Yarbrough v. Nathon Court of Appeals of Washington, Div. 1

Dual and Yarbrough were shot at a party.  They sued the landlords and the apartment manager, claiming they were entitled to a safe and secure environment, appropriate lighting, or security.

      Courts usually conclude that any duty a landlord has to protect tenants and their guest extends only to reasonably foreseeable harms. According to a Washington court in this case, a jury needs to determine if a particular criminal incident was foreseeable "only if there was a history of similar violence or the landlord knew of the dangerous propensities of the individual responsible".

      Plaintiff Dual's wife was a tenant at the Sunpointe Apartments in Washington. Dual had his own residence elsewhere, but said he lived primarily with his wife and contributed to her rent.

      One night, Dual's wife invited plaintiff Yarbrough to her apartment for a barbecue. Afterwards, the Duals and Yarbrough went to a party at the apartment complex's cabana, then returned to the apartment.

      A few hours later, Yarbrough went back to the party by himself. He testified that a large man who appeared to be providing security at the party asked him to leave because nobody recognized him. According to Yarbrough, as he was escorted out he passed a "little guy" dressed in a "corny" of "gangish" manner and said, "people prejudge you when you wear your clothes a certain way. Why don't you just try to be as nice of a young man as you possibly can." Yarbrough said the "little guy" wasn't angry and responded, "Okay ... I know what you mean."

      According to the apartment manager, though, she confronted Yarbrough after learning he was "harassing everyone at the party, talking rude to them." She said Yarbrough refused to leave until several men got up and made him leave. The manager's son and another person later gave police the same story.

      Yarbrough returned to the apartment and told Dual he had been asked to leave the party because no one remembered him. Dual insisted they go back and reintroduce Yarbrough to the manger. Dual said he remembered Yarbrough telling him some guy at the party had given him "a hard time or something."

      According to Dual, as they walked toward the cabana they saw a short man with baggy clothes, and Yarbrough said, "that's him." Dual said he thought he knew the man, so they started walking toward him. The man then pulled out a gun and began shooting, hitting Dual once and Yarbrough seven times. The gunman was never identified.

      Dual and Yarbrough survived. They sued the landlords and the apartment manager, claiming the landlords failed to provide a safe and secure environment, appropriate lighting, or security.

      The landlords asked for judgment without a trial, arguing they had no duty to protect Dual and Yarbrough from the unforeseeable actions of the unidentified gunman. Dual and Yarbrough argued that the landlords had a duty to intervene during the incident and that the shooting was foreseeable given the need for security the night of the party, the increasing gang-like activity in the area, and the perceived need to eject Yarbrough.

DISMISSED:

The court dismissed the lawsuit finding, there was no way either the landlords of the apartment manager could have foreseen, let alone prevent, the shooting.

APPEALED:

Dual and Yarbrough appealed.

DECISION: Affirmed.

The landlords and apartment manager were entitled to judgment. Even if the landlords did have a duty to provide security at the apartment complex, there was no way they could have foreseen that someone would get shot at the party.

Any duty the landlords had to protect Dual and Yarbrough extended only to reasonably foreseeable harms. A jury usually had to decide whether a particular harm was foreseeable, but in this case the assault was so improbable and unexpected that the court could find it was unforeseeable as a matter of law. There was no evidence the landlords knew or should have known either that the gunman was violent or that violent criminal acts would likely take place at the party. There was no history of violence on the premises or in the area.

Nothing that occurred at the party notified the landlords or the manager that violence was imminent. There was evidence however, that Yarbrough was belligerent and someone dressed similar to the gunman gave him a hard time. But evidence of antisocial, unruly, or hostile behavior wasn't enough to establish that the apartment manager should have anticipated anything more serious. Nor was there evidence the gunman threatened or assaulted anyone before shooting Yarbrough and Dual. 

Also see: Wilbert v. Metropolitan Park District, 950 P2d 522 (1998).
               Nivens v. 7-11 Hoagys Corner, 943 R2d 286 (1997).