The “Four Maples” case and when a Tennessee association owes a duty to provide security…
July 8, 2013
Some developments, be they condominiums or planned residential developments, are gated. Others provide various types of access control into and out of the development. This access control, in the form of gates, manned access points, cameras, keycards, etc., is generally viewed by the public as security. To the homeowner the additional security is a benefit of living in such a development. To the Association, such a benefit is an added budgetary cost.
From time to time, we are asked whether Associations that provide such security owe their members a greater duty of care when it comes to crime prevention because the Association has voluntarily taken steps to provide its Members a certain indicia of security. If a member were to bring such a claim against an Association it would be based upon negligence. To establish a claim for negligence, a party in Tennessee must prove: (1) a duty of care owed by the defendant to the party claiming injury; (2) conduct below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. See Giggers v. Memphis Hous. Auth., 277 S.W.3d 359, 364 (Tenn. 299) (quoting McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)). The primary issue in such negligence cases is whether the defendant actually owes the plaintiff a duty of care. The duty of care to take reasonable measures to protect their customers from criminal attacks has been imposed upon businesses by Tennessee courts. See McClung v. Delta Square Limited Partnership, 937 S.W.2d 891, 899 (Tenn. 1996). The Tennessee courts have held that the principles of this duty of care are:
[a] business ordinarily has no duty to protect customers from the criminal acts of third parties which occur on its premises. The business is not to be regarded as the insurer of the safety of its customers, and it has no absolute duty to implement security measures for the protection of its customers. However, a duty to take reasonable steps to protect customers arises if the business knows, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.
In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm. In cases in which there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon the defendant may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present or the potential harm is slight, less onerous burdens may be imposed. By way of illustration, using surveillance cameras, posting signs, installing improved lighting or fencing, or removing or trimming shrubbery might, in some instances, be cost effective and yet greatly reduce the risk to customers.
McClung, 937 S.W.2d at 902.
In 2011 a Tennessee court first addressed this issue with regards to a condominium association. See Weaver v. Four Maples Homeowners Association, 2011 WL 5054698, *6-7. In Four Maples, a renter brought a negligence claim against a homeowners’ association and its management company based upon a home invasion at his rented condominium unit. Id. at *1. Apparently, the Association had no security presence, but did have a gated parking area. Id. On the evening of June 12, 2009, the gate on the parking area was broken and had been broken for slightly over a month. Id. That evening two individuals broke into the renter’s rented unit and shot him several times. Id. The renter subsequently filed suit against the association. Id. at *2. During discovery it was learned that a similar incident, involving another home invasion, occurred at the condominium on June 10, 2009, as reported by a Police Captain Klog. Id. The association was unaware of both this additional incident and the police report. Id. The court held that this sole prior incident, presumably because of its nature and timing, gave rise to a sufficient duty as to overcome the association’s motion for summary judgment. Id. at *8-9. There is no further information about the disposition of the Four Maples case.
It should be noted that the sole issue in the reported opinion in Four Maples was whether the original motion for summary judgment granted to the association was proper. For a summary judgment to be proper, the association had to prove that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04. The original order of summary judgment was appealed for a de novo review, meaning that no deference was given to the trial court’s findings. The appellate court held that the sole instance of a prior similar crime occurring two days prior to the crime at issue in Four Maples precluded the association from obtaining a summary judgment. It did not create liability for the association. It did not require the association to disclose the prior crime (of which it did not originally have knowledge). It did not require the association to take steps to protect its members. The sole holding in Four Maples was that the prior crime was sufficient to negate a motion for summary judgment. The question of ultimate liability in this matter was subsequently resolved. Unfortunately, there is no information on its resolution.
While Four Maples tangentially addresses the issue of association liability for providing security to residents, it does not ultimately answer the question. At most, it can be said that the duty imposed upon businesses by the Tennessee courts in McClung has been implicitly expanded to associations by Four Maples. On the contrary, since Four Maples is an unpublished, appellate court decision that did not directly hold that associations owe a duty of care to its residents with regards to security, it could be argued that such a matter remains unsettled in Tennessee. Regardless, associations and management companies should be aware of Four Maples. Those associations that provide an indicia of security should be aware that by providing such security, they are taking active steps to reduce the risk of crime against their residents. Tennessee courts have recognized, to some degree, that such steps mitigate against any duty imposed under McClung.
Should your association have questions regarding these matters and how address such issues, please contact us.
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