Summary
In Pamer, after an abduction of a child from the apartment complex parking lot, the landlords provided extra security officers and reassured tenants that the building was safe.
Summary of this case from Meier v. Vistula Heritage VillageOpinion
No. 89-CV-0668.
Decided September 6, 1990.
Gary A. Rosenhoffer and R. Scott Croswell III, for plaintiffs.
James M. Moore, for defendant.
This matter comes before the court on defendant's motion for summary judgment, with oral argument being heard on August 17, 1990, at which time the matter was taken under advisement. Upon consideration of oral argument as well as the memoranda, depositions, and other evidence submitted by the parties, the court hereby renders the following decision.
This action arose as the result of the plaintiff, Mindy Pamer, being physically and sexually assaulted by an intruder who entered her apartment through her bedroom window on May 18, 1989. Pamer was leasing said apartment located in Milford Commons from defendant Pritchard Brothers under an oral month-to-month tenancy at the time that this assault occurred. Four causes of action are asserted against defendant as follows: (1) infliction of extreme emotional distress upon plaintiff Philip Pamer, who was present in the apartment when his mother was attacked; (2) common law negligence; (3) negligence per se (for alleged violation of R.C. 5321.04); and (4) fraud.
As a basis for her claim sounding in common law negligence, plaintiff opines that defendant undertook to provide full-time security for the common areas of the apartment complex as well as for the benefit of the individual tenants, and that defendant was negligent in failing to maintain this specific security measure. Plaintiff states that the defendant was on notice of criminal activity within the area due to the fact that a child had been abducted from the parking lot of Milford Commons around September 1988, and that the "prior similar incidents rule" should be applied.
Defendant contends that it simply had no duty to the plaintiff since the assault complained of did not occur in a common area of Milford Commons and plaintiff's oral lease contained no provisions regarding security.
As a general rule, landlords have no duty to protect their tenants from the criminal acts of third persons, Thomas v. Hart Realty, Inc. (1984), 17 Ohio App.3d 83, 17 OBR 145, 477 N.E.2d 668; however, landlords have a duty to take reasonable precautions to provide security in the common areas, Carmichael v. Colonial Square Apts. (1987), 38 Ohio App.3d 131, 528 N.E.2d 585; Sciascia v. Riverpark Apts. (1981), 3 Ohio App.3d 164, 3 OBR 188, 444 N.E.2d 40. A landlord may obligate himself, by means of contractual provisions, to provide security for his tenants. Blair v. Property Mgmt. Consultants (1987), 40 Ohio App.3d 103, 531 N.E.2d 752. Akin to this general principle is the Restatement of the Law 2d, Torts (1965) 135, Section 323, which provides as follows:
"Negligent Performance of Undertaking to Render Services
"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
"(a) his failure to exercise such care increases the risk of such harm, or
"(b) the harm is suffered because of the other's reliance upon the undertaking."
This general principle has been cited with approval in Ohio. Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166, 172, 51 O.O.2d 232, 235, 258 N.E.2d 597, 602. Although this rule of law goes beyond the current Ohio case law on landlord liability by allowing detrimental reliance to serve as a substitute for consideration, the court finds no reason why Section 323 is not applicable to the case sub judice, noting that other jurisdictions have applied Section 323 in similar situations. See, e.g., Lay v. Dworman (Okla. 1987), 732 P.2d 455, 459; Feld v. Merriam (Pa. 1984), 506 Pa. 383, 392-394, 485 A.2d 742, 746-747; and Jardel Co., Inc. v. Hughes (Del. 1987), 523 A.2d 518, 524.
The abduction of a child from Milford Commons' parking lot, as well as the heavy flow of traffic in the immediate vicinity of the complex, and numerous people congregating in its parking lot and other common areas, frequently culminating in fights or acts of vandalism, are facts from which a duty on the part of defendant can be reasonably inferred, since under this set of facts, defendant may very well have found it necessary to provide security in order to protect its tenants. Further, one could infer that it was reasonably foreseeable for criminal acts to occur upon the premises again, thus satisfying the element of proximate cause.
Plaintiff has presented facts from which it can be inferred that she detrimentally relied upon defendant once she was informed that security officers had been employed for Milford Commons; if not that, there existed an implied contract under which defendant was to provide security. After plaintiff learned of the child's abduction, she made inquiries into what measures management was taking in order to prevent this sort of event from reoccurring, and was reassured by the manager that security was present upon the grounds of Milford Commons. A newsletter distributed to the tenants also stated that security was present seven nights a week. Plaintiff's reliance upon these statements was justified in that she personally observed security officers patrolling the common areas on occasion. Plaintiff could have terminated her lease with defendant and returned home to live with her parents had she not been satisfied that adequate security was being provided, but instead, chose to remain a tenant at Milford Commons.
The question remains whether a reasonable inference may be drawn that the intruder gained entrance into plaintiff's apartment as a result of her landlord's failure to provide adequate security. This case differs from other cases in which courts have found the causal connection to be lacking, e.g., Hendricks v. Kempler (1989), 156 A.D.2d 425, 548 N.Y.S.2d 544, because in this case it is known that the intruder gained entrance through plaintiff's bedroom window. If a security officer had been patrolling Milford Commons on the night that plaintiff was attacked, such an officer may have prevented the intruder from ever gaining access, for the mere sight of a man climbing into an apartment through a tenant's window would alert a security officer to possible unlawful activity. From the aforementioned circumstances, reasonable minds could differ as to whether defendant was negligent once it undertook to provide security; thus, the defendant is not entitled to summary judgment on the common law negligence claim.
In regards to the negligence per se claim asserted by plaintiff under R.C. 5321.04, defendant asserts that the legislature did not intend to make landlords liable for the criminal acts of third persons when it enacted this section, but instead, sought to protect tenants from the structural defects within the demised premises. Current case law supports defendant's argument, and thus, its motion for summary judgment as to the negligence per se claim is well taken. Carmichael v. Colonial Square Apts., supra, 38 Ohio App.3d at 132-133, 528 N.E.2d at 587; Barber v. Mid-Towne Assoc. (1990), 62 Ohio App.3d 384, 575 N.E.2d 879.
Finally, in regard to plaintiff's cause of action based upon fraud, plaintiff must show there was a representation material to a transaction at hand which was made falsely, with knowledge of its falsity or with such utter disregard and recklessness as to whether it was true or false that knowledge may be inferred, made with the intent to mislead another into relying upon it, resulting in justifiable reliance and an injury proximately caused by such reliance. Friedland v. Lipman (1980), 68 Ohio App.2d 255, 22 O.O.3d 422, 429 N.E.2d 456, paragraph one of the syllabus. If after construing the evidence most favorably to plaintiff, reasonable minds could come to but one conclusion, i.e., that there exists no genuine issue as to at least one of the material factual elements of common law fraud, defendant here is entitled to summary judgment as a matter of law. Id. at paragraph two of the syllabus. Plaintiff here has presented no facts from which an intent to mislead can be inferred. Finding such evidence to be lacking as to this element of fraud, the court hereby holds that defendant is entitled to summary judgment in its favor upon the fraud claim.
In light of the foregoing, defendant's motion for summary judgment is granted insofar as it relates to claims of negligence per se and fraud, but is hereby denied as to plaintiff's cause of action sounding in common law negligence.
Reporter's Note: Subsequently, a jury verdict was rendered in plaintiff's favor and no appeal was taken from that verdict.
Judgment accordingly.