Kimberley Hoff21 Sept 2012PAR 116 TortsIRAC Brief

Case: Walls v. Oxford Management Co., Inc.Citation: 633 A2d 103 (N.H. 1993)

FactsOn December 13, 1988, the plaintiff Deanna Walls was sexually assaulted in the parking lot of the Bay Ridge Apartment Complex (owned and managed by the defendant) in Nashua where she lived with her mother, the lessor of the apartment. The complex had been the site of frequent property crime during the past two years. The plaintiff charged in federal court that the defendants breached their threefold duty to provide reasonable security for the apartment complex, to warn residents of its lack of security, and to warn residents of criminal activity on the premises; and that this breach of duty was the proximate cause of the sexual assault. Two questions were certified to the Supreme Court of New Hampshire by the United States District court.

Issues1) Does New Hampshire law impose a duty on landlords to provide security to protect tenants

from the criminal attacks of third persons?2) Does this State’s law of implied warranty of habitability oblige landlords to protect tenants from

the criminal attacks of third persons?

Rule1) Landlords owe a general duty of reasonable care to their tenantsi but private citizens ordinarily

have no duty to protect others from criminal attacksii. 2) A rental agreement contains an “implied warranty” that it is habitable and fit for residence, and

free of defects that would render the premises unsafe or unsanitaryiii.

Analysis1) The court must balance the general obligation to exercise reasonable care to protect others

from unreasonable risk of harm with the rule that private persons have no general duty to protect other from third party criminal acts. Negligence claims primarily rest on violation of some specific duty owed by the offender to the injured partyiv. Duty to act can be created in four ways that are relevant to this case: By voluntarily assuming a duty, and thus becoming responsible for acting with reasonable carev, which the landlord did not do here. By a special relationship between two parties such as innkeeper and guest, which has been held not to apply to landlord-tenant relations, especially in respect to protecting tenants from criminal attackvi. By negligence on the part of the landlord that leads to an “especial temptation and opportunity” for crimevii, which was not seen to apply to this case. And finally by the existence of overriding foreseeability of an attack, even if not causally related to physical defects on the premises, which the court rejected as a possible sole basis for duty in this caseviii.

2) The implied warranty of habitability in a rental agreement is measured in part by standards set forth in housing codes. “Habitability” has been held in other jurisdictions to mean aspects of a property such as structural soundness, lack of fire hazards, and generally sanitary conditions that are under a landlord’s direct control, not safety from criminal acts of third partiesix

Conclusion1) No, landlords do not have a general duty to protect tenants from criminal attack, unless one of

the stated exceptions has caused such a duty to arise where it would not normally exist.2) No, warranty of habitability ensures structural soundness and general sanitary conditions, but

does not require affirmative measures by landlords to protect against criminal attack.

The case was remanded; all concurred.

i Sargent v. Ross, 113 NH 388, 391, 308 A.2d 528, 534 (1973). ii Restatement (Second) of Torts, §314 (1965).iii Kline v. Burns, 111 NH 87, 92, 276 A.2d 248, 251-52 (1971).iv Guitarini v. Company, 98 NH 118, 95 A.2d 784, 785 (1953).v Smith v. American Employers’ Ins. Co., 102 NH 530, 533, 163 A.2d 564, 567, (1960).vi Rowe v. State Bank of Lombard, 125 III.2d 203, 216-17, 126 III.Dec. 519, 523, 531 NE.2d 1358, 1364 (1988).vii Braitman v. Overlook Terrace Corp., 68 NJ 368, 377, 346 A.2d 76, 79 (1975).viii Trentacost v. Brussel, 82 NJ 214, 218, 412 A.2d 436, 438 (1980).ix Williams v. William J. Davis, Inc., 275 A.2d 231, 231-32 (DC 1971).