Wright v. PRG Real Estate Management, Inc. ( 2015 )

FEW, C.J.

Two men abducted Denise Wright at gunpoint from the parking lot of the apartment she leased at Wellspring Apartment Complex. Wright filed this lawsuit alleging Wellspring’s owners and managers¹ (the respondents) were negligent in providing security and were liable under the South Carolina Unfair Trade Practices Act. See S.C.Code Ann. § 39-5-10 to - 180 (1985 & Supp.2014). The circuit court granted summary judgment on both claims, finding the respondents had no duty to provide security for Wright and there was no evidence the respondents engaged in unfair or deceptive acts. We affirm.

I. Facts and Procedural History

In 2003, Wright leased an apartment at Wellspring, which is part of a planned unit development known as the “Harbison Community Association.” Several public walking trails weave through the community. Wellspring and other properties within the community are accessible from these public trails.

On the night of September 18, 2008, Wright parked her car in Wellspring’s parking lot and was walking to her apartment when two men held her at gunpoint and demanded money. When she responded she had none, they forced her to drive them to various automatic teller machines to make withdrawals from her account. After approximately thirty-five minutes, the men fled the car, and Wright called the police. The men have never been identified.

In 2011, Wright filed this action, alleging the respondents were negligent in failing to protect tenants from third-party criminal activity by not (1) providing adequate lighting in the common areas, (2) maintaining the overgrown shrubbery to an appropriate height, and (3) executing its courtesy officer program in a reasonable manner. She also brought an unfair trade practices claim, arguing a Wellspring employee committed unfair and deceptive acts in making statements concerning the safety and security of the apartment complex when Wright filled out her rental application.

The respondents moved for summary judgment on both claims, which the circuit court granted. The court first held the negligence cause of action failed as a matter of law because the respondents had no duty to protect Wright against third-party criminal activity. The court then found Wright presented no evidence the respondents engaged in unfair or deceptive acts.

II. Standard of Review

Rule 56(c), SCRCP, provides the circuit court shall grant summary judgment if “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” When the circuit court grants summary judgment on a question of law, we review the ruling de novo. Town of Summerville v. City of N. Charleston, 378 S.C. 107, 110, 662 S.E.2d 40, 41 (2008). When the circuit court grants summary judgment on a question of fact, we view “the evidence and all inferences which can reasonably be drawn therefrom ... in the light most favorable to the nonmoving party.” Quail Hill, LLC v. Cnty. of Richland, 387 S.C. 223, 235, 692 S.E.2d 499, 505 (2010) (citation omitted). “[T]he non-moving party must offer some evidence that a genuine issue of material fact exists as to each element of the claim.” Chastain v. Hiltabidle, 381 S.C. 508, 514, 673 S.E.2d 826, 829 (Ct.App.2009). “[I]t is not sufficient for a party to create an inference that is not reasonable or an issue of fact that is not genuine.” Town of Hollywood v. Floyd, 403 S.C. 466, 477, 744 S.E.2d 161, 166 (2013). We must affirm summary judgment where the non-moving party “fails to ... establish the existence of an element essential to the party’s case.” Hansson v. Scalise Builders of S.C., 374 S.C. 352, 357, 650 S.E.2d 68, 71 (2007).

III. Negligence Claim

To prevail on a negligence claim, the plaintiff must demonstrate the defendant owed her a duty of reasonable care. See Bishop v. S.C. Dep’t of Mental Health, 331 S.C. 79, 86, 502 S.E.2d 78, 81 (1998) (stating “the existence of a legal duty of care owed by the defendant to the plaintiff” is “[a]n essential element in a cause of action for negligence”). The existence or non-existence of a duty is a question of law. Jackson v. Swordfish Invs., L.L.C., 365 S.C. 608, 612, 620 S.E.2d 54, 56 (2005).

Generally, residential landlords do not owe tenants a duty to protect them from the criminal activity of third parties. Cramer v. Balcor Prop. Mgmt., Inc., 312 S.C. 440, 441 S.E.2d 317 (1994) (Cramer I). In Cramer I, the plaintiff asked our supreme court “to extend the duty [to provide security] owed by store owners and innkeepers to landlords.” 312 S.C. at 442, 441 S.E.2d at 318. The supreme court pointed out store owners and innkeepers have a duty to protect their customers from foreseeable criminal activity because they invite the public onto their premises. 312 S.C. at 442-43, 441 S.E.2d at 318. The court explained this duty is based on the principle that “[o]ne who invites all may reasonably expect that all might not behave” and therefore bears responsibility for any injury resulting from the failure to take reasonable precautions against criminal activity. 312 S.C. at 443, 441 S.E.2d at 318 (quoting Cooke v. Allstate Mgmt. Corp., 741 F.Supp. 1205, 1213 (D.S.C.1990) (applying South Carolina law)). The court concluded, however, there was a “fundamental distinction between the relationships of landlord/tenant and store owner/invitee and innkeeper/guest.” Id. Accordingly, the court “decline[d] to find that landlords owe an affirmative duty to protect tenants from criminal activity merely by reason of the [landlord/tenant] relationship.” 312 S.C. at 443, 441 S.E.2d at 318-19; see also Cramer v. Balcor Prop. Mgmt., Inc., 848 F.Supp. 1222 (D.S.C.1994) (Cramer II) (relying on Cramer I to grant summary judgment on the tenant’s negligence claim).²

Wright acknowledges landlords do not generally have a duty to provide security services and protect tenants from criminal activity. However, she makes three arguments to support her position that a duty exists under the facts of this case. For the reasons we explain below, we reject these arguments and find the circuit court correctly granted summary judgment.

A. “Particular Circumstances”

In Cramer I, the supreme court relied on the nature of apartment complexes as private places not held open to the public. See 312 S.C. at 443, 441 S.E.2d at 318 (relying on the fact the complex was “private and only for those specifically invited”); see also Cooke, 741 F.Supp. at 1213 (“An apartment complex is not a place of public resort.... [and] is of its nature private and only for those specifically invited.” (citation omitted)); Goode v. St. Stephens United Methodist Church, 329 S.C. 433, 441, 494 S.E.2d 827, 831 (Ct.App.1997) (“[A]n apartment complex is not a place held open to the public and is instead a private place for only people who are specifically invited.”). The Cramer I court recognized, however, “A duty may arise under the particular circumstances of the individual case based upon a showing of negligence constituting the proximate cause of the loss.” 312 S.C. at 443 n. 1, 441 S.E.2d at 319 n. 1 (emphasis added). Wright relies on this language from Cramer I. She contends her case presents “particular circumstances” that give rise to a duty to protect her. Specifically, she argues Wellspring is “unique” and “analogous to a retail store or motel” because the “series of walking trails that weave through [Wellspring]” constitute “places to which the public are invited to enter and remain for extended periods.” Because of these differences between Wellspring and the typical private apartment complex, Wright argues this case is not controlled by Cramer I. In particular, she argues (1) the “manner of access” to Wellspring — through the trails — is different from other apartment complexes because the common areas can be directly accessed by the public; (2) the respondents invited the public to the premises via the walking trails, (3) the respondents could reasonably expect the public to use the common areas — based on the nature and location of Wellspring — and (4) the existence of several public policy considerations. We find none of these circumstances distinguishes this case from Cramer I.

First, we find the evidence does not support Wright’s assertion that the “rare” nature of Wellspring warrants different treatment from the apartment complexes in Cramer I, Cooke, and Goode. Rather, all the evidence in this case shows Wellspring is private property and its tenants are the only people the respondents specifically invited onto the premises. Under these circumstances, the trails at Wellspring are the same as public sidewalks or streets that adjoin any apartment complex because the trails — like sidewalks and streets — simply allow tenants and their invited guests to access the property. The fact that uninvited people may access the properties from the trails — like sidewalks and streets — does not change the analysis.

Wright argues, however, that Wellspring is different from the type of complex addressed in Cramer I, Cooke, and Goode because “Wellspring is part of the Harbison Community Association,” which Wright points out “maintains a series of walking trails that weave through the community,” “including one trail that goes directly through Wellspring.” We find these arguments and the evidence upon which they are based do not remove this case from the general rule the supreme court explained in Cramer I. There, the court focused on whether the apartment owners or managers invited the public onto the premises — not on the physical layout of the apartment building or complex. 312 S.C. at 442-43, 441 S.E.2d at 318-19. In Goode, this court relied on Cramer I to find the apartment complex owed no duty because the public was not invited. 329 S.C. at 441, 494 S.E.2d at 831. Wright has cited no authority for focusing on the physical layout of an apartment building or complex as a basis for determining the existence of a duty. Cf. Cramer I, 312 S.C. at 443, 441 S.E.2d at 318 (“Tenants in a huge apartment complex, or a tenant on the second floor of a house converted to an apartment, do not live where the world is invited to come.” (quoting Cooke, 741 F.Supp. at 1213)); Goode, 329 S.C. at 442, 494 S.E.2d at 831 (same).

As the circuit court found, therefore, the fact that public streets — or trails — adjoin or even traverse the apartment complex does not remove the case from Cramer I. Rather, our inquiry must be whether the respondents invited the public onto the premises.³

Wright argues the public was invited onto Wellspring’s premises. In support of her argument, she presented evidence that other entities invited the public to use the trails at Harbison, including the trail that goes through the Wellspring property. For example, Wright points out the Harbison Community Association maintains a website on which it advertises to the public the availability of its trails and the South Carolina Department of Parks, Recreation and Tourism advertises on its website the availability of the Harbison trails, describing them as “multiuse trails” that are “within the neighborhoods of Harbison.” According to Wright, the Department’s website “includes a graphic map of the area with suggested routes for the public” and “describes the experience of an average user of the trails: ‘As you walk these well-shaded trails, you pass the backyards of homes.’ ” The Rich-land County Conservation Commission also advertises the trails in a brochure entitled “Richland County Trails,” which states the Harbison trails are “paved pathways weaving through neighborhoods.”

Based on this evidence, Wright argues Cramer I does not apply because the public is invited onto Wellspring’s premises. We disagree. While there is evidence that these other entities invited the public to use the trails, Wright produced no evidence that these entities invited the public onto Wellspring’s property. As to the trail that goes through Wellspring, the only evidence in the record indicates this trail is also on public property — not Wellspring’s premises. As to the actions of the respondents themselves, Wright presented no evidence they invited the public to use the trails. Viewing this evidence in the light most favorable to Wright, we find this is not Wellspring’s invitation to the public to use the trails. Additionally, Wright conceded at oral argument the respondents took no action to invite the public onto Wellspring’s property.

We find Wright presented no evidence to support a finding the respondents — or anyone else — invited the public onto Wellspring’s premises. Therefore, even if Wright’s theory is valid — that Cramer I does not apply when such an invitation did occur- — the facts of this case do not support the theory.

Turning to Wright’s third argument, she asserts the unique nature of Wellspring created a duty on the respondents to take measures to exclude the public from the property, such as erecting a fence or posting signs to indicate that Wellspring was private property. We reject this argument for two reasons. First, as previously discussed, the trails do not distinguish Wellspring from homes situated along public sidewalks or streets. Second, the fact that the respondents did not take measures to exclude the public from the property does not take this case out of the Cramer I context. Under the facts of this case, their inaction may be relevant to whether they breached an otherwise existing duty, but their inaction does not support the existence of a duty. Cf. Skerer v. James, 290 S.C. 404, 406, 351 S.E.2d 148, 150 (1986) (holding one who does act, even though under no obligation to do so, becomes obligated to act with reasonable care).

Finally, Wright asserts a duty to provide security should be imposed on landlords based on public policy considerations. First, she contends a landlord’s “superior knowledge of the crime risk in the area” is a “circumstance” that can establish a duty of reasonable care to guard against the danger posed by third-party criminals. Wright argues “[f]rom a public policy perspective, assigning all responsibility for security to a tenant ignores the fact that a landlord is better positioned to know when and where crimes are occurring.” Second, Wright urges us to recognize that a landlord who retains “exclusive control over common areas, and therefore exclusive ability to care for the common areas, must also have a duty to take reasonable actions to keep those areas reasonably secure.” She reasons that when a landlord has exclusive control of common areas, the landlord “is in a far superior position to take steps necessary to secure the premises for the safety of the tenants.”

The circuit court rejected these arguments, stating this “is just another way of arguing that a landlord has a duty to protect tenants from the foreseeable risk of criminal activity.” We agree.⁴

Because we find the facts of this case indistinguishable from Cramer I, we hold the respondents owed no duty to provide security for Wright.

B. Common Areas Exception

Wright argues there are exceptions to Cramer I that apply in this case to create a duty of reasonable care. See Cramer II, 848 F.Supp. at 1224 (stating that “the court must determine if an exception to the general rule that South Carolina common law imposes upon a landlord no general affirmative duty to maintain leased premises in a safe condition applies in this case”). Wright relies in particular on the common areas exception, under which a landlord has “a duty to maintain the common areas of a leased property in a safe condition.” Cramer II, 848 F.Supp. at 1225. This duty applies to areas “for the common use of several tenants,” such as “halls, entrances, porches or stairways.” Cooke, 741 F.Supp. at 1211 (quoting Daniels v. Timmons, 216 S.C. 539, 549, 59 S.E.2d 149, 154 (1950)). Wright argues the common areas of Wellspring were in an “unsafe condition” because they were susceptible to criminal activity due to the respondents’ failure to maintain its courtesy officer program, provide adequate lighting, and trim the overgrown shrubbery to an appropriate height.

Wright attempts to apply the duty to provide “safe” physical premises — structurally—to the provision of “secure” premises that protect against third-party criminal activity. In doing so, Wright again relies solely upon out-of-state precedent and secondary sources. We find the common areas exception does not apply to the facts of this case.

In Cooke, the district court “rejected] the application of the ‘common areas’ exception to criminal activity” because the exception had “never been applied in South Carolina to anything except physical injuries resulting directly from the condition of the premises themselves.” 741 F.Supp. at 1211. In Cramer II, the court addressed the same issue. 848 F.Supp. at 1225. The plaintiff contended “the design and operation of the apartment complex was inadequate due to the lack of fencing around the perimeter, the insufficient lighting, the lack of security guards, and the poor locks on apartment doors.” Id. The court relied on Cooke to find “[the common areas] exception is inapplicable to these facts.” Id. The court reasoned, “To ... apply the common areas exception to this situation would stretch the exception to the point of swallowing the rule.” Id. We agree with Cooke and Cramer II, and hold South Carolina does not recognize a landlord’s duty to keep common areas “secure” from third-party criminal activity. Thus, we find the circuit court correctly determined the common areas exception does not apply under these facts.

C. Affirmative Acts Exception

Wright also contends the affirmative acts exception applies in this case to create a duty of reasonable care. See Sherer, 290 S.C. at 406, 351 S.E.2d at 150 (providing that one who undertakes to act, even though under no obligation to do so, becomes obligated to act with reasonable care); see also Cooke, 741 F.Supp. at 1209-10 (stating “one who assumes to act, even though under no obligation to do so, may become subject to the duty to act with due care” (citation omitted)). Wright argues a duty was created by three affirmative acts of the respondents: (1) hiring courtesy officers to patrol the premises, (2) providing common area lighting, and (8) trimming the shrubbery throughout the common areas. We disagree. With regard to the courtesy officer program, Wellspring maintained a program under which residents affiliated with law enforcement served as courtesy officers in exchange for a reduced rental rate. The program required courtesy officers to patrol Wellspring’s premises for “a minimum of two hours each day” and answer calls from residents reporting a crime. Wellspring gave tenants a “security pager” number in its monthly tenant newsletter and told them to call the number or the Richland County Sheriffs Department “if you see anything suspicious.” While nothing in the record reflects Wellspring terminated a courtesy officer, the position was occasionally vacant for various reasons — marriage, death, or the officer no longer being affiliated with law enforcement. When the position was vacant, Wellspring sought a new courtesy officer to fill the position. At the time of Wright’s abduction, Wellspring did not have a courtesy officer in place.

We find the creation of its courtesy officer program did not impose on Wellspring a duty to exercise reasonable care in providing security at the complex. Rather, Wellspring’s undertaking to create the program required only that Wellspring maintain the program itself with reasonable care. See 65 C.J.S. Negligence § 40 (2010) (“A person’s duty to exercise reasonable care in performing a voluntarily assumed undertaking is limited to that undertaking.... A duty assumed because of a voluntary undertaking must be strictly limited to the scope of that undertaking.”); see also Byerly v. Connor, 307 S.C. 441, 445, 415 S.E.2d 796, 799 (1992) (finding defendant had no duty to inspect for a latent defect because he had “undertaken a limited duty to use due care to discover structural nonconformity with permits” only (emphasis added)). The record in this case demonstrates the courtesy officer program contemplated times during which no officer would be on duty because the program required only that an officer patrol the complex two hours per day. The program also contemplated there would be times during which the courtesy officer positions would be vacant, and the respondents would seek to fill the position in a timely manner. Thus, the duty the respondents assumed by undertaking to provide a courtesy officer program did not include a general duty to provide security for its tenants. Under the facts of this case, the duty the respondents assumed was limited to exercising reasonable care in maintaining the courtesy officer program, and we find no evidence they failed to exercise reasonable care in fulfilling that duty.

In Cramer II, the court held the affirmative acts exception did not apply to facts that are indistinguishable from the facts of this case. 848 F.Supp. at 1224. The plaintiff argued the landlord’s conduct of “hiring a ‘courtesy officer’ to patrol the grounds and then terminating that officer without replacing him” established a duty to exercise due care in maintaining the courtesy officer program — and breach of that duty resulted when the courtesy officer position was left vacant. Id. The court found “[the plaintiff] misapprehend[ed] the scope of the affirmative acts exception” because “a stronger connection between the act and the injury” is necessary to establish liability. Id. We agree with the reasoning of Cramer II. The fact that the courtesy officer position was vacant at the time is a circumstance too attenuated from the kidnapping and robbery of Wright to establish a duty to provide security.

Regarding lighting and shrubbery, Wright asserts the respondents provided lighting for the common areas and trimmed the shrubbery throughout the common areas. She contends the respondents had no obligation to provide these services, but because they undertook to do so, they had a duty to act with reasonable care. Wright points to evidence that the respondents provided lighting and maintained the shrubbery in part for security purposes — deterring crime. Wright presented expert testimony that the lighting “was totally inadequate” and the “overgrown” shrubbery could provide a hiding place for criminals, as it did in Wright’s case.

We find neither the provision of lighting nor the trimming of shrubbery around the parking areas and apartment buildings, even if done in part for the purpose of making the premises more secure, gives rise to a duty to provide security. It is inconceivable that any apartment developer would not .install lighting and shrubbery around the parking areas and apartment buildings of a complex. The installation of lighting and maintenance of shrubbery serve multiple purposes in addition to increasing security — such as preventing accidental injury and improving aesthetics. If the law recognized these activities as “undertakings” sufficient to impose on developers and apartment managers a duty of reasonable care to provide security services, the rule of Cramer I would be swallowed by the affirmative acts exception. We find the installation of lighting and the maintenance of shrubbery did not impose on the respondents a duty to exercise reasonable care in providing security at the complex.

Because we find the respondents had no duty to protect Wright from third-party criminal activity under Cramer I and no exceptions to this rule apply, we hold the circuit court correctly granted summary judgment on Wright’s negligence claim.⁵

IY. Unfair Trade Practices Claim

Under the South Carolina Unfair Trade Practices Act, it is unlawful to engage in “unfair or deceptive acts or practices in the conduct of any trade or commerce.” S.C.Code Ann. § 39-5-20(a) (1985). A person who suffers “loss of money ... as a result of ... an unfair or deceptive” act or practice “may bring an action ... to recover actual damages.” S.C.Code Ann. § 39-5-140(a) (1985). Wright argues Wellspring’s property manager made deceptive statements to her when she filled out her rental application. Specifically, she contends the manager told her Wellspring was a “safe and secure place” and that courtesy officers patrolled the premises. The circuit court found Wright failed to prove these statements constituted unfair or deceptive acts. We agree. The generalized statements that the apartments are safe and secure and are patrolled by courtesy officers — on the facts of this case — simply cannot be unfair or deceptive acts under subsection 39-5-20(a). See Johnson v. Collins Entm’t Co., 349 S.C. 613, 636, 564 S.E.2d 653, 665 (2002) (“An act is ‘unfair’ when it is offensive to public policy or when it is immoral, unethical, or oppressive; a practice is ‘deceptive’ when it has a tendency to deceive.” (citation omitted)); deBondt v. Carlton Motorcars, Inc., 342 S.C. 254, 269, 536 S.E.2d 399, 407 (Ct.App.2000) (stating “[a]n unfair trade practice has been defined as a practice which is offensive to public policy or which is immoral, unethical, or oppressive” and “[a] deceptive practice is one which has a tendency to deceive”). We affirm the award of summary judgment.

Y. Conclusion

The order of the circuit court granting summary judgment in favor of the respondents is AFFIRMED.

1 . PRG Real Estate Management manages Wellspring, Franklin Piner-idge Associates is the owner, and Karen Campbell was the property manager at the time of the incident.

2 . Cramer I and Cramer II arose from the same lawsuit. Cramer I was "certified to [the supreme court] by the United States District Court for the District of South Carolina,” 312 S.C. at 441, 441 S.E.2d at 317, and the district court decided Cramer II after the supreme court answered the certified question. 848 F.Supp. at 1224.

3 . As we explain below, we find no evidence the respondents invited the public onto the premises. Thus, we do not address the question whether doing so would remove this case from Cramer I. Rather, we discuss this for the sole purpose of squarely addressing Wright's argument on appeal.

4 . Wright’s arguments, which she supports by relying exclusively on out-of-state precedent, are based on rules of law not recognized in South Carolina. See Martinez v. Woodmar TV Condos. Homeowners Ass’n, 189 Ariz. 206, 941 P.2d 218, 220 (1997) (stating a duty to protect "exist[s] because of Defendant’s status with respect to the land and consequent power to prevent harm by exercising control over its property”); Johns v. Hous. Anth. for City of Douglas, 297 Ga.App. 869, 678 S.E.2d 571, 573 (2009) (“A landlord's duty to exercise ordinary care to protect a tenant against third-party criminal attacks extends only to foreseeable criminal acts.’’); Hemmings v. Pelham Wood Ltd. Liab. Ltd. P’ship, 375 Md. 522, 826 A.2d 443, 453 (2003) ("By virtue of its control over the common areas, a landlord must exercise reasonable care to keep the tenant safe ... from certain criminal acts committed within the common areas.”); Davenport v. DM. Rental Props., Inc., 217 N.C.App. 133, 718 S.E.2d 188, 189-90 (2011) (stating "a landlord has a duty to exercise reasonable care to protect his tenants from third-party criminal acts that occur on the premises if such acts are foreseeable”); McPherson v. State ex rel. Dep’t of Corr., 210 Or.App. 602, 152 P.3d 918, 923 (2007) ("[A] landlord has a common-law duty to take reasonable steps to protect tenants in the property’s common areas from reasonably foreseeable criminal acts by third persons.”); Tedder v. Raskin, 728 S.W.2d 343, 348 (Tenn.Ct.App.1987) (”[r]he same standard of care should apply to both the innkeeper and the landlord in the area of liability for injuries to tenants resulting from third-party crimes on the premises.”).

5 . We decline to address the circuit court's ruling that the respondents' conduct did not proximately cause Wright's injuries. See Futch v. McAllister Towing of Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining an appellate court need not address remaining issues when the court’s resolution of the issues it does address are dispositive of the appeal).