Vehicle vandalised in "gated" parking of apartment complex

[Hot Topic]

The tenant has the responsibility to research the area before deciding to move there. Simply reading the crime reports in the local newspaper or checking the area by contacting the local police station can be deciding factors whether or not to rent there.

 

[Zigner]

Folks -

You ALSO have to prove that, were it not for the broken gate this crime wouldn't have happened...

 

[Alaska landlord]

If the management had knowledge relative to criminal activities, the tenant should have been informed. I still do not see how your observation changes what i am saying.

No. Landlord has no duty of inform the tennant of past crimmnal activity. landlord has a duty to provide a reasonably safe environment.

First of all the background check does not make the tenant pool "as bad" as the outsiders , in addition there might be other issues .

The background check is the first line of defence against crimminal activity and deadbeat tenants. It is only as effective as the the investigator and the adherence to standard screening methods and rental criteria.

For example it will be atypical for a member of a gated community paying a mid level rent to go after some Cds inside a locked car.

Not really, renters have visitors and guests. Many of which keep their eyes opened for an opportunity to present itself.

But even if none of the above are present, it is still more likely to have the burglary coming from outside than inside.

Not really, but I will give you a 50% chance.

 

[subway]

Not really, but I will give you a 50% chance

So you are saying using common sense or empirical evidence that the victim's neighbour is responsible in half of burglary cases?

 

[Alaska landlord]

Yes!
It could have been Op's friends, friends, or guests of OP's neighbors.
Anyone could have done it!

 

[subway]

Folks -

You ALSO have to prove that, were it not for the broken gate this crime wouldn't have happened...

You are not required to prove such a claim.

We do understand that by keeping gates or doors locked we significantly reduce the probability of having someone breaking inside our property.
In other words it is more likely to have someone breaking in when you have an unsecured door, than when you have a secured one.
That should be enough
.

The law does not require plaintiffs to become detectives in cases of burglary to show exactly the consequencies of defendant's negligence, nor engineers to prove the exact cause of a structural failure.
If that was the case, we would not have most of the cases for negligence in small claims courts.

 

[You Are Guilty]

Someone with actual knowledge of the intricacies of CA premises liability (or the time/desire to research it, which is certainly not me) is going to have to chime in. Tranq already implied it, so to be blunt, there are a lot of potential issues here, most of which rarely come down in the damaged tenant's favor. Things like:
- What level of duty does a CA landowner owe a tenant? "Reasonably safe" (as previously suggested)? Minimal security? Absolute?
- Does CA law require the plaintiff to show that the intruder gained entry via the broken gate in order to make a prima facie case? (e.g. if the thief climbed another portion of the fence, that may relieve the owner of all liability vis a vis the broken gate)
- Was the gate/parking situation addressed in the written lease? How so?
- Why wasn't the gate replaced for 3 weeks? Custom parts being made? Property manager too lazy? No one reported it?
- What notice did the owner have of prior crime(s) on the property?
- And the list goes on...

 

[tranquility]

The law does not require plaintiffs to become detectives in cases of burglary to show exactly the consequencies of defendant's negligence

Actually, they do. To win in a negligence lawsuit one must prove the defendant had a duty. That the defendant breached that duty and that the defendant's breach actually and proximately caused the damages to the plaintiff. Duty + breach + causation + damages = negligence.

Here, we don't know what the landlord's duty was here as we don't have the history of the property. While we do have the potential duty based on contract, I think it unlikely to be proven and is arguable. Having a fence does not raise the duty of a landlord to keep the fence in good repair absent a specific reason for the fence or a contractual issue.

Arguendo, a duty, would a reasonable landlord in like circumstances have been in breach of that duty by not repairing the fence quicker? I don't know. I don't know how long it takes to repair fences and the like. Besides, we still haven't defined the precise duty we're claiming to have been breached. I can assure subway and the OP it is *not* that the landlord guaranteed everything was going to be safe and protected.

Arguendo a duty and a breach, but for the broken fence, would the theft have occurred? Again, we have no idea. Unless the lot was completely secured where any entry or exit was recorded and a fence surrounded it, we can't just assume who committed the crime. There has to be some proof in some way. We don't even need to get to proximate cause as actual cause is a problem here. It's almost never a problem. The only way to go farther is to expand the duty of the landlord to that he promised to secure the vehicle (a possibility with the manager's statement). Or, based on specific historical instances the landlord did not take proper steps (which are defined as those a reasonable person in like circumstances would take) to address the specific problem. Then the breach is not that the fence was broken, but that the steps were not taken. (Security guard, video survellience, posting of warning signs, changing parking rules, whatever a reasonable person in like circumstances would do to prevent the known danger.) Again, we have no facts to determine any of this.

Damages seem easy here. No need for discussion beyond the fact a court may find the OP was at fault in some way and could have the damage award reduced. (I don't think so, but juries love to find fault with plaintiffs to some degree.)

Then, we have the possibility of an assumption of the risk defense. I don't think so, but don't really want to argue the point as it's not key to the discussion.

So, I agree with YAG and am a bit sorry my plea to let subway play led him to think he's arguing a done deal. There is a lot wrong here and it will be very difficult to find liability on the part of the landlord for the criminal act of others. Sure, CA has turned to a pure negligence state and has changed from the old way of not finding proximated cause for third party criminal acts to a more modern way of knowledge of potential harm and possibility. But, that's a long way from the landlord writing up a check for the OP's tunes.

 

[Alaska landlord]

Great post tranquility. Hopefully this will have put an end to further discussion.

 

[subway]

Actually, they do. To win in a negligence lawsuit one must prove the defendant had a duty. That the defendant breached that duty and that the defendant's breach actually and proximately caused the damages to the plaintiff. Duty + breach + causation + damages = negligence.

Here, we don't know what the landlord's duty was here as we don't have the history of the property. While we do have the potential duty based on contract, I think it unlikely to be proven and is arguable. Having a fence does not raise the duty of a landlord to keep the fence in good repair absent a specific reason for the fence or a contractual issue.

Arguendo, a duty, would a reasonable landlord in like circumstances have been in breach of that duty by not repairing the fence quicker? I don't know. I don't know how long it takes to repair fences and the like. Besides, we still haven't defined the precise duty we're claiming to have been breached. I can assure subway and the OP it is *not* that the landlord guaranteed everything was going to be safe and protected.

Arguendo a duty and a breach, but for the broken fence, would the theft have occurred? Again, we have no idea. Unless the lot was completely secured where any entry or exit was recorded and a fence surrounded it, we can't just assume who committed the crime. There has to be some proof in some way. We don't even need to get to proximate cause as actual cause is a problem here. It's almost never a problem. The only way to go farther is to expand the duty of the landlord to that he promised to secure the vehicle (a possibility with the manager's statement). Or, based on specific historical instances the landlord did not take proper steps (which are defined as those a reasonable person in like circumstances would take) to address the specific problem. Then the breach is not that the fence was broken, but that the steps were not taken. (Security guard, video survellience, posting of warning signs, changing parking rules, whatever a reasonable person in like circumstances would do to prevent the known danger.) Again, we have no facts to determine any of this.

Damages seem easy here. No need for discussion beyond the fact a court may find the OP was at fault in some way and could have the damage award reduced. (I don't think so, but juries love to find fault with plaintiffs to some degree.)

Then, we have the possibility of an assumption of the risk defense. I don't think so, but don't really want to argue the point as it's not key to the discussion.

So, I agree with YAG and am a bit sorry my plea to let subway play led him to think he's arguing a done deal. There is a lot wrong here and it will be very difficult to find liability on the part of the landlord for the criminal act of others. Sure, CA has turned to a pure negligence state and has changed from the old way of not finding proximated cause for third party criminal acts to a more modern way of knowledge of potential harm and possibility. But, that's a long way from the landlord writing up a check for the OP's tunes.

Starting with the duty issue.

The poster had already mentioned that the property was advertised as a gated one. A gated parking lot increases safety and gives Landlord the ability to ask a higher rent compared to his neighbour Landlord who has an open parking lot. Obviously tenants do not pay for such types of benefits for free. They expect something in return. There is some type of contractual liability and unless the contract holds tenants responsible for the gate repair, it is Landlord's responsibility to put a reasonable effort for the repair and maintenance of it.

Which leads us to the second part.

Breach

The issue is not if the Landlord promised the safety of the cars. Most probably he did not. However, he did promise to provide reasonable safety for tenants cars which is linked with his obligation to make reasonable effort to keep the gate in good condition.
I also do not know what is a "reasonable amount of time" for fixing the gate.
I do say though that most probably is less than a few weeks. Should someone take an advice from an expert in gate installation.? Sure
Consulting a tenant lawyer for a small fee for half an hour might also bring some answers on this question.



Continue to causation

I said that the plaintiff does not have to show the EXACT consequence of defendant's negligence. Preponderance of the evidence is adequate to prove causation in such a case.
he does not have to prove that the theft WOULD NOT have happen if the defendant had not breached his duty and everything was in good order. All he needs to show is the amount of likehood.

I will let the proffesionals speak here

Copy and paste the following link

Essentials of Torts - Google Book Search

It is from google books, "esentials of torts"

Figure 13-3

"weight of the evidence on cause in fact: eight possibilities"

Possibility three

"The evidence shows that it is MORE LIKELY THAN NOT that, but for what the defendant did, the plaintiff's injury would not have occured.

consequencies:

If the case falls into one of these three categories (the above is number three), for the but for test or the substantial factor test, the plaintiff has carried the burden of proving by a preponderance of the evidence that the defendant was the cause in fact of the plaintiff's injury."



So even if it is still likely that the injury would have happened in the absence of the defendant's action, it does not really matter.

Now if you say that the tenant in our case might need to get a police report about theft incidents in his apartment complex during the last year, i get it. For sure if you have frequent cases of thefts in the parking lot even when the gate was working properly, it is difficult to prove causation. Most probably if the tenant chooses to follow the legal path, he would have to forget about negligence and go with some other type of lawsuit related to breach of contract

As to the damages it seems we agree and since this is a small claims court there is no issue of what juries tend to do .

The last point is that I never implied or going to imply that any case is a “done deal”. But I am not going also to stay silent when others (not you) tell or imply that it is irrational to expect to win it. I am mostly interested to see if there is enough evidence to justify the time spend to pursue it and get a half hour appointment with a professional for a small fee.

 

[tranquility]

Sorry, Google does not a lawyer make. Your theory on duty is not useful to our discussion (And is wrong in many ways.) unless the duty breached *caused* the damage. Please look up proximate causation. Before you even get there, you must cross the actual causation barrier. Was the gate the actual cause of the damage? This is often expressed as the "but for" test. This is so easy it is rarely discussed as the answer is almost always yes. Say a guy punches you. Can you sue his mother? According to the actual causation test (but for) the answer is yes. But for the mother birthing the guy the damage would not have happened. But for the damaged gate, would the damage have happened? Forget about the evidentiary standard, give me how the gate caused the injury. Please, even imagine *any* evidence the plaitiff could come up with on this point, let alone a perponderance.

It is fundamental that negligence is not actionable unless it is a cause in fact of the harm for which recovery is sought. It need not, of course, be the sole cause. Negligence is a cause in fact o fthe harm to another if it was a substantial factor in bringing about that harm.

As you your mere conjecture the fence damage caused the injury, it is not enough that negligence of one person and injury to another coexisted, bu the injury must have been caused by the negligence. (The fallacy your argue for causation is post hoc ergo propter hoc. This is not sound as evidence or argument.) Again, this is just for the actual cause. You have a proximate causation problem too.

Please read Palsgraf v. Long Island R.R. Co. (248 N.Y. 339)before we discuss. Don't go to wikipedia, read the case as the holding and rule from the case is wrong modernly, you must read the discussion to understand where we're going to go. The case is the cornerstone so I know the whole thing is online somewhere.

 

[subway]

I did not go to wikipedia wheere everybody can edit whatever he wants

it is google books

The actual book at amazon.com is this

Amazon.com: Essentials of Torts: William P. Statsky: Books

by William statsky

 

[Zigner]

I did not go to wikipedia wheere everybody can edit whatever he wants

it is google books

The actual book at amazon.com is this

Amazon.com: Essentials of Torts: William P. Statsky: Books

by William statsky

Who said anything about Wikipedia?

 

[subway]

Please read Palsgraf v. Long Island R.R. Co. (248 N.Y. 339)before we discuss. Don't go to wikipedia, read the case as the holding and rule from the case is wrong modernly, you must read the discussion to understand where we're going to go. The case is the cornerstone so I know the whole thing is online somewhere.

I will when i have time.

of course if it is not online i will not be able to do so.

 

[Alaska landlord]

You are not required to prove such a claim.

We do understand that by keeping gates or doors locked we significantly reduce the probability of having someone breaking inside our property.
In other words it is more likely to have someone breaking in when you have an unsecured door, than when you have a secured one.
That should be enough*

A landlords duty is to provide reasonable security under foreseeable circumstances. That being the case, what is the criminal history of the apt complex.? OP has not bothered to return to the forum and answer these questions. In addition, did management alert or post a notice where tenants can easily notice that the gate was broken and that they should exercise due diligence? In my opinion, that would serve to somewhat indemnify management to some extent, since the landlord took reasonable effort to protect his tenants. For a tenant to prevail, he must be able to connect the crime with the landlord not taking reasonable steps of security for the area he lives in. At this point we have no evidence that the crime was linked to the un-secure gate. How is the tenant going to convince the judge that gate contributed to the theft? I have no personal evidence or case law to refer to this. But, should the judge decide on the favor of the tenant and determine that management lack of reasonable security expectations contributed to the theft of the ipod, just how much responsibility for the burglary will be attributed to negligence on the part of management? It would seem to me that the burglar should share at least part of the responsibility since it was he that committed the crime. If so, what would be his share? 50% ?