# Graham v. M & J CORP.

> District of Columbia Court of Appeals · November 24, 1980 · 424 A.2d 103

URL: https://www.frixlaw.com/law-library/cases/9649231

## Case

- **Full name:** Gloria GRAHAM Et Al., Appellants, v. M & J CORPORATION Et Al., Appellees
- **Court:** District of Columbia Court of Appeals
- **Decided:** November 24, 1980
- **Citations:** 424 A.2d 103; 1980 D.C. App. LEXIS 409
- **Precedential status:** Published
- **Opinion:** Dissent by Nebeker
- **Judges:** Gallagher, Nebeker, Mack
- **Cited by:** 28 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/9649231

## How later opinions describe it (automated extraction)

- holding that “minor acts of trespass and vandalism,” “neighborhood ... high in criminal activity,” frequent past complaints about a faulty outer door lock, and a previous attempted robbery created a “triable issue of fact as to whether the danger of a criminal assault by means…
- noting that a “jury could conclude that [the arsonist] was no longer a guest, and that the tenants had as much legitimate expectation to keep him off the premises as they would any other intruder”
- recognizing duty of reasonable care owed by landlord to tenants with respect to a building's common areas
- recognizing foreseeability as the “key element in establishing the landlord’s duty”

## Opinion text

NEBEKER, Associate Judge,
dissenting:
The majority’s decision intrudes upon the authority of the trial judge to make decisions of law. Restatement (Second) of Torts § 328B(b) (1965). The exceptional case in negligence law of assigning liability for the criminal acts of third persons should not be permitted to alter the traditional view that assignment of duty is first a question of law. Harper & James, The Law of Torts § 18.8 at 1058 (1956). This warning is particularly strong where negligence law is expanding in response to changing social conditions. See W. Prosser, The Law of Torts § 53 at 326-27 (4th ed. 1971). Whether the law should safeguard these appellants from the alleged omissions of the landlord requires consideration of several factors better left to the discretion and judgment of the court than to an often bewildered jury. See, e. g., Clarke v. O’Connor, 140 U.S.App.D.C. 300 , 435 F.2d 104 (1970) (the court examined the “landlord no repair” rule and held that it no longer has vitality in the modern urban context). In examining the relevant factors, this court ought to provide clear guidance for the trial courts by either affirming the judgment or more specifically articulating the duty owed. I would affirm.
A recitation of the facts in this case mocks the possibility that the landlord may be assigned a duty to protect the tenants from the injuries they received from the fire. Although there was evidence that the apartment is located in a high crime area of the city, there was no evidence of reported crimes occurring in or around the apartment dwelling. Tony Totten, the arsonist, was a friend of the appellant Priscilla Harris for six years and had been living with her in the apartment on the second floor. There is no evidence that the landlord was aware of this relationship. Tony Totten was not named on the lease. During the days before the fire, Totten and Harris carried on a protracted lovers’ quarrel which was often violent and which presumably ended when Harris obtained the aid of the police to evict Totten the day before the fire. There is no evidence that the landlord had knowledge of this breach of their relationship, and there is certainly no reason to believe that the landlord knew anything of Totten’s personal character. On the night of the fire, Harris, having spoken with Tot-ten by phone that day and fearing his return, instructed a companion who was with her that night, Charlie Boomer, to help her look out for Totten’s car. Later, while Boomer slept in the bedroom, Harris was also wary of “sounds” in the night and in the apartment below. Totten, after having done some drinking, poured a flammable liquid in the first floor hallway and torched the building.
Appellants’ theory in this case is similar to that of the appellant in Kline v. 1500 Massachusetts Avenue Apartment Corp., 141 U.S.App.D.C. 370 , 439 F.2d 477 (1970). In that decision, the Circuit Court of Appeals imposed on landlords the duty to protect tenants from the predictable assaults of third parties in the common areas of *109 multi-unit apartment buildings. The court ruled that traditional arguments against imposing this duty had lost their vitality in light of “pertinent factors” bearing on the landlord-tenant relationship in modern, urban life. Kline, supra at 481 . Among these pertinent factors were the superior ability of the landlord to protect against such harm, the appropriateness of imposing such a duty on the landlord based on his knowledge of similar crimes in the common areas, the relation of the parties, the size of the building, and the ability of the parties to shoulder the burden of protection. Although “foreseeability” 1 of the criminal assault was the major factor in the analysis, it was not the only factor.
Permitting the transfer of such a complex decision to a jury would set the law on the wings of chance. Landlords would face unpredictable, potential liability. Furthermore, the court warned that notice to the landlord was a key element because “[i]t would be folly to impose liability for mere possibilities.” Kline, supra at 483 . The determination of adequate notice, with its attendant concerns for other policy factors, must be left to the court.
Similar decisions of this court have also emphasized that the landlord’s awareness of criminal activities puts him on notice to protect his tenants. Spar v. Obwoya, D.C. App., 369 A.2d 173 (1977); Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969). In Ramsay we said that the landlord’s duty arose and the case should go to the jury “where it can be shown that the landlord was aware of a dangerous situation and took no action.” Ramsay, supra at 512 . In Spar we held that evidence of burglaries from the common hallways and of the presence of trespassers there was sufficient to put the landlord on notice of the likelihood of entry by potential criminals. Spar, supra at 177 . Neither case compels the action which the majority takes today in this case. The procedural distinction here has a substantive, legal effect. Ramsay , like this case, was a review of summary judgment entered by the trial court. But the authority of that case for the procedural action which this court takes here is ambiguous because one of the errors cited in Ramsay was that the trial court granted summary judgment before ruling on a motion to compel the tenant to answer at deposition. Spar, supra at 177 . The case does not stand for the proposition that foreseeability of criminal conduct is a jury question.
Similarly, Spar is not an appropriate guide because this court merely confirmed that the trial judge was correct in giving the case to the jury. The only discussion of foreseeability in that case goes to appellant’s contention that the failure to maintain the front door lock was not the proximate cause of the injuries. In that context, this court adopted the Restatement (Second) of Torts § 448 (1965). Spar, supra at 178 . It is difficult for me to see how these two cases and their respective procedural dispositions require a jury consideration of foreseeability in order to determine the extent of the landlord’s duty. See discussion of proximate cause, infra, 112-113.
Of greater concern to me is the degree with which the facts of this case differ from those of Spar and Ramsay . This is simply not the same case. To hold a landlord liable for the injuries caused by an arsonist who lived with a tenant and was driven from the premises by her goes too far. Recitation of the dictum of Kendall v. Gore, 98 U.S.App.D.C. 378, 387 , 236 F.2d 673 , 682 (1956), that the landlord “need not have foreseen the precise injury, nor . .. had notice of the particular method ... if the possibility of harm was clear to the ordinary prudent eye” does not convert a question of duty into a question of fact for the jury. This prescription does not bring the crime of arson within the rule of these prior “like” cases which have decided that the landlord must have had notice of prior “like” crimes before imposing liability.
Rather, the facts of this case raise serious questions about whether liability for malicious arson would be objectionable as a *110 matter of public policy. Courts of other jurisdictions have been unwilling (wisely, I submit) to pass this responsibility to the jury under the label, “issue of fact.” The Supreme Court of New Jersey in Goldberg v. Housing Authority of Newark, 38 N.J. 578 , 186 A.2d 291, 293 (1962), pointed out that in the function of assigning a duty, “[t]he inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” This sort of analysis would be precluded under the majority’s approach. This court, in principal, agrees with the highest court of New Jersey. In Ellis v. Safeway Stores, D.C.App., 410 A.2d 1381, 1382 (1979), this court affirmed the trial judge’s grant of summary judgment for the store owner where the appellant claimed that the store breached a duty when it failed to prevent a depraved customer from assaulting her with an ice pick. In discussing whether a duty existed, we noted that grocers, like landlords, are not the insurers of the safety of those on their premises and the “liability ... for injuries to invitees resulting from the acts of third parties is limited by the tests of reasonableness and foreseeability.” I emphasize that the court there did not remand the case for a jury determination of whether the attack was foreseeable and thereby established a duty.
An Illinois court has also recognized the importance of public policy considerations in the question of landlord liability. “In determining whether a duty exists, the likelihood of injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant must be taken into account. Imposition of duty does not depend on foreseeability alone.” Trice v. Chicago Housing Authority, 14 Ill.App.3d 97, 100 , 302 N.E.2d 207, 209 (1973) (emphasis added; footnotes omitted). Accord, Ellis, supra at 1382 . This type of analysis is for the court, and where the pleadings and discovery evidence do not lay the proper foundation to permit the court to impose a duty on the defendant, the trial judge is obligated to render summary judgment.
This court must examine relevant factors to determine whether a duty exists in this case. In addition to those factors suggested by Kline, other courts have weighed (1) the economic burden which liability would impose on the defendant, (2) the extent to which the risk is a normal one, relative to the defendant’s activities, (3) the relative capacity of the parties to bear the loss, (4) the public interest, and (5) administrative convenience. 2 In the public interest it might be well to note first that the continued tightening of economic pressures on landlords to the “benefit" of tenants is highly damaging to both. One need only ponder a moment the consequences of all the recent developments in the law respecting rental of living quarters to see that it is becoming uneconomical to invest or retain capital in rental housing. This decision, with its potential for unfettered jury decision, will surely serve to cause further imbalance in the rental housing market.
A second factor is that the origin of the landlord’s duty to maintain safe premises is his ability to exercise greater control over the common areas of the dwelling due to his superior position. Kline, supra at 480-81 . Under the facts of this case, the landlord does not possess this superiority relative to the harm against which appellants claim he must defend. The evidence indicates Tony Totten was well known to the members of the two families living in the building. There is no evidence that the landlord knew Totten was on the premises or that he had been evicted by Harris the day before the fire. In a two-family dwelling, the tenants’ control over their own safety increases because of their special awareness of circumstances against which they ought to guard; commensurately, the landlord’s obligation *111 decreases, particularly where the evidence indicates that he has no knowledge nor ought to have knowledge of these dangers. See Kline, supra at 485 n.21. The fact that Harris sought police assistance to evict Tot-ten indicates her assumption of some responsibility in the matter.
A third factor for the court to consider is the legal relation between the landlord and the tenant. Kline, supra at 481-82 . There was no special lease agreement imposing an obligation on the landlord to provide the security measures of which appellant complains or to provide security that would repel arsonists. Nor was there a decrease in the security that was in effect when the tenants undertook their lease. Although the Housing Regulations are implied in every lease, Javins v. First National Realty, 138 U.S.App.D.C. 369 , 379, 428 F.2d 1071 , 1082, cert. denied, 400 U.S. 925 , 91 S.Ct. 186 , 27 L.Ed.2d 185 (1970), the absence of a lock on the outside door is not a violation. See D.C. Housing Regulations §§ 3203, 1102 (1979).
A fourth arguable factor is whether the landlord was aware of the risk or whether he ought to be aware of the risk. Kendall, supra at 680 . Particular crimes as in Kline, Spar and Ramsay , or particular circumstances as in Kendall put the landlord on notice. Here, there is not even sufficient evidence of criminal conduct in the common areas to fulfill the notice requirements of Spar and Ramsay . In Kline there were twenty reported crimes in one year and twenty-five complaints of assault. In this case there are none. Furthermore, in DeFoe v. W. & J. Sloane, D.C.Mun.App., 99 A.2d 639 (1953), the predecessor of this court held that the landlord was not liable for damages by an unknown arsonist to tenant’s property where the only evidence of circumstances likely to put landlord on notice of his duty to protect was a high incidence of crime in the area. See also St. Paul Fire & Marine Insurance Co. v. Davis Construction Co., D.C.App., 350 A.2d 751 (1976). I do not believe that Ramsay, Kline and Spar have changed this law; they all require a minimum degree of awareness on the landlord’s part before the duty arises. See, e. g, Gulf Reston Inc. v. Rogers, 215 Va. 155 , 207 S.E.2d 841 (1974). Furthermore, in another arson case in this court, we held that no duty arises to protect against an incendiary because an act of arson is unforeseeable as a matter of law. Union Storage Co. v. McIntyre, D.C.App., 256 A.2d 787 (1969). I believe these cases are disposi-tive of the issue here.
It is not yet the law in the District of Columbia that in a high crime area, absent evidence of prior crimes or criminal activity, there is an automatic duty to defend persons on the premises from criminal attack. Cook v. Safeway Stores, D.C.App., 354 A.2d 507, 509-10 (1976); Ellis, supra at 1382 . But cf. Johnston v. Harris, 387 Mich. 569 , 198 N.W.2d 409 (1972). It is appropriate for the court to consider whether the burden is reasonable when determining the issue of duty; that issue is not for the jury. In Cook , former Chief Judge Reilly affirmed a directed verdict for the owner of a grocery store against a customer who was injured by a fleeing purse snatcher. In holding that the common law does not impose an obligation upon private enterprise to protect patrons from the “all too familiar” incidents of crime, the court cited several other jurisdictions which also refuse to extend this liability merely because of existing high crime rates. Cook, supra. In this case the judge must decide whether there is enough evidence of particular previous crimes in order fairly to require the landlord to answer for injuries to these appellants because the circumstance of high crime in the area is not sufficient to put him on notice. If liability is extended here, must the landlord also defend against injury from kidnapping, extortion, riot, and bombing if the miscreant enters through the front door of the building? Mere allegations of this type are not sufficient to put the case to the jury on the issue of foreseeability. Absence of a front door lock alone is not negligence. Ramsay, supra at 512 . A landlord need not defend against sudden and unexpected attacks by nonemployees, Kline, supra at 481 ; need not defend against attacks by tenants, Trice, supra; *112 and need not investigate the background of his tenants or those with whom they associate. To impose these duties would expose the landlord to the impossible task of determining what actions are effective to protect against these risks. If the landlord had known about Totten’s outbursts, what reasonable action might he have taken? Would he have called the police as Miss Harris did?
The Supreme Court in Lillie v. Thompson, 332 U.S. 459 , 68 S.Ct. 140 , 92 L.Ed. 73 (1947), demonstrated the proper procedure in this matter. In reversing the circuit court’s affirmance of summary judgment for the employer of a woman who was assaulted while working in a train yard, the Court determined that there was a duty because of the ability of the employer to foresee the assault. 3 I must emphasize once again that the Court did not remand the case for a jury determination of foreseeability.
Another rationale of the majority for submitting the case to the jury is that the issue of proximate cause is a jury question. In general, that is correct and the cases cited support that proposition. But none of those cases is similar, to this one. This case, and any alleged duty, do not involve the issue of intervening cause. The confusion arises because in many cases the courts will speak alternatively in terms either of duty or proximate cause to circumscribe the liability of the defendant. Munson v. Otis, D.C.App., 396 A.2d 994 (1979); Mozer v. Semenza, 177 So.2d 880, 883 (Dist.Ct.App.Fla.1965). In certain circumstances the question of proximate cause is just as much a policy question as that of duty. Prosser, supra, § 44 at 289 (4th ed.). See Scott v. Watson, 278 Md. 160, 170 , 359 A.2d 548, 555 (1976), and cases cited there. The reason for this is stated by the majority; that is, the issue of proximate cause is subsumed by that of duty where liability is imposed for the criminal conduct of another. This proposition, however, is not reason to give the question to the jury; on the contrary, the question should be decided by the court because “[t]he question is essentially one of the defendant’s original obligation, and far removed from causation.... It must be remembered that the mere fact that misconduct on the part of another might be foreseen is not of itself sufficient to place the responsibility upon the defendant.” Prosser, supra at 274 (4th ed.). See also id. at 283. The,criminal assault is not an intervening force because that is exactly the risk which the defendant was charged to guard against. Articulating the issue as one of causation for submission to the jury only leads to confusion. See id. at 288; Harper & James, supra § 20.5 at 1142-46; Gaither v. Myers, 131 U.S.App.D.C. 216 , 404 F.2d 216 (1968). Some courts, in fact, have taken the entire issue from the hands of the jury, recognizing that proximate cause is basically a matter of policy. Pfeiffer v. Standard Gateway Theater Inc., 262 Wis. 229 , 55 N.W.2d 29 (1952); R. Campbell, Law of Negligence in Wisconsin, 1955 Wis.L.Rev. 5, 31-41. The Restatement (Second) of Torts § 448, adopted by this court in Spar , reflects this viewpoint; where the actor realizes that fairly definite types of crime are likely, such criminal conduct is not an intervening cause because it is part of the duty to be guarded against. Proximate cause is merely another policy factor used by the courts to limit liability.
Summary judgment in negligence cases is rare. 6 Moore’s Federal Practice § 56.-15[.1-0] (1980); see also Turek v. Yellow Cab, D.C.Mun.App., 131 A.2d 923 (1957). But where there is no foundation for a reasonable inference of negligence and appellant is entitled to judgment as a matter of law, summary judgment should be granted. Lillie v. Thompson, 332 U.S. 459 , 68 S.Ct. 140 , 92 L.Ed. 73 ; Ellis, supra; Cook, supra; St. Paul Fire & Marine Insurance Co., supra; Graham v. Safeway Stores Inc., D.C.App., 316 A.2d 852 (1974); Blumenthal *113 v. Cario Hotel Corp., D.C.App., 256 A.2d 400 (1969); DeFore, supra; Alebrande v. New York City Housing Authority, 49 Misc.2d 880 , 268 N.Y.S.2d 579 (Sup.Ct.App.Term 1966). In this case I would hold that there is no duty as a matter of law and no jury could reasonably infer that defendant was negligent. If the question goes to the jury, landlords may be forced to guard the public safety, and the often quoted expression, “the landlord is not an insurer of his tenants’ safety,” will be mere pabulum.
. The court in Kline uses the language “actual and constructive notice.”
. Note, Landowner Owes Invitee No Duty to Provide Police Protection Against Criminal Attack, 63 Colum.L.Rev. 766, 768 (1963). See also W. Prosser, The Law of Torts § 31 at 152 (3d ed. 1964); Restatement (Second) of Torts §§ 291-93 (1965); Note, Landlord’s Duty to Protect Tenants From Criminal Acts of Third Parties: The View From 1500 Massachusetts Avenue, 59 Geo.L.J. 1153 (1971).
. There was ample evidence that the employer knew of the presence of thieves, tramps, ho-boes, and trespassers. In addition, he admitted that a woman was liable to get killed. Lillie v. Thompson, 173 F.2d 481, 482 (6th Cir. 1949) (appeal from judgment n.o.v. for defendant after remand from the United States Supreme Court).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9649231. Public record. Not legal advice.