Nails v. Community Realty Co ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FELISHA NAILS,
Plaintiff-Appellant,
and
MARY A. WHITE, As personal
representative of the estate of
Arnetha White,
Plaintiff,
v.
COMMUNITY REALTY COMPANY,
No. 97-1716
Defendant-Appellee,
and
KENNETH J. LUCHS, General Partner;
JULIAN R. KOSSOW; FOSTER SHANNON;
DAVID R. WILSON, General Partners;
EAST LAKE LIMITED PARTNERSHIP;
LENNARD METRO MD-I LIMITED
PARTNERSHIP,
Defendants.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Herbert N. Maletz, Senior Judge, sitting by designation.
(CA-94-2978-AMD)
Submitted: November 10, 1998
Decided: December 17, 1998
Before ERVIN and MOTZ, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Cheryl Lynne Howard, Greenbelt, Maryland; W. Eric Cloud, THE
CLOUD LAW FIRM, Washington, D.C., for Appellant. Patricia M.
Thornton, MCCARTHY, BACON & COSTELLO, L.L.P., Lanham,
Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
At approximately 3 a.m. on Thursday, March 25, 1994, tenant
Mary A. White and her friend Felisha Nails returned to the Lake
Arbor Towers Apartments parking lot. As they neared the front
entrance of the building, a man walked out of the entrance with a gun,
demanded money, forced the women to return to their car, and locked
Nails in the trunk. Thereafter, the assailant shot White four times, kill-
ing her. At approximately 6 a.m., Ms. White's fiance discovered Nails
in the trunk and found White's body in a wooded area near the park-
ing lot. White and Nails sued the Community Realty Company, Inc.
("Community Realty")1 and related defendants on several grounds.
Nails appeals the district court's order granting summary judgment to
Community Realty on her negligence claim, finding that the limited
criminal activity which had occurred at Lake Arbor Towers prior to
the incident was insufficient as a matter of law to establish a duty to
protect invitees from criminal activity. For the reasons that follow, we
affirm.
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1 Community Realty managed and operated the property.
2
In Maryland, the basic elements necessary for a negligence cause
of action are a duty or obligation which the defendant is under to pro-
tect plaintiff from injury, a failure to discharge that duty, and actual
loss or injury to the plaintiff proximately resulting from that failure.
See Scott v. Watson, 359 A.2d 548, 552 (Md. 1976).2 There is no spe-
cial duty imposed upon the landlord to protect his tenants against
crimes perpetrated by third parties on the landlord's premises. See id.Rather, a landlord who has set aside areas for the use of his tenants
in common owes them the duty of reasonable and ordinary care to
keep the premises safe. The landlord is not an insurer of tenants and
is only obliged to use reasonable diligence and ordinary care to keep
common areas in reasonably safe condition. See id. The landlord's
duty to exercise reasonable care for the safety of the tenants, in com-
mon areas under his control, is sufficiently flexible to be applied to
cases involving criminal activity. Therefore, if the landlord knows, or
should know, of criminal activity against persons or property in the
common areas, he then has a duty to take reasonable measures, in
view of the existing circumstances, to eliminate the conditions con-
tributing to the criminal activity. This duty arises primarily from
criminal activities existing on the landlord's premises--not from
knowledge of general criminal activities in the neighborhood. See id.
at 554; see also Brown v. Baltimore & Ohio R.R. , 805 F.2d 1133,
1139 (4th Cir. 1986).
The district court held a hearing on the parties' cross-motions for
summary judgment. Although plaintiffs were afforded almost two
years of discovery, the only relevant criminal activity found by the
district court was that another person, Sandra Scottland, had her purse
snatched at knife point four months prior to the incident at issue.3 The
hearing also revealed that Lake Arbor Towers regularly provided a
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2 Scott was referred to the Court of Appeals of Maryland for the certifi-
cation of several state law questions by the District Court for the District
of Maryland.
3 Ms. Scottland was not physically harmed during the robbery and did
not file a police report. She did recall speaking to an unidentified person
at the apartment complex, but only for the purpose of recovering the con-
tents of her purse. We decline Nails' invitation to consider evidence of
other crimes not properly before the district court. See Fed. R. Civ. P.
56(e); Ruffin v. Shaw Indus. Inc., 149 F.3d 294, 300 (4th Cir. 1998).
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security guard from approximately 6 p.m. to midnight and that a
security card was needed to gain access to the entrance of the build-
ing. Nails' theory of the case was that, if a security guard had been
on duty at the time, the assault and murder would have been pre-
vented. Relying on Scott the district court found this sole instance of
violent criminal conduct insufficient, as a matter of law, to create a
duty for Lake Arbor Towers to provide all night security, as urged by
Nails. See 359 A.2d at 552-54.
Under Maryland law whether a landlord has a duty to protect ten-
ants is a legal question, see Scott, 359 A.2d at 553-54, which we
review de novo. See generally United States v. Hall, 972 F.2d 67, 69
(4th Cir. 1992). In Scott the court found a duty to protect tenants from
criminal activity because the complex had suffered five or six illegal
entries into apartments, two more apartments were burglarized, a car
was stolen from the garage, and there was a robbery and rape in a
ground level store. See Scott, 359 A.2d at 554. These incidents were
fairly described as "increasing criminal activity on the premises." Id.
at 552. Like the district court, we have found no relevant case law
(and have been provided none by Nails) to support Nails' contention
that a solitary robbery, not involving a gun and not involving actual
harm to the victim, puts a landlord on notice of increasing criminal
activity on the premises sufficient to give rise to a legal duty to pro-
tect against armed robbers on the premises. Accordingly, we affirm
the district court's order granting summary judgment to Community
Realty and dismissing the action. We dispense with oral argument as
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess.
AFFIRMED
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