Condo had duty of care for woman injured by third-party

A condominium co-owner who suffered injuries after being attacked by a man who snuck into a common area and accessed her unit had her personal injury case heard by a jury.

Arlington County Circuit Judge Daniel S. Fiore II had denied the condominium association’s motion to strike, saying a “circumstantial special relationship” existed between the plaintiff and the condominium association that created a duty of care.

The case, Letellier v. The Atrium Unit Owners Association, proceeded to the jury “under an ordinary standard of care.”

Fiore issued the six-page memorandum opinion on Dec. 27, 2021. The jury returned a verdict in favor of the condominium, according to Coreen Silverman of Hancock Daniel in Glen Allen.

Assault

Fetemeh Letellier filed suit against The Atrium Unit Owners Association for personal injuries resulting from a criminal act committed by a third-party. The man had gained access to a common area of the building, which allowed him to get to Letellier’s condominium, where the alleged assault took place.

According to the opinion, the man could be seen “attempting to enter the building through various entry points,” including through a garage door as a vehicle exited. The man could also be seen leaving a group of bushes where he had been hiding, then slipping into the garage.

Eventually, the man entered the building after another person exited a locked door. He then was seen entering the elevator to gain access to other floors. Per the opinion, all of the man’s movements were captured on the association’s security cameras.

Shortly thereafter, the front desk staff received a call from a resident who said someone posing as a maintenance worker tried to enter the apartment because of a water leak. The front desk staff informed the occupant to not let the person in as it was Sunday and no maintenance workers were on duty. The front desk staff received a second call from another unit reporting the same issue. Moments later, according to the opinion, the assault occurred.

Analysis

The defendant filed a motion to strike, arguing there was no special relationship with the plaintiff and that the condo association had no duty to warn or protect the plaintiff from the harm that ensued.

Fiore said that, “as a general rule, there is no duty to warn or protect against acts of criminal assault by third parties,” but some limited exceptions exist.

“There are two main circumstances for an exception to the general rule of nonliability: where the defendant expressly assumes a duty to protect another from criminal harm; and a situation where a duty is not assumed but imposed where a special relationship exists,” the judge wrote, citing A.H. v. Church of God in Christ, Inc., a 2019 decision from the Virginia Supreme Court.

Saying that “a circumstantial special relationship has been shown that may proceed to the jury,” Fiore rejected the defendant’s arguments.

“The evidence most favorable to Plaintiff shows the unit owners and the unit owners’ association had a relationship whereby the latter, upon receipt of payments of condominium assessments, created a security protocol to limit non-occupant’s access to the building,” the judge said.

Unit owners, including Letellier, paid the condo association monthly condo fees, which were used to pay for security measures at the building and in common areas that were under the “exclusive control” of the condo association. Some of these measures include security cameras and restricted entrances and guest access.

“The measures were not intended to be mere window-dressings; they had a specific purpose for the unit owners’ safety, thus creating a duty,” Fiore wrote.

Specifically, Fiore said the condo association “added the additional security measure of requiring all building maintenance to wear a specific uniform for residents’ ability to identify,” showing the condo association was aware of the risk an intruder could pose by claiming to be a maintenance worker.

The defendant also argued the risk was not foreseeable. Pursuant to precedent, the duty to protect in a special relationship exists only when the defendant could have “foreseen the need to take affirmative action to prevent the plaintiff from harm.” Additionally, precedent set in Thompson v. Skate Am., Inc. established the heightened standard of “imminent probability of harm,” based on knowledge that the defendant is aware that a criminal assault is either in progress or about to occur.

In the present case, Fiore wrote that “the circumstantial relationship between these parties included security measures to prevent unauthorized entry for residents’ protection, and further included the heightened Thompson standard of imminent probability of harm.”

The judge concluded that, “[a]t minimum, a reasonable inference exists that the Defendant’s front desk staff was aware that a crime of trespass was already in progress, that a man posing as a maintenance worker was attempting to enter unit owners’ homes, and that maintenance was not on the property that day.” As such, the facts gave rise to the “reasonable inference” that the condo association was aware of the danger and did not warn the residents.

Fiore said the association’s argument that the gap between the phone calls the front desk received and the assault did not create enough time to give rise to a duty was question for the jury.

“The Court finds that the specific facts presented in Plaintiff’s case-in-chief have established a circumstantial special relationship such as to create a duty of care upon the Defendant with regard to the criminal conduct of a third person sufficiently for this case to proceed to the jury under an ordinary standard of care,” Fiore wrote, denying the defendant’s motion to strike.

[Editor’s note: A Verdict & Settlement report of the case will appear in the Feb. 28 issue.]