Whether you are a landlord or a tenant, it is important to know the law regarding when a landlord can be held liable for the criminal acts of third parties. It is important to landlords so they can act in such a way so as to not create a duty of care. For tenants, it is important to know when another deep pocket may be available to share the responsibility for a criminal act on your premises.
Generally, a landowner has no duty to protect tenants from criminal activities of a third party. However, a duty to protect others from the criminal acts of third parties does exist where there is a special relationship between the parties. It is well established in Illinois that the landlord-tenant relationship is not the type of “special relationship” that is needed to impose a general duty on a landlord to protect its tenants or their customers from criminal acts of third parties.
Despite this protection, there are exceptions to the general rule that can create liability for landlords.
The first exception to the general rule is the voluntary undertaking doctrine. A landlord may be held liable for the criminal acts of third parties when it voluntarily undertakes to provide security measures. This exception is derived from sections 323 and 324A of the Second Restatement of Torts. The extent of any liability is strictly limited by the scope of the undertaking.
There are generally two theories of liability under the voluntary undertaking doctrine – nonfeasance (failure to perform) and misfeasance (negligent performance). To establish liability for nonfeasance, a plaintiff must show:
- a promise by the defendant to do an act or to render a service;
- reliance upon the defendant’s promise; and
- injury which was a proximate result of the defendant’s omission to perform the voluntary undertaking.
To establish liability for misfeasance, a plaintiff must show he or she:
- suffered physical harm and
- that the harm is the result of the defendant’s failure to exercise reasonable care where:
(a) his failure to exercise reasonable care increases the plaintiff’s risk of harm, or
(b) the plaintiff suffered the harm due to his reliance on the defendant’s undertaking.
This is the most common way landlords are found liable for criminal acts of third parties. Typically, the agreement to provide security is set forth in the lease agreement.
A sub-part of the voluntary undertaking theory is that if a landlord hires security for the property, the landlord may be held liable for negligent hiring. This could involve situations where the security company was known to have a bad reputation or known to not perform proper security background checks on its guards.
Condition of Property Facilitates Criminal Act
The second exception to the general rule regarding a landlord’s liability for criminal acts of third parties is that liability may occur when a landlord is negligent in maintaining the property and the condition of the premises facilitates the criminal acts. Under this scenario, liability can be imposed if the landlord has notice of prior criminal acts that are connected with the physical condition of the premises and similar to the one that caused the plaintiff’s injury.
An example of this is if an exterior door to the premises has a broken lock and the landlord fails to repair the lock. This action could create liability for the landlord if a criminal act takes place as a direct result of the unlocked building. Failure to provide proper lighting in a parking lot could also potentially create liability under this exception.
Whether you are a landlord or a tenant, it is important to know whether a lease addresses security and if it does not, should it.
Case law that supports the above-stated law are as follows: Rowe v. State Bank of Lombard, 531 N.E.2d 1358 (1988); Pippin v. Chicago Housing Authority, 399 N.E.2d 596 (1979); Frye v. Medicare-Glaser Corp., 605 N.E.2d 557 (1992); N.W. v. Amalgamated Trust & Savings Bank, 554 N.E.2d 629 (1st Dist. 1990); Kolodziejzak v. Melvin Simon & Associates, 685 N.E.2d 985 (1st Dist. 1997); Sameer v. Butt, 796 N.E.2d 1063 (1st Dist. 2003).