Chapter X: Problems With Crime

A. Your Landlord Is Not An Insurer Against Crime.

Your landlord is not an insurer against crime at your apartment. If your apartment gets broken into and your stuff gets stolen, this will not serve as the basis for terminating your rental agreement. In fact, you generally will not be able to sue your landlord for the lost value of your stolen possessions. I know what it is like to have come home and found my apartment burglarized. It is hard to get to sleep over the next few weeks because every little noise that you hear sounds like someone is breaking in. The first element in any tort action brought against
your landlord is that of duty. You must show that under the law, the landlord had a duty to protect you. The duty of any defendant arises from how foreseeable the harm might have been.

Ohio law has taken the position that crime is not very foreseeable to landlords. Crime in the area is not your landlord’s fault. As a general rule, landlords have no duty to protect their tenants from the criminal acts of third persons. Thomas v. Hart Realty, Inc. (1984), 17 Ohio App. 3d 83, 86, 477 N.E.2d 668; Sciascia v. Riverpark Apts. (1981), 3 Ohio App. 3d 164, 166, 444 N.E.2d 40; Johnson v. Monroe Realty Co., 1995 Ohio App. LEXIS 2138 (May 25, 1995), Cuyahoga App. No. 67964, unreported. The duty of a landlord in such cases was set forth in Carmichael v. Colonial Square Apartments (1987), 38 Ohio App. 3d 131, 528 N.E.2d 585. Carmichael dealt with a tenant who had been assaulted in his own apartment and brought suit against his landlord alleging that he was negligent in failing to provide adequate security in the common areas (hallways and stairs open to all residents) of the building. The court in that case determined that the landlord had complied with his duty to provide reasonable security:

[W]hile the landlord has some duty to provide secure common areas in an apartment complex, he is not an insurer of the premises against criminal activity. Thus, the duty on the landlord is only to take some reasonable precautions to provide reasonable security. Id. at 132.

In Kelly v. Bear Creek Invest. Co., 1991 Ohio App. LEXIS 631 (Feb. 14, 1991), Cuyahoga App. No. 58011, unreported, the Court of Appeals in Cuyahoga County determined that liability only arises where the landlord should have reasonably foreseen the criminal activity in question and failed to take reasonable precautions to prevent such activity, and this failure was the proximate cause of the tenant’s harm. Foreseeability is based upon whether a reasonably prudent person would have anticipated that an injury was likely to result from the performance or nonperformance of the act. Menifee v. Ohio Welding Products, Inc. (1984), 15 Ohio St. 3d 75, 77,
472 N.E.2d 707, 710; Eagle v. Mathews-Click-Bauman, Inc. (1995), 104 Ohio App. 3d 792, 797, 663 N.E.2d 399.

It doesn’t take a lot on your landlord’s part to be found to have provided reasonable security. The landlord probably does not have to provide security systems, nor high quality double key deadbolt locks. If there is no lock on a door or window, and you inform the landlord about it in writing, demanding that it be fixed, and the landlord fails to fix it and someone comes into the apartment through that unsecured opening, then you may have a better case.

This concept of the landlord not being responsible for crime in the area is true even if you feel that your landlord really should have told you about criminal activity in the area. You need to use your common sense. If all of the houses around you look run down and there are people sitting out on the front porch drinking during working hours, you may not want to park your new Mercedes in back of the house and be seen moving your jewelry collection in at noon.

So remember that your landlord only has to take “reasonable precautions” against criminal activity. Keep in mind that the more warning that you can show that you gave your landlord about crime in the area (especially about the crime which you suffered) and the need to secure the premises better before the break in, the more sympathetic a judge might be to your plight. The judge might raise the bar on what constitutes a reasonable precaution if you can show three or four letters from you complaining to the landlord about suspicious characters who left pry marks on the back door and suggesting that he take some reasonable security precaution that
would deter a break in like installing a flood light or an alarm. These letters serve the purpose of putting the landlord on notice of the problem. Remember that it is the foreseeability of the harm that gives rise to a duty upon the landlord’s part to protect you.

I would suggest getting renter’s insurance if you have valuables that you want to be secured. It’s pretty cheap compared to what you could lose and it’s the only way to completely protect yourself from monetary loss. For your personal protection, it’s also not difficult to obtain a rudimentary burglar alarm like a battery powered portable motion detector that you put in front of a door and activate when you leave or go to sleep. If your rental agreement allows dogs, get one that is ill tempered except to his owner and keep him on a tight leash.

Of course turn about is fair play. If your landlord is not responsible for crime in the area, neither are you. So if burglars break in and do thousand of dollars worth of damage, and you had no part or role in the break in, then you will not have to pay for any of the damage done.

B. Guns In Rental Housing

At the time of this writing, the Second Amendment still guarantees your right to bear arms, and Smith & Wesson still makes fine products in the .44 and .357 caliber range. Remember that the Constitution (as amended by the Second Amendment) protects you from government action. Your landlord is free to insert a clause in your rental agreement that says no guns and a Court will enforce it if you signed the document.

I know that a lot of you namby pambys disapprove of guns, but when you hear an intruder coming up the stairs to your bedroom at four in the morning and you are still waiting for the police to arrive, your political beliefs about guns will seem a little silly to you. Benjamin Franklin warned us all that those who would give away their freedoms in exchange for safety will end up with neither.

You may not care about holding onto your belongings, but at 4:00 in the morning when these things typically happen, you face the possibility of an intruder who might not care about your belongings either. And you will face that possibility alone. When Daniel Rolling entered the houses of college girls in Gainesville, Florida, in the early 1980s, he wasn’t after possessions, he was after lives. The police arrived in time to do some excellent chalk outlines (sometimes more than one even though only one body was involved). The police eventually caught the guy and put him in the electric chair. But that really didn’t help the people he killed. There is nothing evil
about a gun. It is a piece of metal, just like a hammer or a screwdriver.

You don’t even have to hit anything for the gun to be effective. It is a rare criminal indeed who keeps approaching you after hearing a gun shot rip through a bedroom door. I suggest a revolver rather than an automatic, because they are easier to use in a panic situation. Keep in mind that guns constitute deadly force, and the law says that you cannot use deadly force to protect property, only life. There is a presumption that if someone is in your house uninvited, then he is a danger to you. Remember that a presumption is something that the judge starts the case out with. Normally if you were asserting self-defense, that would be your
burden of proof, but in Ohio, if the lawbreaker is in your house, it is the prosecutor’s burden of proof to show that the lawbreaker was not a danger to you when you shot him.

But this presumption ends when the guy is walking back across your lawn to his car with your TV in both hands and you shoot him in the back. While it is certainly better to be tried by twelve jurors than carried by six pallbearers, think about what you are doing. Are you protecting life or property?

But I digress, so thus endeth the sermon.