Smith v. Dodge Plaza Limited Partnership

RODOWSKY, Judge. In this case we affirm a summary judgment entered in favor of the landlord of nightclub premises on the claim by a patron of the nightclub that the landlord’s negligence caused the patron to be stabbed while inside the nightclub. By a written lease dated February 8, 1991 (the Lease), the principal appellee, Dodge Plaza Limited Partnership (Dodge Plaza), leased an 8800 square foot store unit in its strip shopping center at 7752 Landover Road, Landover, Maryland, to certain individuals who subsequently assigned the Lease to Reid & Springs, Inc. 1 The general partners of Dodge Plaza also own and manage other investment properties in other ³³⁸ legal entities, the majority of which lie within the Capital Beltway. Their business office is located 1.7 miles from the subject shopping center. 2 The Lease included the following provisions: “ARTICLE TEN.

USE OF DEMISED PREMISES “A. Tenant covenants and agrees that during the term hereof the demised premises will be used solely for the purpose of a Banquet Hall, Disco Club and no other purpose whatsoever. “Tenant agrees that the operation of its night club in the demised premises shall be consistent with the operation of a first class night club in the Metropolitan Washington, D.C. area. Tenant agrees to use whatever procedures may be necessary to maintain such a first class operation, including but not limited to the employment of security personnel, and construction of signage of such size and visibility as to be clear to all its customers. The signage shall describe prohibited activities within the demised premises and within the shopping center, which prohibited activities shall include, but not be limited to[,] sale or use of illegal substances by customers or employees, drunkenness, fighting, assaults and shootings, and customers loitering outside of the demised premises in groups of five or more for more than 10 minutes at a time. Tenant shall be strictly responsible for the occurrence of any prohibited activities irrespective of fault of Tenant.” ³³⁹ The tenant agreed to open for business by June 1, 1991, and to operate under the name, “Rhythms.” In this opinion we shall refer interchangeably to the tenant and to the business conducted on the demised premises as “Rhythms.” The term of the written lease to Rhythms expired February 28, 1994.

Rhythms, however, continued in possession. Article Twenty-three of the Lease addressed the tenant’s holding over. It reads: “In the event that tenant shall hold over after the expiration of this lease, the tenancy created by such holding over shall be a month to month one, but in all other respects shall be governed by the terms of this lease ... and provided, further, in all cases, thirty (30) days’ notice shall be required to terminate the tenancy created by such holdover.” The appellant and plaintiff below, William H. Smith (Smith), represented to the trial court in his memorandum in opposition to Dodge Plaza’s motion for summary judgment that on June 10, 1995, while “an invitee at Rhythms nightclub, [he] was stabbed multiple times by another invitee during a musical performance by the ... band, Rare Essence.” 3 Rare Essence is described as a “Go-Go” band. In the instant action, filed in the Circuit Court for Prince George’s County, Smith joined as defendants, in addition to the appellees, all individuals and entities associated with Rhythms and with Rare Essence, including the manager of Rhythms, Louis Herman King, Jr. (King).

Summary judgment was granted in favor of the appellees based on Smith’s lack of any evidence of, or indeed, of any sufficient allegation of, a cause of action in negligence. The claims against all other defendants, with the exception of King, were disposed of in the circuit court on grounds that are ³⁴⁰ not material to this appeal. The claim against King, so far as the record before us indicates, remains open. The instant appeal from the judgment for the appellees was authorized by an order of the circuit court entered under Maryland Rule 2-602 in this multi-party case.

Smith contends that Dodge Plaza was on notice that there was a dangerous condition on the demised premises, particularly during performances of Rare Essence, that Dodge Plaza had a duty to patrons of Rhythms to exercise reasonable care to protect invitees from criminal assaults, but failed to do so, and that that failure proximately caused the injuries to Smith. Smith’s breach of duty argument has two aspects. He submits, in reliance on Matthews v. Amberwood Assocs. Ltd. Partnership, 351 Md. 544 , 719 A.2d 119 (1998), that Dodge Plaza should have exercised control by evicting Rhythms prior to June 10, 1995.

He also contends, in reliance on the affidavit of his expert on security, that Dodge Plaza “failed in its responsibility to provide proper and adequate security.” Dodge Plaza contends that it was not on notice, that it owed no duty, by contract or under tort law, to patrons of Rhythms to protect against criminal assaults by other patrons, and that, if any duty were owed, there was no negligence on the part of Dodge Plaza that contributed to Smith’s injuries. Facts Smith produced no evidence that Dodge Plaza had actual notice of any incident of criminal violence against the person of anyone in Rhythms or on the shopping center parking lot that occurred prior to June 10,1995, when Smith was stabbed. Smith did produce, however, a number of police incident reports, antedating Smith’s stabbing, and records of the Prince George’s County Board of License Commissioners (the Board) reflecting that the renewal of the liquor license for Rhythms, effective June 1, 1995, was conditioned on Rhythms’ hiring off-duty, uniformed, Prince George’s County police officers as security because of unruly or criminal behavior by patrons of Rhythms. ³⁴¹ The relevant evidence is summarized below, in chronological order. —March 21, 1993, a Sunday, between 0100 and 0200 hours — Fist fight in Rhythms between two males, apparently over a female. Victim took cab to hospital. —May 6, 1994, a Friday, at 2150 hours — An unknown subject, who had been denied admission to Rhythms because he was wearing blue jeans, went to his vehicle on the parking lot, obtained a handgun, and “held it out so that” the Rhythms’ security guard could see it. —November 17, 1994 — The Board sent a memorandum to a sergeant of the Prince George’s County Police Department (PGPD) recommending that off-duty officers be assigned to patrol the interior and exterior of Rhythms. —January 9, 1995, a Monday, at 0130 hours — A subject punched his right arm through a plate glass window in Rhythms, severely lacerating his arm. —January 28, 1995, a Saturday, at 0315 hours — PGPD officers reported to the parking lot to assist in controlling a crowd of 500 to 700 disorderly persons.

A gunshot was fired by an unknown subject. No one was injured. Approximately every five minutes the Rhythms’ bouncers were putting out two people, but the manager was letting three more into the club. —March 1, 1995 — Kentland Civic Association wrote to the Board advising that it wanted to appear to challenge renewal of Rhythms’ license. —April 4, 1995 — A PGPD lieutenant wrote to the Board advising it that on April 1, a Saturday, at 0355 hours, “there was another shooting in the parking lot area of’ Rhythms. Among the lieutenant’s requests were that the Board “[rjequire at least nine off-duty, uniformed police officers to patrol the interior and exterior.

Presently, the security detail used by the licensee does not patrol or intervene in activity in the parking lot.” • — April 10,1995, a Monday, at 0243 hours — A fight occurred on the parking lot in front of Rhythms involving numerous ³⁴² combatants. The subject, “an [Metropolitan Police District of Columbia] officer,” retrieved a weapon from his vehicle, fired it, and a person “was struck in the lower left leg as he fled the sound of gunfire.” The wound was minor, and the victim was treated at a hospital and subsequently released prior to the preparation of the police incident report. —May 1, 1995, a Monday, at 0127 hours — A patron was punched in the face in the men’s room at Rhythms by an unidentified subject. —May 1, 1995 — The Kentland Civic Association and two other civic associations jointly wrote to the Board recommending approval of the renewal of Rhythms’ license, as a result of a meeting with King who had represented that Rhythms would hire nine off-duty police officers when Rare Essence was performing, that Rhythms’ security personnel were patting down “all patrons prior to their entry ... (male or female, as appropriate),” and that the security personnel were utilizing handheld metal detectors. —May 3, 1995 — The Board met in an administrative voting session and voted to renew Rhythms’ license on conditions summarized hereinafter. —June 1, 1995 — The Board renewed the license for Rhythms on conditions that Rhythms employ six off-duty PGPD officers from 11 p.m. to 4 a.m. on Friday evenings when Rare Essence was performing. When Rare Essence was not performing, Rhythms was to employ four off-duty police officers from 11 p.m. to 4 a.m.

The officers were to provide security on the interior and exterior of Rhythms. —June 2, 1995, a Friday — Off-duty police officers were not permitted to work at Rhythms because they were unable to obtain necessary clearances from senior officers. —June 6,1995, a Tuesday — -King is assured by one or more representatives of the PGPD that the required number of officers would be present on Friday, June 9, with a specific sergeant acting as supervisor. 4 ³⁴³ —June 9, 1995, a Friday — Three officers, i.e., a lieutenant, a sergeant, and a corporal, who were “taking primary responsibility for recruiting officers to work while off-duty, were unable to secure the required number of off-duty officers for Rhythms, and the PGPD would not permit off-duty officers to work in less than the required numbers. 5 —June 10, 1995, a Saturday, early morning hours — Plaintiff is stabbed. 6 The Board held a hearing on July 12,1995, at which it heard testimony from the police officer who had responded to the report of the stabbing of Smith. The officer testified that there were no uniformed police officers acting as a security force on June 10. The Deputy Chief Inspector for the Board and another police officer testified that no uniformed police officers were working as security on Friday, June 17 or on Friday, June 23, 1995. The Board revoked Rhythms’ license on August 2, 1995.

Smith also produced the complaint in a lawsuit against Rhythms and Dodge Plaza that was filed on May 1, 1996, alleging that, on May 3, 1993, the two female plaintiffs had been stabbed on the parking lot by a third female, thereby culminating an altercation that had, originated in Rhythms during a birthday party. There is no evidence that Dodge Plaza knew of this occurrence before the suit papers were served. Rhythms sought judicial review by the Circuit Court for Prince George’s County of the license revocation. That court stayed the revocation, presumably, pending hearing. 7 ³⁴⁴ Sometime prior to August 1, 1996, Dodge Plaza received a letter, apparently from the Maryland Comptroller of the Treasury, advising that Rhythms’ sales tax license had been revoked.

By letter dated August 1, 1996, Dodge Plaza wrote to King, referring to that fact and also stating that “we have reports that Rhythms’ liquor license has been revoked.... ” Dodge Plaza requested, inter alia, “[a] description of the nature of [Rhythms’] current operation.” Rhythms’ response, if any, is not in the record. Rhythms fell behind in its rent and, on January 15, 1997, the Lease was terminated by mutual, written agreement. The unpaid balance of rent was approximately $40,000. Notice Whether, simply because the above-described events occurred, Dodge Plaza should have known of them is a question that is substantially interrelated with the issue of the extent of Dodge Plaza’s duty.

In a closely related context the Court of Appeals has indicated that constructive notice may, depending on the facts, be sufficient to include protection from criminal violence within a landlord’s duty to use reasonable care to protect tenants from injury in the common areas. Scott v. Watson, 278 Md. 160 , 359 A.2d 548 (1976). That case involved the murder of a residential tenant. The building was a multistory structure which had retail shops on the ground level and 290 apartment units occupying fifteen floors above that level.

The murder occurred in a common area, an underground parking garage. In a period of approximately one and one-half years preceding the murder, fifty-six crimes against property and sixteen crimes against persons were reported to have been committed on or near the apartment premises. Id. at 163-64 , 359 A.2d at 551 . The Court ³⁴⁵ was asked, under the Uniform Certification of Questions of Law Act, to opine on “[w]hether a duty is imposed upon the landlord to protect his tenants from criminal acts of third parties where he has knowledge of increasing criminal activity on the premises, or in the immediate neighborhood!)]” Id. at 168 , 359 A.2d at 553 .

In response the Court said: “The duty of the landlord to exercise reasonable care for the safety of his tenants in common areas under his control is sufficiently flexible to be applied to cases involving criminal activity without making the landlord an insurer of his tenant’s safety. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he then has a duty to take reasonable measures, in view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. We think this duty arises primarily from criminal activities existing on the landlord’s premises, and not from knowledge of general criminal activities in the neighborhood. Every person in society is subject to the risk of personal injury or property damage from criminal activity, both inside and outside his abode.

The risk obviously varies with the time and locale. Since the landlord can affect the risk only within his own premises, ordinarily only criminal acts occurring on the landlord’s premises, and of which he knows or should have known (and not those occurring generally in the surrounding neighborhood) constitute relevant factors in determining, in the particular circumstances, the reasonable measures which a landlord is under a duty to take to keep the premises safe.” Id. at 169 , 359 A.2d at 554 (emphasis of “reasonable” in original; other emphasis added). In the case before us there were two instances of violence against patrons that occurred within Rhythms prior to June 10, 1995. One was on March 21, 1993, and the other on May 1, 1995.

Neither involved a weapon, and the later incident is substantially counterbalanced by the withdrawal that same date by the three community associations in the locale of their opposition to a renewal of Rhythms’ liquor license. We hold ³⁴⁶ that these two instances are legally insufficient, in and of themselves, to have put Dodge Plaza on constructive notice of a danger to patrons of criminal injury within Rhythms beyond that normally encountered in urban society. For the sake of argument, however, we assume that the conditional renewal of the liquor license on June 1,1995, which required Rhythms to employ off-duty police officers both within its premises and as . security for the parking lot, at least created a jury issue of constructive notice on or about that date. This assumed issue of fact, however, is not material, as we explain below.

Duty In Scott v. Watson the Court of Appeals flatly held 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.” 278 Md. at 166 , 359 A.2d at 552 . Citing the principal cases decided up to that time (1976), the Court observed that “this is the general rule in other jurisdictions.” Id. The Court in Scott then said: “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).” 8 Id.

In Henley v. Prince George’s County, 305 Md. 320 , 503 A.2d 1333 (1986), the Court affirmed summary judgment in favor of ³⁴⁷ the landowner, Prince George’s Community College, which had turned control over the premises involved in that case to Prince George’s County. The claim was based upon the murder by a caretaker of a youth who had entered upon the premises. With respect to the liability of the owner the Court said: “When land is leased to a tenant, the law of property regards the lease as equivalent to a sale of the premises for the term. The lessee acquires an estate in the land, and becomes for the time being, both owner and occupier, subject to all of the responsibilities of one in possession, to those who enter upon the land and those outside of its boundaries.

(Footnotes omitted).” Id. at 337 , 503 A.2d at 1342 (quoting Prosser and Keeton on the Law of Torts § 63, at 434 (W. Keeton 5th ed.1984)). More recent decisions elsewhere are in accord. These cases hold that there was no duty on the part of landlords to provide security within the premises demised to tenants to protect employees or invitees of the tenants from criminal violence by third persons. Therefore, those cases necessarily hold that the relationship of landlord and tenant’s-invitee does not give rise to a special duty.

See Sewell v. Hull/Storey Dev. LLC, 241 Ga.App. 365 , 526 S.E.2d 878 (1999); Jackson v. Shell Oil Co., 272 Ill.App.3d 542 , 208 Ill.Dec. 958 , 650 N.E.2d 652 (1995); Nickelson v. Mall of America Co., 593 N.W.2d 723 (Minn.App.1999); Rummel v. Edgemont Realty Partners Ltd., 116 N.M. 23 , 859 P.2d 491 (N.M.App.1993); Dalzell v. McDonald’s Corp., 220 A.D.2d 638 , 632 N.Y.S.2d 635 (N.Y.App.Div.1995); Craig v. A.A.R. Realty Corp., 576 A.2d 688 (Del.Super.1989). 9 ³⁴⁸ Smith’s response to this rule of law is that Matthews v. Amberwood Assocs. Ltd. Partnership, 351 Md. 544 , 719 A.2d 119 , has extended the landlord’s duties beyond common areas to include protecting against injury occurring within the demised premises, and that the holding in Matthews can be applied to the facts here. The property involved in Matthews was a residential apartment building.

A sixteen-month-old child, the son of a social guest of one of the tenants, was killed by the host’s pit bull, “Rampage.” There was evidence that, within a period of nine months to one year preceding the child’s death, Rampage had lunged at, or otherwise viciously behaved toward, maintenance personnel within, or attempting to enter, the tenant’s apartment and that, when chained outside, Rampage regularly growled at children and, on at least one occasion, “snapped” at a boy who fled by climbing a fence. Id. at 549-50, 719 A.2d at 121 . A clause in the tenant’s lease prohibited tenants from having pets on the premises. The Court in Matthews reasoned that “[t]he principal rationale for the general rule that the landlord is not ordinarily liable for injuries caused by defects or dangerous conditions in the leased premises is that the landlord ‘has parted with control,’ Marshall v. Price, supra, 162 Md. [687,] 689, 161 A. [172,] 172 [(1932)].” Id. at 556-57, 719 A.2d at 125 .

Referring to Rampage as an “extremely dangerous condition in [the tenant’s] apartment” the Court said that “[t]he landlord retained control over the presence of a dog in the leased premises by virtue of the ‘no pets’ clause in the lease.” Id. at 558 , 719 A.2d at 125 . The Matthews Court further reasoned that, “[i]n addition to the landlord’s control and ability to abate the danger of a vicious pit bull in the leased premises, the foreseeability of the harm supports the imposition of a duty on the landlord.” Id. at 560, 719 A.2d at 127 . The Court presented a long list of legislation at state and municipal levels that classified pit bulls