Tedder v. Raskin, 86-215-II

• Citation: 728 S.W.2d 343
• Decision Date: 29 January 1987
• Docket Number: No. 86-215-II,86-215-II
• Parties: Jeffrey Scott TEDDER, a minor b/n/f Rauline Tedder and Rauline Tedder, Plaintiffs-Appellants, v. Edwin B. RASKIN, Trustee, Edwin B. Raskin Company d/b/a Fawnwood Apartments, Defendants-Appellees.
• Court: Court of Appeals of Tennessee

Page 343

728 S.W.2d 343

Jeffrey Scott TEDDER, a minor b/n/f Rauline Tedder and Rauline Tedder, Plaintiffs-Appellants, v. Edwin B. RASKIN, Trustee, Edwin B. Raskin Company d/b/a

Fawnwood Apartments, Defendants-Appellees.

No. 86-215-II

Court of Appeals of Tennessee,

Middle Section, at Nashville.

Jan. 29, 1987.

Application for Permission to Appeal

Denied by Supreme Court

March 30, 1987.

Dennis L. Tomlin, Nashville, for plaintiffs-appellants.

Douglas Fisher, Howell, Fisher, Branham & North, Nashville, for defendants-appellees.

OPINION

CANTRELL, Judge.

The plaintiffs appeal from the trial court's grant of a directed verdict for the defendants at the close of the plaintiffs' proof in a jury trial. This case involves the increasingly common question of a landlord's liability to tenants for criminal acts by third parties on the leased premises, a question on which Tennessee law is unclear at this time.

The defendants owned and operated the Fawnwood Apartments in which the plaintiffs, Mrs. Tedder and her son, Scotty, resided in January 1982. In the early-morning hours of January 27, 1982, a bullet came through the wall of Scotty's bedroom, went through the headboard of his bed, and penetrated his skull as he lay in bed asleep. The bullet had been fired in the apartment next door during a struggle between the next-door neighbor and a man who was attempting to rob him.

Four or five months prior to the shooting, in August or September, 1981, Mrs. Tedder and a friend, Mr. Charles Moffitt, had complained to the apartment manager about the number of people in and out of the apartment next door. They told the manager that five or six carloads of people would come, stay a few minutes, and leave all day long, with the result that Mrs. Tedder and her friend could never find a parking place near her apartment. Mr. Moffitt testified that he told the manager he thought they must be selling drugs, to which the manager replied that they were just good old boys who had a lot of friends and they weren't causing any trouble. The manager asked Mrs. Tedder if she wanted her to speak to the neighbor about the parking problem, and Mrs. Tedder said yes.

A few days before the shooting in January, Mr. Moffitt again complained to the manager about the parking problem. He testified in part as follows:

I told the lady traffic picked up considerably and I said it's getting dangerous up there. I think something is going to happen; somebody is going to start shooting. Bullets are going to be coming through the wall. She said to me, that's ridiculous. All they have is a bunch of friends.

Mr. Moffitt also testified that he pointed out five cars in the parking spaces in front of Mrs. Tedder's apartment, which the manager could see from the office.

Mrs. Tedder stated that when she leased the apartment, she was under the impression that the landlord provided twenty-four-hour security for the complex. Although the lessor did not mention security at the time Mrs. Tedder entered into the lease and she admitted that she did not ask about security, she asserts that she was present when her daughter leased an apartment in the same complex a few months earlier and heard a manager state that they provided twenty-four-hour-a-day security. She therefore felt it unnecessary to ask about security before leasing the apartment.

The plaintiffs sued the owner and operator of the apartment complex alleging negligence, breach of contract, and misrepresentation. In the negligence count they claim the defendants breached a duty to provide them a reasonably safe place to live by failing to protect them from dangers inherent in living next door to an alleged drug dealer. In the breach of contract and misrepresentation counts the plaintiffs allege that the defendants are liable for damages resulting from the breach of a contract to provide twenty-four-hour security, or in the alternative, for damages resulting from the defendants' misrepresentation concerning security.

To determine whether the trial judge erred in granting the defendants a directed verdict, we must consider each of the counts separately. In ruling on a motion for a directed verdict by the defendant, the trial judge must take the strongest legitimate view of the evidence and allow all reasonable inferences in favor of the plaintiff, disregarding any evidence to the contrary. Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560 (Tenn.App.1985). To avoid a directed verdict, the plaintiff, having the burden of proof, must present some material evidence on each element of the cause of action asserted. Id. The evidence presented must be of sufficient substance to support a verdict for the plaintiff. Id. If the defendant prevails on the motion for a directed verdict, the trial judge must have determined that the defendant would prevail as a matter of law, even viewing the evidence in a light most favorable to the plaintiff. Royal v. Days Inn of America, Inc., 708 S.W.2d 411 (Tenn.App.1985). We must now determine whether the trial court erred in finding that the plaintiff failed to present evidence sufficient for a prima facie showing of negligence, breach of contract, or misrepresentation.

NEGLIGENCE

At early common law, a lease was viewed as a conveyance of an estate in land by the landlord to the tenant. The tenant received exclusive possession of the land and assumed all responsibilities related to the land, including maintenance and repairs, while the landlord simply collected the rent. This arrangement worked well in the agrarian economy of feudal England, where the existence or condition of a dwelling was incidental to the lease of the land for agricultural purposes. Landlord Liability for Crimes Committed by Third Parties Against Tenants on the Premises, 38 Vand.L.Rev. 431, 433 (1985).

As urban communities grew, the common law recognized the essential differences between the lease of urban dwelling units and the lease of land for agricultural purposes, and the law evolved to better fit these changed circumstances. Courts in the United States began to impose liability on landlords for negligence resulting in injuries to their tenants in certain situations, such as where the landlord had promised to make repairs and failed to do so or did so negligently, where a latent defect existed in the land, where the land was leased for public use, or where the landlord retained control over part of the premises. Id. at 434-35.

Similarly, the evolving common law began to impose special duties on certain providers of public services, such as innkeepers and common carriers. The heightened standard of care for innkeepers was based largely on the fact that the innkeeper was in a superior position to take precautions for the safety of the guests since he retained control over the common areas of the inn. In addition, since the guest's "lease" of a room was only temporary, the landlord could not expect the "tenant" to repair and maintain the premises. These special circumstances led to the development of a special body of law governing the liability of innkeepers to their guests. Id., at 436.

One exception to the general rule at common law was the imposition of liability on the innkeeper for nonfeasance, or the failure to take steps to protect the guests from harm, as well as misfeasance, or "active misconduct causing positive injury to others." Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). Eventually liability for nonfeasance was extended by some courts to include the failure to take steps to protect another from harm caused by criminal acts of third parties. Liability for nonfeasance was limited, however, to special relationships involving special conditions and circumstances, like the relationships of innkeeper-guest and common carrier-passenger. Id.

Recognizing the similarity between innkeepers and modern landlords of urban apartment buildings, some courts in other states began to impose a heightened standard of care on this category of landlord. Of particular interest here is the imposition of a duty on landlords of apartment buildings, and liability for negligent breach of that duty, to take reasonable precautions to protect their tenants from criminal acts of third parties on the leased premises. Since the landlord retains control over the common areas of the apartment building and grounds, the landlord is in a far superior position to take steps necessary to secure the premises for the safety of the tenants. Like guests at inns, tenants in multiple-apartment buildings whose leases are often of short duration cannot be expected individually to make the expenditures necessary to secure the common areas of the building, for example by installing locks on outside entrances, providing adequate lighting in hallways, and taking similar precautions. The landlord, on the other hand, is in a better position to provide reasonable security and spread the cost among the tenants. The imposition by law of a duty on the landlord to take reasonable steps to secure the leased premises for the safety of the tenants was thus merely a logical extension of the existing common law governing the special relationship of innkeeper-guest.

The development of the common law of landlord liability in Tennessee paralleled the evolution of the common law of other states in many respects. As a general rule, the landlord is not liable for injuries to the tenant caused by dangerous or defective conditions on the leased premises unless the landlord knew or in the exercise of reasonable care and diligence should have known of the dangerous condition at the time he leased the premises. Roberts v. Tennessee Wesleyan College, 60 Tenn.App. 624, 450 S.W.2d 21 (1969), Bishop v. Botto, 16 Tenn.App. 178, 65 S.W.2d 834 (1932). The Tennessee landlord is under a duty to turn over to the tenant a reasonably safe place to live or work, a duty which is imposed by law because of the special relationship of the parties. Campbell v. Francis, 53...