"am I My Brother's Keeper?": Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity

• Publication year: 2021

80 Nebraska L. Rev. 522. "Am I My Brother's Keeper?": Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity

Shelley Ross Saxer(fn*)

"Am I My Brother's Keeper?":(fn1) Requiring Landowner Disclosure of the Presence of Sex Offenders and Other Criminal Activity

TABLE OF CONTENTS

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . 523 R
II. PREMISES LIABILITY FOR CRIMINAL ACTS OF
OTHERS . . . . . . . . . . . . . . . . . . . . . . . . . . . 525 R
A. Historical Development Under Tort Law . . . . . . . . . . 525 R
1. Creation of a Duty . . . . . . . . . . . . . . . . . . 526 R
a. Special Relationship Between Business
Possessors or Landowners and Invitees. . . . . . . . 526 R
b. Special Relationship Between Innkeeper and
Guest, Landlord and Tenant . . . . . . . . . . . . . 531 R
c. Other Special Relationships . . . . . . . . . . . . 534 R
2. Breach of Duty . . . . . . . . . . . . . . . . . . . . 535 R
3. Causation . . . . . . . . . . . . . . . . . . . . . . . 536 R
B. Recent Trends in Premises Liability . . . . . . . . . . . 537 R
1. New Types of Special Relationships . . . . . . . . . . 538 R
2. Apportionment and Comparative Liability . . . . . . . . 543 R
3. Insurance Coverage . . . . . . . . . . . . . . . . . . 544 R
III. A DUTY TO WARN OR DISCLOSE SUSCEPTIBILITY
OF PREMISES TO CRIMINAL ACTIVITY? . . . . . . . . . . . . . 547 R
A. Duty of Landowner or Possessor to Warn Others of
the Presence of a Dangerous Person . . . . . . . . . . . . 547 R
B. Lessor's Duty to Disclose Potential Danger to
Prospective Tenants During Rental Process for
Lease of Premises . . . . . . . . . . . . . . . . . . . . 549 R

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C. Seller's Duty to Disclose Third Party Criminal
Activity to Property Purchasers . . . . . . . . . . . . . 553 R
IV. LANDOWNER LIABILITY FOR DISCLOSURE OR
REFUSAL TO RENT OR SELL TO POTENTIALLY
DANGEROUS PERSONS . . . . . . . . . . . . . . . . . . . . . . 561 R
A. Landowner's Disclosure of Private Facts to Warn
Others . . . . . . . . . . . . . . . . . . . . . . . . . . 562 R
B. Landlord's Duty to Protect Tenants from a
Dangerous Tenant. . . . . . . . . . . . . . . . . . . . . 564 R
1. Duty to Investigate or Screen Prospective
Tenants . . . . . . . . . . . . . . . . . . . . . . . . 564 R
2. Evicting Dangerous Tenants . . . . . . . . . . . . . . 569 R
V. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . 571 R

I. INTRODUCTION

Property ownership begets responsibility. Not surprisingly, in recent years landowners, landlords, business owners, and other land possessors have, at times, been held responsible for injuries caused by the criminal acts of third persons that occur on their premises. While quite a bit of case law has developed over recent years as to a landowner's liability for criminal acts that have occurred on the premises, a landowner's liability for failing to disclose potential harm from criminalactivity to prospective tenants or property buyers has not been established.(fn2) It has also not been established whether a landlord has the duty to screen prospective tenants to protect other tenants from criminal behavior or a duty to warn other tenants of known criminal propensities of an existing tenant.(fn3)

Finally, it is not clear whether a landlord or landowner may refuse to rent or sell to a particular individual or disclose concerns about the criminal propensity of certain individuals to other tenants or property

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owners without being subject to tort liability or violations of fair housing act statutes. A recent judicial decision in Texas requiring convicted child molesters to post disclosure signs on their residences and cars has also engendered controversy over the constitutional and privacy rights of these individuals.(fn4)

This Article will explore the landowner liability issues of whether to disclose or warn others about future criminal activity that might occur on the premises in the future. The duty to warn others about criminal activity is based on the tort concept of premises liability, while the duty to disclose the presence of criminals in the area is a recent departure from the common law rules of caveat emptor(fn5) and caveat lessee. Part II will describe the historical development in tort law of premises liability for the criminal acts of others.(fn6) This part will also discuss recent trends in premises liability law, including how premises liability theories impact issues of workplace violence, school violence, Internet site liability, terrorist activity, and insurance coverage.

While Part II focuses on the landowner's potential duty to protect against criminal acts of third parties, Part III will address the issue of whether landowners have a duty to disclose or warn of premises susceptibility to criminal acts. Megan's Law legislation, dealing with community notification about the presence of convicted sex offenders, raises a particularly troublesome disclosure issue.

Part IV examines landowner liability for refusing to rent or sell to individuals with criminal backgrounds or for disclosing to others the criminal propensity of a third party.(fn7) Some jurisdictions have pro-

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tected landowners and their agents from liability for failing to disclose the presence of sex offenders in the neighborhood by legislating that such facts are not material to the transaction. This nondisclosure protection has been incorporated into existing psychological taint or stigma legislation which shields landowners from disclosing facts such as a previous death occurring on the property or that a previous occupant had been infected with AIDS. The Article concludes by suggesting that landowners who are aware of reasonably foreseeable criminal activity against occupiers of their premises should have a duty to disclose this information to either prospective or existing occupiers, particularly when there is a potential danger of harm to children.

II. PREMISES LIABILITY FOR CRIMINAL ACTS OF OTHERS

A. Historical Development Under Tort Law

To understand the dilemma courts and legislatures face in deciding whether or not to require landowners to disclose the potential for criminal activity on the premises, it is important to understand the development and current contours of premises liability for the criminal acts of others. Historically, courts held that there was no duty to protect others from third party criminal acts.(fn8) Instead, the criminal act has been found to be the proximate cause of any injury and public policy dictated that the owner or occupier of property not be an insurer against third-party criminal behavior occurring on their premises.(fn9) Nevertheless, courts are increasingly assigning liability where the criminal act is sufficiently foreseeable. Courts have created exceptions to the "no-duty-to-protect-others" rule based on either statutory obligation or the existence of a special relationship between the owner or occupier of the property and the crime victim.(fn10)

The evolving concept of the landlord's implied warranty of habitability has also contributed to an increase in landowner liability for

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premises conditions contributing to criminal activity. The critical issue is whether or not a duty on the part of the landowner has been created, despite the historical "no-duty" to protect against the criminal acts of others. Once a duty is established, which is a question of law,(fn11) the plaintiff must show a breach of that duty (a question of fact) and that the injury was proximately caused by the landowner's breach.(fn12)

1. Creation of a Duty

a. Special Relationship Between Business Possessors or Landowners and Invitees

Business possessors or landowners have been held liable in tort for the criminal acts of third persons based on the assignment of a duty to warn or protect invitees under certain circumstances. Under the Restatement Second of Torts, section 344, a possessor of land held out to the public for business purposes is

subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.(fn13)

Comment f clarifies the landowners' business possessor's duties explaining that:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.(fn14)

Therefore, before a business possessor, who may or may not be the landowner, is charged with a duty, the business possessor must have 527

knowledge from past experience that criminal activity is likely to occur or the nature of the possessor's business must be such that criminal activity of third persons can reasonably be anticipated.(fn15)

The issue of whether the possessor has a reason to know that criminal acts might...