Case Law Summaries

Thomas v. Allen

• Opinion Date: July 9, 2001
• Real Property Law
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LANDLORD-TENANT; PARKING—Absent a specific lease provision or a history of crime in a neighborhood that would impose a duty on a landlord to provide parking lot security, a landlord has no such obligation.

A tenant occupied an apartment pursuant to a month-to-month lease. In this particular building, once a tenant moves into the building, he or she receives a set of Rules and Regulations. Two of those rules relate to parking. One states that tenants park at their own risk and that all vehicles parked on the property must have permission from the management. The second states that unauthorized use of a parking space will result in being ticketed by the police and such vehicles might be towed from the property. A tenant paid a small additional fee for the privilege of parking in the building’s parking lot. One day, his car and five other cars in the parking lot were vandalized during the day time. The landlord provided security during the evening hours, but not during the daytime. In addition, after the vandalism, the tenant was notified not to park in the lot anymore. Nonetheless, the tenant did use the parking lot and received two parking tickets. Further, when he parked his car outside of the lot, he did so unlawfully and, as a result, he incurred towing charges. The lower court held the landlord liable for the vandalism because the “landlord assumed the duty to provide protection during the daytime by providing protection during the evening hours.” Also, the lower court found that the landlord had arbitrarily terminated the tenant’s parking privileges and that the tenant’s efforts to make monthly payments, although refused by the landlord, continued his right to use the parking space. The Appellate Division disagreed on both points. According to the Court, “[i]t is well-settled that ‘the relationship between a landlord and his tenant does not, without more, impose upon the landlord a duty to protect the tenant from the crime of third persons.’” As to whether there was a “duty,” the Court would not focus simply on whether a particular criminal act is foreseeable. The existence of a duty is “ultimately a question of fairness,” and the “totality of the circumstances” rule applies when determining the existence and scope of [such] a duty.” After reviewing the record below, the Appellate Division held that there was no showing that the landlord had a duty to provide security and, “even if there were such a duty there [was] no proof in the record of proximate causation.” In essence, the tenant failed to overcome the burden of proof to establish that his loss was proximately caused by his landlord’s act or omission.” While the tenant was not required to prove such causation with certainty, at a minimum, the tenant was required to show that “the evidence must be such as to justify an inference of probability as distinguished from mere possibility.” There was no history of criminal activity in the area that could show that a crime such as vandalism was reasonably foreseeable. The apartment house actually took security precautions by having gated entrances to the parking lot and by providing security at night. Further, the Court rejected the tenant’s argument that the landlord had a duty to provide daytime security. “A lot operator has the right to fix the hours that security is provided.” Furthermore, the Court pointed out that the apartment’s rules specifically stated that “tenants park at their own risk and are responsible for damages from vandalism.” In fact, the Court rejected the lower court’s conclusion that the rules were not binding on the tenants because they did not receive them until after they signed the rental agreement and moved into their apartments. Even if that were material, the Court failed to find any contractual obligation whereby the landlord had agreed to provide daytime security. As to the parking tickets, it didn’t matter to the Court that the tenant tried to pay for parking, but was refused. The landlord was not required to renew the parking agreement, as it was on a monthly basis. Thus, the tenant was not authorized to park in the lot and the consequences of parking in the lot were to be borne by the tenant.

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