Suing the Landlord: Negligent-security suits in Maryland present

Daily Record, The (Baltimore), Dec 10, 2007 by Brendan Kearney

David Ellin knows his latest high-profile lawsuit is not a sure winner, but he doesn't consider it much of a stretch, either.

The Baltimore-based personal injury lawyer filed suit last month against the owner of Temple Gardens, a high-rise apartment building overlooking Druid Hill Reservoir in West Baltimore, where 72-year- old Shirley Cooper was murdered in June.

On behalf of Cooper's family, Ellin claimed inadequate security at the private, historic 147-unit residence allowed the killer to reach Cooper in her apartment.

"Obviously if something occurs in someone's apartment and they have exclusive control over it, that won't be the landlord's fault," Ellin said. "If it's something that could have been preventable if rules and policies had been followed, I think you can extend that to the management company."

The Coopers aren't alone in seeking redress from landlords for criminal acts perpetrated by third parties.

Across the nation, inadequate security claims are becoming something of a niche practice, with plaintiffs' attorneys testing the limits of property owners' responsibilities.

Although many claims die on summary judgment, attorneys like Ellin are convinced the criminals are not the only ones who bear legal responsibility for their crimes.

Making that case, though, is "certainly not as easy as a rear- end auto accident," Ellin said. "Sometimes as an attorney you need to blaze new trails and you need to protect people who are injured."

Kathy K. Howard, general counsel for Regional Management Inc. and chair of the Maryland Multi Housing Association's legislative affairs committee, acknowledged that landlord liability in general can present "a moving target."

Ellin's claim, though, "doesn't seem to be treading any particularly new ground," she said.

"It goes back to the basics of law school: duty, breach, causation," Howard said.

Problems of proof

While plaintiffs' attorneys try to portray the landlords as irresponsible stewards of tenant health and safety, landlord lawyers emphasize that at some point their duties end and the tenants' begin.

"There are two sort of competing concepts," said Gary Stein, of Ain & Stein LLC in Rockville, who has represented plaintiffs in a variety of premises liability cases.

"On the one hand, you have the notion that the landlord is not the guarantor of the safety of his tenants," Stein said. "On the other hand, you have the notion that the landlord can have liability if there's a dangerous or defective condition in the common area that the landlord controls."

Warren Weaver, who has defended inadequate security claims but now concentrates on defending lead paint poisoning allegations, said spotlighting lax security could be a "red herring."

"They have to show that even if the landlord's security precautions are unreasonable, that has to be the proximate cause" of the crime, Weaver said.

Complicating matters of proof in Ellin's case, the man police had pegged as the prime suspect was found shot to death two weeks after Cooper's murder, after which the Cooper case was closed, a police spokesman said.

Police believe Raliegh or Riley Pettus -- both spellings appear in court records -- who was homeless when he was killed, was Cooper's boarder. Cooper's son, Leo, who lived in another apartment in the building until his mother's death, said she merely knew Pettus and had hosted him for dinner on occasion.

"The problem there is if you have an apartment and you bring someone in, it's hard to blame it on the landlord," said professor Andrew King, who teaches property law at the University of Maryland School of Law. "If the landlord can prove that the tenant brought this person in ... then I would suppose the landlord has less responsibility. Then it starts to sound like a stretch."

Ellin's suit is short on details: It does not identify the killer or specify the status of the security cameras on the premises. He expects to learn more about the building's adherence to front-door sign-in policies and the functionality of the cameras during discovery.

The defendants in the case, property owner E.T.G. Associates '94 L.P. and management company Roizman Development LLC, have not yet responded to the suit. Israel Roizman did not return calls for comment.

Establishing the standard

Determining whether a landlord has been negligent is a very fact- specific undertaking, attorneys admonished, and the analysis must take a constellation of factors into account: the prevalence of crime in the area, the location of the crime on the premises, previous communications between the landlord and tenants, and the terms of the lease.

"Generally, the landlord can be liable if the tenant can prove that the crime was foreseeable in some way, that the landlord should've taken some kind of precautions," said King.

Similarly, landlords are usually responsible for common areas, and tenants are responsible for what happens in their private quarters, King said.

But in a 2003 decision, Hemmings v. Pelham Wood, a divided Court of Appeals said that landlords could be held responsible for the death of tenants who are murdered in their own apartments, opening the door for claims such as Cooper's. In that case, poor lighting outside the apartment allegedly provided the intruder the necessary cover to destroy the apartment's lock and gain entry.