Virginia Lawyers Weekly

A social guest can proceed on his claim that the owner of an apartment complex is liable for injuries inflicted on him by a trespasser at the complex, a Loudoun County judge has ruled.

The claim grew out of a slashing at The Glen, an apartment complex in Leesburg owned and managed by Town and Country Management Company and related entities.

Kevin T. Locklin of Manassas, the attorney for the plaintiff, Adam Shehan, said his client had gone to his girlfriend’s apartment in the complex and was leaving it on Jan. 18, 2003, when they saw an altercation. The girlfriend yelled at Tyrone Rush, who appeared to be accosting someone.

Words were exchanged before Rush approached Shehan and slashed the side of Shehan’s face and stabbed him twice, leaving Shehan with what Locklin described as “a horrendous scar.”

Despite his injuries, Shehan subdued Rush until police could arrive and apprehend him. Rush subsequently pleaded guilty to malicious wounding and was sentenced to four years in prison.

Shehan filed suit against Rush and the landlord alleging negligence, breach of a third-party beneficiary contract, negligence per se and assault and battery.

The complex demurred, alleging that it had no duty to protect “a social guest of a tenant or a bare licensee,” as Circuit Judge Thomas D. Horne described Shehan in Shehan v. Rush (VLW 008-8-182).

Locklin countered that conditions at The Glen, which had a long history as a neighborhood with a high level of criminal activity, and marketing that described increased security at the complex created such a duty.

The complex had installed security gates and fencing to restrict access, but the gates had been broken and in disrepair for months, Locklin alleged. Rush had entered the complex through a broken gate and had assaulted Shehan in a parking lot where the lighting had not been maintained, he contended.

Horne cited cases that hold that landlords can be liable to tenants only when a special relationship exists that creates a duty to warn or protect against the criminal acts of a third party. As the case develops, the defendants may argue that no such special relationship exists between a landlord and a social guest as a matter of law, the judge wrote.

But he said Shehan’s complaint established that the conditions “rendered it reasonably foreseeable that social guests of tenants were in immediate danger of harm at the hands of a violent criminal element .…”

“An absence of gating, fencing, and adequate lighting [does not], in themselves, attract or provide a climate for such activity,” he added. “It is the heightened degree of foreseeability of future assaults based upon prior conduct that is the lynchpin of the question of liability.” At the demurrer stage, Locklin’s allegations provided a basis for such liability, Horne said.

The allegations also support the claim for breach of a third-party beneficiary contract between the landlord and tenant, Horne said, but Isbell v. Commercial Investment Assoiates Inc. (VLW 008-6-044) foreclosed any claim that the Virginia Residential Landlord and Tenant Act created the basis for a negligence per se count.

Horne also sustained the demurrer to the assault and battery counts for all the defendants except Rush.

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