# Sarah B. Kline v. 1500 Massachusetts Avenue Apartment Corporation

> Court of Appeals for the D.C. Circuit · September 8, 1970 · 439 F.2d 477

URL: https://www.frixlaw.com/law-library/cases/9456619

## Case

- **Full name:** Sarah B. KLINE, Appellant, v. 1500 MASSACHUSETTS AVENUE APARTMENT CORPORATION Et Al.
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** September 8, 1970
- **Citations:** 439 F.2d 477
- **Precedential status:** Published
- **Opinion:** Dissent by MacKINNON
- **Judges:** MacKinnon, Tamm, Wilkey
- **Cited by:** 157 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9456619

## How later opinions describe it (automated extraction)

- holding that negligence may be predicated on the foreseeable acts of third persons
- noting that the hospital-patient relationship imposes a special duty on the hospital to “take reasonable precautions to protect the [patient] from assaults by third parties which, at least, could reasonably have been anticipated”
- noting “there. is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in control”
- noting “there is no liability normally imposed upon the one having the power to act if the violence is sudden and unexpected provided that the source of the violence is not an employee of the one in control”

## Opinion text

MacKINNON, Circuit Judge
(dissenting):
I respectfully dissent from the panel decision that the plaintiff has proved liability as a matter of law. My inability to join in that disposition of the case is based primarily in my disagreement as to what facts were proved at the trial of that issue by the court without a jury. In my view the panel opinion errs by overstating the facts which might be construed as being favorable to appellant and by failing to recognize gross deficiencies in appellant’s proof, thereby applying a more strict standard of responsibility to the landlord than the opinion actually states to be the law.
One difficulty here is that the trial court sitting without a jury held as a matter of law that there was no rule requiring the operator of the apartment building to use due care to exclude intruders by locking doors or posting doormen at entrances so as to protect tenants against crimes committed by intruders and others. It never considered whether the facts proved liability if the duty did exist. Against such a procedural background the panel opinion here comes to a different conclusion on the duty owed by the landlord to its tenants and then proceeds to find defendant liable on the facts as a matter of law. This necessarily involves a de novo consideration of the facts on a cold record and subjects the result to all the imperfections inherent in any decision arrived at under such handicaps. Here, those handicaps are magnified by the fact that the case was tried to the court without a jury and this necessarily had some tendency to steer the facts toward the issues that became uppermost in the court’s mind as the case progressed and away from the issues upon which the court now reverses the trial court. The result in my view is a record that cannot support the panel decision.
The central issue here is what are the obligations incident to a landlord-tenant relationship at 1500 Massachusetts Avenue, N.W., near downtown Washington. Involved is a large building of 585 units composed of a combination of business offices and apartments on the first floor and the next level and of residential apartments above. 1
*489 Central to the conclusion of the panel opinion is its frequent assertion, directly and inferentially stated, that numerous “assaults and robberies” had been occurring in the hallways of the building and hence “the risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable. * * * ” (Emphasis added). In support of this conclusion the opinion states that “the same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case. * * * ” (Emphasis added) and refers to 20 police reports of alleged offenses which had occurred in the building in the first ten months of 1966. But an examination of all 20 of these reports indicates that only one of them involved an assault and robbery. The rest were chiefly thefts. Só the panel opinion is incorrect in basing its conclusion on the allegation that the landlord had" “notice of repeated criminal assaults and robberies.” 2 (Emphasis added.) The sole prior instance of an assault and robbery occurred on September 6, 1966 at 8:10 P.M. in front of apartment #125 involving one Leona Sullivan. It was attempted by two men who fled when another tenant came out of an adjoining apartment. It seems elementary that one solitary instance of an assault and robbery is an insufficient base to support a finding that assaults and robberies are a “predictable risk” from which the landlord would have “every reason to expect like crimes to happen again.” (Emphasis added.) One swallow just does not make a summer. Assaults of this character are not predictable from clandestine thefts. It is accordingly my conclusion that the panel opinion concludes too much from too little.
Also, in my view the record is deficient on the matter of notice to the landlord of any assaults. The landlord had notice of some thefts (inaccurately sometimes referred to as robberies) but the record does not support any notice of any assault. A stipulation as to the offenses only went to the fact that they were committed in the building, not that the landlord had notice of all of them. He did admit notice of some of them but there is no proof that the landlord had notice of the assault committed in the building upon Leona Sullivan. This was the only prior assault committed on the premises. Proof of notice was central to appellant’s case and the absence of proof of notice I consider to be fatal. I find no proof the appellee had actual notice of such fact. As for constructive notice, that could have been proved by showing the knowledge of some of the employees, which was not done. Clearly, knowledge of some offenses by appellant was not notice to appellee (App.54). Neither were requests for improved security.
The evidence introduced by the plaintiff is also deficient in my opinion in not proving that the alleged negligence was the proximate cause of the assault or that it contributed to it in any way. Plaintiff’s evidence did not negate that it was a tenant, guest or person properly on the property who committed the offense, and while the panel opinion throughout asserts that an “intruder” committed the offense, there is no proof of that fact. So plaintiff’s evidence failed to prove a nexus between the alleged deficiencies of the appellee and the cause of any damage to appellant.
The panel opinion also fails to recognize that 1500 Massachusetts Avenue is not a luxury type apartment, but instead is a combination office building and apartment building with some eom- *490 merical and professional offices interspersed with apartments located on the ground and second floor of the building (where subject offense occurred). 3
At the trial the court and counsel took frequent notice of well known factors affecting the quality of the accommodations in this and other areas of the city and of their effect on 1500 Massachusetts Avenue. It was recognized that Washington is a crime ridden city, 4 that the area around 1500 Massachusetts Avenue in 1966 was different from areas on Connecticut and Wisconsin Avenues where “maybe the crime wave had not yet extended” (App.91) and that those “down in the center of town * * * ' were put on rather quick and active notice” of the crime wave. (App.92). In fact this thesis was central to appellant’s case and it was so argued (App.105). All this indicated that the character of the surrounding area had been deteriorating, a fact of which the appellant was well aware as her testimony indicated she had knowledge of increasing crime in the area, that “as the years went by they were putting more and more offices into the building” and reducing the personnel services to tenants.
Obviously since a number of business offices occupied the lower floors, the fortress type security precautions the panel opinion finds to be required would be wholly out of the question because such offices require free public access. The degree of protection appellant seeks could only be afforded by the equivalent of policemen patrolling the corridors which even if it were practical for the upper apartment areas would be impractical for the floors housing business offices where this assault occurred.
The panel opinion attempts to liken the law involving this combination office-apartment building to the law relating to hotels and innkeepers, 5 but even with respect to hotels the law recognizes that the reasonable care which an innkeeper must exercise for the safety and comfort of his guests varies with the grade and quality of the accommodation offered by the hotel. 6 The panel cites the note in 70 A.L.R.2d 621 (1960) in support of its claim. That note revolves around a Minnesota case deciding that the operator of a beer establishment owes a duty to its patrons to exercise reasonable care to protect them from injury at the hands of an intoxicated patron on the premises. Such law has no application to the facts here. The A.L.R. note cited by the panel does make minor reference to hotels, and assault and battery but the cases discussed therein give little or no support to the thesis of negligence advanced by the panel opinion. Kingen v. Weyant, 148 Cal.App.2d 656 , 307 P.2d 369 (1957) is cited for the principle that an innkeeper’s duty is limited to the exercise of reasonable care and he is “liable only when he was negligent in receiving or harboring guests of known violent or vicious propensities.” (Emphasis added). Annot., 70 A.L.R.2d, supra at 646. Gur-ren v. Casperson, 147 Wash. 257 , 265 P. 472 (1928) is a similar case holding that a guest in a hotel assaulted by another guest who was intoxicated, after the guest had expressly warned the landlord and requested protection from this specific person, may recover his damages from the hotel owner. Fortney v. Hotel Rancroft, 5 Ill.App.2d 327 , 125 N.E.2d 544 (1955) is another case described in the note. Therein, a new trial was ordered to determine the hotel’s responsibility where an intruder, found in the guest’s room when he returned after being out several hours, struck the guest and caused the loss of an eye. At issue was how the intruder had gained admis *491 sion to the room with the key in the possession of the night clerk and without being noticed by the night clerk. These cases obviously have little or no application here.
Actually the obligation of innkeepers toward their guests is the exercise of reasonable care for their safety. 7 The present status of the law in this respect is well stated in Coca v. Arceo, 71 N.M. 186 , 376 P.2d 970, 973 (1962):
Naturally, an innkeeper is not and cannot be an insurer of a guest or patron against personal injuries inflicted by another person on the premises, other than his servants or agents. Nevertheless, the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could, have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron. 2 Restatement, Torts, § 348 (1934 ed.); Central Theatres v. Wilkinson, 1944, 154 Fla. 589 , 18 So.2d 755 ; Hill v. Merrick, 1934, 147 Or. 244 , 31 P.2d 663 ; 29 Am.Jur. 50, Innkeepers, § 62; Rawson v. Massachusetts Operating Co., 1952, 328 Mass. 558 , 105 N.E.2d 220 , 29 A.L.R.2d 907 ; Gartner v. Lombard Bros. (3d Cir. 1952), 197 F.2d 53 .
Illustrative of the weight of authority on this duty of care is Peck v. Gerber, 1936, 154 Or. 126 , 59 P.2d 675 , 106 A.L.R. 996 , in which the court stated:
A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly.
See also Gurren v. Casperson, 1928, 147 Wash. 257 , 265 P. 472 ; Reilly v. 180 Club, Inc., 1951, 14 N.J.Super. 420 , 82 A.2d 210 . In addition, there are extensive annotations ( 106 A.L.R. 1003 , and 70 A.L.R.2d 628 , at 645). (Emphasis added).
The italicized portion of the quotation is indicative of the true holding of these cases with respect to innkeepers. It is that the landlord is liable if by the exercise of reasonable care he could have discovered that the offensive acts were being done or were about to be done and he could have protected against the injury by controlling the offender and failed to do so. The predictability of the offensive acts in the cited cases is much 'more immediate than is here present. Actually, the holding in the panel opinion extends the rule applicable to innkeepers to inordinate lengths and in my view to an unreasonable extent based as it is here upon a single assault and robbery over two months before.
Another deficiency I find in appellant’s case is that she failed to prove the prevailing security standard for similar type apartments in the community at the time. This is another fatal defect in her proof. The panel opinion attempts to gloss over this deficiency by saying that it was caused by appellee’s objections to the evidence and by the impatience of the judge. But the transcript indicates (App.55-62) that the proffered testimony was improper, largely hearsay, based on an insufficient foundation and that appellant’s lawyer, after being helpfully advised by the court as to the proper procedure and the proper type of witnesses to prove such facts purposely waived any right to introduce such evidence when he stated, “I do not think it [the evidence of the practice in the area] is that material to the issue here, Your Honor.” Also, the appellant who was her only witness on the point indicated that she only had personal knowledge of the practices at one other apartment at the time in 1966 when this assault occur *492 red, and that was obviously insufficient to prove the necessary standard prevailing in the area. The court also stated, “I will allow the question” as to the practice in the building where appellant was then residing and she so testified as to this single location; but that was obviously insufficient to prove the prevailing standard in the area. So appellant’s case is deficient in this vital respect since the absence of any evidence (or proffer thereof) is not corrected by trying to blame the defendant and the court for not admitting what was obviously improper (hearsay) evidence. A negligence case must still be based on some evidence or proffer thereof.
As for the claim that appellant was led to believe she would get the same standard of protection in 1966 that was furnished in 1959, there is obviously nothing to this point. She was not led to expect that. She personally observed the changes which occurred in this respect. They were obvious to her each day of her life. And since her original lease had terminated and her tenancy in 1966 was on a month to month basis, whatever contract existed was created at the beginning of the month and since there was no evidence of any alteration in the security precautions during the current month, there is no basis for any damage claim based on contract.
The panel opinion is an excellent argument for a high degree of security in apartments and many of its contentions have considerable weight to them but in my opinion they overstate the security that can reasonably be afforded. The hysteria of apartment dwellers in an inner city plagued with crime 8 is understandable but they are not any more exposed there than they are on the streets or in office buildings and they cannot expect the landlord to furnish the equivalent of police protection that is not available from the duly constituted government in the locality. 9 In my opinion the decision in Goldberg v. Housing Authority of Newark, 38 N.J. 578 , 186 A.2d 291 , 10 A.L.R.2d 595 (1962) answers all appellant’s arguments. It is just too much, absent a contractual agreement, to require or expect a combination office-apartment building such as is involved here to provide police patrol protection or its equivalent in the block-long, well-lighted passageways. Yet nothing short of that will meet the second guessing standard of protection the panel opinion practically directs. If tenants expect such protection, they can move to apartments where it is available and presum *493 ably pay a higher rental, but it is a mistake in my judgment to hold an office-apartment building to such a requirement when the tenant knew for years that such protection was not being afforded.
In its overzealous attempt to assist the apartment dweller, the panel opinion is forcing a contrary result. The panel opinion calls for “protection” of the tenant by the landlord without describing the degree thereof. The stated standard is thus vague, but in the light of the facts of this case (see footnote 2 relying upon plaintiff’s allegation that appellee “failed to hire sufficient number of guards”), it is an extremely high standard that borders on insuring tenants that the corridors of office-apartment buildings (and hence many apartment buildings) will not be used for the commission of criminal offenses. Owners of apartments in their own self interest will be required to view this standard, particularly in light of our jury trial practices, as being incapable of assured compliance and thus be forced to contract against such unreasonable liability (both as to character and amount) by contracting for exculpatory provisions in leases. 10 Thus tenants will get less instead of more protection and the panel opinion by imposing an unreasonable standard in this case is not rendering any real service to reasonable landlord-tenant relations.
Finally, I find absolutely no basis for the panel to conclude on the record below that negligence has been proved as a matter of law and to order a trial on the question of damages only. If the court wanted to absolve appellant from responsibility for his failure to produce competent evidence in the trial of the case the most that it could properly do, in my opinion, would be to remand the entire ease for a new trial on the new rules of law here espoused for the first time. In such a trial appellant would also be required to introduce some evidence to overcome the rule of law that a private person does not owe a duty to protect another person from a criminal attack by a third person unless such attack was both foreseeable and arose from the private person’s negligent conduct. 11
It is my conclusion that appellant did not sustain her burden of proof that the *494 owner of the apartment building failed to exercise reasonable care and I would affirm the decision of the very distinguished and learned trial judge. Accordingly, I dissent.
. At oral argument in the trial court plaintiff’s attorney pointed out that the building did not have tenants exclusively but also had law offices, some business offices and establishments and the public had a right to park in the garage and that all kinds of people came into the building because they had business there. Defense counsel also made the uncontested statement at oral argument in this court that the building “was at the time she rented and is now more than just an apartment house. There are business offices throughout at least on the first floor and I believe on the level above. * * * No matter how many guards you have people will be going into or can say they are going into, business offices.” Plaintiff Kline lived on the “level above” the ground floor and at one time had re *489 quested defendant’s permission to have her apartment listed as a professional office. She was a qualified public stenographer. It is concluded from the foregoing that some businesses were on the same floor as appellant’s apartment outside of which the assault occurred.
. In this particular the panel opinion ignores the actual police reports to which the stipulation referred and which speak for themselves. They were all admitted in evidence and only one reported an assault; that on Leona Sullivan.
. See note 1 supra.
. The court remarked : “I think we ought to take for granted we live in a crime ridden city and that people are attacked on the street and in hallways ot apartment houses and hallways of office buildings.” (App. 71.)
. Actually the security precautions the majority finds appellant was entitled to would exceed the security precautions available in Washington hotels.
. McKee v. Sheraton-Russell, Inc., 268 F.2d 669 (2d Cir. 1959); 40 Am.Jur.2d Hotels, Motels, etc. § 82 (1968).
. 40 Am.Jur.2d Hotels, Motels, etc. § 82 n. 16 (1968).
. This court is well aware of the high level of crime in various areas of Washington. About two-thirds of our cases on appeal presently involve criminal offenses. Also the daily newspapers are full of the details of various crimes. The Washington Post of June 19, 1970, p. B 5, stated: “Asleep in rooms, 5 guests robbed in downtown hotel.” The story referred to three rooms on the ninth floor of the Stat-ler Hilton Hotel, one of the most prestigious in the city. .This is five times as many robberies as had occurred at 1500 Massachusetts Avenue prior to this case. Under the panel opinion, now the Statler Hilton Hotel would practically be required to patrol the upper hotel rooms. The Post news story also reported 21 daylight robberies, 4 assaults and 8 thefts, all of which occurred before 6 P.M. This is a fairly typical day in Washington.
. Plaintiff’s complaint here is partly based on the claim that the landlord was required to maintain a reasonable number of guards. The' allegation of the complaint alleged that appellee was negligent in not “taking reasonable precautions in the evening hours of maintaining a reasonable number of guards upon the premises so as to protect your plaintiff in her person and in her property.” (Emphasis added.) To require apartment landlords to employ guards to protect tenants against criminal depredations would be very costly and raise many troublesome questions. How much training should they have? Should such guards be armed? What would be their liability and that of the landlord if they killed an alleged offender in the commission of a criminal act? When duly appointed and trained city policemen are subjected to grand jury indictment for killing criminals caught in the act, the liability and exposure of an apartment house guard and his landlord to criminal and civil process under similar circumstances could be very substantial.
. The parties contract on substantially an equal footing and since the panel opinion stresses the contractual base for its decision, it follows that the base could be altered by contract. See 38 Am.Jur. Negligence § 8 (1941). Certainly the added protection of a private police force is not a service that goes with every apartment building in a metropolitan area. Or in the alternative, the tenants could be given an option to pay the cost of private police protection which would include salary, training, equipment, liability insurance, protection devices, office space, etc., and if they declined the option the landlord would be absolved from any liability. The option in such case serves to put the parties artificially on the same level. 38 Am.Jur. Negligence § 8 n. 5.5 (1969), citing 175 A.L.R. 17 .
Tenants Council v. DeFranceaux, 305 F.Supp. 560 (D.C.D.C.1969) is not to the contrary. It dealt with an exculpatory clause for swimming pool facilities which had been represented by the landlord to be available to prospective tenants without additional charge. Under such circumstances the District Court found the requirement that tenants agree to the exculpatory clause in order to gain the use of the pool facilities to be contrary to public policy and without consideration.
. See 38 Am.Jur. Negligence §§ 70, 71, pp. 726-729 (1941), and 2 Restatement of Torts 2d § 448 (1965) where the rule is stated as follows :
The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
I fail to see that the conduct of the ap-pellee created any temptation to third persons to commit criminal acts on the premises. What the panel talks about as risk in the building is nothing more than a reduction of the general risk that prevails in the community.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9456619. Public record. Not legal advice.