Hall v. Rental Management, Inc.

Hazel Kinchen HALL v. RENTAL MANAGEMENT, INC.

95-871                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered January 22, 1996


1.   Judgment -- summary judgment -- issue involving question
     whether duty exists properly decided by summary judgment. --
     An issue involving the question of whether a duty exists on
     the part of a landlord is properly decided by summary
     judgment; this is always a question of law, not to be decided
     by a trier of fact.

2.   Landlord & tenant -- duties of landlord to tenant -- generally
     no duty to protect tenant from criminal acts. -- The general
     rule is that a landlord does not owe a duty to protect the
     tenant from criminal acts.

3.   Landlord & tenant -- duties of landlord to tenant -- landlord
     who assumes duty not required is removed from general rule. --
     A landlord who assumes a duty not required of him is removed
     from the general rule.

4.   Landlord & tenant -- duties of landlord to tenant --
     landlord's use of modest, conscientious safety measures did
     not impose duty to protect tenants from third-party criminal
     acts. -- The supreme court was reluctant to hold that a
     landlord's use of modest, conscientious safety measures, which
     helped assure the quiet enjoyment and basic safety of the
     tenants, in addition to providing a modicum of deterrence to
     criminal activity, imposed a full-blown duty to protect
     tenants from third-party criminal activities. 

5.   Landlord & tenant -- duties of landlord to tenant -- case
     controlled by general rule. -- Where the provisions undertaken
     by the landlord in the present case did not rise to such a
     level that the landlord has assumed a duty to protect its
     tenants from criminal attacks by third parties, the supreme
     court held that the case was controlled by the general rule
     that a landlord does not owe a duty to protect the tenant from
     criminal acts.


     Appeal from Pulaski Circuit Court; John Ward, Judge; affirmed.
     Dodds, Kidd, Ryan & Moore, by:  Robert T. James, for
appellant.
     Huckabay, Munson, Rowlett & Tilley, P.A., by:  Mike Huckabay
and Julia Busfield, for appellee.

     Bradley D. Jesson, Chief Justice.*ARKREP2* 1-22-96






HAZEL KINCHEN HALL,
                    APPELLANT,

V.

RENTAL MANAGEMENT, INC.,
                    APPELLEE,




95-871


APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT,
NO. 94-6500,
HON. JOHN WARD, JUDGE,




AFFIRMED.



                Bradley D. Jesson, Chief Justice



     
     This case concerns the duty of a landlord to protect its
tenants from the criminal acts of third persons.  The appellant,
Hazel Kinchen Hall, and her son, seventeen-year-old Kendall Dolls,
were tenants in the Jefferson Manor Apartments.  The apartments
were operated by the appellee, Rental Management, Inc. (RMI).  On
July 12, 1991, Kendall Dolls was shot and killed on the premises. 
The perpetrator, a man named Geno Davis, was the guest of another
resident.  Mrs. Hall filed suit in 1994 alleging that the
negligence of RMI had proximately caused her son's death.  A motion
for summary judgment was filed by RMI and was granted by the trial
court.  We find no error and affirm.
     On the night of the shooting, Kendall Dolls left his apartment
and went to an area of the complex where an activity for young
people had been taking place.  The record does not reflect exactly
what took place, but it appears Kendall was shot without
provocation by Geno Davis.  In her complaint, Mrs. Hall alleged
that RMI had failed to provide adequate security measures to ward
off criminal attacks and in particular had used unqualified
personnel as security.
     After substantial discovery had taken place, RMI filed a
motion for summary judgment on the basis that a landlord owes no
duty to protect its tenants from the criminal acts of third
persons.  A copy of Mrs. Hall's lease agreement was attached as an
exhibit to the motion.  The lease contained no provision in which
RMI agreed to provide Mrs. Hall security against criminal
activities.  Mrs. Hall responded to the motion by acknowledging
that, as a general rule, landlords have no duty to offer such
protection to their tenants.  However, she claimed, RMI voluntarily
undertook a duty to provide security and, having done so, was bound
to use reasonable care.  To show that RMI had assumed this duty,
she attached the following exhibits:

     1. The Good Neighbor Handbook.  Paragraph 14 of the lease
     agreement stated that tenants would abide by the House
     Rules as set forth in the Handbook.

     2. A portion of RMI's Employee Procedures Manual.  The
     manual contained sections entitled "Security" and
     "Security Patrol."

     3. Deposition testimony of Chuck Needs.  Mr. Needs was a
     maintenance man at the complex.

     According to Mrs. Hall, each of these exhibits contained
evidence that RMI had assumed the duty to provide its tenants with
protection against criminal activity.  The following are the
relevant portions of the exhibits.

                   The Good Neighbor Handbook
     Under a section titled "SECURITY," the following paragraph
appears:
     A feeling of security is important to all residents.  If
     you notice any unusual or suspicious activity, please
     notify the Resident Manager immediately.  All residents
     are asked to cooperate when seeing abuse to anyone or to
     the property.  Do not open the door to anyone unless you
     know who it is.  If you are in doubt, call the management
     if necessary.

     The following provisions are included in a section titled
"HOUSE RULES":

     The management cannot be responsible for your children in
     the event of parent negligence.  We can only see that the
     grounds and apartment are a safe place to live;  but
     without a parent, it becomes very unsafe and threatens
     the life of your child.

     Because of management's concern for safety and your peace
     of mind, children under school age cannot be allowed in
     public areas such as laundry, office or recreation room,
     unless accompanied by a parent or guardian.

                              ****

     You have the same privacy as if your apartment were a
     separate home.  Each tenant has that same right of
     privacy and peaceful enjoyment.  Since the apartments are
     close together, you must think of the other people who
     live next door to you.  To give your neighbors the
     privacy that they deserve, we ask that your children do
     not play outside beyond the time of 9:00 p.m. each
     evening.


                   Employee Procedures Manual

     The manual as a whole deals with many aspects of apartment
living such as lock-outs, visitors, keys, pets, and fire safety. 
However, three pages of the manual address the subject of security. 
Under the heading "Security," RMI resident managers are directed to
be concerned about the safety factor in apartment living, and told
that effective security requires cooperation between management and
residents.  General security advice is given such as having
children play in designated areas;  making sure there are no
excessive crowds or noise;  vehicular control, meaning no large
trucks or trailers in parking places, no motorcycles in breezeways,
and no disabled vehicles;  reminding residents to control their
guests; being alert for suspicious activities; and getting
acquainted with local law enforcement personnel.  The following
provisions also appear:
     On-site management will have to recommend to the Property
     Manager if security officers are needed.  It is most
     important that ALL on-site personnel be security and
     safety conscious at all times.

                              ****

     Security patrol may be performed by employees to check
     the property in the evenings.  A regular check will ward
     off problems and inform the management of any unusual
     activity.

     RMI employees must:
     Conduct themselves, at all times, in a helpful, friendly,
     yet business-like manner with all residents and guests. 
     This will give the residents a sense of well-being.  A
     business and no-nonsense approach will let them know that
     we take our jobs seriously and that the welfare of the
     residents is very important to all employees.

                              ****

     Any person on the property that is not a resident or
     guest is considered trespassing.  If there is any cause
     for concern, call the police.  In any event, ask the
     person if we can help or give directions.  A person must
     have legitimate business to be on the property.  If the
     person has no business on the property, they must be
     asked politely to leave.  Again, if there is cause for
     concern, CALL THE POLICE.  Obtain the person's name.  If
     possible, obtain the license number of the car.  Keep
     this information on record for future reference.

     Under the heading "Security Patrol," the following appears:
     Crime is a major worry for residents and there is no
     substitute for having the property patrolled by well-
     trained people, whether by our own employees or
     professional security personnel.  Strict management of
     tenants behavior and the behavior of guests make it clear
     from the start that the property is a no-nonsense place. 
     Adhering to strict policy will not be attractive to those
     who just want to `hang out.'  `Hanging out' will not be
     tolerated.  This is the beginning of major problems.

     Activities that are disturbing and impose on the rights
     of others will not be tolerated, not only from residents
     but from others.  Activity of this type must never be
     allowed to get started.  Our reputation will serve as
     some type of security measure.

     Residents may blame the management for failing to provide
     security or for providing it negligently.  Legal
     liability for negligence may perhaps be reduced by hiring
     an outside Security Patrol.

     If there is a problem with security, the resident must
     contact the RMI office.  We will be happy to go to any
     length to correct the problem.

     It is our goal to at all times provide a safe place for
     our residents and family.  We feel our residents have the
     right to be safe and live in a peaceful environment.


                    Deposition of Chuck Needs
     On the date of the shooting, the resident manager was on
vacation.  Mr. Needs, the maintenance man, was left to respond to
maintenance calls, check the lights, and help with the youth
activity center.  The complex employed no security guards.  Either
Mr. Needs or the manager would patrol the premises, especially if
residents called and said they heard a noise, for example.  In such
a case, Mr. Needs would look around the area.  If he saw some
evidence, such as footprints, that a person had been outside an
apartment, he would make a record of the incident.  The steps the
complex might take as part of security were checking the lighting,
responding to tenant calls and making the rounds to check
playgrounds, porches and driveways.  If, for example, a tenant saw
a person with a gun, the tenant might call him and he would call
the police.
     After a hearing, the trial judge granted the motion for
summary judgment.  He relied on our recent decision of Bartley v.
Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), and found that the
activities of RMI in making some efforts toward safety did not
create a duty to provide security against the criminal acts of
others.    Mrs. Hall appeals from that ruling.
     This is the type of issue which is properly decided by summary
judgment.  It involves the question of whether a duty exists.  This
is always a question of law, not to be decided by a trier of fact. 
First Commercial Trust Co. v. Lorcin Engineering, 321 Ark. 210, 900 S.W.2d 202 (1995). 
     Our most recent case concerning the duty of a landlord in
these circumstances is Bartley v. Sweetser, supra.  In that case,
two men entered a tenant's apartment and raped her.  The tenant
sued her landlord claiming that the landlord provided her with a
windowless door with a simple push-button lock, failed to provide
adequate security and adequate lighting of the common areas, and
failed to warn her that the complex was prone to criminal activity. 
The trial court granted summary judgment in favor of the landlord
and we affirmed.  In our affirmance, we recognized the general rule
that a landlord does not owe a duty to protect the tenant from
criminal acts.  However, the appellant alleges that the activities
undertaken by RMI remove this case from the rubric of Bartley.  She
argues that RMI voluntarily undertook to provide security, thereby
becoming liable for any negligence in doing so.
     We have implied that a landlord who assumes a duty not
required of him is removed from the general rule.  See Glasgow v.
Century Property Fund XIX, 299 Ark. 221, 772 S.W.2d 312 (1989) and
Kilbury v. McConnell, 246 Ark. 528, 438 S.W.2d 692 (1969) where we
said that there was no evidence of "an agreement or assumption of
duty that removes the landlord from the general rule." (emphasis
added).  Indeed, this principle is widely recognized.  R.
Schoshinski American Law of Landlord & Tenant,  4:15 (Supp. 1995); 
Walls v. Oxford Management Co., 137 N.H. 653, 633 A.2d 103 (1993); 
Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984);  Hill v. Chicago
Housing Authority, 233 Ill. App. 3d 923, 599 N.E.2d 1118 (1992).
So, the question left to us is whether RMI has removed itself from
the general rule and assumed a duty to protect its tenants from
criminal attacks.  The answer is no. 
     The provisions of the handbook and the procedures manual,
along with the deposition testimony of Chuck Needs reflect that RMI
had a concern for the general welfare of its tenants, and a desire
to keep on-site management informed of the activities taking place
on the grounds.  Its implementation of certain practices such as
lighting, evening patrols, and communicating with residents
regarding suspicious activities help assure the quiet enjoyment and
basic safety of the tenants, in addition to providing a modicum of
deterrence to criminal activity.  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. 
     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.
     Affirmed.