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XII.Supp.A. Supplemental Cases and Materials for XII.A.
  • 1 Conboy v. Mogeloff

    A mother falls asleep at the wheel after taking medication prescribed by her doctor. Her children are injured in a subsequent car accident. Prior to the accident, the doctor had told her that she could drive after taking the medication, despite him knowing the drug was a sedative.

    Should giving advice to others be regarded as equivalent to control over them? Should courts expect individuals to control the actions of others, even if they lack the ability to do so?

    2

    Page 960

    5
    567 N.Y.S.2d 960

    8
    172 A.D.2d 912

    11
    James W. CONBOY, as Guardian ad Litem of David Dillenbeck,
    et al., Infants, Respondent,
    v.
    Jeffrey S. MOGELOFF, Appellant.

    14
    Supreme Court, Appellate Division,
    Third Department.

    17
    April 4, 1991.
    19

    Page 961

    21

            Maynard, O'Connor & Smith (Edwin J. Tobin, Jr., of counsel), Albany, for appellant.

    23

            Vincent E. Vicinanzo, Amsterdam, for respondent.

    25

            Before MAHONEY, P.J., and MIKOLL, YESAWICH, CREW and HARVEY, JJ.

    27

            CREW, Justice.

    29

            Appeal from an order of the Supreme Court (Best, J.), entered June 1, 1990 in Montgomery County, which denied defendant's motion for summary judgment dismissing the complaint.

    31

            On September 1, 1983 Ruth Dillenbeck, the mother of David, Russell and George Dillenbeck (hereinafter collectively referred to as the children), consulted with defendant because of persistent headaches and occasional episodes of unconsciousness. Defendant diagnosed Dillenbeck's condition as migraine and prescribed Fiorinal. In response to her inquiry, defendant advised Dillenbeck that she could drive a car. On September 6, 1983 at about 9:30 A.M. Dillenbeck experienced a headache and took a Fiorinal tablet. At about 10:30 A.M. Dillenbeck was operating her car, in which the children were passengers, when she lost consciousness and collided with a bridge abutment. As a result of injuries sustained in the accident, plaintiff commenced this action on behalf of the children against defendant seeking money damages for his negligence and malpractice in treating Dillenbeck. Specifically, plaintiff alleged that defendant was negligent in that, contrary to his advice that Dillenbeck could drive a car, he should have directed her not to drive knowing that Fiorinal had a sedative effect. After issue was joined, defendant moved for summary judgment dismissing the complaint on the ground that the complaint failed to state a cause of action. Supreme Court denied the motion and this appeal ensued.

    33

            [172 A.D.2d 913] Defendant claims that he owed no legal duty to the children, which is essential to a recovery in negligence (Palsgraf v. Long Is. R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99). As a general rule, a defendant has no legal duty to control the conduct of third persons so as to prevent them from harming others (see, Pulka v. Edelman, 40 N.Y.2d 781, 783, 390 N.Y.S.2d 393, 358 N.E.2d 1019). However, certain relationships may give rise to such a duty, but then only when the defendant has the ability and authority to control the third persons' conduct (see, Purdy v. Public Adm'r of County of Westchester, 72 N.Y.2d 1, 8, 530 N.Y.S.2d 513, 526 N.E.2d 4). The threshold inquiry here, therefore, is whether defendant had sufficient ability and authority to control the conduct of Dillenbeck so as to give rise to a duty on his part to protect the children. We hold that he did not. Dillenbeck consulted with defendant for headaches. The services rendered by defendant were examination, diagnosis, prescription and advice. Dillenbeck was free to accept

    35

    Page 962

    37

            Plaintiff contends, however, that a legal duty does exist by reason of the fact that defendant knew or had reason to know that the children were relying on him to give appropriate advice to their mother. In support of that position plaintiff cites Eiseman v. State of New York, 70 N.Y.2d 175, 518 N.Y.S.2d 608, 511 N.E.2d 1128. While the Court of Appeals in Eiseman discussed the concept of a physician's duty to persons other than the patient, it should be noted that the discussion was obiter dictum. Accepting the case as indicative of what the court may determine in futuro, we observe that the court, in suggesting the potential for a legal duty owing from a physician to a third party, stated that "we have further required actual privity, or something approaching privity, such as conduct on the part of defendant linking defendant to plaintiff which evinces defendant's understanding of plaintiff's reliance" (id., at 188, 518 N.Y.S.2d 608, 511 N.E.2d 1128). In this case, there are no allegations in the complaint or the bill of particulars of the children's reliance on defendant's conduct or of knowledge by defendant of any such reliance. In view of the fact that defendant's motion was for summary judgment dismissing the complaint for failure to state a cause of action, and in view of plaintiff's failure to allege reliance and knowledge thereof, the motion should have been granted.

    39

            Order reversed, on the law, without costs, motion granted, summary judgment awarded to defendant and complaint dismissed.[172 A.D.2d 914]

    41

            MAHONEY, P.J., and MIKOLL, YESAWICH and HARVEY, JJ., concur.

  • 2 Kline v. 1500 Massachusetts Avenue Apartment Corp.

    Kline was seriously injured when she was assaulted and robbed in the hallway of the apartment building where she lived. The incident occurred two months after another female tenant was attacked in the same hallway. Kline sued the landlord, alleging it had a duty to protect tenants from foreseeable harm by third parties on the premises.

    Should landlords have a duty to keep the common areas of their premises safe?

    2

    Page 477

    5
    439 F.2d 477

    8
    43 A.L.R.3d 311, 141 U.S.App.D.C. 370

    11
    Sarah B. KLINE, Appellant,
    v.
    1500 MASSACHUSETTS AVENUE APARTMENT CORPORATION et al.

    14
    No. 23401.

    17
    United States Court of Appeals, District of Columbia Circuit.

    20
    Argued April 10, 1970.
    Decided Aug. 6, 1970, Petition for Rehearing Denied Sept. 8, 1970.
    22

    Page 478

    24

            Mr. Albert J. Ahern, Jr., Washington, D.C., for appellant.

    26

            Mr. Laurence T. Scott, Washington, D.C., for appellee.

    28

            Before TAMM, MacKINNON and WILKEY, Circuit Judges.

    30

            WILKEY, Circuit Judge:

    32

            The appellee apartment corporation states that there is 'only one issue presented for review * * * whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties.' The District Court as a matter of law held that there is no such duty. We find that there is, and that in the circumstances here the applicable standard of care was breached. We therefore reverse and remand to the District Court for the determination of damages for the appellant.

    34

            I

    36

            The appellant, Sarah B. Kline, sustained serious injuries when she was criminally assaulted and robbed at approximately 10:15 in the evening by an intruder in the common hallway of an apartment house at 1500 Massachusetts Avenue. This facility, into which the appellant Kline moved in October 1959,

    38

    Page 479

    40142

            By mid-1966, however, the main entrance had no doorman, the desk in the lobby was left unattended much of the time, the 15th Street entrance was generally unguarded due to a decrease in garage personnel, and the 16th Street entrance was often left unlocked all night. The entrances were allowed to be thus unguarded in the face of an increasing number of assaults, larcenies, and robberies being perpetrated against the tenants in and from the common hallways of the apartment building. These facts were undisputed, 2 and were supported by a detailed chronological listing of offenses admitted into evidence. The landlord had notice of these crimes and had in fact been urged by appellant Kline herself prior to the events leading to the instant appeal to take steps to secure the building. 3

    44

    Page 480

    46

            Shortly after 10:00 P.M. on November 17, 1966, Miss Kline was assaulted and robbed just outside her apartment on the first floor above the street level of this 585 unit apartment building. This occurred only two months after Leona Sullivan, another female tenant, had been similarly attacked in the same commonway.

    48

            II

    50

            At the outset we note that of the crimes of violence, robbery, and assault which had been occurring with mounting frequency on the premises at 1500 Masachusetts Avenue, the assaults on Miss Kline and Miss Sullivan took place in the hallways of the building, which were under the exclusive control of the appellee landlord. Even in those crimes of robbery or assault committed in individual apartments, the intruders of necessity had to gain entrance through the common entry and passageways. 4 These premises fronted on three heavily traveled streets, and had multiple entrances. The risk to be guarded against therefore was the risk of unauthorized entrance into the apartment house by intruders bent upon some crime of violence or theft.

    52

            While the apartment lessees themselves could take some steps to guard against this risk by installing extra heavy locks and other security devices on the doors and windows of their respective apartments, yet this risk in the greater part could only be guarded against by the landlord. No individual tenant had it within his power to take measures to guard the garage entranceways, to provide scrutiny at the main entrance of the building, to patrol the common hallways and elevators, to set up any kind of a security alarm system in the building, to provide additional locking devices on the main doors, to provide a system of announcement for authorized visitors only, to close the garage doors at appropriate hours, and to see that the entrance was manned at all times.

    54

            The risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable; that same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case; it was a risk whose prevention or minimization was almost entirely within the power of the landlord; and the risk materialized in the assault and robbery of appellant on November 17, 1966.

    56

            III

    58

            In this jurisdiction, certain duties have been assigned to the landlord because of his control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple dwelling units. This Court in Levine v. Katz, 132 U.S.App.D.C. 173,

    60

    Page 481

    62

            It has long been well settled in this jurisdiction that, where a landlord leases separate portions of property and reserves under his own control the halls, stairs, or other parts of the property for use in common by all tenants, he has a duty to all those on the premises of legal right to use ordinary care and diligence to maintain the retained parts in a reasonably safe condition.

    64

            While Levine v. Katz dealt with a physical defect in the building leading to plaintiff's injury, the rationale as applied to predictable criminal acts by third parties is the same. 5 The duty is the landlord's because by his control of the areas of common use and common danger he is the only party who has the power to make the necessary repairs or to provide the necessary protection.

    66

            As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. We recognize that this rule has sometimes in the past been applied in landlord-tenant law, even by this court. 6 Among the reasons for the application of this rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the landlordtenant relationship; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

    68

            2, 3$ But the rationale of this very broad general rule falters when it is applied to the conditions of modern day urban apartment living, particularly in the circumstances of this case. The rationale of the general rule exonerating a third party from any duty to protect another from a criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling houses. The landlord is no insurer of his tenants' safety, but he certainly is no bystander. And where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it does not seem unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants.

    70

            This court has recently had occasion to review landlord-tenant law as applied to multiple family urban dwellings. In Javins v. First National Realty Corporation, 7 the traditional analysis of a lease as being a conveyance of an interest in land-- with all the medieval connotations this often bring-- was reappraised, and found lacking in several respects. This court noted that the value of the lease to the modern apartment dweller is that it give him 'a well known package of goods and services-- a package which includes not merely walls and ceilings, but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, proper sanitation, and proper maintenance.' 8 It does not give him the land itself, and to the tenant as a practical matter this is supremely

    72

    Page 482

    74976

            Treating the modern day urban lease as a contract, this court in Javins, supra, recognized, among other things, that repair of the leased premises in a multiple dwelling unit may require access to equipment in areas in the control of the landlord, and skills which no urban tenant possesses. Accordingly, this court delineated the landlord's duty to repair as including continued maintenance of the rented apartment throughout the term of the lease, rightfully placing the duty to maintain the premises upon the party to the lease contract having the capacity to do so, based upon an implied warranty of habitability. 10

    78

            In the case at bar we place the duty of taking protective measures guarding the entire premises and the areas peculiarly under the landlord's control against the perpetration of criminal acts upon the landlord, the party to the lease contract who has the effective capacity to perform these necessary acts.

    80

            As a footnote to Javins, supra, Judge Wright, in clearing away some of the legal underbrush from medieval common law obscuring the modern landlordtenant relationship, referred to an innkeeper's liability in comparison with that of the landlord to his tenant. 'Even the old common law courts responded with a different rule for a landlord-tenant relationship which did not conform to the model of the usual agrarian lease. Much more substantial obligations were placed upon the keepers of inns (the only multiple dwelling houses known to the common law).'

    82

            Specifically, innkeepers have been held liable for assaults which have been committed upon their guests by third parties, if they have breached a duty which is imposed by reason of the innkeeperguest relationship. By this duty, the innkeeper is generally bound to exercise reasonable care to protect the guest from abuse or molestation from third parties, be they innkeeper's employees, fellow guests, or intruders, if the attack could, or in the exercise of reasonable care, should have been anticipated. 11

    84

            Liability in the innkeeper-guest relationship is based as a matter of law either upon the innkeeper's supervision, care, or control of the premises, 12 or by reason of a contract which some courts have implied from the entrustment by the guest of his personal comfort and safety to the innkeeper. In the latter analysis, the contract is held to give the guest the right to except a standard of treatment at the hands of the innkeeper which includes an obligation on the part of the latter to exercise reasonable care in protecting the guest. 13

    86

            Other relationships in which similar duties have been imposed include landowner-invitee, businessman-patron, employer-employee,

    88

    Page 483

    9014921594

            We are aware of various cases in other jurisdictions following a different line of reasoning, conceiving of the landlord and tenant relationship along more traditional common law lines, and on varying fact situations reaching a different result from that we reach here. Typical of these is a much cited (although only a 4-3) decision of the Supreme Court of New Jersey, Goldberg v. Housing Authority of Newark, supra relied on by appellee landlord here. There the court said:

    96

            Everyone can foresee the commission of crime virtually anywhere and at any time. If foreseeability itself gave rise to a duty to provide 'police' protection for others, every residential curtilage, every shop, every store, every manufacturing plant would have to be patrolled by the private arm of the owner. And since hijacking and attack upon occupants of motor vehicles are also foreseeable, it would be the duty of every motorist ot provide armed protection for his passengers and the property of others. Of course, none of this is at all palatable. 16

    98

            This language seems to indicate that the court was using the word foreseeable interchangeably with the word possible. In that context, the statement is quite correct. It would be folly to impose liability for mere possibilities. But we must reach the question of liability for attacks which are foreseeable in the sense that they are probable and predictable. Thus, the United States Supreme Court, in Lillie v. Thompson 17 encountered no difficulty in finding that the defendant-employer was liable to the employee because it 'was aware of conditions which created a likelihood' of criminal attack.

    100

            In the instant case, the landlord had notice, both actual and constructive, that the tenants were being subjected to crimes against their persons and their property in and from the common hallways. For the period just prior to the time of the assault upon appellant Kline the record contains unrefuted evidence that the apartment building was undergoing a rising wave of crime. Under these conditions, we can only conclude that the landlord here 'was aware of conditions which created a likelihood' (actually, almost a certainty) that further criminal attacks upon tenants would occur.

    102

            Upon consideration of all pertinent factors, we find that there is a duty of protection owed by the landlord to the tenant in an urban multiple unit apartment dwelling.

    104

            Summarizing our analysis, we find that this duty of protection arises, first of all, from the logic of the situation itself. If we were answering without the benefit of any prior precedent the issue as posed

    106

    Page 484

    108

            As between tenant and landlord, the landlord is the only one in the position to take the necessary acts of protection required. He is not an insurer, but he is obligated to minimize the risk to his tenants. Not only as between landlord and tenant is the landlord best equipped to guard against the predictable risk of intruders, but even as between landlord and the police power of government, the landlord is in the best position to take the necessary protective measures. Municipal police cannot patrol the entryways and the hallways, the garages and the basements of private multiple unit apartment dwellings. They are neither equipped, manned, nor empowered to do so. In the area of the predictable risk which materialized in this case, only the landlord could have taken measures which might have prevented the injuries suffered by appellant.

    110

            We note that in the fight against crime the police are not expected to do it all; 18 every segment of society has obligations to aid in law enforcement and to minimize the opportunities for crime. The average citizen is ceaselessly warned to remove keys from automobiles and, in this jurisdiction, may be liable in tort for any injury caused in the operation of his car by a thief if he fails to do so, notwithstanding the intervening criminal act of the thief, a third party. Gaither v. Myers, 131 U.S.App.D.C. 216, 404 F.2d 216 (1968). In addition, auto manufacturers are persuaded to install special locking devices and buzzer alarms, and real estate developers, residential communities, and industrial areas are asked to install especially bright lights to deter the criminally inclined. It is only just that the obligations of landlords in their sphere be acknowledged and enforced. 19

    112

    Page 485

    114

            Secondly, on the rationale of this court in Levine v. Katz, Kendall v. Gore Properties, and Javins v. First National Realty Corporation, supra, there is implied in the contract between landlord and tenant an obligation on the landlord to provide those protective measures which are within his reasonable capacity. Here the protective measures which were in effect in October 1959 when appellant first signed a lease were drastically reduced. She continued after the expiration of the first term of the lease on a month to month tenancy. As this court pointed out in Javins, supra, 'Since the lessees continue to pay the same rent, they were entitled to expect that the landlord would continue to keep the premises in their beginning condition during the lease term. It is precisely such expectations that the law now recognizes as deserving of formal, legal protection.' 20

    116

            Thirdly, if we reach back to seek the precedents of common law, on the question of whether there exists or does not exist a duty on the owner of the premises to provide protection against criminal acts by third parties, the most analogous relationship to that of the modern day urban apartment house dweller is not that of a landlord and tenant, but that of innkeeper and guest. We can also consider other relationships, cited above, in which an analogous duty has been found to exist.

    118

            IV

    120

            We now turn to the standard of care which should be applied in judging if the landlord has fulfilled his duty of protection to the tenant. Although in many cases the language speaks as if the standard of care itself varies, in the last analysis the standard of care is the same-- reasonable care in all the circumstances. 21

    122

    Page 486

    124

            In the case at bar, appellant's repeated efforts to introduce evidence as to the standard of protection commonly provided in apartment buildings of the same character and class as 1500 Massachusetts Avenue at the time of the assault upon Miss Kline were invariably frustrated by the objections of opposing counsel and the impatience of the trial judge. At one point during appellant's futile attempts, the judge commented with respect to the degree of proof required to show a custom: 'I think the old proverb that one swallow does not make a summer applies. If you can get 100 swallows, you say this must be summertime.'

    126

            Later, but still during appellant's efforts on this point, the judge commented to opposing counsel,

    128

            May I remind you that it is very dangeroud to win a case by excluding the other side's testimony because the Court of Appeals might say that testimony should have been admitted even though you might have won the case with the testimony in.

    130

            Appellant then attempted to offer evidence of individual apartment houses with which she was familiar. The trial judge became impatient with the swallow by swallow approach, and needled by opposing counsel's objections, disregarded his own admonition and cut short appellant's efforts in this direction. The record as to custom is thus unsatisfactory, but its deficiencies are directly chargeable to defendant's counsel and the trial judge, not appellant.

    132

            We therefore hold in this case that the applicable standard of care in providing protection for the tenant is that standard which this landlord himself was employing in October 1959 when the appellant became a resident on the premises at 1500 Massachusetts Avenue. The tenant was led to expect that she could rely upon this degree of protection. While we do not say that the precise measures for security which were then in vogue should have been kept up (e.g., the number of people at the main entrances might have been reduced if a tenant-controlled intercom-automatic latch system had been installed in the common entryways), 22 we do hold that the same relative degree of security should have been maintained.

    134

            The appellant tenant was entitled to performance by the landlord measured by this standard of protection whether the landlord's obligation be viewed as grounded in contract or in tort. As we have pointed out, this standard of protection was implied as an obligation of the lease contract from the beginning. Likewise, on a tort basis, this standard of protection may be taken as that commonly provided in apartments of this character and type in this community, and this is a reasonable standard of care on which to judge the conduct of the landlord here. 23

    136

            V

    138

            Given this duty of protection, and the standard of care as defined, it is clear

    140

    Page 487

    14224144

            Having said this, it would be well to state what is not said by this decision. We do not hold that the landlord is by any means an insurer of the safety of his tenants. His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. The landlord is not expected to provide protection commonly owed by a municipal police department; but as illustrated in this case, he is obligated to protect those parts of his premises which are not usually subject to periodic patrol and inspection by the municipal police. We do not say that every multiple unit apartment house in the District of Columbia should have those same measures of protection which 1500 Massachusetts Avenue enjoyed in 1959, nor do we say that 1500 Massachusetts

    146

    Page 488

    148

            Granted, the discharge of this duty of protection by landlords will cause, in many instances, the expenditure of large sums for additional equipment and services, and granted the cost will be ultimately passed on to the tenant in the form of increased rents. This prospect, in itself, however, is no deterrent to out acknowledging and giving force to the duty, since without protection the tenant already pays in losses from theft, physical assault and increased insurance premiums.

    150

            The landlord is entirely justified in passing on the cost of increased protective measures to his tenants, but the rationale of compelling the landlord to do it in the first place is that he is the only one who is in a position to take the necessary protective measures for overall protection of the premises, which he owns in whole and rents in part to individual tenants.

    152

            Reversed and remanded to the District Court for the determination of damages.

    154

            MacKINNON, Circuit Judge (dissenting):

    156

            I respectfully dissent from the panel decision that the plaintiff has proved liability as a matter of law. My inability to join in that disposition of the case is based primarily in my disagreement as to what facts were proved at the trial of that issue by the court without a jury. In my view the panel opinion errs by overstating the facts which might be construed as being favorable to appellant and by failing to recognize gross deficiencies in appellant's proof, thereby applying a more strict standard of responsibility to the landlord than the opinion actually states to be the law.

    158

            One difficulty here is that the trial court sitting without a jury held as a matter of law that there was no rule requiring the operator of the apartment building to use due care to exclude intruders by locking doors or posting doormen at entrances so as to protect tenants against crimes committed by intruders and others. It never considered whether the facts proved liability if the duty did exist. Against such a procedural background the panel opinion here comes to a different conclusion on the duty owed by the landlord to its tenants and then proceeds to find defendant liable on the facts as a matter of law. This necessarily involves a de novo consideration of the facts on a cold record and subjects the result to all the imperfections inherent in any decision arrived at under such handicaps. Here, those handicaps are magnified by the fact that the case was tried to the court without a jury and this necessarily had some tendency to steer the facts toward the issues that became uppermost in the court's mind as the case progressed and away from the issues upon which the court now reverses the trial court. The result in my view is a record that cannot support the panel decision.

    160

            The central issue here is what are the obligations incident to a landlord-tenant relationship at 1500 Massachusetts Avenue, N.W., near downtown Washington. Involved is a large building of 585 units composed of a combination of business offices and apartments on the first floor and the next level and of residential apartments above. 1

    162

    Page 489

    164

            Central to the conclusion of the panel opinion is its frequent assertion, directly and inferentially stated, that numerous 'assaults and robberies' had been occurring in the hallways of the building and hence 'the risk of criminal assault and robbery on a tenant in the common hallways of the building was thus entirely predictable. * * *'

    166

            In support of this conclusion the opinion states that 'the same risk had been occurring with increasing frequency over a period of several months immediately prior to the incident giving rise to this case. * * *' and refers to 20 police reports of alleged offenses which had occurred in the building in the first ten months of 1966. But an examination of all 20 of these reports indicates that only one of them involved an assault and robbery. The rest were chiefly thefts. So the panel opinion is incorrect in basing its conclusion on the allegation that the landlord had 'notice of repeated criminal assaults and robberies.' 2 The sole prior instance of an assault and robbery occurred on September 6, 1966 at 8:10 P.M. in front of apartment #125 involving one Leona Sullivan. It was attempted by two men who fled when another tenant came out of an adjoining apartment. It seems elementary that one solitary instance of an assault and robbery is an insufficiet base to support a finding that assaults and robberies are a 'predictable risk' from which the landlord would have 'every reason to expect like crimes to happen again.' One swallow just does not make a summer. Assaults of this character are not predictable from clandestine thefts. It is accordingly my conclusion that the panel opinion concludes too much from too little.

    168

            Also, in my view the record is deficient on the matter of notice to the landlord of any assaults. The landlord had notice of some thefts (inaccurately sometimes referred to as robberies) but the record does not support any notice of any assault. A stipulation as to the offenses only went to the fact that they were committed in the building, not that the landlord had notice of all of them. He did admit notice of some of them but there is no proof that the landlord had notice of the assault committed in the building upon Leona Sullivan. This was the only prior assault committed on the premises. Proof of notice was central to appellant's case and the absence of proof of notice I consider to be fatal. I find no proof the appellee had actual notice of such fact. As for constructive notice, that could have been proved by showing the knowledge of some of the employees, which was not done. Clearly, knowledge of some offenses by appellant was not notice to appellee (App.54). Neither were requests for imporved security.

    170

            The evidence introduced by the plaintiff is also deficient in my opinion in not proving that the alleged negligence was the proximate cause of the assault or that it contributed to it in any way. Plaintiff's evidence did not negate that it was a tenant, guest or person properly on the property who committed the offense, and while the panel opinion throughout asserts that an 'intruder' committed the offense, there is no proof of that fact. So plaintiff's evidence failed to prove a nexus between the alleged deficiencies of the appellee and the cause of any damage to appellant.

    172

            The panel opinion also fails to recognize that 1500 Massachusetts Avenue is not a luxury type apartment, but instead is a combination office building and apartment building with some commercial

    174

    Page 490

    1763178

            At the trial the court and counsel took frequent notice of well known factors affecting the quality of the accommodations in this and other areas of the city and of their effect on 1500 Massachusetts Avenue. It was recognized that Washington is a crime ridden city, 4 that the area around 1500 Massachusetts Avenue in 1966 was different from areas on Connecticut and Wisconsin Avenues where 'maybe the crime wave had not yet extended' (App.91) and that those 'down in the center of town * * * were put on rather quick and active notice' of the crime wave. (App.92). In fact this thesis was central to appellant's case and it was so argued (App.105). All this indicated that the character of the surrounding area had been deteriorating, a fact of which the appellant was well aware as her testimony indicated she had knowledge of increasing crime in the area, that 'as the years went by they were putting more and more offices into the building' and reducing the personnel services to tenants.

    180

            Obviously since a number of business offices occupied the lower floors, the fortress type security precautions the panel opinion finds to be required would be wholly out of the question because such offices require free public access. The degree of protection appellant seeks could only be afforded by the equivalent of policemen patrolling the corridors which even if it were practical for the upper apartment areas would be impractical for the floors housing business offices where this assault occurred.

    182

            The panel opinion attempts to liken the law involving this combination officeapartment building to the law relating to hotels and innkeepers, 5 but even with respect to hotels the law recognizes that the reasonable care which an innkeeper must exercise for the safety and comfort of his guests varies with the grade and quality of the accommodation offered by the hotel. 6 The panel cites the note in 70 A.L.R.2d 621 (1960) in support of its claim. That note revolves around a Minnesota case deciding that the operator of a beer establishment owes a duty to its patrons to exercise reasonable care to protect them from injury at the hands of an intoxicated patron on the premises. Such law has no application to the facts here. The A.L.R. note cited by the panel does make minor reference to hotels and assault and battery but the cases discussed therein give little or no support to the thesis of negligence advanced by the panel opinion. Kingen v. Weyant, 148 Cal.App.2d 656, 307 P.2d 369 (1957) is cited for the principle that an innkeeper's duty is limited to the exercise of reasonable care and he is 'liable only when he was negligent in receiving or harboring guests of known violent or vicious propensities.'

    184

            Annot., 70 A.L.R.2d, supra at 646. Gurren v. Casperson, 147 Wash. 257, 265 P. 472 (1928) is a similar case holding that a guest in a hotel assaulted by another guest who was intoxicated, after the guest had expressly warned the landlord and requested protection from this specific person, may recover his damages from the hotel owner. Fortney v. Hotel Rancroft, 5 Ill.App.2d 327, 125 N.E.2d 544 (1955) is another case described in the note. Therein, a new trial was ordered to determine the hotel's responsibility where an intruder, found in the guest's room when he returned after being out several hours, struck the guest and caused the loss of an eye. At issue was how the intruder had gained admission

    186

    Page 491

    188

            Actually the obligation of innkeepers toward their guests is the exercise of reasonable care for their safety. 7 The present status of the law in this respect is well stated in Caca v. Arceo, 71 N.M. 186, 376 P.2d 970, 973 (1962):

    190

            Naturally, an innkeeper is not and cannot be an insurer of a guest or patron against personal injuries inflicted by another person on the premises, other than his servants or agents. Nevertheless, the proprietor of a place of business who holds it out to the public for entry for his business purposes, is subject to liability to guests who are upon the premises and who are injured by the harmful acts of third persons if, by the exercise of reasonable care, the proprietor could have discovered that such acts were being done or about to be done, and could have protected against the injury by controlling the conduct of the other patron. 2 Restatement, Torts, 348 (1934 ed.); Central Theatres v. Wilkinson, 1944, 154 Fla. 589, 18 So.2d 755; Hill v. Merrick, 1934, 147 Or. 244, 31 P.2d 663; 29 AmJur. 50, Innkeepers, 62; Rawson v. Massachusetts Operating Co., 1952, 328 Mass. 558, 105 N.E.2d 220, 29 A.L.R.2d 907; Gartner v. Lombard Bros. (3d Cir. 1952), 197 F.2d 53.

    192

            Illustrative of the weight of authority on this duty of care is Peck v. Gerber, 1936, 154 Or. 126, 59 P.2d 675, 106 A.L.R. 996, in which the court stated:

    194

            A guest or patron of such an establishment has a right to rely on the belief that he is in an orderly house and that the operator, personally or by his delegated representative, is exercising reasonable care to the end that the doings in the house shall be orderly.

    196

            See also Gurren v. Casperson, 1928, 147 Wash. 257, 265 P. 472; Reilly v. 180 Club, Inc., 1951, 15 N.J.Super. 420, 82 A.2d 210. In addition, there are extensive annotations (106 A.L.R. 1003, and 70 A.L.R.2d 628, at 645).

    198

            The italicized portion of the quotation is indicative of the true holding of these cases with respect to innkeepers. It is that the landlord is liable if by the exercise of reasonable care he could have discovered that the offensive acts were being done or were about to be done and he could have protected against the injury by controlling the offender and failed to do so. The predictability of the offensive acts in the cited cases is much more immediate than is here present. Actually, the holding in the panel opinion extends the rule applicable to innkeepers to inordinate lengths and in my view to an unreasonable extent based as it is here upon a single assault and robbery over two months before.

    200

            Another deficiency I find in appellant's case is that she failed to prove the prevailing security standard for similar type apartments in the community at the time. This is another fatal defect in her proof. The panel opinion attempts to gloss over this deficiency by saying that it was caused by appellee's objections to the evidence and by the impatience of the judge. But the transcript indicates (App.55-62) that the proffered testimony was improper, largely hearsay, based on an insufficient foundation and that appellant's lawyer, after being helpfully advised by the court as to the proper procedure and the proper type of witnesses to prove such facts purposely waived any right to introduce such evidence when he stated, 'I do not think it (the evidence of the practice in the area) is that material to the issue here, Your Honor.' Also, the appellant who was her only witness on the point indicated that she only had personal knowledge of the practices at one other apartment at the time in 1966 when this assault occurred,

    202

    Page 492

    204

            As for the claim that appellant was led to believe she would get the same standard of protection in 1966 that was furnished in 1959, there is obviously nothing to this point. She was not led to expect that. She personally observed the changes which occurred in this respect. They were obvious to her each day of her life. And since her original lease had terminated and her tenancy in 1966 was on a month to month basis, whatever contract existed was created at the beginning of the month and since there was no evidence of any alteration in the security precautions during the current month, there is no basis for any damage claim based on contract.

    206

            The panel opinion is an excellent argument for a high degree of security in apartments and many of its contentions have considerable weight to them but in my opinion they overstate the security that can reasonably be afforded. The hysteria of apartment dwellers in an inner city plagued with crime 8 is understandable but they are not any more exposed there than they are on the streets or in office buildings and they cannot expect the landlord to furnish the equivalent of police protection that is not available from the duly constituted government in the locality. 9 In my opinion the decision in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.2d 595 (1962) answers all appellant's arguments. It is just too much, absent a contractual agreement, to require or expect a combination office-apartment building such as is involved here to provide police patrol protection or its equivalent in the block-long, well-lighted passageways. Yet nothing short of that will meet the second guessing standard of protection the panel opinion practically directs. If tenants expect such protection, they can move to apartments where it is available and presumably

    208

    Page 493

    210

            In its overzealous attempt to assist the apartment dweller, the panel opinion is forcing a contrary result. The panel opinion calls for 'protection' of the tenant by the landlord without describing the degree thereof. The stated standard is thus vague, but in the light of the facts of this case (see footnote 2 relying upon plaintiff's allegation that appellee 'failed to hire sufficient number of guards'), it is an extremely high standard that borders on insuring tenants that the corridors of office-apartment buildings (and hence many apartment buildings) will not be used for the commission of criminal offenses. Owners of apartments in their own self interest will be required to view this standard, particularly in light of our jury trial practices, as being incapable of assured compliance and thus be forced to contract against such unreasonable liability (both as to character and amount) by contracting for exculpatory provisions in leases. 10 Thus tenants will get less instead of more protection and the panel opinion by imposing an unreasonable standard in this case is not rendering any real service to reasonable landlord-tenant relations.

    212

            Finally, I find absolutely no basis for the panel to conclude on the record below that negligence has been proved as a matter of law and to order a trial on the question of damages only. If the court wanted to absolve appellant from responsibility for his failure to produce competent evidence in the trial of the case the most that it could properly do, in my opinion, would be to remand the entire case for a new trial on the new rules of law here espoused for the first time. In such a trial appellant would also be required to introduce some evidence to overcome the rule of law that a private person does not owe a duty to protect another person from a criminal attack by a third person unless such attack was both foreseeable and arose from the private person's negligent conduct. 11

    214

            It is my conclusion that appellant did not sustain her burden of proof that the

    216

    Page 494

    218

    ---------------

    220 221

    1 Miss Kline testified that she had initially moved into the building not only because of its central location, but also because she was interested in security, and had been impressed by the precautions taken at the main entrance.

    223

    2 At trial, the allegations of paragraph 8 of the Complaint-- except as they related to the question of notice to the landlord-- were stipulated as true. Paragraph 8 reads as follows:

    225

    8. Plaintiff says unto the Court that prior to this assault upon your plaintiff the defendants had been on notice of a series of assaults, robberies and other criminal offenses being perpetrated upon its tenants, and yet said defendants while on notice of this dangerous condition negligently failed to hire a sufficient number of guards to impose any of the normal security requirements that in the exercise of due care they owed to plaintiff in her capacity as a tenant, when said defendants were on actual notice of complaints filed by other tenants prior to the assault on your plaintiff, said complaints occurring on the following dates and involving the following apartments: (citing 25 individual instances).

    227

    During trial, when plaintiff's counsel attempted to pursue the question of the frequency of assaults or other crimes with his witness, the court cut off his examination, since it felt that the point had already been conceded. Vis, the following:

    229

    Q. Now in your talks with Miss Bloom were you aware between January of 1966 and November of 1966 when you were assaulted of any other assaults or crimes within this apartment house other than what you have already testified to about police cars being present?

    231

    A. It is hard to pin them down to the specific date but there were so many happening. My girl friend's apartment was broken into, five of them within an hour. I don't know what date that was.

    233

    Q. I am not asking for dates. I am asking were you generally aware of offenses and crimes being committed in this apartment complex between January--

    235

    The Court: You allege that in Paragraph 8 of your complaint and that was conceded.

    237

    Mr. Ahern: I stand corrected, Your Honor.

    239

    We also note that on brief, and at oral argument, 1500 Massachusetts Avenue never challenged the assertions of the appellant regarding the frequency of assaults and other crimes being perpetrated against the tenants on their premises. With the record in this posture, we can only conclude that what was alleged and stipulated was what actually occurred.

    241

    3 Appellant Kline testified that one could hardly fail to notice the police cars about the building after each reported crime. She further testified that in 1966, before her assault, she herself had discussed the crime situation with Miss Bloom, the landlord's agent at the premises, and had asked her 'why they didn't do something about securing the building'. Moreover, the record contains twenty police reports of crimes occurring in the buiding in the year 1966, showing that in several instances these crimes were an almost daily occurrence. Such reports in themselves constitute contructive notice to the landlord.

    243

    4 The plaintiff testified that she had returned to her apartment after leaving work at 10:00 PM. We are in agreement with the trial court that her assailant was an intruder. See the court's comment in note 24, infra.

    245

    That such intruders did enter apartments from the hallways is substantiated by the Police reports which appear in the Record. In a number of instances doors are described as having been forced; in another instance, a tenant surprised a man standing in his front hallway; and there are still more instances of female tenants being awakened in the early morning hours to find an intruder entering their front doors. We also take notice of the fact that this apartment building is of the high rise type, with no easily accessible means of entry on the floors above the street level except by the hallways.

    247

    5 Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673 (1956).

    249

    6 Applebaum v. Kidwell, 56 App.D.C. 311, 12 F.2d 846 (1926); Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962); but see Ramsay v. Morrissette, D.C.App., 252 A.2d 509 (1969) and Kendall v. Gore Properties, supra, note 5.

    251

    7 138 U.S.App.D.C. 369, 428 F.2d 1071 (1970).

    253

    8 Id. 138 U.S.App.D.C. at 372, 428 F.2d at 1074.

    255

    9 Id. 138 U.S.App.D.C. at 373, 428 F.2d at 1075.

    257

    10 The landlord's duty to repair was held to include the leased premises in Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 282 F.2d 943 (1960). In that case, we held that the Housing Regulations altered the old common law rule, and further, that the injured tenant had a cause of action in tort against the landlord for his failure to discharge his duty to repair the premises. Our recent decision in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 406 F.2d 951 (1968), reaffirms the position taken in Whetzel.

    259

    11 An excellent discussion of the innkeeper's duty to his guest, including citations to relevant case material, is found in: Annot., 70 A.L.R.2d 621 (1960).

    261

    12 Gurren v. Casperon, 147 Wash. 257, 265 P. 472 (1928). See also Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

    263

    13 McKee v. Sheraton-Russell, Inc., 268 F.2d 669 (1959) (applying New York law).

    265

    14 Cases involving these relationships are collected and summarized in Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291, 10 A.L.R.3d 595 (1962).

    267

    15 See: Central of Georgia R. Co. v. Hopkins, 18 Ga.App. 230, 89 S.E. 186 (1916); Martincich v. Guardian Cab Co., 10 N.Y.S.2d 308 (1938, City Ct. N.Y.); and Callender v. Wilson, La.App., 162 So.2d 203, writ refused 246 La. 351, 164 So.2d 352 (1964).

    269

    16 38 N.J. 578, 186 A.2d 291, 293, 10 A.L.R.3d 595, 601 (1962).

    271

    17 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947).

    273

    18 In this regard, we observe that in some of the relationships in which a duty of protection has been found, the courts display no compunction in requiring the use of security guards or special police, where their use is reasonably necessary to see to the safety of those under the control of another. Thus, in Dilley v. Baltimore Transit Co., 183 Md. 557, 39 A.2d 469 (1944), the court said:

    275

    Carriers are not required to furnish a police force sufficient to overcome all violence of other passengers or strangers, when such violence is not to be reasonably expected; but the carrier is required to funish sufficient police force to protect its passengers from the assaults or violence of other passengers or strangers which might reasonably be expected, and to see that its police perform their duty.

    277

    See also Amoruso v. New York City Transit Authority, 12 A.D.2d 11, 207 N.Y.S.2d 855 (1960); and Dean v. Hotel Greenwich Corp., 21 Misc.2d 702, 193 N.Y.S.2d 712 (1959).

    279

    19 In Kendall v. Gore Properties, supra, note 3, this court recognized that the obligation of the landlord to his tenant includes the duty to protect him against criminal acts of third parties. The District of Columbia Court of Appeals, noting this in Ramsay v. Morrissette, supra, said of the imposition of this duty on the landlord:

    281

    Such a duty was found in Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673 (1956), where the landlord's employee, alleged to be of unsound mind, strangled to death a tenant whose apartment he was painting. The negligence in Kendall, however, was the failure to make any investigation whatever of the employee before hiring him to work, without supervision, in the apartment of a young woman, living alone. The court did say that the tenant, under her lease, paid both for shelter and protection. It said further: 'We have heretofore made clear as to apartment houses, the reasons which underlie the landlord's duty under modern conditions and which, as to various hazards call for at least 'reasonable or ordinary care, which means reasonably safe conduct, but there is no sufficient reason for requiring less.' True, the landlord does not become a guarantor of the safety of his tenant. But, if he knows, or in the exercise of ordinary care ought to know, of a possibly dangerous situation and fails to take such steps as an ordinarily prudent person, in view of existing circumstances, would have exercised to avoid injury to his tenant, he may be liable.' The court also stressed that 'particular conduct, depending upon circumstances, can raise an issue for the jury to decide in terms of negligence and proximate cause'. Id. at 384, 236 F.2d at 679.

    283

    The language that the District of Columbia Court of Appeals quoted from Kendall signals the extension of a rule theretofore applied only to injuries caused by defects or obstacles in areas under the landlord's control (see Levine v. Katz, supra), to criminal acts of third parties. By out decision today, we merely amplify and refine our reasoning in Kendall.

    285

    20 Javins v. First National Realty Corp., supra, note 7, 138 U.S.App.D.C. 377, 428 F.2d 1079. With reference to some duties imposed by law upon the landlord for the benefit of the tenant, it may not be possible for landlords to contract out of their obligations. It has been held that a lease clause is invalid if it would insulate landlords 'from the consequences of violations of their duties to the public under both the common law and the District of Columbia Building Code * * *.' Tenants Council of Tiber Island-- Carrolsburg Square v. DeFranceaux, 305 F.Supp. 560, 563 (D.C.D.C.1969).

    287

    21 Kermarec v. Compagnie Generale, 358 U.S. 625, 631, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Hecht Co. v. Jacobsen, 86 U.S.App.D.C. 81, 83, 180 F.2d 13, 15 (1950).

    289

    To refer to only one factor as illustrative, we recognize that the obligations to which landlords of various types of property are held may well increase as the individual tenant's control over his own safety on the landlord's premises decreases; conversely, as the tenant's control over his own safety increases, the landlord's obligations should decrease. Possibly because of the great degree of control exercised by a carrier over a passenger, many courts have held carriers to the exercise of the greatest measure of care with respect to the safety of their passengers, and in some instances, have held carriers to have the liability of insurers. Yet when the passenger is injured at a terminal or station (where the passenger has more, and the carrier has less, control over the safety of his person), the obligations of the carrier are less. In this regard compare McPherson v. Tamiami Trail Tours, 383 F.2d 527 (5 Cir. 1967) with Neering v. Illinois Central Railway Co., 383 Ill. 366, 50 N.E.2d 497, conformed to 321 Ill.App. 625, 53 N.E.2d 271 (1943). See also Federal Insurance Company v. Colon, 392 F.2d 662, 665 (1968), where the U.S. Court of Appeals for the First Circuit, upon referring to the plaintiff's assertion that a public carrier owes its patrons the greatest measure of care, said:

    291

    This applies only to passengers who are in the actual course of travel or who are boarding or alighting. The overwhelming majority rule is that it does not apply to the carrier's premises generally. * * * (citing cases)

    293

    For the imposition of more stringent obligations constituting a standard of reasonable care in the innkeeper-guest relationship, see Fortney v. Hotel Rancroft, Inc., 5 Ill.App.2d 327, 125 N.E.2d 544 (1955).

    295

    22 See text at 478, supra.

    297

    23 The record indicates that just prior to the poor people's campaign, the landlord caused an electric security system to be installed at the subject apartment building.

    299

    24 In an apparent attempt to show that, regardless of the amount of care exercised, the landlord here could not possibly have prevented an assault such as that which had befallen the plaintiff, the following cross examination of Miss Kline was undertaken:

    301

    Q. Is it also correct that this apartment building also houses office apartments?

    303

    A. As the years went by they were putting more and more offices into the building, yes, sir.

    305

    Q. What type of offices would they be?

    307

    A. Well, I understood they were supposed to be professional offices because I tried to get my name listed once.

    309

    Q. Irrespective of whether you tried to get your name listed or not, did you observe the offices?

    311

    A. Yes, I worked for some of them.

    313

    Q. What type of organizations had their offices there?

    315

    A. Manufacturing representatives; there was a lawyer's office, maybe two; there were some engineers; there were some tour salesmen. That is all I can think of right now.

    317

    Q. So that there would be then in the course of a normal day clients going in and out of the lawyers' offices or customers going in and out of the other type offices, would that be correct?

    319

    A. Yes.

    321

    Q. And they would be able to walk in even if there was a doorman there?

    323

    A. Yes.

    325

    Q. And one would only speculate as to whether or not anyone could ever leave or not leave, isn't that also correct?

    327

    A. What do you mean, speculate if one could leave or not leave?

    329

    To which the trial court commented:

    331

    THE COURT: Well, we assume the general public would come into any office building or in any big apartment house.

    333

    THE COURT: The point is though that an intruder who commmits this kind of an assault is apt to act a little different from the rest of the public although it does not always follow, you never know. Of course an intruder is not likely to come in through a public entrance either.

    335

    To this we add our own comment that it is unlikely in any case that a patron of one of the businesses, even if disposed to criminal conduct, would have waited for five hours after the usual closing time to perpetrate his crime-- especially one of a violent nature. Further, although it is not essential to our decision in this case, we point out that it is not at all clear that a landlord who permits a portion of his premises to be used for business purposes and the remainder for apartments would be free from liability to a tenant injured by the criminal act of a lingering patron of one of the businesses. If the risk of such injury is foresseable, then the landlord may be liable for failing to take reasonable measures to protect his tenant from it.

    337

    We note parenthetically that no argument regarding any change in the character of the building or its tenants was pursued on appeal.

    339

    1 At oral argument in the trial court plaintiff's attorney pointed out that the building did not have tenants exclusively but also had law offices, some business offices and establishments and the public had a right to park in the garage and that all kinds of people came into the building because they had business there. Defense counsel also made the uncontested statement at oral argument in this court that the building 'was at the time she rented and is now more than just an apartment house. There are business offices throughout at least on the first floor and I believe on the level above. * * * No matter how many guards you have people will be going into or can say they are going into, business offices.' Plaintiff Kline lived on the 'level above' the ground floor and at one time had requested defendant's permission to have herapartment listed as a professional office. She was a qualified public stenographer. It is concluded from the foregoing that some businesses were on the same floor as appellant's apartment outside of which the assault occurred.

    341

    2 In this particular the panel opinion ignores the actual police reports to which the stipulation referred and which speak for themselves. They were all admitted in evidence and only onr reported an assault; that on Leona Sullivan.

    343

    3 See note 1 supra.

    345

    4 The court remarked: 'I think we ought to take for granted we live in a crime ridden city and that people are attacked on the street and in hallways of apartment houses and hallways of office buildings.' (App. 71.)

    347

    5 Actually the security precautions the majority finds appellant was entitled to would exceed the security precautions available in Washington hotels.

    349

    6 McKee v. Sheraton-Russell, Inc., 268 F.2d 669 (2d Cir. 1959); 49 AmJur.2d Hotels, Motels, etc. 82 (1968).

    351

    7 40 Am.Jur.2d Hotels, Motels, etc. 82 n. 16 (1968).

    353

    8 This court is well aware of the high level of crime in various areas of Washington. About two-thirds of our cases on appeal presently involve criminal offenses. Also the daily newspapers are full of the details of various crimes. The Washington Post of June 19, 1970, p. B 5, stated: 'Asleep in rooms, 5 guests robbed in downtown hotel.' The story referred to three rooms on the ninth floor of the Statler Hilton Hotel, one of the most prestigious in the city. This is five times as many robberies as had occurred at 1500 Massachusetts Avenue prior to this case. Under the panel opinion, now the Statler Hilton Hotel would practically be required to patrol the upper hotel rooms. The Post news story also reported 21 day-light robberies, 4 assaults and 8 thefts, all of which occurred before 6 P.M. This is a fairly typical day in Washington.

    355

    9 Plaintiff's complaint here is partly based on the claim that the landlord was required to maintain a reasonable number of guards. The allegation of the complaint alleged that appellee was negligent in not 'taking reasonable precautions in the evening hours of maintaining a reasonable number of guards upon the premises so as to protect your plaintiff in her person and in her property.' (Emphasis added.) To require apartment landlords to employ guards to protect tenants against criminal depredations would be very costly and raise many troublesome questions. How much training should they have? Should such guards be armed? What would be their liability and that of the landlord if they killed an alleged offender in the commission of a criminal act? When duly appointed and trained city policemen are subjected to grand jury indictment for killing criminals caught in the act, the liability and exposure of an apartment house guard and his landlord to criminal and civil process under similar circumstances could be very substantial.

    357

    10 The parties contract on substantially an equal footing and since the panel opinion stresses the contractual base for its decision, it follows that the base could be altered by contract. See 38 Am.Jur. Negligence 8 (1941). Certainly the added protection of a private police force is not a service that goes with every apartment building in a metropolitan area. Or in the alternative, the tenants could be given an option to pay the cost of private police protection which would include salary, training, equipment, liability insurance, protection devices, office space, etc., and if they declined the option the landlord would be absolved from any liability. The option in such case serves to put the parties artificially on the same level. 38 Am.Jur. Negligence 8 n. 5.5 (1969), citing 175 A.L.R. 17.

    359

    Tenants Council v. DeFranceaux, 305 F.Supp. 560 (D.C.D.C.1969) is not to the contrary. It dealt with an exculpatory clause for swimming pool facilities which had been represented by the landlord to be available to prospective tenants without additional charge. Under such circumstances the District Court found the requirement that tenants agree to the exculpatory clause in order to gain the use of the pool facilities to be contrary to public policy and without consideration.

    361

    11 See 38 Am.Jur. Negligence 70, 71, pp. 726-729 (1941), and 2 Restatement of Torts 2d 448 (1965) where the rule is stated as follows:

    363

    The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor's negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person Might avail himself of the opportunity to commit such a tort or crime.

    365

    I fail to see that the conduct of the appellee created any temptation to third persons to commit criminal acts on the premises. What the panel talks about as risk in the building is nothing more than a reduction of the general risk that prevails in the community.

  • 3 Barmore v. Elmore

    Plaintiff visited the defendants at their home to discuss Freemason business. During the visit, the defendants’ 47-year-old, mentally ill son stabbed the plaintiff several times after the father unsuccessfully attempted to restrain him. Before the visit, defendants did not warn the plaintiff of any danger that their son might pose. Although the defendants were aware that their son was an outpatient at a mental health treatment facility, they believed he was taking his medication. In addition, he had not threatened anyone or been involved in any violent incidents for almost ten years.

    Should homeowners be responsible for the safety of those they allow or invite onto their property? Notice how the court seems to adjust the defendants’ duty based on the plaintiff’s purpose in entering the property, and the extent to which the defendants could “know” that their son would react violently to the plaintiff.

    2

    Page 1355

    5
    403 N.E.2d 1355

    8
    83 Ill.App.3d 1056, 38 Ill.Dec. 751

    11
    Leon BARMORE, Plaintiff-Appellant,
    v.
    Thomas ELMORE, Esther Elmore, and Thomas Elmore, Jr.,
    Defendants-Appellees.

    14
    No. 79-316.

    17
    Appellate Court of Illinois, Second District.

    20
    May 2, 1980.
    22

    Page 1356

    24

            [83 Ill.App.3d 1057] [38 Ill.Dec. 752] O'Brien, Healy, Wade, Abate & McNamara, Ronald T. Wade, Mary P. Gorman, Rockford, for plaintiff-appellant.

    26

            Brassfield, Cowan & Howard, Gary Kardell, Rockford, for defendants-appellees.

    28

            LINDBERG, Justice:

    30

            Plaintiff, Leon Barmore ("plaintiff"), appeals from an order of the Circuit Court of Winnebago County directing a verdict in favor of defendants, Thomas Elmore, Sr., and Esther Elmore ("defendants").

    32

            On August 8, 1977, at approximately 5:30 or 6:00 p. m., plaintiff came to the defendants' home. Both plaintiff and Thomas Elmore, Sr. ("Thomas, Sr.") were officers of a Masonic Lodge and plaintiff's purpose in making the visit was to discuss lodge business. During the course of plaintiff's visit, codefendant, Thomas Elmore, Jr., ("Thomas, Jr."), the defendants' 47-year old son, entered the living room with a steak knife. Thomas, Jr. said "You've been talking about me," and advanced toward plaintiff. Thomas, Sr. tried to restrain his son while plaintiff left the house. However, Thomas, Jr. was able to get away from his father, and he [83 Ill.App.3d 1058] followed plaintiff out of the house where he stabbed the plaintiff several times in the chest area. Thomas, Sr. followed his son out of the house and, when he saw that plaintiff had been injured, he summoned help.

    34

            Based on this incident, plaintiff filed suit against Thomas Elmore, Sr., Esther Elmore, and Thomas Elmore, Jr. After several motions directed toward the pleadings, the case proceeded to trial on a two count complaint. Count I alleged that defendants were negligent in that they failed to warn plaintiff of a dangerous and defective condition upon their premises; failed to provide proper security to protect the plaintiff from injury by defendants' son; failed to prevent their son from injuring the plaintiff; and failed to exercise reasonable care for the safety of the plaintiff. Plaintiff further alleged that as a direct and proximate result of the defendants' negligence he sustained injury; incurred medical expenses; lost earnings; and has been severely and permanently disfigured. Count II of the complaint directed at co-defendant, Thomas, Jr., alleged that he assaulted and injured plaintiff.

    36

            Apart from the facts of the occurrence as summarized above, much of the evidence at trial consisted of testimony concerning the mental illnesses of Thomas, Jr., and of three prior violent incidents in which he was involved. This evidence will not be summarized here as it is discussed in some detail below. Thomas, Jr., did not file an appearance in the trial court nor did he answer or otherwise defend this action. After hearing plaintiff's evidence, the trial court found Thomas, Jr., in default. Defendants' motion for a directed verdict was granted and the only issue submitted to the jury was damages against Thomas, Jr. The jury found plaintiff's damages to be $23,750.00. Plaintiff appeals contending that the trial

    38

    Page 1357

    40

            It should be noted that since defendants' son was no longer a minor, plaintiff was not proceeding on a theory of parental liability for the torts of a child. (Cf. Cooper v. Meyer (1977), 50 Ill.App.3d 69, 7 Ill.Dec. 916, 365 N.E.2d 201.) Instead, plaintiff's basic contention is that defendants, as landowners, were negligent in failing to protect him from a dangerous condition upon their premises namely their son who had a history of mental illness. The extent of defendants' duty in this regard is based in part on whether the plaintiff had the status of an invitee or of a licensee at the time he visited the premises of the defendants. The trial court assumed for purposes of deciding the motion for a directed verdict that the plaintiff was a business invitee, although he made no specific findings on this issue.

    42

            A person is an invitee on the land of another if "(1) he enters by invitation, express or implied, (2) his entry is connected with the owner's business or with an activity (that) the owner conducts or permits to be conducted on his land and (3) there is a mutuality of benefit or a benefit to [83 Ill.App.3d 1059] the owner." (Madrazo v. Michaels (1971), 1 Ill.App.3d 583, 587, 274 N.E.2d 635, 638.) In order for a person to be classified as an invitee it is sufficient that he go on the land in furtherance of the owner's business. It is not necessary that the invited person gain an advantage by his entry on the land. (Madrazo.) A social guest is considered a licensee and has been defined as one who enters the premises of the owner by permission, but for the licensee's own purposes. Therefore, a social guest is a person who goes on another's property for companionship, diversion, or entertainment. Madrazo.

    44

            The duty owed by the owner of premises towards an invitee is greater than that owed towards a licensee. (Ellguth v. Blackstone Hotel, Inc. (1951), 408 Ill. 343, 347, 97 N.E.2d 290, 293.) A social guest as a licensee, generally must take the premises of his host as he finds them. However, the owner of the premises has a duty to warn the licensee of any hidden dangers which are unknown to his guest, of which he, the owner, has knowledge, and to refrain from injuring his guest willfully or wantonly. (Latimer v. Latimer (1978), 66 Ill.App.3d 685, 688, 23 Ill.Dec. 471, 472-473, 384 N.E.2d 107, 108-109; Schoen v. Harris (1969), 108 Ill.App.2d 186, 190-191, 246 N.E.2d 849, 852.) Towards an invitee, the owner of the premises has a duty to exercise reasonable care in keeping the premises reasonably safe for use by the invitee. (Ellguth.) There may be circumstances by which this duty is extended to include the responsibility to protect the invitee from criminal attacks by third parties. O'Brien v. Colonial Village, Inc. (1970), 119 Ill.App.2d 105, 106-107, 255 N.E.2d 205, 207.

    46

            Plaintiff asserts that sufficient evidence was presented at trial to establish his status as an invitee at the time of the incident. Specifically, plaintiff argues that Illinois courts have recognized that the transaction of business of a fraternal organization carries with it such a status. In support of this proposition, plaintiff relies on the case of Wilkins v. Benevolent Protective Order of Elks, Lodge No. 623 (1955), 5 Ill.App.2d 370, 125 N.E.2d 549 (abstract).) In our view, plaintiff has overstated the holding in Wilkins. In that case, the plaintiff was a club member who was injured when he fell on a newly waxed floor on the club premises. The court afforded the plaintiff the status of an invitee in that the facts indicated that he was a "prospective customer for soup, cigars, and other small sundries" on sale at the club. (Slip opinion p. 17.) Thus Wilkins is clearly distinguishable from the instant case in that in Wilkins the accident occurred on the club premises where commercial items were offered for sale. Here, although there is evidence that Thomas, Sr. permitted lodge members to come to his home to pay their dues, the primary benefit of this service ran not to the defendant himself, but rather to the fraternal organization of which both parties were members. In sum, we conclude that plaintiff is best categorized as a licensee social guest and thus the only duty owed to the plaintiff by the [83 Ill.App.3d 1060] defendants was to warn

    48

    Page 1358

    50

            There is no question that defendants failed to warn plaintiff of the danger that their son might attack a house guest before the attack was underway. 1 Thus the issue becomes whether under the facts of this case defendants had a duty to do so. Plaintiff contends that he presented sufficient evidence by which a jury could have concluded that the defendants had knowledge of previous incidents which would charge them with a duty to anticipate the criminal acts of their son toward the plaintiff. We disagree.

    52

            Both defendants testified at trial that they knew that their son was going to the Janet Wattles Mental Health Center as an outpatient and that he was supposed to be taking medication for his emotional problems. Thomas, Jr. testified that in 1967 he had smashed the car window of his parents' next door neighbor with a hoe. He further testified that his parents knew about the incident after it had happened. Thomas, Jr. also told of another incident in which he had been involved where he had gotten into a "fricass" (sic) with his brother-in-law. This incident with the brother-in-law did not occur in his parents' home and there is no evidence that the defendants knew of this incident, although they testified that they knew that their son had been hospitalized on several occasions. Thomas, Jr. was hospitalized as a result of the incident with his brother-in-law. Another witness, Robert Johnson, testified that he had once gone to the defendants' home to pay lodge dues and was "tackled" by Thomas, Jr. While Johnson was not injured as a result of this incident, his eyeglasses were slightly damaged. Johnson was uncertain as to the exact time of the occurrence. On the basis of the plaintiff's testimony of when Johnson reported this attack to plaintiff, the trial court found that this incident occurred in 1968. In our view this finding is not against the manifest weight of the evidence. Moreover, there is no evidence that Esther Elmore knew of this incident. Thomas, Sr. testified that he did not see the incident when it occurred but that he heard about it afterwards from Johnson.

    54

            The previous incidents in which Thomas, Jr. was involved all had occurred almost ten years before the present attack. In the intervening years, Thomas, Jr. became employed at a Chrysler plant as an assembly worker. He worked there for approximately six and one-half years, until the early part of 1977. From 1973 to 1977, he lived away from home in a house that he was purchasing by himself. In approximately February, 1977, Thomas, Jr. [83 Ill.App.3d 1061] moved back with his parents after he left his job at the Chrysler plant and became unable to pay his bills. During the period from February to August, 1977, Thomas, Jr. received several collection letters and calls regarding debts that he owed. His parents were aware that the receipt of these requests at times upset him, and that he was under stress during this time. However, there was no evidence that Thomas, Jr. had ever threatened or effected violence on anyone during this time. Indeed, plaintiff testified that he had been alone with Thomas, Jr. on one occasion and had had a friendly conversation about a ball game.

    56

            Verdicts should be directed and judgments n. o. v. entered "only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand." (Pedrick v. Peoria & Eastern Railroad Co. (1967), 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-514.) In our view, the evidence so overwhelmingly established that the defendants did not know or have reason to know of the possibility that Thomas, Jr. would commit a criminal act toward plaintiff that no contrary verdict could ever stand. Although they did know

    58

    Page 1359

    60

            Accordingly, the judgment of the Circuit Court of Winnebago County is affirmed.

    62

            AFFIRMED.

    64

            NASH and VAN DEUSEN, JJ., concur.

    66

    ---------------

    68 69

    1 There is some evidence in the record that plaintiff was aware of Thomas, Jr.'s mental condition and of at least one of his previous violent incidents. However, we cannot say as a matter of law that plaintiff's knowledge was sufficient to obviate defendant's duty to warn. Cf. Wintercorn v. Rybicki (1979), 78 Ill.App.3d 179, 34 Ill.Dec. 29, 397 N.E.2d 485.

  • 4 Jacobsma v. Goldberg's Fashion Forum

    Plaintiff tried to restrain a fleeing shoplifter after a store manager yelled “Stop thief”, and pointed in the plaintiff’s direction. The plaintiff suffered a dislocated shoulder while struggling with the shoplifter, who ultimately escaped. The shoplifter had attempted to steal from the store three days earlier. However, the store did not attempt to increase security measures between the two incidents. A lawsuit was filed against the store to recover plaintiff’s medical bills and lost earnings due to his injury.

    If a customer is hurt while trying to assist the employees of a store, should the store compensate him for his injuries? This case also illustrates what kind of knowledge charges a property owner with the responsibility to protect its invitees from criminal acts. The court also touches upon whether an invitee’s voluntary conduct can alter his or her invitee status, and thereby change the duty owed by the owner.

    2

    Page 226

    5
    303 N.E.2d 226

    8
    14 Ill.App.3d 710

    11
    Henry JACOBSMA, Plaintiff-Appellee,
    v.
    GOLDBERG'S FASHION FORUM, Defendant-Appellant.

    14
    No. 57176.

    17
    Appellate Court of Illinois, First District, First Division.

    20
    Sept. 24, 1973.
    22

            [14 Ill.App.3d 711]

    24

    Page 227

    26

            Fred Lambruschi, Chicago, for plaintiff-appellee; Herbert P. Veldenz, Chicago, of counsel.

    28

    Page 228

    30

            BURKE, Presiding Justice.

    32

            This is an appeal from a judgment in a personal injury action for damages suffered by the plaintiff when he attempted to stop a shoplifter who was running out of the defendant store. The case was tried before a jury, which rendered a verdict in favor of the plaintiff. The defendant appeals on the grounds that there was no breach of its duty to the plaintiff and that the introduction of prejudicial testimony and comment requires reversal.

    34

            On January 15, 1966, the plaintiff and his wife entered the defendant store in the Ford City shopping center. At a point about 20 feet inside the store, the plaintiff observed a man later identified as the floor manager, standing at the end of a straight aisle, about 75 feet from him. The manager shouted 'Stop thief' and pointed in the direction of the plaintiff. There was another man about 50 feet from the plaintiff, between him and the manager, running toward the plaintiff. The plaintiff [14 Ill.App.3d 712] pushed his wife aside and grabbed the running man. The two men fell to the floor, with the plaintiff landing on his left shoulder, underneath the other man. No one came to the assistance of the plaintiff while he struggled with the man. In the struggle some ladies' garments fell from under the man's coat. The man got up and ran out of the store. He was pursued unsuccessfully by the manager.

    36

            The plaintiff could not rise unassisted. He was helped to a back room, where he waited for an ambulance. When the plaintiff arrived at Christ Community Hospital, he was informed that he had dislocated his left shoulder and was admitted to the hospital. He was placed in a body cast in which he remained for about four weeks. Medical bills were introduced in evidence. Evidence of lost earnings was also introduced. The doctor who treated the plaintiff was deceased at the time of trial, but the plaintiff presented testimony of a medical expert as to the plaintiff's present condition.

    38

            In order to recover in an action for negligence, the plaintiff must establish that the defendant owed him a duty which was breached and that the breach was the proximate cause of injury to him. (Neering v. I.C.R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Our first inquiry is whether the defendant owed some duty of care to the plaintiff and, if so, the extent of that duty.

    40

            It is conceded that the plaintiff was a business invitee upon entering the clothing store. Thus, the defendant owed him a duty to exercise ordinary care for his safety. (Bogovich v. Schermer, 16 Ill.App.2d 197, 147 N.E.2d 711.) But his injury occurred because of his attempt to restrain the shoplifter, an activity outside the normal business invitation. The defendant contends that the plaintiff was at that point a volunteer to whom the defendant owed only the duty not to wilfully or wantonly cause him injury.

    42

            In refusing to instruct the jury on the issue of whether the plaintiff was a volunteer, the trial court determined that he was not a volunteer as a matter of law. Whether an invitee has lost that status is generally a question of fact for the jury. (Jones v. Granite City Steel Co., 104 Ill.App.2d 379, 244 N.E.2d 427.) But where all the facts and inferences therefrom lead to only one conclusion, the matter may be decided without recourse to a jury. (Johnson v. Shell Oil Co., 131 Ill.App.2d 1032, 264 N.E.2d 278.) The plaintiff's agent, the manager who called for help, testified that he had the authority to do so. Even if he did not have the express authority, this would be the kind of emergency in which such authority would be implied. (Lambert v. Senne Funeral Home, Inc., 343 Ill.App. 136, 98 N.E.2d 519.) That the call for help was an invitation to the plaintiff is also borne out by the record. [14 Ill.App.3d 713] The manager called 'Stop thief,' and his testimony indicates that this was a general call for assistance:

    44

    'Q. And did you as a matter of fact call and ask for assistance when this

    46

    Page 229

    48

    A. If I recall, I called out to my girls to. I think the exact words were, 'Stop thief.'

    50

    Q. Will, where were your girls?

    52

    A. Throughout the store.

    54

    Q. You mean you're telling us that you told the girls to stop the thief?

    56

    A. No, I pursued him, but he had a good head start on me. And as a means of attracting attention, I yelled, 'Stop thief,' which means that anybody, any of my girls in the vicinity--perhaps the police if they used it, just--just struck me as being the proper thing to do.'

    58

            The fact that the manager also testified that he did not see the plaintiff at the time he called is immaterial, in view of the general nature of the cry, the fact that it was admittedly a call for assistance, and the fact that to the plaintiff it appeared that the manager was speaking directly to him. The physical positions of the three, the plaintiff, the shoplifter and the manager, who was pointing in the direction of the plaintiff, justified the plaintiff's conclusion that he was requested to assist in stopping the thief. This conclusion is further buttressed by the facts that the plaintiff was physically larger than the shoplifter and that the plaintiff was the only man other than the shoplifter and the manager in the store, which had few customers at the time. Finally, the plaintiff's purpose in attempting to restrain the shoplifter was to benefit the defendant, a purpose which has been found to be sufficient to sustain invitee status. (Augsburger v. Singer, 103 Ill.App.2d 12, 242 N.E.2d 436.) The court did not err, therefore, in refusing the instructions on volunteer status.

    60

            The defendant makes much of the fact that before the incident the plaintiff had not been in the store and could not have known of the manager's position with the defendant. Hence, the defendant concludes, the plaintiff could not have believed he was undertaking to assist the defendant. The facts, however, establish the plaintiff's basis for such a belief. The incident occurred in January, with the weather such that the plaintiff and his wife wore coats. The manager wore no coat. The manager was at the rear of the store behind a counter when the plaintiff first saw him. The plaintiff would not logically assume that the manager was a customer trying on clothes (to explain his being coatless), because[14 Ill.App.3d 714] the defendant sells ladies' clothes exclusively. Even with events moving as swiftly as they did, the plaintiff could reasonably believe that the manager had authority to request help of him in stopping the fleeing man.

    62

            Having determined that the plaintiff was not a volunteer as a matter of law, we are left with the question whether the defendant breached its duty of ordinary care for the plaintiff. It has been held that there is no breach of the duty of reasonable care owed to one lawfully on premises for injuries caused by the criminal acts of third persons, where there was no knowledge of previous incidents or special circumstances which would charge the owners with knowledge of the dangers and the duty to anticipate them. (O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205.) In the case before us, the defendant had actual knowledge through its sales staff that the shoplifter who caused the injury had three days previously attempted to steal clothing from the defendant. With the knowledge of this man's prior crime, the defendant became charged with the responsibility to protect its invitees from other illegal acts by him. Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.

    64

            Whether that obligation was met was a question for the jury in this case. Their verdict in the plaintiff's favor is supported by the record. The defendant had no security force of its own. Ford City policemen patrolled all the stores in

    66

    Page 230

    68

            The defendant's next contention is that prejudicial testimony denied him a fair trial. We find no merit in the first argument of the defendant that testimony of the plaintiff's medical expert regarding the term 'subcoracoid subluxation' was prejudicial because it was taken from a paid bill presented by the plaintiff. As the trial court found, substantially all of the expert's testimony was based on X-rays taken of the plaintiff's shoulders shortly before trial. The expert testified that the impaired condition of the plaintiff's left shoulder could have been caused by a dislocation some years earlier. The trial judge prevented any potential [14 Ill.App.3d 715] prejudice when he instructed the jury to disregard any testimony concerning the disputed term.

    70

            The second argument concerns comments made in the opening statement of plaintiff's attorney that the defendant's agents had agreed to pay the plaintiff's medical bills when the plaintiff's wife called them from the hospital. The court later ruled inadmissible any such conversation on the ground that it constitued an offer of settlement. The defendant now argues that the opening statement thus prejudiced the defendant's case, as did a later reference to the person with whom the phone conversation took place. Regardless of whether the testimony was properly excluded, we find no prejudice resulting from the comments in question. There was no testimony as to the telephone conversation on which the plaintiff apparently relied for payment from the defendant. The jury was told that the attorneys' statements were not evidence in the case, and there is no indication that the verdict was influenced by the statements challenged.

    72

            The defendant's final argument under this contention is that the plaintiff's attorney's closing argument contained prejudicial statements. In particular, the defendant refers to comments by the attorney on the plaintiff's public-spirit and virtue as the motivation for his act. This is not the kind of inflammatory and prejudicial statement which we would find merits reversal. Bruske v. Arnold, 100 Ill.App.2d 428, 241 N.E.2d 191.

    74

            The evidence presented a fact issue as to the breach of defendant's duty to the plaintiff. Applying the rule of Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, we hold that the trial court correctly submitted this issue to the jury and did not err in denying the defendant's post-trial motions.

    76

            For the reasons stated, the judgment is affirmed.

    78

            Judgment affirmed.

    80

            GOLDBERG and EGAN, JJ., concur.

  • 5 Hegel v. Lansam

    A seventeen-year-old college student enrolls in university and becomes involved with criminals and drugs. State law required the university to maintain “law and order” on campus, and made it a crime to “contribute to the delinquency of a child”.

    Do institutions like universities have a duty to regulate the private lives of their students?

    2

    Page 147

    5
    29 Ohio Misc. 147

    8
    273 N.E.2d 351, 55 O.O.2d 476, 58 O.O.2d 423

    11
    Eugene HEGEL et al.
    v.
    Walter C. LANGSAM et al.

    14
    No. A-245986.

    17
    Court of Common Pleas of Ohio, Hamilton County.

    20
    March 23, 1971.
    22

            [273 N.E.2d 352] Robert G. Stachler, Cincinnati, for defendant Langsam.

    24

            William Flax, Cincinnati, for plaintiff Hegel.

    26

            BETTMAN, Judge.

    28

            This matter is before the Court on defendant's motion for judgment on the pleadings. The gravamen of plaintiff's position is that the defendants permitted the minor plaintiff, a seventeen year old female student from Chicago, Illinois, enrolled at the University, to become associated wich criminals, to be seduced, to become a drug user and further allowed her to be absent from her dormitory and failed to return her to her parents' custody on demand.

    30

            On our opinion plaintiffs completely misconstrue the

    32

    Page 148

    34

            We know of no requirement of the law and none has been cited to us placing on a university or its employees any duty to regulate the private lives of their students, to control their comings and goings and to supervise their associations.

    36

            We do not believe that O.R.C. 3345.21 requiring a university to maintain 'law and order' on campus, nor O.R.C. 2151.41, making it a crime to contribute to the delinquency of a child, have any bearing on the fact situation before us.

    38

            For these reasons we hold that plaintiffs have failed to state a cause of action and defendants' motion for judgment on the pleadings should be granted.

    40

            Having so determined it is not necessary to consider the defense that the University and its employees are immune from suit.

    42

            Please present entry accordingly.

  • 6 J.S. and M.S. v. R.T.H.

    Plaintiffs’ children were sexually abused by a neighbor for more than a year. The plaintiffs sue the neighbor’s wife, based on the argument that if she had suspected or should have suspected the abuse, she owed a duty of care to prevent it.

    In this case, the court debates whether a spouse has a duty to prevent his or her partner’s abuse of children, based solely on suspicion of abuse, or circumstances which should have led to that suspicion. To settle the debate, the court engages in a complex analysis that weighs and balances several, related factors.

    2

    Page 330

    5
    155 N.J. 330

    8
    714 A.2d 924

    11
    J.S. and M.S., his wife, as Natural Parents and Guardians Ad
    Litem of C.S., A Minor, and M.S., A Minor, and
    M.S., individually, Plaintiffs-Respondents,
    v.
    R.T.H., Defendant,
    and
    R.G.H., his wife, jointly and severally Defendant-Appellant.

    14
    Supreme Court of New Jersey.

    17
    Argued Feb. 3, 1998.
    Decided July 29, 1998.
    19

            Patricia M. Forsyth, Secaucus, for defendant-appellant (Waters, McPherson, McNeill, attorneys; Kenneth D. McPherson, Jr., of counsel; Ms. Forsyth and Brian D. Lieberman, on the briefs).

    21

            Marian I. Kelly, Woodbury, for plaintiffs-respondents (Hoffman, DiMuzio and Hoffman, attorneys).

    23

            The opinion of the Court was delivered by

    25

            HANDLER, J.

    27

            In this case, two young girls, ages 12 and 15, spent substantial periods of recreational time with their neighbor at his horse barn, riding and caring for his horses. Betraying the trust this relationship established, the neighbor, an older man, sexually abused both girls for a period of more than a year. Following the man's conviction and imprisonment for these sexual offenses, the girls, along with their parents, brought this action against the man and his wife for damages, contending that the wife's negligence rendered her, as well as her husband, liable for their injuries. The man conceded liability for both the intentional and negligent injuries that he inflicted on the girls by his sexual abuse. His wife, however, denied that, under the circumstances, she could be found negligent for the girls' injuries.

    29

            This case presents the issue of whether a wife who suspects or should suspect her husband of actual or prospective sexual abuse of their neighbors' children has any duty of care to prevent such abuse. And, if there is such a duty, does a breach of that duty constitute a proximate cause of the harm that results from sexual abuse.

    31

    Page 335

    33

    I

    35

            Defendants R.T.H. and R.G.H., husband and wife (called "John" and "Mary" for purposes of this litigation), moved into a house in Vineland, New Jersey, and became next-door neighbors of plaintiffs, J.S. and M.S. and their two daughters, C.S. and M.S.

    37

            John, 64 years old, was charged with sexually assaulting the two sisters over a period of more than a year. He pled guilty to endangering the welfare of minors and was sentenced to eighteen months in state prison. Plaintiffs, as the natural parents and guardians ad litem of their two daughters, filed a complaint against John alleging intentional, reckless, and/or negligent acts of sexual assault against each of the two girls. In an [714 A.2d 927] amended complaint, plaintiffs added Mary as a defendant, alleging that she "was negligent in that she knew and/or should have known of her husband's proclivities/propensities" and that as a result of her negligence the two girls suffered physical and emotional injury. 1

    39

            Defendants filed a joint answer in which they denied plaintiffs' allegations. In an amended answer, Mary offered the defenses that she owed no duty to plaintiffs, that any alleged negligence on her part was not the proximate cause of any injuries or damages sustained by plaintiffs, and that any damages sustained by plaintiffs were the result of actions by a third party over whom she exercised no control. Mary also filed a crossclaim for contribution and indemnification against John, alleging that even if plaintiffs' allegations were proven, John was the primary, active, and sole culpable cause of any injuries to the plaintiffs.

    41

            Mary filed a motion for summary judgment, contending that there was no legal basis for finding her negligent. In opposition, plaintiffs submitted the certifications of the two minor plaintiffs. Plaintiffs also argued that the summary judgment motion was

    43

    Page 336

    45

            The trial court entered summary judgment on behalf of Mary. 2 On appeal, the Appellate Division reversed the order and remanded for entry of an order granting plaintiffs extended discovery. 301 N.J.Super. 150, 693 A.2d 1191 (1997).

    47

            This Court granted defendant's petition for certification. 151 N.J. 464, 700 A.2d 876 (1997).

    49

            On this appeal, we assess the sufficiency of the evidence under the standard applicable to summary judgments. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 666 A.2d 146 (1995). Under that standard, the court accepts as true all the evidence and favorable legitimate inferences that support the non-moving party. Id. at 523, 666 A.2d 146.

    51

            The summary judgment record, which includes plaintiffs' certifications and Mary's deposition testimony, indicates that after defendants moved next door to plaintiffs in 1988, the two families quickly became friendly and spent a lot of time together. Defendants owned horses and a barn, and, at John's encouragement, the minor plaintiffs visited daily to ride horseback and to help care for the horses. Additionally, John would take at least the older of the two girls horseback riding on various trails in New Jersey and Pennsylvania. Usually John was the only adult in their company; Mary never joined the trio. However, during the summer of 1992, there were several occasions when Mary entered the barn, saw John with the girls, and stated to him: "Oh. Your whores are here." On several occasions that summer when the girls were on

    53

    Page 337

    55

            The sexual assaults occurred over a period of a year, from 1991 until John's arrest in November 1992. Additional evidence indicates that for at least some period in 1992, Mary lived outside of the marital home. It was not until November 1992, when her son informed her of John's arrest, that Mary first learned that her husband had had any sexual contact with the girls. Mary was shocked by the news; she had believed her husband and the girls were just friends who spent time together because of the horses. She saw [714 A.2d 928] John the next day, following his release from prison. He told her that the police, acting on information received in a phone call, had caught him behind the house with the two girls. Both at the trial level and on appeal, however, Mary conceded for the purposes of argument that "at all relevant times" she "knew or should have known of her husband's proclivities/propensities."

    58
    II
    60

    A.

    62

            In determining whether a duty is to be imposed, courts must engage in a rather complex analysis that weighs and balances several, related factors, including the nature of the underlying risk of harm, that is, its foreseeability and severity, the opportunity and ability to exercise care to prevent the harm, the comparative interests of, and the relationships between or among, the parties, and, ultimately, based on considerations of public policy and fairness, the societal interest in the proposed solution. See Hopkins v. Fox & Lazo Realtors, 132 N.J. 426, 439, 625 A.2d 1110 (1993).

    64

            Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. See Williamson v. Waldman, 150 N.J. 232, 239, 696 A.2d 14 (1997).

    66

    Page 338

    68

            Foreseeability as a component of a duty to exercise due care is based on the defendant's knowledge of the risk of injury and is susceptible to objective analysis. Weinberg v. Dinger, 106 N.J. 469, 484-85, 524 A.2d 366 (1987). That knowledge may be an actual awareness of risk. Carvalho v. Toll Bros. & Developers, 143 N.J. 565, 576-77, 675 A.2d 209 (1996). Such knowledge may also be constructive; the defendant may be charged with knowledge if she is "in a position" to "discover the risk of harm." Id. at 578, 675 A.2d 209. In some cases where the nature of the risk or the extent of harm is difficult to ascertain, foreseeability may require that the defendant have a "special reason to know" that a "particular plaintiff" or "identifiable class of plaintiffs" would likely suffer a "particular type" of injury. See People Express Airlines, Inc. v. Consolidated Rail Corp., 100 N.J. 246, 262, 263, 495 A.2d 107 (1985). Further, when the risk of harm is that posed by third persons, a plaintiff may be required to prove that defendant was in a position to "know or have reason to know, from past experience, that there [was] a likelihood of conduct on the part of [a] third person[ ]" that was "likely to endanger the safety" of another. Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 507, 694 A.2d 1017 (1997) (internal quotation and citation omitted).

    70

            "[T]he question whether there is a 'duty' merely begs the more fundamental question whether the plaintiff's interests are entitled to legal protection against the defendant's conduct." Weinberg, supra, 106 N.J. at 481, 524 A.2d 366 (internal quotation and citation omitted). The imposition of a duty thus requires an evaluation and a balancing of the conflicting interests of the respective parties. Portee v. Jaffee, 84 N.J. 88, 101, 417 A.2d 521 (1980). That assessment necessarily includes an examination of the relationships between and among the parties. Also implicated

    72

    Page 339

    74

            Ultimately, the determination of the existence of a duty is a question of fairness and public policy. Clohesy, supra, 149 N.J. at 502, 694 A.2d 1017. In fixing the limits of liability as a matter of public policy, courts must draw on "notions of fairness, common sense, and morality." Hopkins, supra, 132 N.J. at 443, 625 A.2d 1110. Public policy must be determined in the context of contemporary circumstances and considerations. See, e.g., Kelly v. Gwinnell, 96 N.J. 538, 544-45, 476 A.2d 1219 (1984) (noting that in a society growing increasingly intolerant of [714 A.2d 929] drunken driving, the imposition of a duty on social hosts "seems both fair and fully in accord with the State's policy"). Thus, " '[d]uty' is not a rigid formalism" that remains static through time, but rather is a malleable concept that "must of necessity adjust to the changing social relations and exigencies and man's relation to his fellows." Wytupeck v. Camden, 25 N.J. 450, 462, 136 A.2d 887 (1957).

    76

            The Court, in its determination whether to impose a duty, must also consider the scope or boundaries of that duty. See Kelly, supra, 96 N.J. at 552, 476 A.2d 1219 (observing that determination of the scope of duty in negligence cases "has traditionally been a function of the judiciary"). The scope of a duty is determined under "the totality of the circumstances," Clohesy, supra, 149 N.J. at 514, 694 A.2d 1017, and must be "reasonable" under those circumstances, id. at 520, 694 A.2d 1017. Factors to be taken into consideration include the risk of harm involved and the practicality of preventing it. Id. at 529-20, 694 A.2d 1017; see also Hopkins, supra, 132 N.J. at 447, 625 A.2d 1110 (noting that "[n]egligence has often been defined as the failure to take precautions that cost less than the damage wrought" by the harm). When the defendant's actions are "relatively

    78

    Page 340

    80

    B.

    82

            Here, a man criminally sexually assaulted unrelated, adolescent children whom he had befriended. The defendant is the spouse of the wrongdoer. The abuse occurred on her own property over an extended period of time. The tortious, assaultive conduct is of a type that is extremely difficult to identify, anticipate, and predict. While these considerations bear on all of the factors that are relevant in determining whether a duty of care should be recognized and imposed on the spouse, they bear materially on the primary element of foreseeability.

    84

            Although conduct involving sexual abuse is often secretive, clandestine, and furtive, a number of factors are relevant when determining whether or not it is foreseeable to a wife that her husband would sexually abuse a child. These include whether the husband had previously committed sexual offenses against children; the number, date, and nature of those prior offenses; the gender of prior victims; the age of prior victims; where the prior offenses occurred; whether the prior offense was against a stranger or a victim known to the husband; the husband's therapeutic history and regimen; the extent to which the wife encouraged or facilitated her husband's unsupervised contact with the current victim; the presence of physical evidence such as pornographic materials depicting children and the unexplained appearance of children's apparel in the marital home; and the extent to which the victims made inappropriate sexual comments or engaged in age-inappropriate behavior in the husband and wife's presence. See, e.g., Pamela L. v. Farmer, 112 Cal.App.3d 206, 169 Cal.Rptr. 282 (1980) (finding that foreseeability of harm is great where the

    86

    Page 341

    88

            Moreover, there is some empirical support for the conclusion that sexual abuse of a child, while extremely difficult to detect or anticipate, is a risk that can be foreseen by a spouse. This evidence indicates that an extremely high percentage of child sexual molesters are men, many of whom are married. U.S. Dept. of Justice, Bureau of Justice Statistics, Child Victimizers: Violent Offenders and Their Victims 5 (March 1996). The vast majority of child victims are female and many child victims fall prey to an immediate relative or a family acquaintance; most of these sexual assaults are committed either in the offender's home or the victim's home. Id. at 10-12. Given those factors, the wife of a sexual abuser of children is in a unique position to observe firsthand telltale signs of sexual abuse. A wife may well be the only person with the kind of knowledge or opportunity to know that a particular person or particular class of persons is being

    90

    Page 342

    92

            These considerations warrant a standard of foreseeability in this case that is based on "particular knowledge" or "special reason to know" that a "[p]articular plaintiff" or "identifiable class of plaintiffs" would suffer a "particular type" of injury. See People Express, supra, 100 N.J. at 260, 262, 263, 495 A.2d 107; see also Clohesy, supra, 149 N.J. at 513, 694 A.2d 1017 (holding that liability can be imposed on supermarket for failing to provide security in its parking lot as long as "specificity and strictness [ ] are infused into the definitional standard of foreseeability") (internal quotation and citation omitted); Dunphy v. Gregor, 136 N.J. 99, 109, 642 A.2d 372 (1994) (determining that it was appropriate to allow unmarried cohabitant to recover against defendant motorist under theory of bystander liability because she represented "an eminently foreseeable but clearly discrete class of potential plaintiffs"); Hopkins, supra, 132 N.J. at 451-52, 625 A.2d 1110 (Clifford, J., concurring) (finding it appropriate to impose liability on real estate brokers for injury sustained during open-house as long as the duty to warn and inspect arises only in "severely circumscribed" circumstances that extends only to a "limited class" of plaintiffs); Tarasoff v. Regents of the Univ. of Cal., 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 340 (1976) (imposing a duty of reasonable care under the circumstances when defendant has a basis for determining that a readily identifiable victim is likely to be harmed by the actions of a third person). "Particularized foreseeability" in this kind of case will conform the standard of foreseeability to the empirical evidence and common experience that indicate a wife may often have actual knowledge or special reason to know that her husband is abusing or is likely to abuse an

    94

    Page 343

    96

            The nature of the parties' interests bears on the need to recognize a duty of care. "There can be no doubt about the strong policy of this State to protect children from sexual abuse and to require reporting of suspected child abuse." 301 N.J.Super. at 156, 693 A.2d 1191. That policy is so obvious and so powerful that it can draw little argument. It is an interest that is massively documented.

    98

            The Legislature has dealt comprehensively with the subject of child abuse and has enacted[714 A.2d 931] a plethora of statutes designed to prevent the sexual abuse of children. For example, N.J.S.A. 9:6-8.10 requires any person having reasonable cause to believe that a child has been subject to abuse to report the abuse immediately to the Division of Youth and Family Services. The duty to report is not limited to professionals, such as doctors, psychologists, and teachers, but is required of every citizen. State v. Hill, 232 N.J.Super. 353, 356, 556 A.2d 1325 (Law Div.1989). Indeed, friends or neighbors are often in the best position to fulfill this statutory duty because they are the people "who frequently hear or observe acts of child abuse." Id. at 357, 556 A.2d 1325. The purpose of the sexual abuse reporting statute is

    100

    to provide for the protection of children under 18 years of age who have had serious injury inflicted upon them by other than accidental means. It is the intent of this legislation to assure that the lives of innocent children are immediately safeguarded from further injury and possible death and that the legal rights of such children are fully protected.

    102

    [ N.J.S.A. 9:6-8.8.]

    104

            It is a disorderly persons offense to fail to report an act of child abuse reasonably believed to have been committed. N.J.S.A. 9:6-8.14. See F.A. v. W.J.F., 280 N.J.Super. 570, 576, 656 A.2d 43 (App.Div.1995) (noting that any person "who knowingly fails to

    106

    Page 344

    1083110

            "Megan's Law," N.J.S.A. 2C:7-1 to -11, provides yet more evidence of the State's intolerance of sexual abuse of children. In affirming the constitutionality of the community notification and

    112

    Page 345

    114

            While the interest in protecting children from sexual abuse is great, this Court must also take into consideration defendants' interests in a stable marital relationship and in marital privacy. See State v. Szemple, 135 N.J. 406, 414, 640 A.2d 817 (1994). That interest traditionally found expression in the common-law doctrine of interspousal immunity wherein one spouse could not sue or be [714 A.2d 932] sued by another, see generally Kennedy v. Camp, 14 N.J. 390, 396, 102 A.2d 595 (1954); 1 Blackstone Commentaries 442; Prosser, Torts § 122 at 860-64 (4th ed.1971), and the testimonial disqualification wherein one spouse was not permitted to testify for or against the other, see generally Szemple, supra, 135 N.J. at 414, 640 A.2d 817; 1 Coke, A Commentarie upon Littleton 6b (9th ed. 1832); 8 Wigmore on Evidence § 2227 (McNaughton rev.1961). Both courts and scholars, however, increasingly questioned whether the doctrine of marital immunity actually succeeded in promoting the marital tranquility and privacy it was designed to serve. See, e.g., Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978) (abrogating interspousal immunity; also observing that it is hard to "monitor marital morality" and stating: "The threat to domestic harmony posed by a legal action between spouses is an imponderable; the cohesiveness of a marriage may be jeopardized as much by barring a cause of action as by allowing it."). The testimonial disqualification has also been criticized. See 8 Wigmore, supra, § 2228 at 221 (terming the spousal testimonial privilege "the merest anachronism in legal theory and an indefensible obstruction to truth in practice"); 63 American Bar Ass'n Reports 594-95 (1938) (calling for the abolition of the spousal testimonial privilege); Trammel v. United States, 445 U.S. 40, 52, 100 S.Ct. 906, 913, 63 L. Ed.2d 186, 196 (1980) (holding that the rule permitting an accused to bar all adverse spousal testimony cannot stand because the "ancient foundations for so sweeping a privilege have

    116

    Page 346

    118

            Moreover, the societal interest in enhancing marital relationships cannot outweigh the societal interest in protecting children from sexual abuse. The child-abuse reporting statute itself has mandated that balance--it applies to every citizen, including a spouse. Supra at 343, 714 A.2d at 931. As the Appellate Division here described, "the Legislature's adoption of that statute [i.e., "Megan's Law"] is an expression of New Jersey's strong public policy favoring protection of children over the privacy of an offending adult." 301 N.J.Super. at 157, 693 A.2d 1191. Thus, "[t]he protective privilege ends where the public peril begins." Tarasoff, supra, 131 Cal.Rptr. 14, 551 P.2d at 347; cf. State v. P.Z., 152 N.J. 86, 112, 703 A.2d 901 (1997) (refusing to extend a parent's right to counsel or right to Miranda warnings under the state and federal constitutions to Title Nine investigations by DYFS workers because that "would shift the primary focus of Title Nine from the right of children to be protected from abuse and neglect to the rights of parents to the custody of their children. Those rights are not in equipoise."). The Appellate Division here also overruled the holding contained in Rozycki v. Peley, 199 N.J.Super. 571, 579, 489 A.2d 1272 (Law Div.1984) to the extent that it "places a higher priority upon preserving the defendants' marital relationship than upon protecting children from abuse." 301 N.J.Super. at 157, 693 A.2d 1191. Thus, while the marital relationship is a genuine concern in this case, it is by no means dispositive.

    120

            Considerations of fairness and public policy also govern whether the imposition of a duty is warranted. Carvalho, supra, 143 N.J. at 573, 675 A.2d 209. Public policy considerations based in large measure on the comparative interests of the parties support overwhelmingly the recognition of a duty of care in these circumstances.

    122

    Page 347

    124

    Recent research indicates that a number of psychosocial problems--including chronic depression and anxiety, isolation and poor social adjustment, substance abuse, suicidal behavior, and involvement in physically or sexually abusive relationships as either aggressor or victim--are more common among adults molested as children than among those with no such childhood experiences. Victims of sexual abuse can suffer an impaired ability to critically evaluate the motives and behavior of others, making them more vulnerable to revictimization. [714 A.2d 933] An especially disturbing finding about child sexual abuse is its strong intergenerational pattern; in particular, due to the psychological impact of their own abuse, sexually abused boys have been found to be more likely than non-abused boys to turn into offenders against the next generation of children, and sexually abused girls are more likely to become mothers of children who are abused. And studies show that adult male aggressive behavior, particularly sexual aggression, is associated with the trauma of childhood sexual abuse. Thus, apart from the substantial personal trauma caused to the victims of such crimes, sexual crimes against children exact heavy social costs as well.

    126

    [Poritz, supra, 142 N.J. at 16, 662 A.2d 367 (internal quotation and citation omitted).]

    128

            In defining the appropriate standard of care, we are enjoined again to consider the comprehensive legislative treatment of the issue of sexual abuse of children. While the efforts of the Legislature to combat sexual abuse of children are considerable, evidence and experience indicate that they may not be sufficient to stem the tide. This is because ninety-five to ninety-eight percent of child sexual abuse "is hidden behind closed doors" and occurs "in the home or within the circle of immediate friends and family." Hearing Before the Senate Institutions, Health and Welfare Committee on Child Abuse and Sexual Abuse of Children in Day and Residential Children's Facilities 39 (Oct. 3, 1984) (statement of Betty Wilson, President of the Center for Non-Profit Corporations). Moreover, "80% of substantiated perpetrators of child sexual abuse have no prior criminal records," id. at 11, 662 A.2d 367 (statement of George Albanese, Commissioner of the New Jersey Department of Human Services), and thus would fall outside of current registration and community notification requirements. Thus, we can confidently conclude that civil remedies will

    130

    Page 348

    132

            It is obvious that the Legislature, in providing sweeping statutory protections designed to protect children and to curb child abuse, did not intend to foreclose civil remedies. We note that

    134

    [w]hen a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.

    136

    [Restatement (Second) of Torts, § 874A.]

    138

            Not only may a violation of a statute "generate a civil remedy even where no such remedy is included in the act," but the "violation of some statutes may even be negligence." Parks v. Pep Boys, 282 N.J.Super. 1, 14-15, 659 A.2d 471 (App.Div.1995). When a statute specifically incorporates a standard of care, "a jury finding of a statutory violation constitutes a finding of negligence." Eaton v. Eaton, 119 N.J. 628, 642-43, 575 A.2d 858 (1990); see also Jones v. Bennett, 306 N.J.Super. 476, 484, 703 A.2d 1008 (App.Div.1998) (noting that normally "violation of a motor vehicle statute is evidence of negligence," but where "a motor vehicle statute codifies the common law standard, the violation of the statute is not evidence of negligence, it is negligence") (internal quotation and citation omitted). When a statute, however, merely proscribes conduct and adopts a standard without intending specifically to incorporate the non-statutory or common-law standard, violation of that statute may constitute only evidence of negligence. See Smith v. Young, 300 N.J.Super. 82, 95, 692 A.2d 76 (App.Div.1997) (noting "venerable rule of law that permits an injured plaintiff to use violation of a legislatively established standard as evidence of negligence for the consideration of the jury, as long as the plaintiff was one of a class for whose benefit the statute was enacted") (internal quotations and citations omitted).

    140

    Page 349

    142

            In this case, there is no doubt that the minor children were members of the class that N.J.S.A. 9:6-8.10 was meant to protect and that they suffered precisely the [714 A.2d 934] type of harm from which the statute was intended to protect them. Further, there is no doubt that a wife can be a person who is subject to the obligation imposed by the statute. See Hill, supra, 232 N.J.Super. at 356, 556 A.2d 1325. If Mary herself had discovered the sexual abuse of the children, or even had "reasonable cause to believe" that they had been sexually abused, she would have been lawfully compelled to report that occurrence. See N.J.S.A. 9:6-8.10. Further, the child-abuse reporting statute provides a standard of care in that it requires anyone who has "reasonable cause to believe" that a child is being sexually abused to report the abuse to DYFS. This statutory standard, however, does not purport to incorporate or codify any common-law standard. Moreover, the statute does not expressly attempt to resolve for purposes of civil liability the comparative interests of the parties, and the Court must heed not only the public policy of protecting children, but also that of promoting stability in marriage. Accordingly, we do not conclude that the Legislature intended that the child-abuse reporting statute constitute an independent basis for civil liability or that its violation constitute negligence per se. Nevertheless, because the protections provided, the evils addressed, and the obligations imposed by the reporting statute parallel those that would be relevant in recognizing the existence of a duty as a basis for a civil remedy, we determine that a violation of the statute may constitute evidence of negligence in circumstances such as those presented in this case.

    144

            Considerations of fairness implicate the scope as well as the existence of a duty. In defining the duty to be imposed, the court must weigh the ability and opportunity of the defendant to exercise reasonable care. See, e.g., Kuzmicz, supra, 147 N.J. at 515, 688 A.2d 1018; Carvalho, supra, 143 N.J. at 573, 675 A.2d 209. Defendant contends that the imposition of a duty to prevent her husband from engaging in sexual abuse of another person

    146

    Page 350

    148

    Page 351

    150

    C.

    152

            Considerations of foreseeability, the comparative interests and relationships of the parties, and public policy and fairness support the recognition of a duty of care. Based in large measure on the strong public policy of protecting children from sexual abuse, we conclude that there is a sound, indeed, compelling basis for the imposition of a duty on a wife whose husband poses the threat of sexually victimizing young children.

    154

            Closely-related to the recognition of a duty, however, is the issue of proximate causation, which must also be considered in determining whether any liability may be allowed for the breach of such a duty. Proximate causation is "that combination of 'logic, common sense, justice, policy and precedent' that fixes a point in the chain of events, some foreseeable and some unforeseeable, beyond which the law will bar recovery." People Express, supra, 100 N.J. at 264, 495 A.2d 107 (quoting Powers v. Standard Oil Co., 98 N.J.L. 730, 734, 119 A. 273 (Sup.Ct.), aff'd o.b., 98 N.J.L. 893, 121 A. 926 (E. & A.1923)); accord Prosser, Torts § 41 at 236-37 (3rd ed. 1964) ("As a practical matter, legal responsibility must be limited to those causes which are so closely connected with the result and of such significance that the law is justified in imposing liability.").

    156

            Ordinarily, issues of proximate cause are jury questions. See Martin v. Bengue, Inc., 25 N.J. 359, 374, 136 A.2d 626 (1957).

    158

    Page 352

    160

            It does not seem highly extraordinary that a wife's failure to prevent or warn of her husband's sexual abuse or his propensity for sexual abuse would result in the occurrence or the continuation of such abuse. The harm from the wife's breach of duty is both direct and predictable. There is little question, here, that the physical and emotional injuries allegedly suffered by the girls are hardly an extraordinary result of John's acts of molestation and that their victimization is not an extraordinary consequence of Mary's own negligence. Mary's negligence could be found to be a proximate cause of plaintiffs' injuries. See Hill v. Yaskin, 75 N.J. 139, 147, 380 A.2d 1107 (1977).

    162

            Accordingly, we hold that when a spouse has actual knowledge or special reason to know of the likelihood of his or her spouse engaging in sexually abusive behavior against a particular person or persons, a spouse has a duty of care to take reasonable steps to prevent or warn of the harm. Further, we hold that a breach of such a duty constitutes a proximate cause of the resultant injury, the sexual abuse of the victim.

    164

    Page 353

    166

    III

    168

            In determining how the standards for duty, negligence, and proximate cause should be applied in this case, we view the facts in the light most favorable to plaintiffs. See Brill, supra, 142 N.J. at 523, 666 A.2d 146.

    170

            It may be found that the relationship between the next-door neighbors' in this case [714 A.2d 936] had been close. Mary knew that the neighbors' adolescent girls were visiting at her home nearly every day and that they spent considerable amounts of time there alone with her husband. Moreover, she never "confronted" her husband about the unsupervised time he was spending with the girls. At both the trial level and on appeal, Mary conceded for the purposes of argument that "at all relevant times" she "knew or should have known of her husband's proclivities/propensities." Thus, it may be determined that it was particularly foreseeable that John was abusing the young girls. Further, the evidence at trial could support a finding of negligence on Mary's part. It is inferable, as explained by the Appellate Division, that Mary could have discharged her duty by confronting her husband and warning him, by insisting or seeing that the girls were not invited to ride or care for the horses, by keeping a watchful eye when she knew the girls to be visiting with her husband, by asking the girls' parents to ensure that the children not visit when she was not present, or by warning the girls or their parents of the risk she perceived. See 301 N.J.Super. at 157, 693 A.2d 1191. Finally, the evidence may be found sufficient to support the determination that the harm suffered by the girls was not a highly extraordinary result of the breach of that duty.

    172

            We also conclude that summary judgment in this matter was premature. Summary judgment was entered only five months after Mary's answer was filed and only two months after her amended answer. Id. at 154 n. 2, 693 A.2d 1191. The Appellate Division ruled that plaintiffs should have been given the opportunity to depose John and others to try to discover further evidence bearing on Mary's knowledge of John's conduct or sexual

    174

    Page 354

    177
    IV
    179

            We affirm the judgment of the Appellate Division.

    181

            For affirmance--Chief Justice PORITZ, and Justices HANDLER, POLLOCK, O'HERN, GARIBALDI, STEIN, and COLEMAN--7.

    183

            Opposed--None.

    185

    ---------------

    187 188

    1 The Appellate Division opinion suggests that plaintiffs' amended complaint additionally alleged "that Mary was aware of her husband's history of pedophilia as well as his conduct involving these children." 301 N.J.Super. at 153, 693 A.2d 1191. No such allegation appears in the amended complaint.

    190

    2 Following summary judgment for Mary, plaintiffs continued their suit against John, and a judgment was entered against John and in favor of the two minor plaintiffs, awarding each $100,000 in compensatory damages, $25,000 in punitive damages, and $12,439.72 in prejudgment interest. However, plaintiffs contend that their prospects of any recovery on their judgment against John are speculative at best given that John and Mary have declared bankruptcy and that John's intentional conduct was not covered by defendants' homeowners' policy.

    192

    3 Other statutes deal extensively and comprehensively with the subject of protecting children from sexual abuse. See, e.g., N.J.S.A. 2C:14-4b(1) (making lewdness a crime of the fourth degree if the actor knows or reasonably expects that he is likely to be observed by a child under 13); N.J.S.A. 2C:24-4 (making it a crime for a person who has a legal duty to care for a child to engage in sexual conduct that would impair or debauch the morals of the child); N.J.S.A. 2C:34-1b(7) (making it a crime to engage in prostitution with a person under 18); N.J.S.A. 2C:43-6.4a (making it permissible for a person convicted of sexual assault of a child or endangering the welfare of a child to receive a special sentence of community supervision for life); N.J.S.A. 2C:52-2b (noting that records of conviction for endangering the welfare of a child by engaging in sexual conduct are not subject to expungement); N.J.S.A. 9:6A-3 (authorizing the Child Life Protection Commission to approve grant applications from organizations that encourage the development of community programs that offer sexual abuse prevention training for children); N.J.S.A. 18A:6-7.1 (mandating that any facility under the supervision of the Department of Education shall not hire an individual whose criminal history check reveals a record of conviction for child molestation or sexual offense); N.J.S.A. 18A:35-4.5 (authorizing local boards of education to establish a sexual assault prevention education program); N.J.S.A. 30:4-123.53a (mandating that the Department of Corrections provide written notification to county prosecutors of the anticipated release from incarceration of a person convicted of the sexual assault of a child); N.J.S.A. 30:4-123.54b(1)(b) (mandating that a report containing a psychological evaluation be prepared for every person who is convicted of sexual assault or endangering the welfare of a child and be filed with the parole board); N.J.S.A. 30:8-44.1a (mandating that inmates convicted of a crime involving sexual offense or child molestation be excluded from work release and vocational training release programs).

  • 7 Brosnahan v. Western Air Lines

    Defendant airlines failed to supervise and assist a passenger stowing his carry-on luggage in an overhead compartment. Consequently, the passenger dropped his bag on plaintiff’s head.

    Some courts hold that defendants will not be liable if their negligence merely creates a “condition” which makes it possible for an accident to occur. In this case, the court considers this distinction against the backdrop of the special relationship between the airlines and its passengers.

    2

    Page 730

    5
    892 F.2d 730

    8
    Fred BROSNAHAN, Appellant,
    v.
    WESTERN AIR LINES, INC., and Delta Airlines, Inc., Appellees.

    11
    No. 89-5045.

    14
    United States Court of Appeals,
    Eighth Circuit.

    17
    Submitted Oct. 12, 1989.
    Decided Dec. 22, 1989.
    19

    Page 731

    21

            Leah J. Fjerstad, Rapid City, S.D., for appellant.

    23

            Mark F. Marshall, Rapid City, S.D., for appellee.

    25

            Before LAY, Chief Judge, and McMILLIAN and WOLLMAN, Circuit Judges.

    27

            McMILLIAN, Circuit Judge.

    29

            Fred Brosnahan appeals from an order entered in the District Court for the District of South Dakota granting a judgment notwithstanding the verdict in favor of Western Air Lines, Inc. Brosnahan brought suit against Western Air Lines for injuries he sustained while a passenger on board a Western Air Lines flight from Las Vegas, Nevada to Rapid City, South Dakota. Brosnahan was injured when a fellow passenger dropped his carry-on bag on Brosnahan's head while attempting to stow the bag in the overhead compartment above Brosnahan's seat. Brosnahan alleged that his injuries were caused by the airline's negligent supervision of the boarding process and its failure to assist passengers with carry-on luggage. After a trial on the merits, the jury returned a verdict for Fred Brosnahan in the amount of $74,600. Western Air Lines moved for a judgment notwithstanding the verdict, and the district court granted the motion. The district court let stand the jury's findings of negligence and damages, but held that Brosnahan had produced no evidence to support the jury's finding that the airline's negligence had proximately caused his injuries. For reversal, Brosnahan argues that the district court erroneously held, as a matter of South Dakota law, that the airline's negligence was not the proximate cause of his injuries. We agree, and accordingly reverse the judgment notwithstanding the verdict and remand with instructions to reinstate the jury verdict in favor of Fred Brosnahan.

    31

    I.

    33

    Facts

    35

            On March 20, 1986, Fred Brosnahan and his friend Marilyn Maltaverne boarded a Western Air Lines 727 aircraft, and located their seats in Row 16 of the coach cabin.

    37

    Page 732

    39141

            Brosnahan established at trial that a flight attendant should have been, but was not, in the "bulkhead" of the coach cabin to assist passengers with carry-on items. The "bulkhead" refers to the wall dividing the coach cabin from the first class cabin, and on that particular aircraft it is located approximately 27 feet from Row 16 where Brosnahan was seated. Brosnahan suggested to the jury that a flight attendant standing at the bulkhead would have noticed the passenger struggling with his garment bag, and would have intervened to prevent the accident. In support of these allegations, Brosnahan introduced into evidence a Western Air Lines flight attendant manual requiring attendants to be "positioned at cabin divider[s] and throughout the cabin to ... help with the stowage of carry-on items." The senior flight attendant on Brosnahan's flight, Ms. Taylor Rosenburg, confirmed that on that particular flight an attendant was assigned to the bulkhead of the coach cabin to assist passengers during the boarding process. She also testified that if a flight attendant had observed that particular passenger struggling with his carry-on baggage, he or she would have rendered assistance. Based on these facts, and medical evidence establishing injury, the jury found that Western Air Lines' failure to adequately supervise the boarding process and to assist passengers with their carry-on items caused Brosnahan's injuries. The jury accordingly rendered a verdict for Brosnahan in the amount of $74,600.

    43

            The district court granted Western Air Lines' motion for a judgment notwithstanding the verdict on the ground that Brosnahan failed to prove that the airline's negligence was the proximate cause of his injuries. Fred Brosnahan v. Western Air Lines, Inc., and Delta Airlines, Inc., No. 88-5023, Mem. Op. at 4 (D.S.D. Dec. 21, 1988). The court also ruled as a matter of law that the airline's negligence was not the actual cause of Brosnahan's injuries, stating "the act of which complaint is made would have occurred had a flight attendant been standing right to the side of the negligent passenger." Id. While acknowledging that proximate cause means "an immediate cause which in natural or probable sequence produced the injury", Mulder v. Tague, 85 S.D. 544, 186 N.W.2d 884, 887 (1971), the district court ruled that a defendant is not liable for merely creating a condition which affords an opportunity for the negligent acts of a third party to produce the injury. Mem. Op. at 6 (citing Leo v. Adams, 87 S.D. 341, 208 N.W.2d 706, 709 (1973)). The district court found that Western Air Lines' negligence only afforded an opportunity for a passenger to act carelessly, and therefore its negligence was not the proximate cause of Brosnahan's injuries. Id.

    45

    Standard of Review

    47

            We review a judgment notwithstanding the verdict under the same standard followed by the district court. See SCNO Barge Lines, Inc. v. Anderson Clayton & Co., 745 F.2d 1188, 1192 (8th Cir.1984). In resolving factual questions, we must review the evidence in the light most favorable to the party against whom the motion for judgment notwithstanding the verdict is

    49

    Page 733

    51

            As to questions of law, we review the rulings of the district court de novo. Because federal jurisdiction is premised on diversity of citizenship, 28 U.S.C. § 1332, we are bound by the law of South Dakota governing causes of action in tort. Erie Railroad Co. v. Tomkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).

    53

    II.

    55

            The district court based its decision on a line of South Dakota cases recognizing a distinction between the cause of an accident and a condition affording an opportunity for an accident to occur. In the most frequently cited case, a defendant who negligently spilled bentonite on a highway was relieved of liability for injuries sustained when a negligent driver, weeks later, skidded and injured the plaintiffs. Norman v. Cummings, 73 S.D. 559, 45 N.W.2d 839 (1951). The South Dakota Supreme Court reasoned that the spilling of bentonite was a mere circumstance of the accident, known to the speeding driver, which only furnished a condition by which the independent act of the negligent driver produced the injury. Id. 45 N.W.2d at 841. The same reasoning is found in two cases where a plaintiff who was maneuvering around a disabled vehicle left on the side of the road was hit by an oncoming vehicle. See Snodgrass v. Nelson, 369 F.Supp. 1206 (D.S.D.), aff'd, 503 F.2d 94 (8th Cir.1974) (Snodgrass ); Bruening v. Miller, 57 S.D. 58, 230 N.W. 754 (1930) (Bruening ). In each case, the operator of the parked vehicle and the driver of the oncoming vehicle were found negligent, but the operator of the parked vehicle was relieved of liability because the presence of the vehicle on the side of the road was only a condition under which the acts of the negligent driver caused injury. Snodgrass, 369 F.Supp. at 1211 (decision as to parked vehicle not appealed); Bruening, 230 N.W. at 759. For the following reasons we find these cases distinguishable from a case involving allegations of negligent supervision, such as the case here.

    57

            The distinction between "condition" and "cause" applies to a negligent defendant whose failure to act created a static condition which made the injury possible. 2 W. Page Keeton, Prosser & Keeton on the Law of Torts 277 (5th ed. 1984) (Prosser & Keeton). It refers to the type of case "where the forces set in operation by the defendant have come to rest in a position of apparent safety, and some new force intervenes." Id. at 278. In this case, Western Air Lines' failure to supervise and assist passengers in stowing their carry-on luggage did not create a static condition. An airline's duty to supervise the boarding process for the protection of its passengers continues until boarding is completed, and the danger created by an airline's breach of that duty does not abate until all passengers are seated with their carry-on luggage properly stowed. Brosnahan was injured when the forces created by the airline's negligence were still in continuous operation. 3 See Restatement (Second) of Torts § 439 (1965) (cited in Mulder v. Tague, 186 N.W.2d at 887.).

    59

            Nor was the passenger's carelessness "independent" of the airline's negligence,

    61

    Page 734

    63

            Western Air Lines' negligence was neither unrelated to the act of the passenger dropping his bag on Brosnahan's head, nor merely a static condition which made the act possible. Therefore, we hold that the distinction relied upon by the district court between "condition" and "cause" is inapplicable to the case at bar.

    65

    III.

    67

            We turn now to whether there was sufficient evidence from which the jury could infer that Western Air Lines' negligence was a substantial factor in bringing about Brosnahan's injuries and whether those injuries were a foreseeable consequence of the airline's failure to properly supervise the boarding process. 4 See Leslie v. City of Bonesteel, 303 N.W.2d 117, 119 (S.D.1981). South Dakota cases also describe causation in terms of "an immediate cause which, in natural or probable sequence, produces the injury complained of." Id. at 120; see also Mulder v. Tague, 186 N.W.2d at 887.

    69

            Certainly reasonable minds could differ as to whether the presence of a flight attendant 27 feet away from Brosnahan's seat could have prevented the accident. The district court found that the presence of an attendant at the side of the careless passenger could not have prevented the accident. We do not agree. The jury was told that the passenger was struggling with his luggage for at least thirty seconds; that the passenger's efforts made a commotion; and that if a flight attendant had observed the passenger struggling with his bag, he or she would have rendered assistance. In addition there was sufficient evidence from which a juror could find that the harm that resulted was a foreseeable and probable consequence of the flight attendant's failure to supervise the stowage of carry-on luggage in the coach cabin. The jury was told that one of the reasons flight attendants are positioned throughout the cabin is to protect the safety of passengers. Ms. Rosenburg admitted that a passenger could be injured if the boarding process is not adequately supervised. In light of this evidence, it was erroneous for the judge to decide the causation element as a matter of law.

    71

            In conclusion, we hold that the district court incorrectly applied a distinction between "condition" and "cause" in granting Western Air Lines' motion for a judgment notwithstanding the verdict. We further hold that reasonable minds could differ as to the foreseeability of the injury and as to whether adequate supervision of the boarding process, specifically the presence of a flight attendant in the bulkhead of the coach cabin, could have prevented Brosnahan's injuries. Therefore, it was improper for the district court to take the case away from the jury. We accordingly instruct the district court to reinstate the jury's verdict in favor of Fred Brosnahan.

    73

    ---------------

    75 76

    1 The existence or extent of Brosnahan's injuries is not an issue on appeal.

    78

    2 The distinction between "condition" and "cause" in tort law is now widely discredited, and we are not convinced that South Dakota still recognizes it. See W. Page Keeton, Prosser & Keeton on the Law of Torts 277-78 (5th ed.1984). We need not decide that precise issue, however, because we hold that the distinction is not applicable to the case at bar.

    80

    3 In cases such as this where a third party intervenes and directly causes harm, most jurisdictions would ask whether the third person's conduct is a "superseding cause" which relieves the otherwise negligent party from liability. See Restatement (Second) of Torts § 440 (1965). The third party's conduct may be a superseding cause if it produces the harm after the negligent act or omission has been committed and if it is independent of any situation created by the other party's negligence. Id. §§ 441, 442. By contrast, "if the effects of the actor's negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person's innocent, tortious, or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability." Id. § 439. The latter situation more closely describes the case at bar.

    82

    4 This question encompasses both cause-in-fact and proximate cause. South Dakota case law does not clearly distinguish the two elements. In most states, legal cause exists if (1) the actor's negligent conduct is a substantial factor in bringing about the harm, and (2) there is no rule of law relieving the actor from liability because of the manner in which his or her negligent conduct resulted in harm. See Restatement (Second) of Torts § 431. The first element is generally referred to as cause-in-fact or actual cause and the second refers to proximate cause. See Prosser & Keeton §§ 41 and 42.

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