Moody v. Cawdrey & Associates Inc.

• Court: Hawaii Court of Appeals
• Writing for the Court: Before BURNS; TANAKA; BURNS
• Citation: Moody v. Cawdrey & Associates Inc., 721 P.2d 708, 6 Haw.App. 355 (Haw. App. 1986)
• Decision Date: 24 January 1986
• Docket Number: HK-GC,I-,II-X,I-X,D,No. 10052,III-X,10052
• Parties: Jacqueline MOODY, Russell T. Moody, Jane Dukesherer and John Dukesherer, Plaintiffs-Appellants, v. CAWDREY & ASSOCIATES, INC., a foreign corporation; Mars Constructors, Inc.; Cawdrey-Mars General, a partnership; Hale Kekoa Joint Venture, dbaPartnership, General Construction Company, jointly dbaPartnership; Kajioka, Okada & Partners, Inc.; Luko Realty, Ltd.; Aaron M. Chaney, Inc.; Association of Apartment Owners of 1260 Richard Lane; Ernest C. Hickson; and First Hawaiian Development Corporation, Defendants-Appellees, and Howard Bugbee, John Does; John Doe Partnerships; John Doe Corporations; and John Doe Governmental Entities, Defendants.

Page 708

721 P.2d 708

6 Haw.App. 355

Jacqueline MOODY, Russell T. Moody, Jane Dukesherer and John Dukesherer, Plaintiffs-Appellants, v. CAWDREY & ASSOCIATES, INC., a foreign corporation; Mars Constructors, Inc.; Cawdrey-Mars General, a partnership Hale Kekoa Joint Venture, dba HK-GC Partnership, General Construction Company, jointly dba HK-GC Partnership Kajioka, Okada & Partners, Inc.; Luko Realty, Ltd.; Aaron M. Chaney, Inc.; Association of Apartment Owners of 1260 Richard Lane; Ernest C. Hickson; and First Hawaiian Development Corporation, Defendants-Appellees and Howard Bugbee, John Does III-X; John Doe Partnerships I-X John Doe Corporations II-X; and John Doe Governmental Entities I-X, Defendants.

No. 10052.

Intermediate Court of Appeals of Hawai'i.

Jan. 24, 1986.

Syllabus by the Court

1. A fundamental requirement of a negligence action is the existence of a duty owed by the defendant to the plaintiff. The existence of such a duty is entirely a question of law.

2. Under the realities of modern day apartment living, courts have viewed the landlord-tenant relationship as a "special" one that justifies imposing a duty on the landlord to provide some protection against criminal acts. However, the landlord is not an insurer of the safety of his tenants.

3. The landlord has a duty to protect the tenant only from foreseeable criminal acts of third parties.

4. Where the condominium owners association performs all the customary business functions which in the traditional landlord-tenant relationship rest on the landlord's shoulder, such as managing the project, maintaining and repairing the common areas, providing security, and obtaining insurance, the courts impose on the association the same duty of care as a landlord.

5. When a property management firm acts on behalf of and subject to the control of the condominium owners association, the firm is deemed to be an agent of the association.

6. Since it is reasonable to anticipate that guests of residential condominium owners will be upon the project premises, the condominium owners association and its managing agent owe a duty of reasonable care to such guests.

7. In an action against the condominium owners association and its managing agent for criminal acts of third persons on the condominium project premises, the plaintiffs may establish foreseeability by evidence other than prior similar criminal incidents on those premises. Foreseeability is determined in light of the totality of the circumstances in the case.

8. Foreseeability may be decided as a question of law only if under the undisputed facts there is no room for a reasonable difference of opinion. Thus, where reasonable minds may differ whether criminal acts of third persons were foreseeable under the totality of the circumstances in the case, the granting of summary judgment is improper.

Nathan J. Sult (David L. Turk with him on the brief; David L. Turk, Attorney at Law, a Law Corp., Honolulu, of counsel), for plaintiffs-appellants.

Walter Davis (Archibald C.K. Kaolulo, with him on the brief; Davis, Reid & Richards, of counsel) for defendants-appellees Ass'n of Apartment Owners of 1260 Richard Lane and Aaron M. Chaney, Inc.

Before BURNS, C.J., and HEEN and TANAKA, JJ.

TANAKA, Judge.

This is an appeal by plaintiffs Russell T. and Jacqueline Moody (Moodys) and John and Jane Dukesherer (Dukesherers) (collectively Appellants) from the summary judgment in favor of defendants Association of Apartment Owners of 1260 Richard Lane (Association) and Aaron M. Chaney, Inc. (Chaney) (collectively Appellees). The appeal raises the following questions of first impression:

1. Whether a condominium owners association and its managing agent have a duty to protect condominium owners and their guests from foreseeable criminal acts committed by third parties.

2. Whether in a negligence action against a condominium owners association and its managing agent for criminal acts of third parties, the plaintiff may establish foreseeability by evidence other than prior similar criminal incidents.

We answer yes to both questions and reverse the summary judgment.

I.

The Association is an unincorporated association of apartment owners in the 1260 Richard Lane condominium project (Project). ¹ Chaney is a Hawaii corporation hired by the Association as its managing agent. The Dukesherers are the owners of apartment 506A in the Project.

The evidence, viewed in the light most favorable to Appellants, as we must in reviewing a summary judgment, Fernandes v. Tenbruggencate, 65 Haw. 226, 649 P.2d 1144 (1982); Silver v. George, 64 Haw. 503, 644 P.2d 955 (1982); Kang v. Charles Pankow Associates, 5 Haw.App. 1, 675 P.2d 803 (1984), reveals the following facts.

The Moodys came to Hawaii from California to attend the wedding of their daughter Jane to John Dukesherer. On the evening of May 19, 1979, the Moodys were alone in apartment 506A since the Dukesherers had departed on their honeymoon. Before retiring Jacqueline locked the front door of the apartment. During the early morning hours of May 20, 1979, two unidentified males entered the apartment through the front door. To get to the apartment, the males had to use either the elevators or the stairways, which were common areas and under the control of the Association. The exact method of entry into the apartment is unknown; however, no signs of forced entry were evident. ² The males assaulted and robbed the Moodys. Jacqueline was raped and sodomized. Russell was shot. The assailants fled and were never apprehended.

On September 17, 1980, Appellants filed a complaint against the Association, Chaney, and several other defendants. ³ The complaint alleged that Appellees "were negligent in the maintenance and management" of the Project and were "also responsible for the failure of the security system installed therein." Appellants prayed for special and general damages, ⁴ costs, and reasonable attorney's fees.

On June 28, 1983, the trial court entered its order granting Appellees' motion for summary judgment and expressly directing the entry of judgment under Rule 54(b), Hawaii Rules of Civil Procedure (1981). On May 2, 1984, a judgment was filed pursuant to the June 28, 1983 order. Appellants' timely appeal followed. ⁵

II.

"A fundamental requirement of a negligence action is the existence of a duty owed by the defendant to the plaintiff." Namauu v. City & County, 62 Haw. 358, 361, 614 P.2d 943, 945 (1980). See also First Insurance Co. of Hawaii, Ltd. v. International Harvester Co., 66 Haw. 185, 659 P.2d 64 (1983); Ono v. Applegate, 62 Haw. 131, 612 P.2d 533 (1980). The existence of such a duty is "entirely a question of law." Bidar v. Amfac, Inc., 66 Haw. 547, 552, 669 P.2d 154, 158 (1983). See also Kelley v. Kokua Sales & Supply, Ltd., 56 Haw. 204, 532 P.2d 673 (1975).

Relying on King v. Ilikai Properties, Inc., 2 Haw.App. 359, 632 P.2d 657 (1981), and the principles stated in Restatement (Second) of Torts §§ 314A, 315 (1965), ⁶ Appellees argue that they had no duty to protect Appellants from criminal acts of third parties because there was no "special relationship" between Appellees and Appellants. ⁷ Appellees therefore assert that they were entitled to a summary judgment as a matter of law. We do not agree.

A.

If the four special relationships specified in § 314A--common carrier-passenger, innkeeper-guest, landowner-invitee, and custodian-ward--were intended to be exclusive, Appellees' assertion may be correct. However, the drafters of the Restatement commented that the relations listed in § 314A "are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found." Id. § 314A, comment b. Moreover, the drafters expressed their view that the "law appears ... to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence." Id.

The realities of modern day apartment living have induced some courts to view "the landlord-tenant relationship as a 'special' one that justifies imposing a duty on the landlord to provide some protection against criminal acts." Comment, California Landlords' Duty to Protect Tenants from Criminals, 20 San Diego L.Rev. 859, 865 (1983). However, the courts have not held that "the landlord is by any means an insurer of the safety of his tenants." Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 487 (D.C.Cir.1970). The duty imposed on the landlord "is only one to exercise reasonable care under the circumstances." Restatement (Second) of Torts § 314A, comment e (emphasis added). The landlord is free of liability "where he neither knows nor should know of the unreasonable risk," and "is not required to take any action where the risk does not appear to be an unreasonable one[.]" Id. Further, the landlord need not "take any action until he knows or has reason to know that the plaintiff is endangered[.]" Id. comment f.

Basically, the landlord's duty to act arises after he has received notice, actual or constructive, of criminal activity either on his premises or in the immediate vicinity thereof. ⁸ See Kline, supra; Totten v. More Oakland Residential Housing, Inc., 63 Cal.App.3d 538, 134 Cal.Rptr. 29 (1977); Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976). The crucial question is that of foreseeability--whether under the facts the third parties' criminal act was a foreseeable risk against which the landlord was obligated to protect the tenant.

We believe that in the area of the landlord-tenant relationship, the landlord has the duty to protect the tenant from foreseeable criminal acts of third parties.

B.

The question then is whether a condominium owners association and its managing agent have a similar duty as a landlord to protect resident condominium owners from foreseeable criminal acts of third parties. We hold that they do.

In our view, the condominium...