2006-284, KRISTIN WARD, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF CASEY MILLER v. INISHMAAN ASSOCIATES LIMITED PARTNERSHIP & a.

friend of her son, Casey Miller, brought suit against the defendants. The on behalf of Inishmaan. The plaintiff, Kristin Ward, individually and as next mixed income housing complex in Portsmouth. JCM manages Osprey Landing

reverse in part, vacate in part, and remand.

denial by the Superior Court (

Inishmaan owns the Osprey Landing Apartment Community, a 329-unit

for summary judgment made during the trial of this personal injury action. We

Partnership (Inishmaan) and JCM Management Company (JCM), appeal the BRODERICK, C.J. The defendants, Inishmaan Associates Limited

Hanlon on the brief, and Mr. Kaplan orally), for the defendants. Sulloway & Hollis, PLLC, of Concord (Edward M. Kaplan and Melissa M.

brief and orally), for the plaintiffs. Mittelholzer & Dibble, PLLC, of Newmarket (Stephen J. Dibble on the

INISHMAAN ASSOCIATES LIMITED PARTNERSHIP & a.

a.m. on the morning of their release. The direct address of the court's home NEXT FRIEND OF CASEY MILLER reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 KRISTIN WARD, INDIVIDUALLY AND AS MOTHER AND

No. 2006-284 Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any Rockingham Readers are requested to notify the Reporter, Supreme Court of New ___________________________

to press. Errors may be reported by E-mail at the following address. editorial errors in order that corrections may be made before the opinion goes

well as formal revision before publication in the New Hampshire Reports. NOTICE: This opinion is subject to motions for rehearing under Rule 22 as exercise of discretion.” p. 2 supports the conclusion that the trial court did not commit an unsustainable

uphold a trial court’s ruling on a motion for a directed verdict when the record

JCM personnel.

impose liability on a landlord for criminal assault by a third person. “We will evidence failed to establish any of the special circumstances required by law to The plaintiff regularly registered her complaints about Sommers’ behavior with defendants argue that that ruling was erroneous because the plaintiff’s police, but they apparently concluded that no criminal activity had taken place. removing Casey from his car seat. The plaintiff reported the incident to the

to trial. Sommers died before being brought to trial on the criminal charges. after considering the evidence and construing all inferences therefrom most assault. The Portsmouth Housing Association was also sued but settled prior “A trial court may grant a motion for a directed verdict only if it determines, alleging that they failed to protect her from Sommers’ purported criminal Figlioli v. R.J. Moreau Cos., 151 N.H. 618, 621 (2005).

the trial court denied the defendants’ motion for directed verdict. The At the close of the plaintiff’s case and again at the end of all the evidence, pushed the plaintiff’s car door into her while the plaintiff was in the process of purported drug dealing in the plaintiff’s apartment. In March 2002, Sommers complaints to the management of excessive noise, slamming of doors and separated their two apartments, and made numerous and unsubstantiated verbal comments to the plaintiff, persistently banged on a common wall that attempted murder. The plaintiff brought suit against Inishmaan and JCM plaintiff had begun in September 1999. Sommers frequently made offensive After the stabbing incident, Sommers was arrested and charged with

provided no expert testimony to establish the applicable standard of care.

apartment, stabbing her several times. Friction between Sommers and the plaintiff. On July 12, 2002, Sommers assaulted the plaintiff outside the plaintiff’s was not injured. We refer hereinafter to Kristin and Casey collectively as the plaintiff was living in the housing complex. Casey witnessed the attack but habitability; and (3) in refusing to direct a verdict for them because the plaintiff judgment as to the plaintiff’s claims for breach of an implied warranty of criminal assault by a third person; (2) in denying their motion for summary special circumstances to impose on them a duty to protect the plaintiff from a denying their motion for directed verdict because there was no evidence of any plaintiff. The defendants appeal, arguing that the trial court erred: (1) in Following a three-day trial, the jury returned a verdict in favor of the

criminal assault on her by her neighbor, Merry Sommers (Sommers), when the plaintiff sought damages for injuries that occurred as the result of an alleged p. 3 3

to exercise reasonable care to prevent the risk from taking effect.” a condition which involves an unreasonable risk of harm to another has a duty

criminal attack.” Id. defective condition on a premises that foreseeably enhanced the risk of “may arise when a landlord has created, or is responsible for, a known added). Thus we concluded that a duty to protect tenants from criminal attack attack.” of the landlord to protect tenants from criminal attack,” premises foreseeably enhanced the risk of that attack.” Id. at 659 (emphasis tenant relationship is not a special relationship engendering a duty on the part landlord-tenant cases to situations where “a known physical defect on the According to the majority of cases, this exception is generally limited in

exceptions. means that “a party who realizes or should realize that his conduct has created landlord-tenant relationship. Our review of the law suggested four possible upon him to take precautions against it.” Id. at 658 (quotation omitted). This holding individuals liable for the criminal attacks of others could apply to the opportunity for criminal misconduct brought about by the defendant, will call The second exception arises “where an especial temptation and insuring their tenants against harm from criminal attacks.” “based solely on the landlord-tenant relationship,” id. at 659.

the parties. Explaining that courts have repeatedly held that “a landlord- The first exception arises when a “special relationship” exists between

Id. unreasonable risk of harm.”

have a duty to exercise reasonable care not to subject others to an further considered whether any of the exceptions to the general rule against at the confluence of two seemingly contradictory principles of law.” Id. We then curtailing criminal activity. Yet, we will not place on landlords the burden of security to protect tenants from the criminal attacks of third persons. Id. at 658. As we noted, “there is much to be gained from efforts at

At the outset, we agreed with numerous courts that have held that, “as a

acts of third persons.” Id. that private persons have no general duty to protect others from the criminal

“On one hand lies the accepted maxim that all persons, including landlords,

655. We recognized that the issues raised by that question “place[d] the court

question whether New Hampshire law imposes a duty on landlords to provide Company, 1 p. 3 37 N.H. 653 (1993). In that case we were presented with the This case is governed by our decision in Walls v. Oxford Management

the non-moving party is entitled to any relief.” Id. favorably to the non-moving party, that no rational juror could conclude that against criminal attacks. Therefore, we hold that the trial court’s denial of the p. 4 plaintiff’s evidence establish that the defendants undertook to provide security

premises that foreseeably enhanced the risk of criminal attack. Nor did the that the defendants created or were responsible for a physical defect on the neither one is present in this case. The plaintiff’s evidence failed to establish which a landlord may have a duty to protect tenants from criminal attack,

attacks based upon overriding foreseeability. Of the two possible exceptions in As a matter of law there is no duty imposed upon a landlord for criminal landowner’s actions or inactions.” landowner when it is foreseeable that an injury might occur as a result of the rejected the others. Thus, under the holding in VanDeMark v. McDonald’s Corp., 153 N.H. 753, 760 (2006). based upon a doctrine of overriding foreseeability. Walls, 137 N.H. at 659; see fact, in Walls we specifically rejected a landlord’s liability for criminal attacks foreseeability of such criminal activity exists.” overriding foreseeability.” Iannelli, 145 N.H. at 194. In brought about by the actions or inactions of the owner or where overriding from criminal attacks “include when the opportunity for criminal misconduct is enhances the risk of crime, we will not find such a duty.” circumstances giving rise to a duty on the part of a landlord to protect tenants Furthermore, Iannelli states incorrectly that in Walls we held that particular landlord-tenant relationship and, therefore, is not applicable to these facts.

190 (2000), in support of her position that “[a] duty exists on the part of a have no duty to protect tenants from criminal attack, we accepted two and The plaintiff relies upon Iannelli v. Burger King Corporation, 145 N.H.

care.” liability based solely on the landlord-tenant relationship or on a doctrine of

attempt to provide security, and is not responsible for a physical defect that reasonable care. Id. “Where, however, a landlord has made no affirmative addition, a landlord who undertakes to provide security has a duty to act with on a premises that foreseeably enhance[s] the risk of criminal attack.” Id. In premises.” “when a landlord has created, or is responsible for, a known defective condition were clearly foreseeable, even if not causally related to physical defects on the Walls, such a duty may arise

Therefore, of four possible exceptions to the general rule that landlords

Id. contract, to provide security will thereafter have a duty to act with reasonable Id. We held that “a landlord who undertakes, either gratuitously or by voluntarily assumes a duty thereafter has a duty to act with reasonable care.” The fourth exception arises from the general tort principle “that one who

Id. We rejected liability based upon that principle. Id.

would hold landlords “to a duty to protect tenants from criminal attacks that The third exception is the existence of overriding foreseeability, which the defendants’ third argument. p. 5 trial court’s ruling to the contrary. In light of our ruling, we need not address the defendants were entitled to judgment as a matter of law and we reverse the

defendants did not expressly undertake to provide such measures. As such,

provide security against the attack that harmed the plaintiff and the habitability did not require the defendants to take affirmative measures to evidence in the light most favorable to the plaintiff, the implied warranty of

criminal activity regardless of defects in the structural condition of the warranty of habitability that did extend to matters of physical safety from handbook and community rules and regulations “created an express or implied argues that the lease entered into by the parties and its ancillary resident

affirmative measures to provide security against criminal attack.” tenants against structural defects, but does not require landlords to take

therefore limits the warranty of habitability to structural defects. Viewing the criminal attack. Absent such an agreement, the holding in Walls applies and the defendants expressly agreed to “provide security measures” against Nothing in the documentation referred to by the plaintiff indicates that

affirmative measures to provide security against criminal attack. The plaintiff landlord has violated an express agreement to provide security measures.” Id. protects tenants from structural defects, but does not require landlords to take We noted that “[t]his holding in no way limits a tenant’s recovery when a argue that the warranty of habitability implied in residential lease agreements drawn from them, in the light most favorable to the non-moving party.” Id. at 661. that the landlord breached an implied warranty of habitability. The defendants “the warranty of habitability implied in residential lease agreements protects secure tenants against criminal attack.” Walls, 137 N.H. at 660. We held that habitability to provide a reasonably safe premises requires the landlord to In Walls, we considered “whether a landlord’s implied warranty of

we will affirm the trial court’s decision.” Id. (quotation omitted). material fact, and if the moving party is entitled to judgment as a matter of law, omitted). “If our review of the evidence does not reveal any genuine issue of Channel Nine v. N.H. Dep’t of Fish & Game, 154 N.H. 46, 47 (2006) (quotation

we consider the affidavits and other evidence, and all inferences properly erred in denying their motion for summary judgment on the plaintiff’s claim “In reviewing a trial court’s ruling on a motion for summary judgment,

The second issue raised by the defendants is whether the trial court

of discretion, and we reverse that ruling. See Figlioli, 151 N.H. at p. 6 621. defendants’ motion for a directed verdict constituted an unsustainable exercise 6

defendants. remand this case to the trial court for entry of judgment in favor of the submitted to the jury. Accordingly, we vacate the jury’s verdict and award and directed verdict and summary judgment, the case should not have been

consider the separate question of whether the defendant breached that duty.” DALIANIS, DUGGAN and GALWAY, JJ., concurred.

law, and that the trial court erred in denying the defendants’ motions for a Walls, 137 N.H. at p. 6 656. Because we hold that there was no duty as a matter of

duty, and identified the standard of care imposed by that duty, may a jury “Only after a court has determined that a defendant owed a plaintiff a