Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
. . . As a general rule, a private person does not have a duty to protect another from a
criminal attack by a third person. We recognize that this rule has sometimes in the past been
applied in landlord-tenant law, even by this court. Among the reasons for the application of this
rule to landlords are: judicial reluctance to tamper with the traditional common law concept of the
landlord-tenant relationship; the notion that the act of a third person in committing an intentional
tort or crime is a superseding cause of the harm to another resulting therefrom; the oftentimes
difficult problem of determining foreseeability of criminal acts; the vagueness of the standard
which the landlord must meet; the economic consequences of the imposition of the duty; and
conflict with the public policy allocating the duty of protecting citizens from criminal acts to the
government rather than the private sector.
But the rationale of this very broad general rule falters when it is applied to the conditions
of modern day urban apartment living, particularly in the circumstances of this case. The
rationale of the general rule exonerating a third party from any duty to protect another from a
criminal attack has no applicability to the landlord-tenant relationship in multiple dwelling
houses. The landlord is no insurer of his tenants’ safety, but he certainly is no bystander. And
where, as here, the landlord has notice of repeated criminal assaults and robberies, has notice that
these crimes occurred in 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, it does not seem unfair to place upon the landlord a duty to take those steps which are
within his power to minimize the predictable risk to his tenants.
. . .
Other relationships in which similar duties have been imposed include landowner-invitee,
businessman-patron, employer-employee, school district-pupil, hospital-patient, and carrierpassenger.
In all, the theory of liability is essentially the same: that since the ability of one of the
parties to provide for his own protection has been limited in some way by his submission to the
control of the other, a duty should be imposed upon the one possessing control (and thus the
power to act) to take reasonable precautions to protect the other one from assaults by third parties
which, at least, could reasonably have been anticipated. However, there is no liability normally
imposed upon the one having the power to act if the violence is sudden and unexpected provided
that the source of the violence is not an employee of the one in control.
. . .
Upon consideration of all pertinent factors, we find that there is a duty of protection owed
by the landlord to the tenant in an urban multiple unit apartment dwelling.
. . .
IV
[I]n the last analysis the standard of care is the same—reasonable care in all the
circumstances. The specific measures to achieve this standard vary with the individual
circumstances. It may be impossible to describe in detail for all situations of landlord-tenant
relationships, and evidence of custom amongst landlords of the same class of building may play a
significant role in determining if the standard has been met.
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