Nos. 79 & 80 E.D. Appeal Dkt. 1983, Appeal from the Order of the Superior Court dated May 13, 1983, at Nos. 2090 and 2303, Consolidated, Philadelphia, 1980, Affirming as Modified, the Orders entered August 1, 1980 and September 2, 1980, by the Court of Common Pleas of Philadelphia, Trial Division, Law, at No. 2619, February 1976 Term, 314 Pa. Super.414,
Roberts, C.j., and Nix, Flaherty, McDermott, Hutchinson, and Zappala, JJ. Zappala, J., joins in this Opinion, and files a separate Concurring Opinion. Larsen and Papadakos, JJ., and Roberts, Former C.j., did not participate in the decision of this case.
Peggy and Samuel Feld were tenants in the large Cedarbrook Apartment complex, consisting of 150 acres and 1,000 apartments housed in three high rise buildings. For an
extra rental fee the apartments are serviced by parking garages adjacent to the apartment buildings. On the evening of June 27, 1975, about 9:00 P.M., the Felds, returning from a social engagement, drove as usual to their allotted space in the parking garage. Then began the events that brings before us the question of a landlord's liability for the criminal acts of unknown third persons. We are not unaware of the social, economic and philosophic dimensions of the questions posed.
While the Felds were parking their car, they were set upon by three armed felons. At gun point, accompanied by two of the felons, they were forced to the back seat of their car. Followed by the third felon in an "old, blue broken down car," they were driven past the guard on duty at the gate, out into the night, to the ferine disposal of three criminals. To clear the car for their main criminal purpose, the felons started to force Mr. Feld into the trunk of the car. Mrs. Feld pled her husband's illness and to save him, offered herself for her husband's life. Thereupon the felons released Mr. Feld on a deserted street corner and drove Mrs. Feld to the lonely precincts of a country club. There is no need to recite the horrors that brave and loving woman suffered. Suffice it to say they extorted a terrible penalty from her defenseless innocence.
The Felds brought suit against the appellees, owners of the complex,*fn2 alleging a duty of protection owed by the landlord, the breach of the duty, and injuries resulting therefrom. Named as defendants were John Merriam, Thomas Wynne, Inc., the Cedarbrook Joint Venture, and Globe Security Systems, Inc. Following an eight-day trial, the jury returned a plaintiff's verdict and a judgment totaling six million dollars against Merriam, Thomas Wynne,
Inc., and the Cedarbrook Joint Venture.*fn3 The jury absolved Globe Security of any liability. Common Pleas, per the Honorable Jacob Kalish, denied motions for a new trial, judgment N.O.V. and remittitur.
On appeal the Superior Court affirmed the lower court, with the exception that the award of punitive damages to Samuel Feld was reduced by one half. Both Cedarbrook and Mr. Feld filed petitions for allowance of appeal, which were granted. We now reverse.
The threshold question is whether a landlord has any duty to protect tenants from the foreseeable criminal acts of third persons, and if so, under what circumstances. Well settled law holds landlords to a duty to protect tenants from injury rising out of their negligent failure to maintain their premises in a safe condition. See Smith v. M.P.W. Realty Co. Inc., 423 Pa. 536, 225 A.2d 227 (1967). Lopez v. Gukenback, 391 Pa. 359, 137 A.2d 771 (1958). That rule of law is addressed to their failure of reasonable care, a failure of care caused by their own negligence, a condition, the cause of which was either known or knowable by reasonable precaution. The criminal acts of a third person belong to a different category and can bear no analogy to the unfixed radiator, unlighted steps, falling ceiling, or the other myriad possibilities of one's personal negligence. To render one liable for the deliberate criminal acts of unknown third persons can only be a judicial rule for given limited circumstances.
The closest analogy is the duty of owners of land who hold their property open to the public for business purposes. See Leary v. Lawrence Sales Corp., 442 Pa. 389, 275 A.2d 32 (1971). They are subject to liability for the
accidental, negligent or intentionally harmful acts of third persons, as are common carriers, innkeepers and other owners of places of public resort. Section 344, comment (f) of the Restatement (Second) of Torts, adopted by this court in Moran v. Valley Forge Drive-In Theater, Inc., 431 Pa. 432, 246 A.2d 875 (1968), requires that they take reasonable precaution against that which might be reasonably anticipated. The reason is clear; places to which the general public are invited might indeed anticipate, either from common experience or known fact, that places of general public resort are also places where what men can do, they might. One who invites all may reasonably expect that all might not behave, and bears responsibility for injury that follows the absence of reasonable precaution against that common expectation. The common areas of an apartment complex are not open to the public, nor are the general public expected or invited to gather there for other purposes than to visit tenants.
Tenants in a huge apartment complex, or a tenant on the second floor of a house converted to an apartment, do not live where the world is invited to come. Absent agreement, the landlord cannot be expected to protect them against the wiles of felonry any more than the society can always protect them upon the common streets and highways leading to their residence or indeed in their home itself.
An apartment building is not a place of public resort where one who profits from the very public it invites must bear what losses that public may create. It is of its nature private and only for those specifically invited. The criminal can be expected anywhere, any time, and has been a risk of life for a long time. He can be expected in the village, monastery and the castle keep.
In the present case the Superior Court departed from the traditional rule that a person cannot be liable for the criminal acts of third parties when it held "that in all areas of the leasehold, particularly in the area under his control,
the landlord is under a duty to provide adequate security to protect his tenants from the foreseeable criminal actions of third persons." Feld v. Merriam, et al., 314 Pa. Super. 414, 427, 461 A.2d 225, 231 (1983).
The Superior Court viewed the imposition of this new duty as merely an extension of the landlord's existing duty to maintain the common areas to be free from the risk of harm caused by physical defects. However, in so holding that court failed to recognize the crucial distinction between the risk of injury from a physical defect in the property, and the risk from the criminal act of a third person. In the former situation the landlord has effectively perpetuated the risk of injury by refusing to correct a known and verifiable defect. On the other hand, the risk of injury from the criminal acts of third persons arises not from the conduct of the landlord but from the conduct of an unpredictable independent agent. To impose a general duty in the latter case would effectively require landlords to be insurers of their tenants safety: a burden which could never be completely met given the unfortunate realities of modern society.
Our analysis however does not stop here, for although there is a general rule against holding a person liable for the criminal conduct of another absent a pre-existing duty, there is also an exception to that rule, i.e., where a party assumes a duty, whether gratuitously or for consideration, and so negligently performs that duty that another suffers damage. Pascarella v. Kelley, 378 Pa. 18, 105 A.2d 70 (1954). See Rehder v. Miller, 35 Pa. Super. 344 (1908).
This exception has been capsulized in Section 323 of the Restatement (Second) of ...