B. Landlord's Duty of Care to Tenants with Respect to Criminal Conduct of Third Persons
It is of course beyond cavil that federal courts sitting in diversity must apply the substantive law of the state in which it sits and whose laws govern the action. Griggs v. Bic Corp., 981 F.2d 1429, 1431 (3rd Cir. 1992) and Nationwide Insurance Co. v. Resseguie, 980 F.2d 226, 229 (3rd Cir. 1992), both citing Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938). Accordingly, it is the law of Pennsylvania on negligence and landlord-tenant relationships which governs here.
In Pennsylvania, the basic elements of a cause of action founded upon negligence are: (1) a duty or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks; (2) a failure on his part to conform to the standard required; (3) a reasonably close causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606, 612 (1985). The threshold inquiry in any negligence action thus becomes whether a duty was owed by one party to the other. Although well settled landlord-tenant law holds landlords to a duty to protect tenants from injury arising out of their negligent failure to maintain their premises in a safe condition, criminal acts of a third party 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 own personal negligence. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742, 745 (1984). Indeed, the Pennsylvania Supreme Court held in Feld that, under the Restatement (Second) of Torts § 323, the landlord of an apartment complex has no duty, in the absence of a promise, to protect a tenant from criminal activity on the landlord's property. Glick v. Olde Town Lancaster, Inc., 369 Pa. Super. 419, 535 A.2d 621, 624 (1987). This general rule notwithstanding, when a landlord by agreement or voluntarily offers a program to protect the premises, he must perform the task in a reasonable manner and where a harm follows a reasonable expectation of that harm, he is liable. The duty is one of reasonable care under the circumstances. It is not the duty of an insurer and a landlord is not liable unless his failure is the proximate cause of the harm. Id. quoting Feld, 506 Pa. at 382-94, 485 A.2d at 746-47. The Feld court further reasoned:
"...A program of security is not the usual and normal precautions that a reasonable home owner would employ to protect his property. It is, as in the case before us, an extra precaution, such as personnel specifically charged to patrol and protect the premises...A tenant may rely upon a program of protection only within the reasonable expectations of the program. He cannot expect that a landlord will defeat all the designs of felonry. He can expect, however, that the program will be reasonably pursued and not fail due to its negligent exercise...