Landlord Not Liable After Tenant Assaults Another Tenant

Miller ex rel. Miller v. Tabor West Inv. Co., LLC, --- P.3d ----, 2008 (Or.App. Nov 12, 2008) (NO. A130947)

Plaintiff Miller was assaulted and seriously injured by a man named Homer Woods in a convenience store located adjacent to the apartment complex where Miller and Woods both lived. Woods had been convicted of a prior assault, had a history of mental illness, and was a problem tenant. Miller sued the owners of the apartment complex and their property managers for negligence and also for damages under ORS 124.100 (injury to senior citizen). Oregon precedent was strongly in favor of the landlord and the trial court dismissed the case on summary judgment. The Court of Appeals affirmed but in doing so left a twisted wreckage of negligence tort law behind.

In Park v. Hoffard, 315 Or 624, 847 P.2d 852 (1993), the landlord was sued for an attack by a tenant's dog allegedly resulting from the landlord's failure to evict the tenant or take measures to control the dog. The court adopted the Restatement (Second) of Torts § 379A (1965):

“That is, a landlord can be liable for such harm only if (1) the landlord, at the time of entering into a lease, at the time of renewing a lease or a periodic tenancy, or at any time during a tenancy at will or other tenancy that the landlord is able to terminate unilaterally, consents to such activity or knows that it will be carried on, and (2) the landlord knows or has reason to know that the activity will unavoidably involve an unreasonable risk of harm to persons off the rental property.”

The Miller Court, in a bizarre twist of logic, claimed this rule did not apply because Park involved a claim by a non-tenant against the landlord but the current case involved a claim by a tenant against the landlord. The court did not attempt to explain why this difference created a different standard of care. The court held the attack by Woods was not foreseeable as a matter of law, and therefore the question of foreseeability could not be decided by a jury.
The Court analyzed whether Miller could prevail under a “failure to warn” theory. It noted that Oregon law in Fuhrer v. Gearhart By The Sea, Inc., 306 Or 434, 760 P.2d 874 (1988) had rejected the Restatement (Second) of Torts § 314A rule that an innkeeper's or property owner’s to its guests or tenants was to warn only of nonobvious dangerous conditions on the premises. Instead it held (at 441):

“[i]nnkeepers and possessors of land have an affirmative duty to warn their paying guests and invitees of foreseeable unreasonable risks of physical harm; when the risk involves a dangerous condition off the premises, the trier of fact must decide the reasonableness of the failure to warn in all the circumstances.”

This meant that more cases would go to the jury, increasing claims against innkeepers and landlords.

The Miller court then struggled to find a way to save the trial court’s decision and not allow a jury to decide the case. To do so, it needed to find that the landlord could not have forseen that Woods would have attacked someone. In a clumsily worded decision, it apparently decided that the landlord did not know and had no reason to know that Woods was a danger specifically to Miller. Apparently knowing that Woods was a danger to someone is not enough to require the landlord to warn the tenants of the danger. The court decided the evidence that Wood’s behavior toward other tenants was irrational and that his mental condition was deteriorating did not indicate that Woods would become violent. Wood’s talking to himself and throwing things from his apartment on the lawn also did not suggest he might become violent. Wood’s push of Miller seen by the landlord suggests “general aggressiveness” but not “an inclination to commit a violent assault,” according to the court. It expressed its view in these words:

In sum, even recognizing that the concept of foreseeability refers to
“generalized risks of the type of incidents and injuries that occurred rather than predictability of the actual sequence of events,” Fazzolari, 303 Or at 21, in the absence of more specific knowledge of the risk of the type of harm that befell plaintiff, we conclude that defendants' conduct constituted “mere facilitation” of Woods's intervening criminal conduct. Thus, as a matter of law, Woods's attack on plaintiff was not a “reasonably foreseeable” consequence of defendants' failure to warn or otherwise protect plaintiff. Defendants cannot therefore be liable for damages based on that failure. Accordingly, the trial court did not err in granting summary judgment for defendants on plaintiff's negligence claim.”"

The court then decided that plaintiff's claim for damages under ORS 124.100 (2003) for “permitting” physical abuse against an elderly or incapacitated person. The court applied the foreseeability standard of negligence law and concluded that the landlord did not permit the abuse because it was unforeseeable.

This case is a good example of the way courts have botched their role in defining the law of negligence. The outcome of negligence cases is now unforeseeable. How can insurance companies determine the proper pricing of
policies? How can lawyers advise their clients when to evict a tenant? It is
clear that the courts are incapable of fixing negligence law.

The misguided efforts for tort reform have focused on not allowing victims to be fully compensated. Instead, they should focus on taking away the ability of courts to make ad hoc changes to negligence law. Portions of the Restatement of Torts should be codified.