Scott v. Watson

Murphy, C. J., delivered the opinion of the Court. This case has come to us from the United States District Court for the District of Maryland, pursuant to the Uniform Certification of Questions of Law Act, Maryland Code (1974) Courts & Judicial Proceedings Article, § 12-601 et seq.; that Act authorizes us to answer questions of state law certified by (among others) a United States District Court “which may be determinative of the cause then pending in the certifying court and as to which it appears . . . there is no controlling precedent in the Court of Appeals of this state.” Plaintiff Evelyn Ann Scott originally brought suit in the Superior Court of Baltimore City against the owners of the Sutton Place Apartments (the defendants), who removed the case to the federal court. She sued both as the surviving child of James Aubrey Scott, Jr. and in her capacity as personal representative of his estate. In her wrongful death and survivor’s actions she claimed that the defendants had breached a duty owed to Scott as one of their tenants to protect him from criminal acts of third parties committed in common areas within their control, and that the breach of duty proximately caused Scott’s death.

In its order of certification, the District Court certified three questions of law, i.e.: “(1) Does Maryland law impose upon the landlord of an urban apartment complex a duty to tenants to protect them from the criminal acts of ¹⁶² third parties committed in common areas within the landlord’s control and, if so, what is the extent of such duty? “(2) If no such duty exists generally, would such a duty be imposed if the landlord has knowledge of increasing criminal activity on the premises or in the immediate neighborhood? “(3) Would such a duty be imposed upon a landlord if such landlord has undertaken specific measures to protect his tenants from the criminal acts of third parties? ” The statement of relevant facts, as certified by the District Court, and to which we are limited, is as follows: “Sutton Place Apartments, at 1111 Park Avenue in Baltimore City, was owned and operated by the Department of Housing and Urban Development until January 29, 1973, when it was purchased by Sutton Place Associates, a limited partnership whose general partners are the defendants in this action. Sutton Place is a multistory structure with a number of retail shops on the ground level and 290 apartment units occupying fifteen floors above ground. Common areas for the use of tenants include a lobby, halls, stairways, an underground parking garage, and two outdoor parking lots. Access to the underground parking garage is by means of a sliding steel door activated by an electrocard device. “On the evening of July 12-13, 1973, between the hours of 11:45 p.m. and 12:10 a.m., the plaintiff’s decedent, James Aubrey Scott, Jr., a tenant at Sutton Place, was killed by the blast of a shotgun within several yards of his automobile in the apartment’s underground parking garage.

At the time of his death, Scott was facing trial in the United States District Court for the District of Maryland under a multi-count indictment charging him with conspiracy to distribute heroin. The police report indicates that there were scattered in the general area of Scott’s body numerous sheets of paper with printed slogans stating ‘Dope dealers are traitors, dope dealers must die.’ Although there was a guard on the ¹⁶³ apartment premises at the time of the murder, the guard was unaware of the crime, and Scott’s body was in fact discovered by a tenant approximately one and one-half hours after the crime was committed. “Scott’s assailant has never been positively identified, nor has it been determined exactly how the murderer gained entrance to the garage. Some 450 tenants of the apartment, together with guests and invitees of such tenants, had lawful access to the underground parking garage where Scott was shot. One individual was in fact charged with the murder but was acquitted following a trial in the Criminal Court of Baltimore City.” “When Sutton Place Associates purchased the apartment complex, the following security devices and procedures provided security to tenants and their invitees: (1) Two closed circuit television cameras monitored the basement of the building and the rear of the retail stores on the ground level; (2) A guard supplied by the Loughlin Security Agency, Inc. was on duty nightly from 10:00 p.m. to 6:00 a.m. and patrolled the premises four times each night, except that the outside grounds and garage area were patrolled only twice nightly; (3) A switchboard operator in the lobby monitored the television system and the main entrance to the building; and (4) At the main entrance was stationed a doorman who would park the car of any tenant wishing this done for him. “In spite of these security precautions, Sutton Place tenants in the period before Scott’s murder were apprehensive about the high incidence of crime in the surrounding neighborhood. “At the time of the meeting of the Sutton Place Tenants Association held on February 20,1973, three officers of that organization expressed their concern to the new owners, and particularly noted that only one doorman was on duty. “Records of the Baltimore City Police Department indicate that for the period January 4, 1972 to July 13,1973, 56 crimes against property and 16 crimes against persons ¹⁶⁴ were reported to have been committed on or near the apartment premises.

Defendants learned in late March or early April of 1973 of five or six incidents involving illegal entry into tenants’ apartments, but none of the incidents involved personal injury to tenants. In addition, police reports indicate that the following occurred in or around the apartment premises during the three months immediately preceding Scott’s death: (1) A car was stolen from either the underground garage or lobby level garage on April 22, 1973; (2) Two persons were assaulted and robbed on a public street near the apartment by a person who had followed the victims out of one of the ground level shops, on April 23, 1973; (3) A tenant’s apartment was burglarized between June 9 and June 11, 1973; (4) A vehicle owned by a Sutton Place resident was stolen from a public street near the apartment on June 17, 1973, and several days later the owner was informed by telephone that he could have his car back for a price; (5) A tenant’s apartment was burglarized on June 24, 1973; and (6) One of the ground level stores open to the public was robbed and a store employee raped during the afternoon of July 2, 1973. However, before July 13, 1973, defendants had no knowledge that any tenant or invitee had been the victim of a crime involving physical harm or the threat of physical harm occurring in the underground garage or other common areas within the apartment building. “Shortly after they took over management of Sutton Place, defendants announced to tenants certain steps they planned to take to make the building more secure. Although all of the security measures planned had not been put into effect at the time of Scott’s murder, defendants had taken certain additional steps to protect their tenants from crimes committed by third parties.” Plaintiff Scott contends that the duty placed upon hotel owners and common carriers to protect patrons from criminal assaults should be extended to the landlord-tenant relation in light of the “changing relationships” between landlord and tenant in an urban luxury apartment setting.

She relies primarily on Kline v. 1500 Mass. Ave. Apts., 439 ¹⁶⁵ F. 2d 477 (D.C. Cir. 1970). Absent such a general duty, she contends that Maryland should follow the rule of those jurisdictions which impose a protective duty upon the landlord if he had knowledge of increasing criminal activity on the premises or in the neighborhood, or had undertaken specific protective measures.

The defendants, while admitting knowledge of criminal activity on the premises and in the neighborhood, and having increased security measures, argue that no such duty should be imposed upon them since it would result in the imposition of a standard of care incapable of definition and performance, citing Goldberg v. Housing Auth. of Newark, 38 N. J. 578, 186 A. 2d 291 (1962). (1) The basic elements necessary for a cause of action in negligence “are a duty or obligation which the defendant is under to protect plaintiff from injury, a failure to discharge that duty, and actual loss or injury to the plaintiff proximately resulting from that failure.” Peroti v. Williams, 258 Md. 663, 669 , 267 A. 2d 114 (1970). We held in Macke Laundry Serv. Co. v. Weber, 267 Md. 426, 429-31 , 298 A. 2d 27 (1972), that a landlord who has set aside areas for the use of his tenants in common owes them the duty of reasonable and ordinary care to keep the premises safe.

In other words, mere ownership of buildings does not render the owner liable for injuries sustained by tenants since the landlord is not an insurer of such persons; rather, as we said in Elmar Gardens, Inc. v. Odell, 227 Md. 454, 457 , 177 A. 2d 263 (1962), “where a landlord leases separate portions of a property to different tenants and reserves under his control halls, stairways, and other portions of the property used in common by all tenants, he is only obliged to use reasonable diligence and ordinary care to keep the portion retained under his control in reasonably safe condition.” While the Maryland cases recognizing this duty on the part of the landlord have primarily involved injuries resulting from defects in the premises, we think the rule encompasses within its general ambit injuries sustained by ¹⁶⁶ tenants as a result of criminal acts committed by others in the common areas within the landlord’s control. Thus, we hold that there is no special duty imposed upon the landlord to protect his tenants against crimes perpetrated by third parties on the landlord’s premises. Indeed, this is the general rule in other jurisdictions. See, e.g., Ramsay v. Morrissette, 252 A. 2d 509 (D.C. 1969); Braitman v. Overlook Terrace Corp., 68 N. J. 368, 346 A. 2d 76 (1975); Goldberg v. Housing Auth. of Newark, supra; Gulf Reston, Inc. v. Rogers, 207 S.E.2d 841 (Va. 1974).

See generally Annot., 43 A.L.R.3d 331 (1972). In a somewhat analogous situation we noted, in Nigido v. First Nat’l Bank, 264 Md. 702 , 288 A. 2d 127 (1972), the absence of authority for the proposition that a bank owed a customer, shot by robbers in the course of a bank holdup, a special duty of protection; we said there that he was owed the same duty a shopkeeper owes his customer, i.e., to use reasonable care for his protection. See also Eyerly v. Baker, 168 Md. 599, 607 , 178 A. 691 (1935), holding a storekeeper who invites the public to come upon his premises to a “positive affirmative duty to protect them, not only against dangers which may arise from some defect or unsafe condition of the physical property upon which they are invited to enter, but against dangers which may be caused by negligent acts of his employees, or even of customers, where, as a reasonably prudent person, he should have anticipated the possible occurrence and the probable results of such acts”; and Litz v. Hutzler Brothers Co., 20 Md. App. 115 , 314 A. 2d 693 (1974), to the effect that a storeowner’s duty to guard his invitees from negligent actions of third persons does not exceed in kind or degree his general duty to such invitees. The general rule is a subsidiary of the broader rule that a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.

See Restatement of Torts (Second) § 315 (1965) (no duty to control third person’s conduct so as to prevent physical harm to another unless a special relation exists between actor and third person, or between actor and the other). While such a special ¹⁶⁷ relationship heretofore recognized in Maryland is that of common carrier-passenger, the duty has only been applied where the carrier could have prevented the injury. See Pennsylvania R.R. Co. v. Cook, 180 Md. 633 , 26 A. 2d 384 (1942); United Rwys. Co. v. Deane, 93 Md. 619 , 49 A. 923 (1901); Tall v. Steam Packet Co., 90 Md. 248 , 44 A. 1007 (1899).

Kline v. 1500 Massachusetts Avenue Apartment Corp., supra, upon which Scott relies, placed a special duty on a landlord to take steps to protect tenants from foreseeable criminal acts by third parties. In that case, Kline was criminally assaulted and robbed in the common hallway of the apartment house. From the time she leased her apartment from the landlord, security measures decreased despite notice to the landlord of increasing criminal activity in the common areas. The