Can Landlords be Found Liable for Failing to Warn About Potential Crimes?

The firm’s latest Miami Herald “Real Estate Counselor” column was authored by Christyne D. Santisteban. The article, which is titled “Can Landlords be Found Liable for Failing to Warn About Potential Crimes?,” focuses on recent court decisions in a case involving a shooting in Homestead that concluded the landlord owed a duty to warn its tenant of reasonably foreseeable crimes.  Her column reads:

. . . The case of Juan Guelmes v. Dama Holding LLC stemmed from an incident that took place in August 2014 when Guelmes was a tenant residing in one of several single-family homes owned by Dama on a Homestead cul-de-sac. While cleaning his car, Guelmes was grabbed by an attacker in an attempted robbery. After a scuffle, Guelmes was shot four times.

Guelmes filed a lawsuit alleging that the owner had a duty to maintain the home in a reasonably safe condition, but the LLC failed to warn him of the dangers that it knew or reasonably should have known existed because the dwelling was located in a high-crime area where numerous similar attacks had occurred and were reasonably likely to take place.

In its defense, Dama denied that it had a duty to protect the tenant from third-party crimes, which were not foreseeable. It denied that it had constructive or actual knowledge of the alleged dangerous condition, and asserted that Guelmes should have had knowledge of any potential conduct that resulted in his injuries and his own actions contributed to his being victimized.

During the ensuing trial, the jury concluded that Dama was negligent, which caused the tenant’s injuries. It awarded him a total of $4 million.

In the LLC’s subsequent appeal before the state’s Third District Court of Appeal, it argued that the trial court should have directed a verdict in its favor because Dama had no duty to prevent or warn of criminal activities by third parties. It posited there was no evidence that the company had actual or constructive notice of criminal activity in the cul-de-sac or the surrounding neighborhood.

The appellate panel found that both Guelmes and the property owner stipulated to several facts prior to the trial, including that the LLC had a non-delegable duty to provide a reasonably safe premises and which includes the duty to protect invitee tenants from reasonably foreseeable criminal attacks. The owner argued it intended to present evidence of the tenant’s potential comparative negligence and his own duty to ensure his safety, as well as evidence in support of its lack of constructive or actual knowledge of offensive conduct and lack of control over the premises.

Expert testimony presented during the trial revealed that within the five-year period prior to the incident, 351 crimes had been committed in the area. These included eight assaults, 19 batteries, more than 80 thefts, approximately 100 residential or auto burglaries, and six robberies. At the Dama-owned properties in the cul-de-sac there was a residential burglary in Nov. 2009; an aggravated assault in June, a vehicle burglary in Sept., and a burglary as well as a burglary of an unoccupied residence in Oct. of 2010; residential burglaries in June and Oct. of 2011; and a residential burglary in Jan. 2013. The testimony also revealed there was a residential burglary in Jan. 2011, an occupied residential armed burglary in May 2011, and a burglary and grand theft in April 2012 that all took place at the specific home rented by Guelmes.

The 2012 incident at the home was reported to the police by Dama’s property manager, who also testified that there was no security at the properties, he never spoke with the tenant about security, and he was not aware of any crimes at the home prior to his taking over. He said he never had discussions with the tenant about crime in the area because there was no need, and he insisted the area was safe despite being shown eight police reports for crimes that took place on the Dama properties.

The LLC’s principal owner testified during his deposition that he thought “the tenants should maintain the properties in a reasonably safe condition. That’s how it’s done in Venezuela, which is a very unsafe country. I don’t know how it’s done in the United States.”

When asked if he thought Dama should maintain its property in a reasonably safe condition, he testified that he did not think so. In response to a question about whether the company would have warned the tenant if it was aware of dangerous conditions, he responded: “I don’t think that’s Dama’s responsibility. They learn about it through the newspapers or police, and it is not Dama’s responsibility. So I don’t think it’s its duty, the duty of Dama to inform about that, especially when the owner of the property lives in Venezuela.”

He further explained that even if the LLC was aware of dangerous conditions, it would have been “easier” for the tenant to learn about this from a neighbor, and he disagreed that the owner should take precautions as are reasonably necessary to protect its residents.

During his own testimony, Guelmes stated that he asked the company’s property manager about the neighborhood before renting the home, and he was told it was “calm.”

In denying the motion for a directed verdict, the trial court concluded that the company owed the tenant a duty of care because the attack was reasonably foreseeable based on the evidence, which demonstrated that the LLC had actual and constructive knowledge of similar crimes that occurred at its properties for years before the incident. The appellate panel  affirmed the decision, concluding that Dama admitted it was aware of the prior crimes on its properties but failed to inform its tenants; there was evidence that many similar crimes had occurred during the prior years in the neighborhood; and the question of foreseeability was properly left for the jury to decide. . .

Christyne concludes her column by noting that for other Florida residential property owners and managers, including community associations and their property management providers, the takeaways from this case should be crystal clear. She writes that they can face significant legal and financial liabilities for criminal acts that are deemed to be reasonably foreseeable, and they should warn residents of potential dangers and use sound security precautions.

Our firm salutes Christyne for sharing her insights into the takeaways from these rulings with the readers of the Miami Herald.  Click here to read the complete article in the newspaper’s website.

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