eNotes: Liability – January 2024 – Washington, DC

SIGNIFICANT CASE SUMMARIES

Washington, DC Case Summary

Freyberg v. DCO 2400 14th Street, LLC
District of Columbia Court of Appeals
No. 21-CV-0546

Decided: November 22, 2023

The “heightened foreseeability standard” with respect to premises liability negligent security cases does not apply to Defendants who have affirmatively removed protections put in place by another to deter an interceding criminal act.

Background

Plaintiff claimed that his property was stolen from his apartment when his landlords allowed contractors to enter his apartment to make needed repairs. The contractors were dispatched by the landlords while Plaintiff was out of town. The day before, the building had been damaged by a stray bullet that hit a sprinkler system, flooding fifty-six units, including Plaintiff’s. The apartment’s management team sent an email to the residents explaining what had occurred and notifying them that contractors would be on site to make repairs to the apartments.

Plaintiff claimed that when his landlords gave access to the contractors, the landlords unlocked his apartment door, left it ajar, and then failed to take any measures to supervise the contractors or to prevent trespassers from entering it. Plaintiff claimed that his personal property was stolen during this period. He sued his landlords for negligence and breach of contract. The landlords filed a Motion to dismiss, arguing that Plaintiff had not shown the “heightened foreseeability” required in the District of Columbia when a plaintiff sues for damage resulting from a defendant’s failure to protect against a third-party’s intervening criminal act. The Trial Court granted the Defendant’s Motion to dismiss. Plaintiff appealed.

Holding

The D.C. Court of Appeals reversed the Trial Court’s decision on one ground. The Court held that Plaintiff did not need to show that Defendants had a “heightened foreseeability” of this risk because Plaintiff alleged that his landlords did not simply fail to protect against theft – they actively removed those protections against theft when they unlocked his front door and left it open. The “heightened foreseeability” standard only applies in “pure failure to protect cases.” In those cases, a defendant landlord might be liable if, for example, the landlord failed to keep the apartment’s exterior door in working order, despite knowledge of crime in the area and knowledge of attempted break-ins. The heightened foreseeability test might also apply if the landlord did not employ enough security personnel, left an entrance unlocked, and knew of high crime in the area. A plaintiff, however, is not required to plead this heightened foreseeability when he alleges that a person removed a protection against a foreseeable crime that a plaintiff had put in place to deter it. In this instance, Plaintiff locked his door to prevent theft, and Plaintiff’s landlords unlocked the door. The Court found that this affirmative act of unlocking the door was likely to defeat a protection that Plaintiff had put in place around his property to guard it against intentional interference. Accordingly, Plaintiff’s negligence count was remanded to the Trial Court.

Questions about this case can be directed to Matt Ainsley at (202) 945-9506 or mainsley@tthlaw.com.