Aaron v. Havens

758 S.W.2d 446, 1988 Mo. LEXIS 88, 1988 WL 108134

• Court: Supreme Court of Missouri
• Decided: October 18, 1988
• Docket: 70366
• Status: Published

Opinions

BLACKMAR, Judge.

The trial court sustained the defendant landlord’s motion to dismiss the plaintiff tenant’s suit for damages for personal injuries alleged to have resulted from a sexual assault by an intruder who had gained entry to her apartment through a window adjoining a fire escape. The plaintiff appealed to the Missouri Court of Appeals, Eastern District, which transferred the case to us because two cases involving somewhat similar issues were pending here. These have now been decided. See Madden v. C & K Barbecue Carryout, Inc., and Decker v. Gramex Corp., 758 S.W.2d 59 (Mo. banc 1988). The factual and legal situations are not congruent because those cases turned on “special facts” while this one involves a landlord-tenant relationship. We nevertheless conclude here, as we did in those cases, that the trial court erroneously sustained the motions to dismiss. We now reverse and remand for trial.

The decision below is based on the pleadings, and so we construe the plaintiff’s petition favorably to her, taking her well pleaded allegations of fact as true and giving her the benefit of all reasonable inferences from the pleaded facts. Stiffelman v. Abrams, 655 S.W.2d 522, 525 (Mo. banc 1983).

The plaintiff rented an apartment on the third floor of a building owned by the defendant at 5560 Cates in St. Louis, taking possession in March of 1984. At that time the inside latch on the rear, southside window of the apartment was broken so that an intruder could enter her apartment from the fire escape. A burglar had actually obtained access to her apartment through the front balcony doors, also accessible to the fire escape, and this was known to the landlord. The plaintiff reported the broken window latch repeatedly to the landlord and told him that she feared for her safety. She asserted a particular danger to herself in that the landlord had designated her to collect rents from the other tenants, and stated that the neighborhood was a dangerous one where violent crimes had occurred in the past and could be expected to occur in the future. These circumstances, although perhaps appropriate for a jury to consider, are not determinative at the pleading stage.

In September of 1984 an intruder entered the plaintiffs apartment through the unsecured window, raping and sodomizing her. She charges that the defendant was negligent in three respects, in that he:

a. Failed to install a lock to the rear window of Plaintiffs apartment after repeated requests to do so;

b. Failed to secure a lock to the door along a six foot fence surrounding the back yard of the apartment building this allowing anyone entry to the back yard of 5560 Cates; and

c. Failed to take precautions so that an intruder could not easily gain access to the fire escape and, therefore, the windows to the apartments at 5560 Cates.

A petition in a negligence case must state facts demonstrating a duty owing from the defendant to the plaintiff, a breach of duty, and damages as a result. See Virginia D. v. Madesco Inv. Corp., 648 S.W.2d 881, 886 (Mo. banc 1983) citing Sckeibel v. Hillis, 531 S.W.2d 285, 288 (Mo. 1976); Restatement (Second) of Torts § 281 (1965); MAI 22.05 (1981). Trial courts should hesitate to dismiss cases at the pleading stage unless it is clear that no claim for liability is presented.

The landlord argues that he had no duty to tenants to make the premises safe against the criminal conduct of intruders, citing Faheen v. City Parking Corp., 734 S.W.2d 270 (Mo.App.1987) and Meadows v. Friedman Railroad Salvage Warehouse, 655 S.W.2d 718 (Mo.App.1983), and that the petition therefore fails to state a claim. We do not agree. The existence of a duty is purely a question of law. The owner of an apartment building has a recognized duty to use due care to make common premises safe, as against foreseeable risks.¹ The petition amply alleged that the landlord knew or should have known of a dangerous condition of the fire escape, by reason of which a criminal intruder could obtain easy access to the plaintiff's apartment. If a private apartment can be entered through a window, injury to the occupants is foreseeable. This opportunity for access through an unusual route, indeed, might be considered an invitation to those disposed toward surreptitious. entry. There is no logical reason why a dangerous condition of common premises, proximately causing injury on private premises, could not be the occasion for liability.

The trial judge relied on such cases as Brown v. National Supermarkets, 731 S.W.2d 291 (Mo.App.1987), and Warren v. Lombardo’s Enterprises, Inc., 706 S.W.2d 286 (Mo.App.1986), in dismissing the petition. The respondent points to these cases in arguing that there is no duty to protect against violent crime unless there is a past history of crimes of violence on the premises. The cases are not comparable, because they dealt with premises to which the public was invited, and fall under the general heading of liability to invitees. Here the danger is from unauthorized entry from common premises into private premises. The abstract proposition that there is no duty to protect against criminal misconduct is substantially attenuated in several recent cases.² It is not necessary to allege that past crimes involving entry into unauthorized places are of the same general nature as the one which gave rise to the claim. Virginia D., 648 S.W.2d at 887. If a burglar may enter, so may a rapist. To find a duty only the incidence of harm, not necessarily the quantum, need be foreseeable. Restatement (Second) of Torts § 281, comment j (1965); Prosser and Keeton, Torts § 43 at 290-292 (5th ed. 1984).

Faheen v. City Parking Corp., 734 S.W.2d 270 (Mo.App.1987), strongly relied on by the landlord, was brought to recover for the wrongful death of a tenant of an apartment complex adjoining the defendant’s parking garage, but the alleged facts were not at all like the present ones. The case involved an unforeseeable assassination in an area not inappropriately open to members of the public.

If the petition is otherwise adequate and any one of the three specifications of negligence is sufficiently pleaded it is not subject to dismissal on motion. Madden, 758 S.W.2d at 61 citing White v. Mulvania, 575 S.W.2d 184, 188 (Mo. banc 1978). We need only look at the allegation that the defendant failed to take available precautions to deny an intruder easy access to the fire escape. This allegation is cryptic, and in an earlier era might have been considered insufficiently factual, but we conclude that it is sufficient to survive a motion to dismiss. It could be supported by proof that means were available to make the fire escape more difficult of access from the bottom, without unduly interfering with its essential purpose of providing an escape route. Cf. Jackson v. Ray Kruse Const. Co., 708 S.W.2d 664 (Mo. banc 1986). The fire escape is part of the common premises under the landlord’s control. No tenant had the right to make repairs or modifications, and this gives rise to the landlord’s duty to use due care to protect against dangerous conditions. Section 320.010, RSMo 1986, cited by Judge Robertson, does not insulate the owner from liability for maintaining a fire escape which reaches the ground, if the jury is persuaded that a design which will give the tenants better protection is reasonably available and should be used in the exercise of ordinary care.

Inasmuch as the petition is not legally insufficient we need not discuss the remaining two allegations of negligence in depth. The charges about the window lock provoke the inquiry as to whether the landlord has a duty to the tenant to repair the lock and whether the tenant could make the repairs herself. There is no allegation of contractual assumption of responsibility, or of any undertaking to repair after notice of the defect. Cf. Advance Rental Centers, Inc. v. Brown, 729 S.W.2d 644 (Mo.App.1987). Plaintiff’s counsel at oral argument suggested that the charges regarding the fire escape are more significant than those concerning the window. Nor are we prepared to endorse an abstract proposition that a landlord is obliged to provide gates or fences to keep intruders out of the yard surrounding an apartment building.³ On remand the plaintiff should have the opportunity to amend her petition to state such additional facts as may be available to her to fortify her allegations.

The defendant suggests that the imposition of a duty in the situation described in the petition will have severe economic consequences for landlords, and that the costs will have to be passed on to tenants. Our holding here, however, follows from established principles of Missouri tort law. We appreciate the diligent efforts of counsel in citing cases from other jurisdictions, but do not deem detailed discussion necessary because of the abundance of our own cases. The trial judge will have the responsibility of analyzing the evidence produced to determine whether it supports the pleaded factual allegations. The jury will then be able to consider whether the defendant has breached his duty to use “ordinary care” to make the premises “reasonably safe.” See MAI 22.05. It may consider economic factors in making these determinations. We have no way of knowing whether the jury will conclude that there are practical and economic means of protection. We say only that the petition justifies a trial.

The petition, liberally construed, alleges each of the essential elements of a negligence action. The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.

BILLINGS, C.J., and RENDLEN and HIGGINS, JJ., concur. WELLIVER, J., concurs in separate opinion filed. DONNELLY, J., dissents in separate opinion filed. ROBERTSON, J., dissents in separate opinion filed.

1 . Jackson v. Ray Kruse Const. Co., 708 S.W.2d 664 (Mo. banc 1986); Green v. Kahn, 391 S.W. 2d 269 (Mo. 1965); Barker v. East Side Building Corp., 344 S.W.2d 299 (Mo.App.1960); Hieken v. Eichhom, 159 S.W.2d 715 (Mo.App.1942). Cf. Lay v. Dworman, 732 P.2d 455 (Okla.1986).

2 . Madden v. C & K Barbecue Carryout, Inc., and Decker, v. Gramex Corp., 758 S.W.2d 59 (Mo. banc 1988); Virginia D., 648 S.W.2d 881 (Mo. banc 1983).

3 . The oft-cited case of Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir.1970), is not fully on point because there it appeared that the landlord had assumed a duty by providing security measures which had fallen into disrepair and disuse. Id. at 478-79, 485. Contrary to Judge Robertson’s suggestion, we deal only with the fire escape and not with an "entry hall” or the "area surrounding.”