Comment by James L. Weiss
Historically, courts have refused to impose liability on lessors for injuries inflicted on lessees by third persons. Many of the reasons for insulating landlords from liability, however, no longer apply. For example, low income housing is often situated in the most crime-ridden neighborhoods where the tenants' ability to protect themselves from criminal attack is limited, and the landlord is the only one in a position to provide protection. Recognizing the need to reform the law to meet modern needs, many common-law courts have begun to find landlords who fail to provide adequate security liable for criminal invasions against their tenants.
Landlord liability for criminal invasion can be predicated upon either contract or tort, or both. To prevail on a tort claim, the tenant must prove that the lessor was negligent and that this negligence was a cause in fact and a proximate cause of his injury. The common-law jurisdictions that have predicated landlord liability on a contractual basis have held that under certain circumstances, a lessor assumes an implied obligation to protect his tenant from criminal invasion. For example, the New Jersey Supreme Court has held that the landlord and tenant have an implied agreement that the degree of security existing at the time the lease began will be maintained throughout the tenant's tenancy. No other courts have followed New Jersey's bold lead. Several courts, however, have found that the warranty of habitability applies to criminal invasions. Under this theory, the lessor impliedly warrants that adequate security measures will be provided. If the landlord breaches this implied warranty, he is liable for any resulting injuries.
In contrast to the common law, Louisiana's Civil Code provides in article 2703 that landlords do not guarantee against third party disturbances. Several Louisiana courts have ruled that this article precludes tenant actions against landlords for injuries inflicted by a criminal invader.
In three cases, Day v. Castilow, Carline v. Lewis, and Thompson v. Cane Gardens Apartments, however, Louisiana courts have have found that article 2703 does not operate as an absolute bar to tenant actions; each ruled that a tenant may have a cause of action against his landlord in contract, tort, or both, for injuries sustained in a criminal invasion. Although these three decisions may signal the beginning of a new trend, the supreme court has not yet ruled on the matter. It is submitted that, in light of modern living conditions, Louisiana courts should reject article 2703 as an absolute bar to tenant actions against landlords for criminal invasion. Instead they should build upon the foundation laid by Day, Carline, and Thompson. The common-law grounds for finding lessors liable are consistent with principles of Louisiana law. There are both codal and jurisprudential bases for finding that a landlord is obligated to maintain the same degree of security that existed at the lease's inception. Article 2695 is the Louisiana equivalent of the common-law warranty of habitability and could justify a ruling that landlords must provide certain minimum security measures. Further, Civil Code articles 2315 and 2316 provide the means for finding that tenants injured by criminal invasion resulting from inadequate security precautions have a tort action against the landlord—whether his negligence consists of misfeasance or non-feasance. Courts looking at the Code as an integrated whole, rather than as a series of isolated articles, will not only be utilizing a sounder legal method, but they will also be adapting the law to fit modern social conditions.
About the Author
James L. Weiss.
Citation
59 Tul. L. Rev. 701 (1985)