Vertucci v. NHP Management Co.
| Decision Date | 06 November 1998 |
| Docket Number | II-O,No. 49A02-9803-CV-259,49A02-9803-CV-259 |
| Citation | 701 N.E.2d 604 |
| Parties | Victor VERTUCCI and Mary Vertucci, as parents and natural guardians for S.V., a minor, Appellant-Plaintiffs, v. NHP MANAGEMENT COMPANY, Oxford Management Company, Inc., Agent for Bent Treexford Associates, d/b/a Bent Tree Apartments and Bent Tree xford Associates, L.P., Appellee-Defendants. |
| Court | Indiana Appellate Court |
Victor and Mary Vertucci, as the parents and natural guardians of S.V., a minor (referred to collectively as the "Vertuccis"), appeal the trial court's grant of summary judgment in favor of NHP Management Company, Oxford Management Company, Inc., agent for Bent Tree II-Oxford Associates, L.P., d/b/a Bent Tree Apartments, and Bent Tree II-Oxford Associates, L.P. (referred to collectively as "Bent Tree"). We reverse and remand.
The Vertuccis raise the following issue for our review: whether the trial court properly granted Bent Tree's Motion for Summary Judgment.
The Vertuccis rented an apartment in the Bent Tree complex in the summer of 1994. Prior to renting the apartment, Mr. Vertucci inquired about security at the complex because his two teenage daughters would be largely unsupervised during the day while he and his wife were at work. He was assured that there was security at the complex, and was issued identification cards for every member of his family. He was told that they should keep the identification cards with them at all times, but especially when using the common areas, because they would be checked from time to time. Mr. Vertucci understood that the cards were used to insure that only tenants and their guests were using the common areas. However, in the several months that the Vertuccis lived at Bent Tree, no one ever asked to see their cards.
In August of 1994, fifteen year old S.V. was sexually assaulted at the Bent Tree swimming pool by a non-resident of the complex. The Vertuccis sued Bent Tree for negligence. Bent Tree filed a Motion for Summary Judgment, alleging that "no genuine issue of material fact exists that [Bent Tree] did not owe a duty to protect [the Vertuccis] from third party criminal attack...." R. 41. The Vertuccis responded, designating evidence they asserted would demonstrate a genuine issue of material fact regarding duty. The trial court granted Bent Tree's motion for summary judgment, and the Vertuccis appeal.
When reviewing a grant of summary judgment, we use the same standard as the trial court: whether the pleadings and designated evidence demonstrate that there are no genuine issues of material fact and that the nonmoving party is entitled to judgment as a matter of law. Hartford Acc. & Indem. Co. v. Dana Corp., 690 N.E.2d 285, 290 (Ind.Ct.App.1997), trans. denied. We construe the pleadings, affidavits, and designated materials in the light most favorable to the nonmovant. Id. at 291. When there are material disputed facts, or if undisputed facts give rise to conflicting reasonable inferences that affect the outcome, they must be resolved in favor of the nonmovant. Warner Trucking, Inc. v. Carolina Casualty Ins. Co., 686 N.E.2d 102, 104 (Ind.1997). We engage in careful scrutiny to assure that the losing party is not improperly prevented from having its day in court. Id.
The Vertuccis argue that the trial court erred in granting summary judgment in favor of Bent Tree because their designated evidence raises the following genuine issues of material fact: 1) whether Bent Tree's act of issuing identification cards to its tenants resulted in a gratuitous assumption of the duty to protect them from the criminal actions of non-residents; 2) whether Bent Tree was negligent in failing to check for identification cards in the common areas of the complex; and 3) whether Bent Tree's failure proximately resulted in the sexual assault of S.V.
Bent Tree responds that the lease disclaims any liability on the part of Bent Tree for injuries to tenants, that it had no common law duty to protect S.V. from an unforeseeable criminal attack by a third party, and that it did not assume such a duty.
We first address the contract claim. The lease agreement signed by the Vertuccis contained the following provision:
Tenant agrees that Landlord, its employees, or agents shall not be liable for any damage or injury to Tenant, Tenant's family, agents, employees, or guests, or to any person entering the premises or the building of which the leased premises are a part, for injury to person or property arising from theft, vandalism, fire, or casualty occurring in the premises or the building. LANDLORD IS NOT RESPONSIBLE FOR, AND DOES NOT GUARANTEE, THE SAFETY OF TENANT, TENANT'S GUESTS, FAMILY, EMPLOYEES, AGENTS, OR INVITEES. TENANT AGREES TO LOOK SOLELY TO THE PUBLIC POLICE AUTHORITIES FOR SECURITY AND PROTECTION. ANY SECURITY THAT MAY BE PROVIDED IS SOLELY FOR THE PROTECTION OF LANDLORD'S PROPERTY....
R. 54 (emphasis in original). The exculpatory clause in Bent Tree's lease form applies specifically to "theft, vandalism, fire or casualty. " The parties disagree as to whether the sexual assault on S.V. is a "casualty" within the meaning of this provision. "Casualty" is not defined in the lease, but is defined in Black's Law Dictionary as:
A serious or fatal accident. A person or thing injured, lost or destroyed. A disastrous occurrence due to sudden, unexpected or unusual cause. Accident; misfortune or mishap; that which comes by chance or without design....
BLACK'S LAW DICTIONARY 218 (6th Ed.1990). We strictly construe the term against Bent Tree, the drafter of the document. Erie Ins. Exchange v. Stephenson, 674 N.E.2d 607, 610 (Ind.Ct.App.1996). Under such a standard, an intentional act such as that perpetrated upon S.V. would not be considered a "casualty," and therefore, the exculpatory clause does not prevent Bent Tree from having or assuming a duty to protect S.V. from the criminal actions of a third party.
We turn, then, to the Vertuccis's contention that there is a genuine issue of material fact as to whether Bent Tree assumed a duty to protect tenants against the actions of non-residents. The Vertuccis acknowledge the traditional common law rule that a landlord does not have a duty to protect a tenant from loss or injury due to the criminal actions of a third party. Center Management Corp. v. Bowman, 526 N.E.2d 228, 230 (Ind.Ct.App.1988), trans. denied. However, they rely upon an exception to that rule: a duty may be imposed upon one, who, by affirmative conduct or agreement assumes to act, even gratuitously, for another. Board of Comm'rs of Monroe County v. Hatton, 427 N.E.2d 696, 699 (Ind.Ct.App.1981). Accordingly, liability to protect a tenant from criminal activity may be imposed upon a landlord who voluntarily undertakes to provide security measures, but does so negligently. Nalls v. Blank, 571 N.E.2d 1321, 1323 (Ind.Ct.App.1991) (citing Phillips v. Chicago Hous. Auth., 89 Ill.2d 122, 59 Ill.Dec. 281, 431 N.E.2d 1038, 1040 (Ill.1982)). Whether a party has assumed a duty and the...
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