I recently read an interesting tort case, Stephens v. Greensboro Properties, Ltd. (Ga. Ct. App. 2001). Starting in July 1996, Stanley Scott lived in Greensboro Properties’ low-income housing development apartment complex. He also worked there as a maintenance man, “paid based on the number of hours he spent doing maintenance work,” and seemed to be called on by other tenants to resolve minor disputes (such as about noise). “He testified that he was not paid for [this dispute resolution], but did so out of a sense of appreciation for being provided with a job and place to live.”
Scott had a criminal record, with many arrests and three convictions, the last in 1989. “Scott’s criminal record consists of an arrest for pointing a gun at another in 1980; an arrest for assault and simple battery with charges dismissed in 1981; an arrest for criminal trespass also in 1981; a conviction of aggravated assault in 1982; an arrest for rape with the grand jury’s return of a no bill of indictment again in 1982; arrests for simple battery, and for making terroristic acts and threats, with the prosecution being nolle prossed in 1983; two arrests for simple battery with dismissal of the charges in 1984; a conviction of aggravated assault in 1984; and a conviction of simple battery in 1989.” Defendant’s managers knew of this record, but after “Scott an opportunity to explain the circumstances surrounding his criminal record, [defendant] approved his residency application.”
Scott carried a gun for protection, something defendants didn’t know. Six months after he came to live at the complex, some other residents talked to defendants’ manager “about Scott’s past criminal record and past reputation for violence in the community and told her that she needed to keep an eye on him.”
In July 1997, Scott, drunk, shot a 14-year-old boy, apparently by accident. (He was convicted of involuntary manslaughter for this.) Here is how the court described the circumstances:
As Scott [was walking, drunk, through the complex], he had $400 in his hand. A number of people, including the decedent, were congregated in the parking lot. Scott testified that he knew the decedent and that they had sometimes engaged in a sport called slap boxing. When the decedent saw Scott approaching Miller’s apartment that night, he offered to slap box Scott for the money he was holding. Without responding, Scott pulled his handgun from his pocket and pointed it at the decedent. The gun discharged, killing him.
The boy’s parents sued Scott, Greensboro, and the management company for negligence. Here’s the court’s analysis:
1. The court rejected plaintiffs’ arguments brought “under the theory of respondeat superior or under the theory of negligent hiring and retention”:
The doctrine of respondeat superior is codified in [OCGA] § 51-2-2 which states: “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” The recognized legal corollary to this doctrine is that once an agent or employee departs or steps aside from his employment and undertakes an act purely personal in nature, the employer is not liable for that act. Likewise, we have held that the theory of negligent hiring and retention is “conceptually inapplicable when the tortious conduct was committed outside the scope of employment.” Unquestionably, when Scott brandished a weapon and pointed it at the decedent after being challenged to a game of slap boxing, he undertook acts personal in nature and stepped aside from any employment by the apartment complex.
2. But the court allowed the case to go forward under plaintiffs’ negligence-based premises liability claim:
[“]… If a [proprietor] has ‘reason to anticipate a criminal act,’ then the proprietor has ‘a duty to exercise ordinary care to guard against injury from dangerous characters.’”
… Evidence has been presented showing that the management company allowed Scott to become both a resident and an employee of the apartment complex and that they authorized him to engage in security-related activities which might reasonably result in altercations with co-tenants, notwithstanding knowledge of his long history of convictions and arrests for numerous violent crimes. Under the circumstances, it is for a jury to decide whether an assault such as the one committed by Scott on his co-tenant Stephens was reasonably to be anticipated and whether [defendants] failed to exercise ordinary care in guarding against such an occurrence. There is evidence to support a recovery by the Stephenses under their theory of premises liability….
The fact that the shooting occurred in a parking lot accessible to the general public does not bar the Stephenses’ recovery. Unquestionably, Scott and the decedent were on the premises of the apartment complex. There is abundant evidence that Scott would not have been there but for his residency in the complex….
Note that, though the court does discuss Scott’s status as employee, it also relies on the facts that the company “allowed Scott to become … a resident,” the danger of Scott’s committing crimes against a “co-tenant,” and Scott’s being present at the location because of “his residency in the complex.”
Moreover, while Scott’s status as tenant likely helped cause the crime (since otherwise he likely wouldn’t have been there), Scott’s status as employee seemed to have little connection to the crime. For instance, he wasn’t in a place where only employees can go (as might be the case if a handyman is given a key to a tenant’s apartment and then commits a crime in that apartment). Likewise, he wasn’t using any special authority given to him by the apartment building owners. He was familiar enough to the decedent enough for the decedent to invite him slap-boxing, but such familiarity often arises among neighbors, and I suspect isn’t closely related to whether the neighbor is also a handyman.
3. My question to you: You’re a landlord of a low-income apartment complex — especially one in Georgia, though potentially one elsewhere as well. Someone comes to you and asks to rent an apartment. He has three criminal convictions on his record, two aggravated assaults from 12 and 14 years ago and one battery from 7 years ago. He also has a bunch of arrests that didn’t lead to convictions.
You don’t plan to hire him as a handyman (in this respect the matter is different from Stephens), but you are deciding whether to rent to him. You’re naturally worried that he might do something that would immediately damage you or your property; but you’re willing to take that risk, perhaps because you’d like to give him a second chance. A risk of a multi-million dollar lawsuit, though, is a different story. Even if you’re insured, that sort of lawsuit could cost you a good deal in raised rates or in a canceled policy.
Do you rent to him, or do you wait for another tenant? Assume that there is a good deal of demand for apartments, so if you don’t rent to him you’ll likely have another tenant within a month or two.
If you don’t rent to him, where do you think poor people with such criminal convictions — dating back 7 years and more — should live?
(For an earlier post on this topic, though without the case as an illustration, see here. Note that of course a similar issue is raised by laws that bar people with histories of sex crimes from living within a certain distance of schools, parks, and similar places where children congregate; in many cities, that covers a huge part of the housing stock. But the tort liability risk I discuss here applies not just to people with sex crime records but to the much broader set of people with violent crime records more generally, and perhaps even drug crimes and other crimes that could be seen as predictors of future violence or of future negligence.)