578.

Thus, if we apply the rules of RESTATEMENT § 360 and RESTATEMENT (SECOND) OF PROPERTY § 17.3, a condominium association has a duty not only to the unit owners and their tenants but also to those who are on the land with their consent and who will inevitably be expected to use common areas such as the parking lot. See RESTATEMENT § 360 cmt. d (the rule stated in § 360 applies to all common areas the lessee is expected to use, such as the yard). On this point, we believe the case law is quite clear and supports the Restatement view. Traditionally--PROSSER & KEETON cites cases as early as 1880, e.g., Looney v. McLean, 129 Mass. 33 (188...