Miller v. Whitworth

• Decision Date: 03 March 1995
• Docket Number: No. 22182,22182
• Citation: 193 W.Va. 262,455 S.E.2d 821
• Court: West Virginia Supreme Court
• Parties: Robert L. MILLER and Cynthia Miller, Plaintiffs Below, Appellants, v. Richard WHITWORTH, Defendant Below, and Audley Mobile Home Estates, Inc., a West Virginia Corporation, Defendant Below, Appellee.

Page 821

455 S.E.2d 821

193 W.Va. 262

Robert L. MILLER and Cynthia Miller, Plaintiffs Below, Appellants, v. Richard WHITWORTH, Defendant Below and Audley Mobile Home Estates, Inc., a West Virginia Corporation, Defendant Below, Appellee.

No. 22182.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1994.

Decided March 3, 1995.

Syllabus by the Court

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

2. "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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963).

3. " '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, W.Va. , S.E.2d (1994)." Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Company of America, No. 22164, 194 W.Va. 203, 460 S.E.2d 18 (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 Corporation, 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.

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

Barry P. Beck, Paul R. Weiss, Martinsburg, for appellee, Audley Mobile Homes Estates, Inc.

McHUGH, Justice:

The appellants, Robert L. Miller and Cynthia Miller, appeal the July 12, 1993, order of the Circuit Court of Berkeley County which granted summary judgment for the appellee, Audley Mobile Home Estates, Inc., a West Virginia corporation (hereinafter "Audley Mobile Home Park"). ¹ For reasons set forth below, we affirm the circuit court's order.

I

Robert Miller and Cynthia Miller, his wife, the appellants, live in a mobile home which is located within the Audley Mobile Home Park. Mr. Miller alleges that on April 13, 1990, he heard a disturbance outside his home. Upon investigating, he discovered two men in his driveway next to his cars. The men immediately fled in a car once they saw Mr. Miller. Mr. Miller maintains that he followed the two men in order to obtain a license plate number since he was unsure as to whether or not the two men had damaged his cars.

After obtaining the license plate number, Mr. Miller started to return to his mobile home when he realized he was being followed by the two men, one of whom was Richard Whitworth, who allegedly resided with a friend at the Audley Mobile Home Park. Therefore, instead of returning home, Mr. Miller pulled into the driveway of his mother-in-law, who also resided in the Audley Mobile Home Park. Before Mr. Miller could get out of his car, Richard Whitworth smashed the driver's window of Mr. Miller's car, shattering the glass, which injured Mr. Miller's eye, arm, and face. Mr. Miller asserts that he has $14,233.97 in medical bills from the injuries caused by Mr. Whitworth.

Thereafter, Mr. Miller and his wife filed a personal injury action against the Audley Mobile Home Park and Richard Whitworth for the injuries Mr. Miller received on April 13, 1990, when Richard Whitworth struck the window of Mr. Miller's automobile. The appellants alleged that Mr. Whitworth was liable to them for Mr. Miller's injuries since his acts amounted to criminal battery. The appellants further alleged that the Audley Mobile Home Estates, Inc., the operator of the mobile home park where Mr. and Mrs. Miller resided as tenants, was negligent since it failed to take reasonable measures to protect Mr. Miller from the criminal battery. The circuit court disagreed and found that "[i]t was not reasonably foreseeable by Audley Mobile Home Estates, Inc. that [Mr.] Whitworth would engage in criminal conduct, and thereby injur[e] [Mr. and Mrs. Miller]." Therefore, the circuit court granted summary judgment for Audley Mobile Home Estates.

II

At the outset, we point out that "[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). Furthermore, "[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 & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963). Accordingly, " '[s]ummary 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, W.Va. , S.E.2d (1994)." Syl. pt. 3, Cannelton Industries, Inc. v. Aetna Casualty & Surety Company of America, No. 22164, 194 W.Va. 203, 460 S.E.2d 18 (1994). With this in mind, we will now examine the case before us.

III

The following issue is one of first impression in this State: is a mobile home park owner, who is a landlord, liable to a tenant for injuries a tenant receives from the criminal activity of a third party. The issue is increasingly in the forefront because of society's focus on crime. In spite of the attention this issue ² has received in the past couple of decades, courts have not formulated a bright-line rule. Irma W. Merrill, Landlord Liability for Crimes Committed by Third Parties Against Tenants on the Premises, 38 Vand.L.Rev. 431 (1985). Instead, "[t]he discussion has produced a scattering of opinions rather than one settled rule." Id. at 432. Thus, rather than add to the current confusion by attempting to fuse principles from the "scattering of opinions," we shall instead examine the issue using basic tort principles since the case before us has been framed in tort law. ³

In syllabus point 1 of Parsley v. General Motors Acceptance Corporation, 167 W.Va. 866, 280 S.E.2d 703 (1981), this Court held: "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." Therefore, we must first determine whether or not a landlord has a duty to protect a tenant from the criminal activity of a third party. We are mindful that the determination of whether there is a duty is a question of law and not a question of fact for the jury. See generally 57A Am.Jur.2d Negligence § 86 (1989).

This Court provided a detailed discussion on the concept of duty in Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983), and concluded in syllabus point 2 that it is well established 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." In Robertson this Court discussed how to determine the scope of the duty a person owes to another, and concluded that the foreseeability of risk is an important consideration. Robertson, 171 W.Va. at 611-12, 301 S.E.2d at 567-68. See generally W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 33 at 200-01 (5th ed. 1984). This Court also acknowledged that courts should consider the "likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on the defendant." Robertson, 171 W.Va. at 612, 301 S.E.2d at 568 (citations omitted).

Generally, a person does not have a duty to protect others from the deliberate criminal conduct of third parties. 57A Am.Jur.2d Negligence § 104 (1989). See Restatement (Second) of Torts § 302B cmt. d (1965). See also Walls v. Oxford Management Co., Inc., 137 N.H. 653, 633 A.2d 103, 104 (1993). Some of the policy reasons for this rule, most particularly in a landlord/tenant relationship, include:

judicial reluctance to tamper with a traditional, common law concept; the notion that the deliberate criminal act of a third person is the intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner must meet; the economic consequences of imposing such a duty; and conflict with the public policy that protecting citizens is the government's duty rather than a duty of the private sector.

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