Spar v. Obwoya, 10024.

Decision Date01 February 1977
Docket NumberNo. 10081.,No. 10024.,10024.,10081.
Citation369 A.2d 173
PartiesRose SPAR and Lustine Realty Company, Inc., Appellants, v. Emmanuel S. O. OBWOYA, Appellee. Emmanuel S. O. OBWOYA, Appellant, v. Rose SPAR and Lustine Realty Company, Inc., Appellees.
CourtD.C. Court of Appeals

Jack H. Olender, Washington, D. C., for appellant in No. 10081 and appellee in No. 10024.

Reid C. Tait, Washington, D. C., with whom James C. Gregg and David M. Moore, Washington, D. C., were on the brief, for appellants in No. 10024 and appellees in No. 10081.

Before FICKLING, KERN and MACK, Associate Judges.

KERN, Associate Judge:

On the afternoon of August 11, 1971, Emmanuel Obwoya, a national of Uganda, and a student at a local university, entered the 22-unit apartment building on 13th Street in which he lived with another student. As he walked up the stairs in the common hallway, after checking his mailbox in the vestibule, he heard the front entrance door of the building close. Immediately thereafter he saw a stranger who greeted him with a "Hi". This unidentified man then robbed him at gun-point and proceeded to shoot him in the back (a bullet is permanently lodged in his spine) and flee through the apartment's front entrance which consists of a pair of wood frame doors, each containing a glass inset.

Ultimately, Obwoya brought suit against the apartment building's owner, Spar, and manager, Lustine Realty Company. The judge directed a verdict against Obwoya on his claim for punitive damages, but refused to direct a verdict on his claim for compensatory damages and the jury rendered a verdict in favor of plaintiff in the amount of $75,000. The parties have taken cross-appeals which we now consider.1

The evidence viewed in the light most favorable to Obwoya was that the lock on the front entrance door was broken on the day in question and had been broken for at least a week before; the lock was "cheap" and not of a "commercial" or "heavy duty" type and was continually being broken and "easily" slipped with a plastic card; and, during negotiations between the tenants and the landlord concerning a proposed rent increase in late 1969, the tenants had expressed dissatisfaction with the front-door security and proposed that steel frames and unbreakable glass be added to the wooden doors.

There was testimony by several tenants that their apartments had been burglarized by means of a forced entry through their individual front doors from the building's common hallway; another tenant testified that she had been robbed in the apartment's stairwell at knifepoint; and, other tenants testified as to the presence of strangers in the building's hallways. There was statistical evidence that the seven-block area in which the apartment building was located ranked in the top ten percent of the District of Columbia in the incidence of crime. Finally, three "newer and bigger" apartment buildings in the same block had steel-frame doors and reinforced glass panels that could not be "slipped" by use of a plastic card.

The trial court's instructions to the jury first defined negligence and proximate cause and then stated (Record at 892), "[T]he landlord and property management can . . . be responsible for Mr. Obwoya's injury, if you find that their negligence made it possible for the criminal to injure Mr. Obwoya at the time and place where the shooting occurred, and that their negligence was the proximate cause of the injury."

The court further charged (Record at 892-93), "[I]n deciding whether there was any negligence in this case the conduct of a party must be considered in the light of all the surrounding circumstances. . . . An act that is negligent under one set of circumstances may not be so under another. . . . [W]e ask what conduct might reasonably have been expected of a person of ordinary prudence under the same circumstances ? Our answer to that question gives us a criterion by which to determine whether or not the evidence before us proves negligence. . . . The amount of caution required by the law increases with the danger that reasonably should be apprehended."

The trial judge instructed the jury on the burden of proof carried by Mr. Obwoya, the theory of contributory negligence and the meaning of "assumption of risk." He further charged the jury (Record at 895):

The landlord who rents different parts of a building to various tenants and retains control of the stairways, passageways, hallways . . . of the building for common use or the tenants, has resting upon him a duty to use reasonable care to keep such places in a reasonably safe condition. . . . [Emphasis added.]

The court also charged the jury (Record at 896-97):

The plaintiff can recover from the defendant landlord and the defendant property manager only if you find that these defendants breached the duty which they owed to the plaintiff. There is a duty of reasonable protection against criminal acts of third parties owed by the landlord to the tenant and his guests in an urban multiple unit apartment dwelling. This standard of care which should be applied in judging if the landlord has fulfilled his duty of protection to the tenant and his guests is reasonable care under all the circumstances. In judging whether these defendants fulfilled their duty of exercising reasonable care under all the circumstances, you should consider the standard of protection commonly provided in apartment buildings of the same character and class of 2535 Thirteenth Street, Northwest, at the time of the assault upon the plaintiff; namely, August 11, 1971.

Finally, the court instructed the jury (Record at 897-98):

[T]he plaintiff can recover from defendants if, but only if, you find by a preponderance of the evidence that defendants breached their duty to plaintiff by failing to exercise reasonable care under all the circumstances.

Spar and Lustine Realty state at the outset of their argument (Brief at 6) that this case "presents this Court its first opportunity to critically review, analyze and apply the case of Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U. S.App.D.C. 370, 439 F.2d 477 (1970)" and subsequently argue (Brief at 7) qt] he mere relationship of landlord and tenant does not impose upon the landlord a duty to act so as to protect his tenants . . . from the criminal acts of third parties." But we do not understand the instant case to rest upon such a broadly-stated proposition as appellants Spar and Lustine Realty assert.2 In the first place, appellants themselves recognize that (Brief at 6) the facts here are "in sharp contrast" to those in Kline. Secondly, the trial court in the instant case, consistent with Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969), correctly stated to the jury that the landlord has the duty to use reasonable care in maintaining for common use of all tenants the hallways and other portions of his apartment building over which he retains control. In this case, given the evidence of criminal incidents occurring in or emanating from the apartment's hallways, the continuing inadequacy of the front doorway of the apartment to keep out unauthorized persons from the building, the action taken by other apartment buildings in the same block to improve the security of their front doorways, and the notice of tenants' concern over the security problem created by the inadequacies of the front door which was afforded the landlord, we cannot say the trial court erred in its instructions or in permitting the case to go to the jury.

Appellants complain that since there was evidence of only one assaultive crime occurring in their building's hallway prior to the robbery and shooting of Obwoya they were not on notice of similar crimes occurring within the common hallway so as to create a likelihood that future crimes would occur. However, there was evidence of (a) individual apartment units of the building being burglarized by forcible entry from the common hallway, and (b) the presence of unauthorized persons in the building. This evidence, taken as a whole, is sufficiently related to the robbery of the plaintiff to have put appellants on notice of the likelihood of unauthorized entry into the building by persons with criminal intent. As the federal circuit court here said in Kendall v. Gore, 98 U.S.App. D.C. 378, 387, 236 F.2d 673, 682 (1956) (footnote omitted): "A defendant need not have foreseen the precise injury, nor `should [he] have had notice of the particular method' in which a harm would occur, if the possibility of harm was clear to the ordinary prudent eye."

Appellants also contend that whatever complaints the tenants had expressed to them in 1969 concerning the inadequacy of the security provided by the building's front door were finally resolved by a Stipulation entered into between the parties concerning the rent dispute. Since the Stipulation did not refer to front door security, appellants argue, the tenants thereby were inferentially satisfied with the present situation. Accordingly, appellants contend they were not on notice of any security deficiencies extant when the robbery and shooting occurred subsequently in this case. Given the evidence of the continuing disrepair and/or vulnerability of the front-door lock to being "slipped" and the general proposition that a negotiated settlement of a dispute connotes a compromise on the part of both sides, we are unwilling to conclude as a matter of law that the omission altogether from the Stipulation of the subject of front-door security is to be taken as the end of the security problem and the lulling of appellants into a belief that no such problem existed. In our view, it was for the trier of fact to determine whether appellants under all the circumstances were on notice of the likehood of a criminal assault on a tenant in the common hallway by unauthorized persons in the building's common passageways.

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