Under Oklahoma state law, does a tenant of an apartment complex in a high crime area have a cause of action in negligence against the owner of the complex for injuries suffered from third party criminal activity when, the owner fails to repair inoperative lights near a common passageway, fails to maintain landscaping, and does not employ regular security patrols?
No, in Oklahoma, in order to state a cause of action in negligence an alleged breach of duty must proximately result in the injury to the party seeking to recover for that injury. The owner s failure to act was not a breach of his duty to use reasonable care to maintain the common areas of the premises nor did his actions unreasonably enhance the likelihood of criminal activity. Although the owner failed to repair inoperative lighting along a common passageway, failed to maintain the shrubbery, and did not employ regular security patrols; his actions can not be said to be the proximate cause of Tiffany Fitzhugh s injuries. Therefore, the Fitzhugh s claim against Fairview Gardens Partners will be unsuccessful.
Statement of facts
The Fitzhugh family lives in the Fairview Gardens Apartments complex owned by a limited partnership, Fairview Gardens Partners. The Fitzhugh family wants to file a negligence claim against the owner of the complex for injuries suffered by their ten year old daughter, Tiffany, who was shot while walking on the premises of the complex.
The complex consists of three five story buildings, each with a separate entrance, separated by walkways. The Fitzhugh family lives in the center building, number 2. The fronts of the buildings are setback off the street and landscaped with shrubbery and lawns. Each of the three buildings has an entry door in the front that is locked and equipped with a buzzer entry system, and a rear door that can only be opened from the inside. There is a large parking lot in the rear of the building, serving all tenants. There are outside lights around the parking lot, along the walkways, and above the rear and front doors. However, due to vandalism, the lights in the walkways are in a constant state of repair and the tenants have learned to avoid the walkways, which they have labeled the dark zone , after dark. A week prior to the shooting, half of the lights in the walkway were not working. A maintenance request had been completed, however, the lights were not yet fixed at the time of the shooting.
The apartment complex is located in a high crime area. In a statement by Tiffany s mother, crime has been a constant problem in the building and in the neighborhood . Police records indicate that over the past two years, within two square miles of the complex, there have been two home invasions, eleven drug related arrests, seventeen robberies, and five shootings. On the premises, during a police raid, a shot was fired two weeks prior to the Fitzhugh incident; a tenant was also mugged in the common laundry room six months prior to the Fitzhugh incident. As a result of these incidents, per the request of the tenants, the owner of the complex has installed a deadbolt lock to the common laundry room and issued keys to the tenants, however, the owner refused to add deadbolt locks to the individual apartment doors. In response to tenant complaints, regarding loitering in the walkways by teenagers; who would at times be drinking and making noise, the owner of the complex hired a college student to patrol the area during the summer months.
The shooting took place on October 1, 1996 at 8:30 PM. Tiffany was dropped off at the rear of the building by her friend s father. Tiffany was using a walkway between two of the buildings to get to the front door when she was caught in a crossfire, shot, and badly injured.
This memo discusses whether the owner of an apartment complex, Fairview Gardens Partners, is liable for the injuries suffered by a tenant, Tiffany Fitzhugh, as a result of third party criminal activity.
Under Oklahoma state law, in order for the Fitzhugh family to state a cause of action in negligence against the owner of Fairview Garden Apartments complex for injuries suffered from third party criminal activity, they must allege facts sufficient to prove that the four elements of negligence were present. Theses elements are: the existence of a duty; a subsequent breach of that duty; the alleged breach of duty must proximately result in an injury to the party seeking to recover for that injury; and an injury must have been suffered by the party stating the claim. Lay v. Dworman 732 P.2d 455, 457 (Okla. 1986). In Oklahoma, a landlord s duty has been defined in Lay as a duty to take steps which are in his power to minimize the predictable risk to his tenants when, he is aware of previous criminal activity, has notice that these crimes occurred upon the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action. 732 P.2d at 457. Based on this criteria set forth by the Oklahoma state courts, Fairview Gardens Partners will not be negligent as to their duty owed to the Fitzhugh family.
The first factor the court examines when determining whether the behavior is negligent, is whether the landlord owed a duty to protect his tenants from criminal activity. In Lay, the courts have placed upon the landlord a duty to take steps which are in his power to minimize the predictable risk to his tenants when, he is aware of previous criminal activity, has notice that these crimes occurred upon the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action. Lay, 732 P.2d at 457. The cornerstones of this duty are foreseeability and exclusivity of control. Cordes v. Wood, 918 P.2d 76, 78 (Okla. 1977). Foreseeability refers to acts which the landlord could reasonably be expected to prevent or knowledge of previous similar criminal behavior. Exclusivity of control refers to instances in which the landlord can be liable for those instances in which he maintains exclusive control over the area or devices by which the attack is made. Id. at 79.
Similar to the Lay case, it is clear that the owner of the Fairview Gardens Apartments complex was aware of prior criminal activity. Specifically similar criminal activity, referring to the shooting which took place on the premises just two weeks prior to the shooting of Tiffany Fitzhugh. It is also clear that the lighting around the parking lot and passageways, landscaping and the common passageway used by the tenants were all under the owner s exclusive control. Following the ruling in Lay, the owner of the complex was under a duty to use reasonable care to maintain the common areas of the premises in such a manner as to insure that the likelihood of criminal activity is not unreasonably enhanced by the condition of those premises . Lay, 732 P.2d at 458.
The next factor the Oklahoma state courts must consider in determining whether the conduct is negligent, is whether the actor breached his duty; thus enhancing criminal activity by not using reasonable care to maintain the common areas of the premises. In Lay, the landlord of the apartment complex knew of criminal activities, including other rapes, in the apartment complex, and the victim had complained of a defective lock on a sliding glass door in her apartment, which the landlord had exclusive control. The landlord had failed to fix the lock and the intruder had gained access to her apartment and had raped her. Here the courts found that his failure to fix the defective lock was a breach of his duty because he was aware of prior criminal activity and was also aware of the defective lock. Therefore, he should have known that his failure to act could involve danger to another. Lay, 732 P.2d at 759.
Unlike the Lay case, the owner of Fairview Gardens Apartments complex had taken many steps in trying to decrease the likelihood of criminal activity on the premises. The owner of the complex had employed a security patrol during the summer months and had even installed a deadbolt lock on the common laundry room, at the tenant s request. The owner of the complex had repeatedly replaced the broken lights near the passageway and was in the process of filing the proper maintenance requests at the time of the shooting. Only some of the lights were out and they were only out for a week, not an unreasonable amount of time considering the frequency of the vandalism. Due to the area in which the apartment complex was located and the significantly high criminal activity within the area, it would be unreasonable to expect that the owner of the complex would be able to protect his tenants from injuries like the one suffered by Tiffany Fitzhugh. Therefore, the owner of the complex did not breach his duty to use reasonable care to prevent the enhancement of opportunities for the infliction of criminal acts upon his tenants . Lay, 732 P.2d at 459.
The third factor the Oklahoma state courts scrutinize in determining whether the owner s conduct is negligent, is whether the alleged breach of duty proximately resulted in an injury to the party seeking to recover for that injury. Mengel v. Rosen, 735 P.2d 560 (Okla. 1996). In Mengel, a woman was injured as a result of a criminal assault in her apartment by an employee of the apartment complex, who had a prior criminal record. The woman brought a negligence claim against the owner of the complex alleging that she was injured as a result of the owner s act or omission to act. Although it could be argued that the owner s actions of employment put the assailant on the property, it did not, however, create an opportunity different than any third party coming on the property and committing the assault on the tenant. The assailant in Mengel, gained access to the apartment through the front door using a key. The court stated that the proximate cause of her injuries was not the breach of duty by the owner but the opportunity of entrance to her apartment afforded by her keys. 735 P.2d at 563.
Similarly, when the court considers the proximate cause of the Fitzhugh shooting, it will find a fact pattern much like that of the Mengel case. Tiffany Fitzhugh was shot and injured by a third party while walking down a common passageway known to the tenants as the dark zone . Although some of the lights around the passageway were burned out or vandalized, this did not proximately result in her injuries. In addition, the unmanicured lawns and shrubs around the front of the complex and the denial of deadbolt locks in each of the apartments should be considered irrelevant because the shooting took place outside in the back of the complex. The tenants should not have relied on the summer security patrol because it had ended over a month ago. It could be argued that the proximate cause of Tiffany s injuries were a combination of her mother s and the friend s father s actions, not the owner s. Her mother knew of the criminal activity in the area and of the dangerous dark zone . She should never had allowed a ten year old girl to walk back there alone. She should have met her at the car. Also, the friend s father should have known not to drop off a ten year old girl by herself in the dark. He should have dropped her off in the front of the complex and walked her to the door. Following the opinion in the Mengel case, Fairview Gardens Partners acts or omissions to act can not be said to have been the proximate cause of Tiffany s injuries.
The final relevant factor the courts must consider to determine if the conduct was negligent, is whether an injury was suffered by the party stating the claim. In order to satisfy this element of the negligence claim, one must only prove that an injury did occur. Tiffany Fitzhugh was shot and badly injured, thus satisfying the injury requirement for a negligence claim.
After examining the relevant factors, the Oklahoma state court is likely to conclude that Fairview Gardens Partners is not liable under a negligence theory for the injuries suffered by Tiffany Fitzhugh as a result of third party criminal activity. Although the owner of the complex knew about previous criminal activity, was exclusively responsible for repairing the lights in the area at which the shooting occurred; his actions can not be said to have been the proximate cause of Tiffany s injuries nor did the condition of the premises unreasonably enhance the likelihood of the criminal activity. Fairview Gardens Partners should not be liable for their actions because they do not satisfy the requirement of proximate cause that is necessary in establishing a negligence claim.