Miller v. Whitworth

In Miller v. Whitworth, 193 W.Va. 262, 266, 455 S.E.2d 821, 825 (1995) the Court was asked to determine whether a landlord owes a duty to protect a tenant from injury resulting from the criminal acts of a third party. After acknowledging the general proposition that there is no duty to protect against deliberate criminal conduct of third parties, we went on to discuss the following recognized exceptions to this general rule: (1) when a person has a special relationship which gives rise to a duty to protect another person from intentional misconduct or (2) when the person's affirmative actions or omissions have exposed another to a foreseeable high risk of harm from the intentional misconduct. Restatement (Second) of Torts 302B cmt. e and 315 (1965). Id. The Court proceeded in Whitworth to apply these two exceptions. Under the first exception the Court found that the relationship of landlord/tenant did not constitute a "special relationship." Under the second exception, the Court concluded that "a duty will be imposed if a landlord's affirmative actions or omissions have unreasonably created or increased the risk of injury to the tenant from the criminal activity of a third party." (Id. at 268, 455 S.E.2d at 827.) Based on the facts in Whitworth, the prior unrelated incidents of some criminal activity occurring in the general vicinity of the leased property were not enough to impose a duty on the landlord in that case. The holding in this regard in Whitworth was summarized in syllabus point six as follows: "Under the common law of torts, a landlord does not have a duty to protect a tenant from the criminal activity of a third party. However, there are circumstances which may give rise to such a duty, and these circumstances will be determined by this Court on a case-by-case basis. A landlord's general knowledge of prior unrelated incidents of criminal activity occurring in the area is not alone sufficient to impose a duty on the landlord. However, a duty will be imposed if a landlord's affirmative actions or omissions have unreasonably created or increased the risk of injury to the tenant from the criminal activity of a third party." (193 W.Va. at 264, 455 S.E.2d at 823.) The Court explained: Generally, a person does not have a duty to protect others from the deliberate criminal conduct of third parties. Some of the policy reasons for this rule ... include: judicial reluctance to tamper with a traditional, common law concept; the notion that the deliberate criminal act of a third person is the intervening cause of harm to another; the difficulty that often exists in determining the foreseeability of criminal acts; the vagueness of the standard the owner in a landlord-tenance relations must meet; the economic consequences of imposing such a duty; and conflict with the public policy that protecting citizens is the government's duty rather than a duty of the private sector. Faheen by Hebron v. City of Parking Corp., 734 S.W.2d 270, 272 (Mo.Ct.App.1987). "Normally a person has much less reason to anticipate intentional misconduct than he has to anticipate negligence. . . . This is true particularly where the intentional conduct is a crime, since under ordinary circumstances it may reasonably be assumed that no one will violate the criminal law." Restatement (Second) of Torts 302B cmt. d (1965). In other words, a person usually has no duty to protect others from the criminal activity of a third party because the foreseeability of risk is slight, and because of the social and economic consequences of placing such a duty on a person. . The Court in Miller v. Whitworth, however, id recognize two exceptions to the general rule: (1) when a person has a special relationship which gives rise to a duty to protect another person from intentional misconduct or; (2) when the person's affirmative actions or omissions have exposed another to a foreseeable high risk of harm from the intentional misconduct. Restatement (Second) of Torts 302B cmt. e and 315 (1965).