Potter v. First Federal Sav. & Loan Ass'n of Scotlandville

• Decision Date: 29 June 1992
• Docket Number: No. CA,CA
• Citation: 602 So.2d 1070
• Parties: Adaina Kathleen POTTER v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SCOTLANDVILLE, et al. 91 0659. 602 So.2d 1070
• Court: Court of Appeal of Louisiana — District of US

Page 1070

602 So.2d 1070

Adaina Kathleen POTTER v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF SCOTLANDVILLE et al.

No. CA 91 0659.

602 So.2d 1070

Court of Appeal of Louisiana First Circuit.

June 29, 1992.

Rehearing Denied Aug. 10, 1992.

William D. Grimley, Baton Rouge, for plaintiff-appellant Adaina Kathleen Potter.

Thomas M. Richard, Metarie, for defendants-appellees, First Federal Savs. & Loan Assoc. of Scotlandville, Kim Knighten and Associates, and State Farm General Ins.

Before SHORTESS, LANIER and CRAIN, JJ.

LANIER, Judge.

This action is a suit for damages alleging that the plaintiff was the lessee of an apartment in an apartment complex, and she was attacked in the apartment complex parking lot and subsequently raped and robbed. Made defendants were the First Federal Savings & Loan Association of Scotlandville (First Federal), the owner of the property and plaintiff's lessor, Kim Knighten, the manager of the apartment complex, and State Farm General Insurance Company (State Farm), the alleged insurer of First Federal and Knighten. The defendants filed a motion for summary judgment asserting that under the undisputed facts of the case they owed no duty to the plaintiff to protect her from the intentional criminal act of a third person, citing La.C.C. art. 2703 and the jurisprudence interpreting it. The trial court granted the summary judgment and dismissed the plaintiff's petition with prejudice, citing Smith v. Howard, 489 So.2d 1037 (La.App. 1st Cir.1986). The plaintiff took this devolutive appeal.

UNDISPUTED FACTS ¹

We will assume the following facts asserted by the plaintiff in her appellate brief are correct for purposes of ruling on the merits of the summary judgment:

During August of 1988, Plaintiff became a tenant at the Turtle Creek Apartments located on GSRI in Baton Rouge, Louisiana by sharing apartment number 4 in building 8238 of the complex with her roommate Karen Seibert. Together they shared the rent and utility cost [sic] evenly. (Affidavit, Karen Ann Seibert, Record pages 128-130).

On February 8, 1989, at approximately 9:30 p.m., Adaina left her apartment and walked toward her car parked in the front parking lot of the complex (Depo., Potter, taken February 9, 1990, Record, pg 21) As she reached her car, a black male came up to her with a gun in his hand and forced his way into her car with her (Depo., Potter, taken February 9, 1990, Record, pg 22). She was subsequently raped and robbed.

Prior to this time, Turtle Creek Apartments had experienced several instances of burglary and vandalism (Affidavits of Seibert and Erin Elizabeth Spaht, Record pages 131-133). The rear two units of the complex (containing eight apartments) had been badly vandalized (Depo., Knighten, taken October 5, 1989, Record, pg 66). The apartment manager, Kim Knighten, was fully aware of the criminal activity that was taking place at Turtle Creek before the rape in question (Depo., Knighten, taken October 5, 1989, Record, pgs 37, 40, 43, 45, 83, 86).

The lighting in general around the complex was poor. The tenants complained to Knighten, or to her assistant manager James Coussins, concerning the poor lighting, particularly in the parking areas (Affidavits of Seibert and Spaht). Knighten acknowledges that she received these complaints (Depo., Knighten, taken October 5, 1989, Record, pg 46). The parking area was always dark. In fact it was so poorly lit that it was impossible to determine who someone was twenty feet away (Affidavits of Seibert and Spaht).

Additionally, the Turtle Creek Apartments are located in an area of Baton Rouge with an exceedingly high crime rate. Despite this fact, Knighten made no particular effort to keep up with the crime in the area of the apartments she managed (Depo., Knighten, taken October 5, 1989, Record, pg 53).

FIRST FEDERAL'S DUTY TO THE PLAINTIFF

(Assignments of error 1 and 2)

The plaintiff assigns the following errors in the trial court ruling:

1. The trial Court was in error in finding that no legal duty exists on the part of the owner and manager of the apartment complex to protect persons such as Appellant and thus a genuine issue of law exists:

2. The trial Court was in error in finding that no legal duty exists on the part of the owner and manager of the apartment complex to protect persons such as Appellant given the level of crime in the area of this rape and the apartment complex itself and thus a genuine issue of law exists:

The legal relationship between the plaintiff and First Federal was one of lessor-lessee. A lease is a nominate contract. La.C.C. art. 1914. As a nominate contract, it is subject to the general rules governing conventional obligations or contracts found in Title IV, Book 3 of the Civil Code (La.C.C. arts. 1906-2057). See La.C.C. art. 1915. However, as a nominate contract of lease, it is also subject to the special rules specifically pertaining to leases provided for in La.C.C. art. 2668 et seq. when those rules modify, complement, or depart from the general rules of Title IV. La.C.C. art. 1916. Leases are not subject to the rules governing quasi contracts, offenses and quasi offenses found in Title V of Book 3 of the Civil Code (La.C.C. arts. 2292-2324.2). Thus, the legal rights and obligations of the parties herein are controlled by La.C.C. art. 2668 et seq. pertaining to contracts of lease, rather than La.C.C. art. 2315 et seq. pertaining to offenses and quasi offenses. Albritton v. J.C. Penney Company, Inc., 385 So.2d 549 (La.App. 3rd Cir.), writ denied, 393 So.2d 727 (La.1980).

The obligations and rights of a lessor under the Louisiana Civil Code are provided for in La.C.C. arts. 2692-2709. Pertinent to the instant case are Articles 2692, 2695, 2699 and 2703. ² Pursuant to La.C.C. art. 13, these code articles must be interpreted in reference to each other (in pari materia ). Pursuant to La.C.C. art. 2703, a lessor (such as First Federal) is not liable to a lessee (such as the plaintiff) for torts committed by third persons against the lessee. Reynolds v. Egan, 123 La. 294, 48 So. 940 (1908); Cornelius v. Housing Authority of New Orleans, 539 So.2d 1250 (La.App. 4th Cir.), writ denied, 544 So.2d 404 (La.1989); Foxworth v. Housing Authority of Jefferson Parish, 590 So.2d 1347 (La.App. 5th Cir.1991), writ not considered, 592 So.2d 1328 (La.1992); Reilly v. Fairway View II Associates Limited Partnership, 544 So.2d 73 (La.App. 1st Cir.1989)- ; Robicheaux v. Roy, 352 So.2d 766 (La.App. 3rd Cir.1977), writ denied, 354 So.2d 207 (La.1978). As observed by this court in Reilly, 544 So.2d at 74, "[T]he only case of liability imposed on a lessor for an intentional tort by a third person on the lessee has been where the lessor specifically contracted to provide security." (Emphasis added). See, for example, United States Fidelity and Guaranty Insurance Company v. Burns International Security Services, Inc., 468 So.2d 662 (La.App. 4th Cir.), writ denied, 470 So.2d 882 (La.1985); Thompson v. Cane Gardens Apartments, 442 So.2d 1296 (La.App. 3rd Cir.1983); Carline v. Lewis, 400 So.2d 1167 (La.App. 1st Cir.1981). It is not asserted in this case that the plaintiff contracted with First Federal to provide security. In this factual posture, the general duty for preventing crime lies with law enforcement agencies such as the sheriff, state police or municipal police. Persilver v. Louisiana Department of Transportation, 592 So.2d 1344 (La.App. 1st Cir.1991). La.C.C. art. 2703 applies to torts committed by third persons on the premises leased to the lessee and to the premises owned by the lessor to which the lessee has access. Keenan v. Flanigan, 157 La. 749, 103 So. 30 (1925) (loud and disorderly tenant in adjoining apartment); Reynolds v. Egan, 48 So. at 948 (extensive excavation on adjoining property); Cornelius, 539 So.2d at 1250 (child murdered in a stairway in a nearby building); Smith v. Howard, 489 So.2d 1037 (La.App. 1st Cir.1986) (plaintiff's decedent shot in front of the defendant's apartment); Gant v. Flint-Goodridge Hospital of Dillard University, 359 So.2d 279 (La.App. 4th Cir.), writ not considered, 362 So.2d 581, reconsideration denied, 362 So.2d 1117 (La.1978) (tenant raped in common area laundry); Comment, Disturbance of the Lessee's Possession in Louisiana, 29 La.L.Rev. 101, 113-114 (1968). CONTRA: Day v. Castilow, 407 So.2d 510 (La.App. 4th Cir.1981).

The trial court judgment is correct as a matter of law. ³

Plaintiff asserts Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982) supports his argument about the duty owed by First Federal. See also Landry v. St. Charles Inn, Inc., 446 So.2d 1246 (La.App. 4th Cir.1984). Initially, we note that Kraaz did not consider La.C.C. art. 2703. Landry considered Kraaz and Article 2703 and observed that "[T]his should be clear when it is recalled that under Louisiana law, an owner-lessor owes no legal duty to his lessee to protect him from the tortious acts of third persons who claim no right to the leased premises. La.C.C. art. 2703." Landry, 446 So.2d at 1250. The court in Landry then reversed the judgment against an owner-lessor. Finally, Kraaz has been legislatively overruled by Acts 1982, No. 382 which amended and reenacted La.C.C. art. 2971. Laubie v. Sonesta International Hotel Corporation, 752 F.2d 165 (5th Cir.1985); Note, Liability of Innkeepers, Judicial Amendment of Statutes, and Theory-of-the-case Pleading: Kraaz v. La Quinta Motor Inns, Inc., 43 La.L.Rev. 1573 (1983).

The plaintiff asserts that the defendants "had a duty to take affirmative steps to prevent what was clearly foreseeable criminal conduct". The plaintiffs observe that an innkeeper has a duty "to take affirmative steps to guard guests against the actions of third persons, when those actions are reasonably foreseeable", citing Banks v. Hyatt Corporation, 722 F.2d 214 (5th Cir.1984). In Banks, a guest of the Hyatt Hotel in New Orleans was shot and killed by a third person on the sidewalk only four feet...