LETTER

July, 2003 Special Issue

In order to keep you abreast of recent developments in the law, Saunders & Schmieler's S&S Recent Developments in the Law reports on the significance of current decisions of major import in the jurisdictions of Maryland, the District of Columbia, Virginia, and the federal Fourth Circuit.

This material is being provided for your general information only, and is not a substitute for obtaining legal advice. The information provided is not provided as legal advice, or in the course of an attorney-client relationship. You should always consult an attorney for advice about the specific circumstances of your case.

Recent Developments
in the Law

Jeffrey R. Schmieler, Esquire
Saunders & Schmieler, P.C.
8737 Colesville Road
Suite L-200
Silver Spring, Maryland 20910
(301) 588-7717
(fax) (301) 588-5073
www.sslawfirm.com

© Saunders & Schmieler, P.C. 2004

HOLDING THAT COULD AFFECT HOW LANDLORD LIABILITY FOR HARM TO TENANTS CAUSED BY THIRD PARTIES IS DETERMINED

Maryland Court of Appeals
Hemmings v. Pelham Wood
2003 WL 21377594
June 16, 2003

Introduction

The Court of Appeals of Maryland recently remanded this case back to the Circuit Court for an appropriate analysis of the facts to determine whether the Landlord breached its duty in providing security devices in an apartment complex. It indicated that the issue may best be determined by a jury, and not through summary judgment proceedings. Both the majority and the dissent evaluated an earlier case from 1976 that dealt with landlord liability for harm resulting from third party criminal activity in an apartment building. The majority found that a landlord has a duty to repair a known dangerous or defective condition under its control to prevent a foreseeable third party attack upon a tenant within the leased premises. Furthermore, the court held that there was sufficient evidence in the particular case to make summary judgment inappropriate.

Facts

In 1997, the plaintiffs, Mr. and Mrs. Hemmings, entered into a lease with the Pelham Wood apartment complex, which provided in part: "That the [apartment]. . .will not contain conditions that constitute, or if not properly corrected would constitute, a fire hazard or a serious and substantial threat to the life, health or safety of occupants." The landlord at Pelham Wood had implemented several security devices as a deterrent to criminals seeking to enter the property. Among the devices were exterior lighting on the premises that, at one point, were continuously illuminated at night, as well as deadbolt locks and "Charlie bars" installed on sliding glass doors within each apartment. These devices, however, did not deter an intruder who entered the Hemmings' apartment in June of 1998.

In the early morning hours of June 13, 1998, an unidentified intruder entered the plaintiffs' apartment through the rear sliding glass door. Upon encountering Mr. Hemmings, the burglar shot him twice in the abdomen. Mr. Hemmings was pronounced dead from the gunshot wounds several hours later at the University of Maryland Shock Trauma Center.

In the ensuing investigation of the murder, a contractor hired by the landlord to repair the door noted that the sliding glass door of the Hemmings' apartment had been completely mangled. Additionally, several other tenants in the building recalled that the lighting in the rear of the apartments was non-existent, though the front of the premises was well-lit. Other tenants mentioned that the lighting issue in the rear of the building had not been resolved until "way after" the Hemmings incident.

The Court of Appeals also noted that the Police Department had filed crime reports for twenty nine burglaries or attempted burglaries and two armed robberies at Pelham Wood over the two-year period preceding the shooting. Furthermore, a call report list maintained by the Police Department listed crimes including kidnaping, rape, attempted rape, armed robbery, unarmed robbery, and numerous incidents of first or second-degree assaults. The report list also included crimes against property such as theft, burglary and breaking and entering. Another report even indicated that a burglary had occurred two years earlier in the very same apartment leased to the Hemmings. The landlord also maintained files of tenant complaints that included a similar list of the criminal activity at Pelham Wood.

Procedural History

On June 14, 1999, Ms. Hemmings filed wrongful death and survival claims against the landlord in the Circuit Court for Baltimore County. She alleged that the landlord failed to exercise reasonable care in taking sufficient precautions to prevent harm from occurring to the Hemmings and that the landlord negligently allowed dangerous conditions at the apartment to remain unaddressed. The landlord argued that because the murder took place within the apartment, rather than in a common area, they were not liable. The Court granted summary judgment for the defendant, holding that the landlord acted within its standard of care by providing locks on the door. Therefore, the landlord could not be held liable for any harm to the plaintiffs since the murder did not take place in a common area of the apartment complex.

Ms. Hemmings appealed to the Court of Special Appeals, which affirmed the summary judgment, holding that there was little evidence to show that the landlord's duty to maintain the common area was the proximate cause of the murder.

Court of Appeals Holding

In its analysis of standard negligence elements (duty, breach, causation and damages), the appellate court focused on duty and breach. With respect to duty, the court noted that when a landlord leases property, but parts control with a portion of it, the landlord may be held liable for a foreseeable injury caused by a known dangerous or defective condition located within the part of property over which he retained control. When a duty exists under those circumstances, the plaintiff must show that 1) the landlord controlled the dangerous or defective condition, 2) the landlord had knowledge or should have had knowledge of the injury causing condition and 3) the harm suffered was a foreseeable result of that condition.

With respect to the control element, the court noted that landlord liability will be sustained for injuries that occur in common areas within the landlord's control where it can be shown that the landlord knew or had reason to know that the danger existed. The distinction in Hemmings is that the injury occurred not in a common area, but in the tenant's apartment. Ms. Hemmings urged the court to adopt the ruling from an earlier Maryland case, Scott v. Watson 278 Md. 160, 359 A.2d 548 (1976) to the case at hand, because in Scott it was ruled that "a landlord may be liable when a tenant suffers a foreseeable injury in th leased premises caused by a landlord's failure to use reasonable care for the tenant's safety in the common areas." The court found Ms. Hemmings' argument persuasive and stated, "that the duty to use reasonable care for the tenant's safety within the common areas also may apply to injuries suffered from criminal acts within the leased premises." The court held that if a landlord knows or should have known of criminal activity in common areas, then he has a duty to take reasonable measures to eliminate the conditions contributing to the criminal activity. In this case, the court held only that a jury could find on the facts, that the lack of lighting in the rear of the buildings was a contributing factor to criminal activity in the common areas. Thus, a jury may reason that the landlord had some degree of control over a portion of the property that, left as it defectively was, contributed to the crime. In addition, the jury would need to find that the landlord had knowledge that criminal activity on the premises had created a dangerous condition to create a duty, and that the landlord failed to take reasonable steps to eliminate or correct the condition contributing to the activity.

Besides control and knowledge of a dangerous or defective condition on the landlord's premises, Maryland courts have found foreseeability of harm to be an important element in establishing a landlord's duty. To establish foreseeability, the plaintiff must present facts showing that a person of ordinary intelligence, who is equipped with the knowledge of the dangerous condition, should realize the danger posed by that condition. The test for foreseeability "encompasses what a person of ordinary prudence should realize, not what he or she actually did know or realize." Stated differently, a particular harm is foreseeable if a person of ordinary prudence should realize that the condition of which he or she has notice, enhances the likelihood that the harm will occur.

The court held that applying the element of foreseeability requires examining the harm caused by the criminal act against the tenant. A landlord's duty under Scott, obligates the landlord to take reasonable security measures to eliminate harm that is foreseeable, based on the nature of the known criminal activity on the premises. On the other hand, if the harm is not the sort of harm that a landlord of ordinary intelligence would associate with that criminal activity, the duty does not attach.

Again, the Court of Appeals in the instant case believed that a jury could conclude that the extensive record of prior criminal acts at Pelham Woods constituted sufficient warning to the landlord that harm could eventually come to one of the tenants on the property, regardless of the fact that the injury occurred in the leased premises. Furthermore, a jury could find the landlord's failure to maintain sufficient lighting in the rear of the buildings, while aware of the potential criminal activity, was a proximate cause of Mr. Hemmings's death. Thus, the Court of Appeals found the lower courts' use of summary judgment inappropriate because a jury could find on the facts of the case that the duty to use reasonable care for the tenant's safety within the common areas was breached and that the duty may be applied to actions within the leased premises.

The court went on to say that even after a landlord takes reasonable security measures to eliminate conditions that contribute to criminal activity on the premises, the landlord still has a continuing obligation to properly carry out the measures that they provide. Hence, even though the landlord added lighting to the common area premises as a security measure, they had a duty to maintain the lights and assure that they were operating adequately even after they were installed. The facts could indicate failure to assure that the common areas were lit properly as a deterrent for criminal activity and that it constituted a breach of the duty owed to the tenants. Therefore, the court held that the case should be remanded to the Circuit Court to analyze the facts more closely and decide whether the issue of landlord liable should go to a jury.

Dissent

The dissenting opinion by Judge Raker, joined by Judge Cathell and Judge Harrell, emphasized a different interpretation of the Scott decision. The dissenting judges believe that it was too much of a stretch to possibly impose liability on a landlord for failing to keep a common area illuminated. While they do not dispute that a landlord's duty to protect a tenant from third party criminal acts arises when there is a reasonably foreseeable risk of harm, they do not believe that the instant case created such a risk since the general rule in Maryland is that there is no duty to protect another person from a crime. The dissenters write that providing illumination in a common area is commonplace and that such an act should not be construed as assuming a duty to protect a tenant against criminal acts of another.

Conclusion

While both the majority opinion and dissenting opinion cite the Scott case in their decision, the majority indicated that Scott can be taken to extend landlord liability for third party criminal acts within leased premises if the acts are the result of a failure to keep up security devices in the common area. More importantly, the decision seems to indicate that it is more appropriate for juries to decide cases of this nature, rather than to have courts dismiss them on summary judgment.