Shepard v. Drucker & Falk, 8210SC992

• Decision Date: 06 September 1983
• Docket Number: No. 8210SC992,8210SC992
• Court: North Carolina Court of Appeals
• Parties: Georgia SHEPARD v. DRUCKER & FALK, a partnership; Fairway Co., a limited partnership; David Falk, individually and as a general partner in Fairway Co., a limited partnership, and as a partner in Drucker & Falk, a partnership, Bernard Kayden, individually and as a general partner in Fairway Co., a limited partnership, E.E. Falk and Erwin B. Drucker, individually and as partners in Drucker & Falk, a partnership.

Page 199

306 S.E.2d 199

63 N.C.App. 667

Georgia SHEPARD v. DRUCKER & FALK, a partnership; Fairway Co., a limited

partnership; David Falk, individually and as a general

partner in Fairway Co., a limited partnership, and as a

partner in Drucker & Falk, a partnership, Bernard Kayden,

individually and as a general partner in Fairway Co., a

limited partnership, E.E. Falk and Erwin B. Drucker,

individually and as partners in Drucker & Falk, a partnership.

No. 8210SC992.

Court of Appeals of North Carolina.

Sept. 6, 1983.

Thorp, Anderson, Slifkin, Roten & Clayton, P.A. by William L. Thorp and Anne R. Slifkin, Raleigh, for plaintiff-appellant.

Patterson, Dilthey, Clay, Cranfill, Sumner & Hartzog, by Robert M. Clay and Sanford W. Thompson, IV, Raleigh, for defendant-appellee.

ARNOLD, Judge.

A landlord is under a duty to its tenant to inspect and repair the common areas of the premises. W. Prosser, Handbook of the Law of Torts § 63 (4th ed. 1971). A tenant is normally seen as an invitee and the liability of a landlord for physical harm to its tenant depends on if it knows of the danger. See Restatement (Second) of Torts § 344 (1965), especially comment f:

f. Duty to police premises. [The possessor of land] is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.... If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it....

As was stated in Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 640, 281 S.E.2d 36, 39 (1981): "[U]nder both the Restatement ... and the prior decisions of this Court, foreseeability is the test in determining the extent of a landowner's duty to safeguard his business invitees from the criminal acts of third persons." Foster held that a shopping center has a duty to protect its business invitees from the criminal acts of third persons on its premises, specifically, in its parking lot. See also, Urbano v. Days Inn, 58 N.C.App. 795, 295 S.E.2d 240 (1982) (extended the Foster rule to a motel parking lot).

Both Foster and Urbano reversed summary judgment for a defendant and held that the negligence issue was for the jury. The plaintiff in each case introduced evidence of prior third-party crimes that were recent in time.

In Foster, there were thirty-six criminal incidents, including four or five assaults, at the shopping center within a one-year period immediately preceding the plaintiff's assault. In Urbano, the defendant knew of forty-two criminal incidents on the motel premises within the three years before the plaintiff's injury, with twelve of them within three and one-half months before the injury. None of the incidents in Urbano involved an assault on a guest, but there were one armed robbery and seven illegal entries into motel rooms.

The parties here agree with the duty as stated above. They do not agree, however, on a number of the trial judge's rulings on whether testimony and evidence were admissible and on his instructions to the jury.

The plaintiff first contends that the trial judge should not have excluded evidence of prior crimes that she attempted to offer. The four incidents that she raises on appeal were irrelevant and properly excluded.

Evidence about crimes committed at Fairway Apartments when the criminals used a passkey to break into apartments had nothing to do with this attack in the parking lot. Even if it did show that crimes occurred at Fairway, evidence about the passkeys and that the defendants knew that there was a security problem was admitted on a number of occasions, making this one denial harmless error. U.S. Indus., Inc. v. Tharpe, 47 N.C.App. 754, 764, 268 S.E.2d 824, 830, review denied, 301 N.C. 90, 273 S.E.2d 311 (1980).

A rape which occurred at Montecito, another complex managed by the defendants, was also irrelevant. It involved the use of a passkey and had nothing to do with the rape in this case. The defendants had sufficient notice that crimes occurred at Fairway without evidence of the Montecito attack.

It was also not error to prohibit Lieutenant Benson from testifying about the relationship between crimes against property and violent crimes. The record shows that Benson was never qualified as an expert by the trial judge. Absent such a ruling, we will not review exclusion of his testimony on appeal. State v. Satterfield, 300 N.C. 621, 268 S.E.2d 510 (1980). 1 Brandis, N.C. evidence § 133 (2d rev.ed. 1982). In any case, similar evidence came in through the testimony of other witnesses.

Finally, the alleged rape that occurred in March, 1976 in an apartment at Fairway was not probative here because of fact differences. It occurred inside an apartment after someone using a passkey...