Aaron v. Havens

ROBERTSON, Judge,

dissenting.

The Court’s opinion benignly repeats the long-accepted principle that “[t]he owner of an apartment building has a recognized duty to use due care to make common premises safe, as against foreseeable risks.” (At 447). From this innocent beginning, the Court takes us down a legal road our courts have not traveled before. Because I believe the Court errs in so doing, I respectfully dissent.

Three rationales exist which might support the imposition of the duty of landlords. First, the landlord owes a duty to maintain common areas in a reasonably safe condition. Second, courts may imply “an obligation on the landlord to provide those protective measures which are within his reasonable capacity” in the lease. Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 485 (D.C.Cir.1970). Third, one could argue that a special relationship exists between landlord and tenant comparable to that which exists between an innkeeper and his guest which justifies the imposition of the duty on the landlord to protect tenants from foreseeable criminal acts. In my view, none of these rationales justify the decision of this Court in the case at bar.

The Court’s reasoning in this case appears consistent with the first rationale. In Missouri, a landlord has a duty to correct known dangerous conditions in common areas. See Jackson v. Ray Kruse Construction Co., Inc., 708 S.W.2d 664 (Mo. banc 1986) (landlord has duty to control speed on parking lots when there is a problem with speeding vehicles); Fitzpatrick v. Ford, 372 S.W.2d 844 (Mo.1963) (landlord was liable when child was injured by collapse of roof of porch); Peterson v. Bruñe, 273 S.W.2d 278 (Mo.1954) (porch railing was responsibility of landlord where all tenants of necessity must use area in common); Woods v. Gould, 515 S.W.2d 592 *450 (Mo.App.1968) (railing on porch used by several tenants should have been made safe for small children by landlord); Barker v. East Side Building Corporation, 344 S.W.2d 299 (Mo.App.1960) (merry-go-round used by children posed a danger such that landlord was responsible); and Hieken v. Eichhorn, 159 S.W.2d 715 (Mo.App.1942) (landlord was liable for injuries to child struck by truck in area set aside as playground for children of tenants).

Even if one assumes, however, that the fire escape is a common area, it does not follow that the traditional duty to maintain common areas provides a convincing basis for the Court’s decision. The dangerous condition pled by appellant in this case, relied on by the Court, and of which the Court finds “the landlord knew or should have known”, is “the dangerous condition of the fire escape.” (At 447). Yet no party argues that the fire escape is dangerous itself; no averment is made that it is missing steps, or unduly slippery, or dangerous in its own right in any way. Nor is there any averment that the crime in question took place in the common area, as was the case in Kline . The “dangerous condition” of the fire escape is no more than it permits access to an entrance to this apartment. 1

This conclusion is one which our courts have not heretofore reached. And this is the new path down which the Court sends us today: a landlord faces potential liability to his tenants whenever an apartment building’s common areas — be they fire escapes, entry hallways, or the area surrounding the building — which are not dangerous in themselves provide access to points of entry to the tenant’s leasehold for one whose mission is crime.

Implication of “an obligation on the landlord to provide those protective measures which are within his reasonable capacity”, Kline, 439 F.2d at 485 , in the lease contract, provides no support for the Court’s conclusions either. In Kline , a tenant .in defendant’s apartment building, was robbed and assaulted in a common area of the building. The building entrances had been left unlocked, although when Kline first moved into the building more than six years prior to the crime, security had been stringent.

“Reasonable capacity”, though not a very precise term, seems to me to be a function of contractual obligation and legal expectation for these purposes. As to the latter, the legal expectation is that a landlord maintains common areas. It is, therefore, within the reasonable capacity of the landlord to take protective means within common areas to prevent foreseeable incidents of crime.

Our cases properly recognize a corollary to the landlord’s duty to correct dangerous conditions in common areas: the tenant bears responsibility for conditions in those parts of the leasehold under the tenant’s control. See Gray v. Pearline, 328 Mo. 1192 , 43 S.W.2d 802 (1932) (porch railing causing injury was entirely on tenant’s premises); Janis v. Jost, 412 S.W.2d 498 (Mo.1967) (no duty on part of landlord to repair or maintain flue in apartment); Pate v. Reeves, 719 S.W.2d 956 (Mo.App.1986) (porch and rail not part of common area when accessible only through tenant’s apartment); Thomas v. Barnes, 634 S.W.2d 554 (Mo.App.1982) (landlord has no duty to maintain fluorescent light fixture in rented premises); Erhardt v. Lowe, 596 S.W.2d 489 (Mo.App.1980) (landlord did not retain control over steps of single family dwelling). These cases accept the sound proposition that the party in the best position to *451 prevent the harm, bears the duty under negligence concepts.

It is not within the landlord’s reasonable capacity to make repairs within the privacy of the leasehold absent a contractual obligation to do so. Appellant, however, offers no averment in her petition that the landlord bears any responsibility for repairs to the leasehold under the terms of the lease or otherwise. Absent averments of an affirmative contractual obligation in the landlord to effect repairs, implying a “reasonable capacity” in the lease offers no support for appellant’s position.

In the third instance, I perceive no basis for finding that the landlord-tenant relationship is a special one justifying the imposition of a duty on a landlord similar to that borne by an innkeeper. Special relationships have long been recognized, e.g., between an innkeeper and his guest, 2 a common carrier and his passenger, 3 and a business and its invitee. 4 The heightened duty in each of these relationships is warranted because of the greater ability of one party to apprehend danger and to take steps to alleviate it. In most instances, the party bearing the duty has superior knowledge of the property based on a consistent experience with it unavailable to a guest, the passenger, or the invitee.

No such superior knowledge or ability to take steps to guard against danger exists in a landlord, vis-a-vis a tenant, in the landlord-tenant relationship. The tenant is in constant “communication” with the apartment. The tenant’s experience with the leasehold is at least as consistent as that of the landlord. For this reason, no special relationship exists which would justify imposing landlord liability.

I turn finally to the issue of foreseeability. In Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988) this Court found a duty of care in the proprietor of a business to protect invitees from the foreseeable criminal acts of third parties. The Court wrote that “[a] duty of care arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.” Id. at 62 . The Court’s decision in Madden — at least to the extent that it recognizes that a duty may exist in the proprietor under some circumstances — is supportable on the basis of the proprietor’s potential superior knowledge of dangers which an invitee might encounter and his superior ability to take precautions to avoid it. In my view, the business-invitee relationship is a special one which justifies the imposition of the duty under appropriate circumstances.

In this case, the landlord neither possesses superior knowledge of the danger nor a superior ability to avert it. The danger, which here became much more than danger, was clearly foreseeable to the tenant. She was also in the most efficient position to take steps to avoid the risk by securing her window, in the absence of the landlord’s affirmative contractual or legal duty to do so. The tenant bore the duty to protect herself from the foreseeable risk which existed. I do not believe she can now claim that the landlord bears that duty which she chose not to fulfill herself.

I can find no rationale which supports the imposition of liability on the landlord on the pleadings in this case. The trial court did not err in dismissing the plaintiff/appellant’s petition. I respectfully dissent.

. Section 320.010, RSMo 1986, requires owners of apartment buildings of three or more stories to provide a fire escape. The statute permits the owner to choose between a fire escape which reaches to the ground or one which is counterbalanced to permit access to the ground for those coming down the fire escape. It is a misdemeanor, punishable by up to three months in jail and a fine of up to $200, to fail to provide a fire escape where required by the statute. Section 310.050, RSMo 1986. Moreover, "[t]he failure of a [civil] defendant to comply with the provisions of Section 320.010 ... requiring the building in question to be equipped with a fire escape [is] negligence per se.” Gaines v. Property Servicing Co., 276 S.W.2d 169, 173 (Mo.1955). One wonders whether the Court amends the statute today by requiring not simply the fire escape mandated by the law, but a particular type of fire escape which is burglar proof.

. Virginia D. v. Madesco Investment Corp., 648 S.W.2d 881, 885 (Mo. banc 1983).

. Jessie v. Bi-State Development Agency, 710 S.W.2d 366 (Mo.App.1986).

.Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59 (Mo. banc 1988).