Landlords Share Responsibility for Tenant Safety in Dangerous Neighborhoods

If you think it might be dangerous walking around Mountain View these days, what do you think the landlords are asking themselves about liability to their tenants? It’s called “premises liability law,” the idea that an owner of real estate has some responsibility to protect patrons or people who live there.

“Failure to warn” is one theme of these cases. Somebody gets hurt and sues. The theory may be that they had a right to know of the hazard that was lurking. Some cases are more obvious than others. The landlord who doesn’t fix a rotting stair or balcony, for instance, is just asking for it.

What if a perpetrator breaks into an apartment building and rapes a tenant, however? Assuming this was just a random act, a court isn’t likely to say the landlord had a duty to issue a warning about something that has never happened before. What a court might be interested in, though, is the condition of the locks and the overall security of the building. Deficiencies can easily lead to a finding of liability.

Virtually all the case law on premises liability has to do with hazards on the owner’s property. Now along comes New Jersey with an opinion that a landlord can be held liable for failing to warn tenants they might be mugged off the premises. The case has no direct application in Alaska. The New Jersey court said it was extending well-established principles of premises liability law, however. Consider the facts of that case in light of a Mountain View landlord and ask whether Alaska’s courts, always quick to look out for the consumer, might not make the same finding, given the right case.

The mugging occurred next to the apartment building on a lot the local school system owned. As reported in Lawyer’s Weekly (95 LWUSA 754) the landlord knew crimes had been committed there. The landlord asked the mayor and board of education to give him the lot. They didn’t, so the landlord fenced off the lot with an open gateway. This enabled the tenants to walk across the lot to the shopping center on the other side. It didn’t help the landlord to tell the judge that his property manager was also a rental agent for the shopping center.

The gateless fence was an invitation to the tenants to get into trouble. The landlord issued no warnings to the tenants that they might be at risk walking through there. Sure enough one of them got stabbed. With the case on appeal, the landlord is looking at a damage award of $175,000 for being found half at fault. The other half was charged to the city, as owner of the lot, 30 percent, and the tenant, 20 percent, doubtless as contributory negligence.

According to Lawyer’s Weekly, “courts in California and Florida have held businesses liable for failure to warn where crimes occurred on parking lots near their property and they knew their customers routinely used these lots. Also, the Fifth Circuit has held a hotel liable for a murder on a sidewalk outside its entrance.” There don’t appear to be any Alaska cases with these holdings. Yet.

This doesn’t suggest that landlords need to issue warnings to every tenant just because there has been crime in the neighborhood. The fact pattern of the New Jersey and related cases is landlords or business owners encouraging patrons or tenants to do something that might be dangerous. The encouragement can be active, like validating a parking ticket at a garage where people get mugged, or passive, like the fence with no gate, in the New Jersey case.

Notice also in the New Jersey case that when somebody gets hurt everyone gets sued. In Alaska as in many states, judgments get parceled out depending on the degree of each defendant’s fault. If a plaintiff can’t collect against one party, he or she can’t get that share from the other defendants. So it’s important to have everybody who might be found liable brought into the case.

No only do litigants want all these defendants in the case, they want their insurance carriers, too. It’s not uncommon for a settlement to come from the funds an insurance carrier otherwise might spend to defend a case, even when the carrier believes its policy doesn’t cover the claimed loss, or where the carrier and the defendant believe the case has no merit.

Knowing this is the way of the world, what’s the Mountain View landlord, and others in similarly “dangerous” areas to do? First, it seems important to minimize the ties between the landlord’s ownership of the property and off-premises conduct of patrons and tenants. Where that can’t be avoided, issue warnings. And have a talk with the insurance agent, to review existing policies in light of developing case law.