Edward S. Schwartz and Philip M. Gerson
Over the past several decades liability for landlords when tenants and invitees suffer criminal assaults attributable to a negligent lack of security measures has evolved beyond historical boundaries. While many of the reported cases involve attacks by intruders, violence and criminal activity may originate from the landlord’s premises itself. Ongoing drug or gang activity, or the presence of a mentally disturbed or violent tenant, may place the landlord on notice that tenants pose a danger to other tenants or to invitees. This situation raises the question whether and when a landlord has a duty to evict dangerous tenants and may be held liable in negligence for failing to evict.
Most courts dealing with this issue have not treated the negligent failure to evict as a distinct cause of action. Rather, they have analyzed claims of a negligent failure to evict under their jurisdiction’s generally prevailing standards for holding landowners liable for third party criminal assaults. Since states vary in their approach to premises liability actions in general, proofs will similarly differ in the negligent failure to evict claim. Universally, all jurisdictions require proof of foreseeability before imposing liability on a landowner. In cases involving a landlord’s failure to evict an allegedly violent or criminal tenant, courts have been reluctant to impose a duty to evict in the absence of evidence clearly showing that the tenant posed an identifiable risk to others.
California’s approach to claims of negligent failure to evict provides a good example of the application of a general premises liability approach. California’s general standard for assessing premises liability is a sliding scale balancing formula. Delgado v. Trax Bar and Grill, 113 P.2d 1159 (Cal. 2005); Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207 (1993). This formula requires the court to assess the nature of the risks to be prevented, the foreseeability of risks, the specific measures proposed to prevent or overcome the risk and the cost and burden to the premises possessor/operator of the unused preventive measures. The court then balances the foreseeable risks against the burden of the proposed preventive measures to determine whether to impose liability for breach of the duty to implement the measures.
For example, the Supreme Court of California applied the Delgado sliding scale balancing formula to a claim of negligent failure to evict in Castaneda v. Olsher, 63 Cal.Rptr. 3d 99, 162 P.2d 610 (Cal. 2007). During a gang related shooting involving a tenant of a mobile home park, a stray bullet struck and injured Castaneda, who was a tenant in the park. There had been previous shootings on the park premises, but none known to involve the suspected gang member tenant. The park owners had received complaints about suspected gang members on the premises, but these had involved relatively nonviolent activities such as writing gang related graffiti, whistling and hooting at a female tenant, making a dog growl at a tenant, and breaking car windows.
Castaneda sued the park owners, alleging duties either not to rent units to suspected gang members in the first place or to evict tenants once they were known to engage in criminal behavior on the premises. The trial court granted nonsuit to the owners and the intermediate appellate court reversed. The California Supreme Court ruled for the owners, holding there was no duty not to rent to suspected gang members and, while in some cases a duty to evict tenants engaging in criminal activity might exist, the Delgado sliding scale balancing test did not impose a duty to evict under the facts of the case before it.
The court rejected the claim of a duty not to rent to suspected gang members, explaining that imposition of such a duty would force landlords to refuse tenants based on stereotypes about their appearance or ethnicity, and would tend to encourage arbitrary housing discrimination. If there were a duty not to rent to gang members, a landlord could be liable for choosing to rent to someone who fit the landlord’s stereotype of a gang member, but also potentially liable under housing discrimination laws for failing to rent on the basis of stereotypes. A duty not to rent to suspected gang members was therefore problematic, and the court declined to impose liability except in cases where gang related violence was “extraordinarily foreseeable.” Castaneda, 63 Cal. Rptr. 3d at 109.
The Castaneda court was more receptive, in the abstract, to Castaneda’s claim that the park owners were negligent because they had not evicted the suspected gang member tenant after they knew or should have known of his criminal propensities. Evicting an existing tenant based on the tenant’s known criminal or violent activities did not involve the same risk of stereotyping or arbitrary discrimination as a refusal to rent. Nonetheless, eviction proceedings were not without burdens to the landlord. In addition to the legal costs of the proceedings, a landlord evicting a tenant suspected of criminal activity would bear the cost of leaving the evicted tenant’s unit vacant and not producing income until it could be rented to a new tenant. A violent or criminal tenant might also seek retaliation against the landlord. Castaneda, 63 Cal. Rptr. 3d at 110. The court concluded that, balancing the cost and burden of eviction against the risks posed by a criminally inclined tenant, a duty to evict an existing tenant known to have engaged in criminal activities could exist, but only if the risk of violence emanating from that tenant was “highly foreseeable.” Castaneda, 63 Cal. Rptr. 3d at 110. In Castaneda’s case, the previous incidents on the property such as hooting at women and breaking car windows (and even the shootings, since they had not been tied to any particular tenant), were not enough to place the park owner on notice that any particular tenant posed a risk of violence or needed to be evicted. The Castaneda court therefore ultimately ruled for the park owners, holding that the owners had no duty to evict under the fact presented. The court also found that the park owners had no duty to adopt the other security measures Castaneda had suggested, such as hiring security guards.
While the Castaneda court, applying California’s sliding scale balancing test, held that the park owner had no duty to evict, California courts do recognize a cause of action for a landlord’s negligent failure to evict a criminal tenant, in cases where prior incidents or other facts do give the landlord sufficient notice that the tenant posed a risk of violence to fellow tenants or to invitees. Under such circumstances, balancing the foreseeability of harm against the costs of eviction would lead a California court to the conclusion that the landlord should have evicted the violent or criminal tenant. In Barber v. Chang, 60 Cal.Rptr.3d 760 (Cal. App. 2007), for example, an invitee visiting his girlfriend’s mother was shot by a tenant. The tenant had previously pointed a shotgun at another tenant, who had complained in writing to the landlord. The Barber court held that the previous incident of brandishing a firearm placed the landlord on notice of the danger the tenant posed to other tenants and invitees, justifying undertaking measures such as threatening eviction or calling the police. Barber, 60 Cal. Rptr.3d at 769-70. The Barber court therefore reversed a summary judgment entered for the landlord, and remanded for further proceedings.
Courts in other states have recognized the concept that a landlord on notice of a criminal tenant’s violent propensities may have a duty to evict a residential tenant, at least as an alternative to other potential security measures. Courts generally will impose such a duty, however, only if the landlord should have foreseen violence rather than mere odd or annoying behavior from the tenant; and if timely action by the landlord would have prevented the injury. Morton v. Kirkland, 558 A.2d 693, 695 (D.C. App. 1989).
For example, in Williams v. Gorman, 520 A.2d 761 (N.J. App. 1986), a tenant sued her landlord and a former tenant after a bullet shot from Gorman’s apartment injured her. In a previous incident, a fight in Gorman’s apartment had caused so much vibration that a chandelier had fallen from the ceiling of Williams’ apartment. The court held that the chandelier incident was not sufficient to put the landlord on notice that Gorman posed a risk of violence to other tenants. In De Leon v. Creely, 972 S.W.2d 808, 814 (Tex. App. 1998) prior complaints that a tenant was noisy indicated that the tenant was “annoying,” but were insufficient to make a shooting in the tenant’s apartment foreseeable. In South v. McCarter, 119 P.3d 1, 15 (Kan. 2005), evidence that the landlord had received a complaint about two boys “cussing” on the property was insufficient to place the landlord on notice of an assault two years later. In Spencer v. Nesto, 764 A.2d 224 (Conn.Super. 2000), complaints of zoning and fire safety violations, illegal fireworks, loud parties, storing stolen merchandise in a neighbor’s yard, and noise, even coupled with evidence that an arrest warrant had been previously issued for the assailant, were deemed insufficient to put the landlord on notice that his tenants would assault a passerby. In Morton, even a tenant brandished a firearm at another tenant was not sufficient to place the landlord on notice that the offending tenant would assault the other tenant four years later.
On the other hand, in Lambert v. Doe, 453 So.2d 844, 848 (Fla. App. 1984), the court decided there were sufficient reports about the assailant, the minor son of a tenant, so that the landlord should have known the assailant was a “time bomb” waiting to go off. These reports included complaints about several incidents of sexual molestation and animal torture, which the court deemed sufficient to make the assailant’s eventual sexual molestation of fellow tenant Doe foreseeable. Under those circumstances, the court held that the landlord did owe the assailant’s fellow tenants a duty either to warn them about the assailant or to require the assailant and his parents to vacate the premises by refusing to renew their lease.
The reluctance on the part of many courts to require landlords to evict residential tenants absent clear evidence of prior serious criminal activity by the tenant may stem from a desire to protect tenants’ rights or a reluctance to encourage evictions on behavioral grounds. Furthermore, there is the consideration that evicting an undesirable tenant does not prevent that tenant from engaging in bad behavior somewhere else; it merely shifts the location of the risk and the identity of the potential victims. Cf. Wright v. Schum, 781 P.2d 1142, 1143 (Nev. 1989)(landlord has no duty to evict tenant known to have a dangerous dog; among other considerations, evicting the dog owner and dog would not end the danger from the dog, but merely shift it to another location like “Typhoid Mary”). On the other hand, as cases such as Lambert v. Doe and Barber indicate, some courts are willing to impose a duty to evict in cases where prior similar serious criminal incidents make a later similar criminal attack by the tenant foreseeable.
While the cases cited above deal with situations in which an injured plaintiff asserted that a landlord had a duty to evict a dangerous residential tenant, there is no inherent reason why the same considerations should not apply to a cases involving commercial tenants. In general, courts apply the same tests for determining the foreseeability of crime and the duty to take preventive measures in cases involving commercial tenants as in cases involving residential tenants. For example, in the Castaneda case cited above, the California Supreme Court applied the sliding scale balancing test developed in Ann M. and Delgado to a case involving residential premises, a mobile home park, even though the premises in Ann M. and Delgado were commercial. In a case where an injured plaintiff asserts that a landlord had a duty to evict a commercial tenant engaged in criminal or wrongful behavior, courts will apply the general rules prevailing in their jurisdictions regarding premises liability for third party criminal assault. They will determine whether the particular assault was foreseeable under the prevailing standards in their jurisdictions, and whether eviction was an appropriate and necessary preventive measure. Some of the same considerations leading some courts to be reluctant to impose a duty to evict residential tenants may apply in cases involving commercial tenants, in particular the consideration that evicting the tenant may simply move the undesirable activity rather than end it.
In some circumstances, there may be a statutory duty to take action against tenants involved in illegal activities such as drug dealing. For example, Section 231(1) of the New York Real Property Law provides that a lease becomes void when the lessee uses the leased premises for any “illegal trade, manufacture or other business,” while Section 231(2) provides that any owner of real property “knowingly leasing or giving possession of” the property “for any unlawful trade, manufacture or business,” or “knowingly permitting the same to be so used …” is liable for any resulting damage. In cases where the landlord knew of ongoing drug dealing by a tenant but failed to evict the offending tenant, the landlord was deemed to have violated Section 231(2). This violation, in turn, may give rise to liability in cases where the drug dealing tenant assaults a fellow tenant or invitee. See Beatty v. N.A.A.C.P., 599 N.Y.S.2d 13 (N.Y. App. 1993) (sufficient evidence at trial to prove landlord breached a statutory duty under Section 231(2) to evict drug dealing tenants). Cf. 42 U.S.C. §1437f(d)(1)(B)(iii)(2007)(in federally subsidized rental housing, “any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises, or any drug-related criminal activity on or near such premises, engaged in by a tenant of any unit, any member of tenant’s household, or any guest or other person under the tenant’s control, shall be cause for termination of tenancy… .”).
As the case law cited above indicates, a cause of action for negligent failure to evict a dangerous or criminal tenant is simply a premises liability action in which the plaintiff’s proposed preventive measure is eviction of the undesirable tenant. As the cases also indicate, there are policy considerations leading some courts to be reluctant to choose mandatory eviction as the remedy for an undesirable or dangerous tenant. Courts, however, have not rejected a proposed duty to evict out of hand, but instead have analyzed the cases where a plaintiff has proposed this duty under their prevailing standards for determining whether a landlord has a duty to protect tenants or invitees by any means.
The practitioner arguing a case involving a failure to evict should plead under the prevailing premises liability standards of the jurisdiction, and must be prepared to prove why eviction would be superior to other remedies as a solution to the dangers posed.