Landlords, the duty to protect and affidavits


Yesterday the SJC issued a decision written by Justice Mead that contains a bevy of useful nuggets, both substantive and procedural.  Belyea v. Shiretown Motor Inn, LP, 2010 ME 75 [].

A patron of a lounge in a motel was assaulted in the parking lot.  The patron sued both the lounge and the motel for negligence.  The Superior Court granted summary judgment for the motel, denied it for the lounge, and certified the judgment under Rule 54(b)(1).  The SJC affirmed the summary judgment for the motel.

From the substantive perspective, the teaching point is the holding.  As the landowner, the Court said, the motel owed the patron the duty owed to all lawful visitors, invitees or licensees, for "reasonably safe premises."  An innkeeper owes a guest an additional "heightened duty" based on a special relationship, "to proactively prevent an assault on a guest if it is reasonably foreseeable."  (P11)  The SJC said that it was right to grant summary judgment to the motel as to the general duty, because the motel did not "create, permit or maintain an inherently dangerous situation" by simply operating a parking lot next to its business.  "The summary judgment record is devoid of any substantive evidence suggesting that the parking lot was unsafe in any particular regard."  (P12)  On the night of the assault, the patron as an individual was unsafe (because two other patrons of the bar already ejected had evinced hostile conduct toward him and lurked about for him), but this was not an "inherent condition or circumstance of the parking lot.  If a foreseeable risk made the parking lot generally unsafe for individuals lawfully upon the premises, a duty to protect might be established."  (P12)

Next, the SJC rejected that the motel owed the patron the heightened duty because, in support of this argument the patron had argued that a fact issue had been generated regarding whether the motel and the lounge were effectively the same entity, based on an affidavit from a proffered security expert referencing the lounge and motel's "common ownership, management and property."  This is where we get to the procedural nuggets.  The SJC, holding that this "unfounded, conclusory statement" wasn't enough to  generate a question of fact, noted that other evidence showed separation, and that nothing in the affidavit established the necessary foundation showing the proffered expert's personal knowledge of the motel's corporate practices.  (P15) Hence, this aspect of the decision is useful for anyone seeking summary judgment who needs to combat a statement in someone's affidavit that on its face doesn't indicate how the affiant could know of which he or she speaks.  Get that foundation into the affidavit!

Finally, we come to my hypothetical musings.

First, the distinctions drawn by the Court between what is owed in the general duty and what is owed in the heightened duty are interesting, because the general duty appears limned based on what is dangerous to everyone, while the heightened duty is more geared to the characteristics of the person at issue.  But if that's the distinction, then it would follow that the general duty doesn't incorporate the need to view the premises from the perspective of a particular class of visitors such as — children.  So what about a pool that is safe to the world at large but not kids?  The decision references "inherent" danger, but inherent to whom?  It seems to be saying the general populace.  Does that mean an adult? 

Second, implicit in the Court's ruling is the rejection of an argument that the patron was a guest of the motel simply by virtue of being a guest of the lounge.  This makes sense.  If you lease property to someone, should you then be ipso facto liable for everything that happens on it?  I think not.  (There's no hint of any argument that the motel breached any duty qua a landlord not to lease to someone who would do dangerously negligent things — assuming that someone could arge that they could sue as a 3rd party beneficiary).

But the assault occurred in a parking lot that sounds like it was common to both the motel and the lounge.  The same parking lot is used for motel guest and patron guests.  So the motel did not just lease this piece of property to the lounge — it shares its use on an ongoing basis.  It remained the motel's parking lot, used by the motel, too.  The holding seems to say that this doesn't make any difference - the landlord can be using the same property as the lessee, and he has no heightened duty to anyone but his own guests. 

You can see where I'm going here.  Assume a landlord, who lives in apartment X, leases apartment Y to tenant #1.  An invitee of tenant #1 slips on the common stairs to both apartments.  What is the scope of the landlord's duty?  What if the stairs are generally safe, but aren't to say the elderly (i.e. older people would benefit from better lighting, a railing etc.)?

Isn't a real distinction in the motel and lounge's situations here foreseeability and ability to act?  The lounge had information that could lead it to think something nasty was going to happen in that parking lot unless it did something, and it could do something fairly easily.  The motel, however, wasn't privy to this information, and nothing indicates that it could easily do something on the ad hoc basis that something needed to be done.  The Court's reference to danger on that particular night seems to be a reflection of this point.