Bussey v. Bearden
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Cite as 2011 Ark. App. 353
ARKANSAS COURT OF APPEALS
DIVISION I
No. CA10-895
Opinion Delivered
TERESA BUSSEY & ROBERT BUSSEY
APPELLANTS
V.
MELVIN BEARDEN AND MURAL
BEARDEN d/b/a M & M BEARDEN
AND BEARDEN RENTALS, LESTER
RAY THOMAS, III, AND MISTY
MICHELLE BARNES
APPELLEES
May 11, 2011
APPEAL FROM THE CRITTENDEN
COUNTY CIRCUIT COURT
[CV-2008-509]
HONORABLE VICTOR HILL,
JUDGE
AFFIRMED
DAVID M. GLOVER, Judge
Teresa and Robert Bussey appeal from the grant of summary judgment in favor of
appellees, Melvin and Mural Bearden, d/b/a M & M Bearden and Bearden Rentals
(Beardens). The summary judgment did not affect the remaining defendants, Lester Ray
Thomas and Misty Michelle Barnes, a fact which ordinarily would render the judgment not
final and appealable. However, in an amended Rule 54(b) certificate, the trial court made the
requisite findings of fact under Arkansas Rule of Civil Procedure 54(b), and we conclude that
we have jurisdiction to hear this appeal.
The Busseys filed a negligence complaint against the Beardens, as well as Thomas and
Barnes, seeking damages for injuries inflicted upon Teresa Bussey by Thomas when Teresa
was inside her father-in-law’s (Larry Bussey’s) apartment to feed his cat in his absence. The
Cite as 2011 Ark. App. 353
apartment was owned by the Beardens. Defendants Thomas and Barnes lived in the apartment
next door. Upon learning that Larry was going to be out of town, Thomas and Barnes
concocted a plan to enter Larry’s apartment, through a common attic, in order to steal items
from the apartment. Thomas was inside the apartment for that purpose when Teresa entered
to feed the cat. When she discovered Thomas’s presence, he brutally attacked her. Thomas
and Barnes are currently serving prison sentences for this offense, but the Busseys also named
them as defendants in this civil action. The theory of the Busseys’ negligence action against
the Beardens was that, as landlords of Larry’s apartment, they breached a duty to protect
apartment guests by allowing a dangerous attic-design feature “to remain for years without
notifying tenants of the dangerous condition or taking any measures to protect tenants and
their guests from the risk of criminal activity that the attic design promoted.”
On March 26, 2010, the Beardens filed a motion for summary judgment. In it, they
contended that they were entitled to summary judgment “because as a matter of law, Teresa
Bussey was not an invitee and the Beardens, as landlords, owed no duty to the plaintiffs to
protect her from a criminal act by a third party.” Following a hearing on the motion, the trial
court entered its June 9, 2010 order, granting summary judgment to the Beardens. This appeal
followed, with the Busseys contending: 1) the lease agreement and actions by the Beardens
created a duty obligating them to address the latent safety problems posed by the attic design,
2) the Beardens breached their duty by failing to protect Teresa Bussey from foreseeable
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criminal acts, 3) the trial court’s summary judgment was based upon authority that is factually
distinguishable. We affirm the trial court’s decision.
Standard of Review
In Rubber & Gasket Company of America v. Zimmerman, 2011 Ark. App. 273, at 3, our
court set forth the appropriate standard of review for challenges to the entry of summary
judgment:
Our standard of review is well established. Summary judgment is appropriate
only when there are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. Gentry v. Robinson, 2009 Ark. 634, ___ S.W.3d ___.
On appeal, we determine if summary judgment was appropriate based on whether the
evidentiary items presented by the moving party in support of the motion leave a
material fact unanswered. Id. We view the evidence in the light most favorable to the
party against whom the motion was filed, resolving all doubts and inferences against
the moving party. Id. Summary judgment is not proper where the evidence, although
in no material dispute as to actuality, reveals aspects from which inconsistent
hypotheses might reasonably be drawn and reasonable minds might differ. Id.
The question of whether a duty exists on the part of a landlord is always a question of law and
never one for the jury. Hall v. Rental Mgmt., Inc., 323 Ark. 143, 913 S.W.2d 293 (1996).
Discussion
Since the third point is essentially an extension of the first point, we address both
points together. The Busseys divide their first point into two subpoints, contending that the
Beardens created a duty obligating them to protect Teresa Bussey by agreement and by
conduct. We disagree with both contentions. For their third point, the Busseys attempt to
distinguish two cases in which landlords were held to have no duty to protect tenants/guests
from criminal acts. The cases are Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994),
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and Lacy v. Flake & Kelly Management, Inc., 366 Ark. 365, 235 S.W.3d 894 (2006). We do not
find the distinctions noted by the Busseys convincing.
To put the Busseys’ first subpoint into the historical context of Arkansas
landlord/tenant law, our supreme court’s explanation in Bartley v. Sweetser, 319 Ark. 117,
120–22, 890 S.W.2d 250, 251–52 (1994), is helpful:
Arkansas landlord/tenant law has its own history that bears on the issue before
us in this case. Since 1932, Arkansas has adhered to the general rule that, as between
a landlord and tenant, the landlord is under no legal obligation to a tenant for injuries
sustained in common areas, absent a statute or agreement. See Glasgow v. Century
Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989); Knox v. Gray, 289 Ark.
507, 712 S.W.2d 914 (1986); Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692
(1969); Joseph v. Riffee, 186 Ark. 418, 53 S.W.2d 987 (1932). Consistent with the
foregoing principle is the general and common law rule that a landlord does not owe a tenant or
social guest a duty to protect the tenant or guest from criminal acts. Pippin v. Chicago Housing
Authority, 78 Ill. 2d 204, 399 N.E.2d 596 (1979); Morgan v. 253 E. Delaware Condo
Ass’n, 231 Ill. App. 3d 208, 595 N.E.2d 36 (1992); 52 C.J.S. Landlord and Tenant §
545 (1968); American Law of Landlord and Tenant 4.14 (1980 and Supp. 1994); 43
A.L.R. 3d 331 (1972 and Supp. 1994) (Landlord’s obligation to protect tenant against
criminal activities of third persons); see also 65th Center, Inc. v. Copeland, 308 Ark. 456,
825 S.W.2d 574 (1992) (court said that a landowner is not liable for the negligent act
of a third party, when the landowner had no control over the person who committed
the act and the act was not committed on his account); contra Kline v. 1500 Mass. Ave.
Apt. Corp., 141 App. D.C. 370, 439 F.2d 477, 43 A.L.R. 3d 311 (1970); American
Law of Landlord and Tenant 4.15 (1980 and Supp. 1994).
Although some jurisdictions have held a landlord, under certain circumstances, owes a
duty to take reasonable steps to protect a tenant from foreseeable criminal acts committed by
intruders on the premises, Kline, 141 App. D.C. 379, 439 F.2d 477, the courts have generally
found that, as a matter of public policy, it was not fair to impose this duty of protection on the
landlord. See American Law of Landlord Tenant 4.14 (1980). Professor Robert S.
Schoshinski in his text, American Law of Landlord Tenant, states that the common law
rule, which imposes no duty (absent an agreement or statute) on the landlord to protect a tenant
from a third party’s criminal acts, has persisted for a variety of reasons. Citing cases from other
jurisdictions, Professor Schoshinski stated those reasons as follows:
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Judicial reluctance to tamper with the common law concept of the landlord-tenant
relationship, the notion that the act of a third person in committing an intentional tort or
crime is a superseding cause of harm to another . . .; the often times 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 the
conflict with public policy allocating the duty of protecting citizens from criminal acts to
the government rather than the private sector.
Id.
For more than sixty years, this court, when reviewing landlord/tenant cases, has seemed
content to adhere to the general rule and common law, and has consistently imposed no legal
obligation upon a landlord for a tenant’s injury on the premises unless a duty is imposed by
statute or agreement. No sound reason is given here to depart from it. Certainly, no Arkansas
statute has been enacted imposing a duty upon a landlord to protect a tenant from a
third party’s criminal acts. Nor has the parties’ lease agreement here imposed a duty
upon the landlords, the Sweetsers, to protect tenant Bartley in these circumstances.
The Sweetsers provided a lock for Bartley’s door. Concerning the purpose of the lease
terms prohibiting additional locks, this provision merely assured the Sweetsers access
to tenant premises during reasonable hours in order to make an inspection or necessary
repairs. While Bartley would like to make more out of these lease terms involving
locks, the Sweetsers simply undertook no responsibility to provide any security or
protection against possible criminal acts of third parties. In sum, a landlord, under
Arkansas law, is not the insurer of the safety of tenants or others upon the premises.
And, while circumstances could arise under the terms of a lease between a landlord and
tenant so as to impose a duty, those circumstances do not exist in this case.
(Emphasis added.)
In short, the Bartley court explained that under Arkansas law, the general rule is that
a landlord is under no legal obligation to a tenant for injuries sustained in common areas,
absent a statute or agreement, and that, consistent with that principle, it is the general and
common law rule that a landlord does not owe a tenant or social guest a duty to protect the
tenant or guest from criminal acts. See also Lacy v. Flake & Kelley, 366 Ark. 365, 235 S.W.3d
894 (2006). The Busseys argue that this general no-duty rule was modified in this case by the
lease agreement. We disagree.
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The lease-agreement language relied upon by appellants to establish a duty by which
the Beardens were obligated to protect Teresa, a guest in a tenant’s apartment, provides:
“Management shall not be liable to Resident for any damages to Resident’s person or
property, or to Resident’s agents, employees, guests, or invitees other than for Management’s
negligence. . . .” (Emphasis added.) The trial court concluded that this contractual language did
not impose a duty upon the Beardens to protect tenants and their guests from the intentional
torts or criminal acts of others. We agree. This quoted contractual language cannot be
stretched to create an exception to the general rule in Arkansas and impose an express duty
upon the landlord to protect tenants and guests from criminal assault.
For their second subpoint, the Busseys contend that the Beardens, by their conduct,
created a duty to protect tenants and guests. We do not agree.
In Hall v. Rental Management, Inc., supra, our supreme court was similarly faced with
the question of whether the landlord, by its conduct, had removed itself from the general rule
and assumed a duty to protect its tenants from criminal attacks. The answer was no. The court
acknowledged that the landlord in Hall had demonstrated a concern for the general welfare
of its tenants and a desire to keep on-site management informed of activities by implementing
safety practices that included lighting, evening patrols, and communicating with residents
about suspicious activities. In concluding that the landlord’s practices in this regard had not
removed it from the general rule, the court explained
We are reluctant to hold that a landlord’s use of these modest, conscientious measures
imposes a full blown duty to protect tenants from third-party criminal activities.
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The Alabama Supreme Court faced a similar issue in the case of Dailey v.
Housing Authority for the Birmingham Dist., 639 So. 2d 1343 (1994). There, the tenant
argued that certain provisions in a procedures manual, similar to those here, and the
hiring of a guard to patrol the grounds, gave rise to a duty to protect tenants from
criminal attacks. The court said the following:
all that the quoted statements from the documents and the HABD’s hiring of
a security guard indicate is an attempt by HABD to discourage crime in the
Metropolitan Gardens area, not a voluntary assumption of a duty to provide
[the tenant] with protection from all criminal acts. We find the actions of
HABD to be commendable, both in hiring security personnel and in setting out
in writing those persons’ duties and roles. HABD was attempting to reduce the
occurrence of crime in the Metropolitan Gardens neighborhood and to alleviate
the fears and anxieties of its tenants.
The provisions undertaken by RMI in this case do not rise to such a level that
RMI has assumed a duty to protect its tenants from criminal attacks by third parties.
Therefore, we hold that this case is controlled by the general rule enunciated in Bartley
v. Sweetser.
323 Ark. at 150, 913 S.W.2d at 297.
Here, the conduct the Busseys rely upon in arguing that the Beardens assumed a duty
to protect includes the Beardens’ provision of locks and deadbolts on apartment doors, locks
on windows, and stringing chicken wire in the common attic areas of the apartments to define
the spaces belonging to the separate apartments. These measures do not even rise to the level
of precautions taken by the landlord in Hall. Therefore, we conclude that the Beardens’
conduct did not remove them from the general rule, and that they were under no duty to
protect Teresa from the criminal attack that she suffered at the hands of Lester Ray Thomas.
As mentioned previously, in their third point the Busseys attempt to distinguish the
Bartley and Lacy cases from the instant case. They contend that in those cases summary
judgment was affirmed “only after satisfying two fundamental inquiries, neither of which is
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present in the instant case.” Yet, the first “fundamental inquiry” that they contend is present
in those cases but not present in the instant case is that the plaintiff was unable to show that
the landlord owed any duty of care. Because we, too, have concluded that the Beardens did
not assume a duty to protect tenants/guests from criminal acts by either their lease agreement
or by their conduct, the Busseys’ attempt to distinguish these two cases from the instant
situation is not convincing.
Because we have concluded that the Busseys did not establish the existence of a duty
to protect Teresa from criminal attack, we find it unnecessary to address the Busseys’ second
point of appeal in which they contend that the Beardens breached their duty by failing to
protect Mrs. Bussey from foreseeable criminal acts.
Affirmed.
P ITTMAN and R OBBINS, JJ., agree.
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