Does a landlord have an obligation to act once it learns a resident is being harassed by another tenant on Facebook or similar social media site? According to a recent Ohio state appellate decision, not only is liability possible, but landlords who ignore warning signs may be doing so at their own peril.
DIGITAL HARASSMENT ENDS IN PHYSICAL VIOLENCE
The case of Lindsay P. v. Towne Properties Asset Management, 2013 Ohio App. LEXIS 4318 (Ohio Ct. App. Sept. 23, 2013), is a tragic one.
The victim, Lindsay P., a single mother, lived in an apartment complex operated by defendant Towne Properties Asset Management Co. Lindsay lived above an apartment leased to Rhonda Schmidt and her live-in boyfriend, Courtney Haynes. Lindsay began complaining about noise coming from the Schmidt/Haynes apartment (consisting of loud music and yelling) to Towne Properties and the police. Upon learning of the complaints, Haynes retaliated by screaming at Lindsay and pounding on her door—which Lindsay reported to Towne Properties, the opinion said.
Subsequently, Haynes contacted Lindsay late one night via Facebook using an alias. Lindsay immediately suspected Haynes was the person messaging her, and tried in vain to have him state his real name. Lindsay testified the messages sent a “shock of terror” through her because it implied Haynes had taken action to both learn her identity and how to access her on Facebook.
The Facebook messages were highly sexual in nature—including multiple, explicit propositions by Haynes. At the end of the first message, Haynes included a link to a pornographic website depicting a couple who looked similar to Lindsay and Haynes having sexual relations, and offered to perform the acts upon Lindsay. In response, Lindsay reported Haynes’ online “stalking” to both Towne Properties and the police, providing copies of the messages themselves.
Immediately after receiving the Facebook messages, Lindsay asked Towne Properties to let her out of her lease. But Towne Properties refused. Instead, Towne Properties said moving Lindsay to a different apartment a few streets away was the “only thing they could do.” Towne Properties then informed Haynes that Lindsay was moving and not to have any contact with her.
Around the same time, Towne Properties discovered Haynes was not on the lease and informed him he would have to vacate. But rather than ban Haynes from the property (as it had done with others in the past), the landlord actually took steps to add him to the lease at Schmidt’s request. Due to Haynes’ negative credit history, he was ultimately not added to the lease.
Sadly, Haynes broke into Lindsay’s new first-floor apartment a few days later and raped her in the presence of her young daughter, the opinion said. Haynes was convicted of rape and aggravated burglary, and was sentenced to nine years.
LANDLORD SUED FOR FAILURE TO PROTECT TENANT
Based on the foregoing, Lindsay sued Towne Properties for negligence, negligent infliction of emotional distress and breach of contract. The trial court granted judgment without a trial for Towne Properties, claiming Lindsay could not identify any facts that would support a decision in her favor.
On appeal to Ohio’s 12th District Court of Appeals, Lindsay argued the trial court improperly granted judgment without a trial because there were disputed factual issues regarding whether Towne Properties should have foreseen Haynes’ criminal act, and whether it took reasonable steps to protect Lindsay.
In a unanimous decision, Judge Robin N. Piper reversed the trial court with respect to the negligence claim. (Lindsay chose not to contest the dismissal of her breach of contract and negligent infliction claims.)
As an initial matter, the appellate court recognized “landlords do not have a duty to protect their tenants from the criminal acts of third parties,” and that criminal behavior “is not predictable to any degree of certainty.” However, an exception exists when a “special relationship” forms between a landlord and tenant—such as where a landlord “knew or should have known about the assailant’s dangerous propensities or knew the attack was imminent.”
Importantly, the court noted how Towne Properties considered the Facebook messages “serious enough to instruct Lindsay to inform the police of the exchange, which Lindsay did.” And that even though the police did not pursue charges or investigate, it did not change the fact that Towne Properties “was well aware of the history between Haynes and Lindsay and concerned enough about the circumstances to suggest moving Lindsay away from Haynes on the day after the communication occurred.”
“While Haynes’ Facebook communication alone did not rise to the level of criminal activity, it nonetheless made Towne Properties management even more aware of why Lindsay feared Haynes, and aware of Haynes’ escalating behavior toward Lindsay,” the court observed.
The court also critiqued Towne Properties’ decisions in “not letting Lindsay break her lease, expressly informing Haynes that Lindsay was moving, and then placing Lindsay in a first-floor apartment even though she expressed concern for her safety, [and] [beginning] the process of adding Haynes to Schmidt’s lease”—all of which “further compounded” the circumstances.
As a result, the appellate court held a reasonable person might find Towne Properties did not satisfy its obligation to Lindsay, and sent the case back down for a jury trial.
IMPLICATIONS: CAVEAT LANDLORD?
Despite its heartbreaking story, Lindsay may serve as a guide (or warning) for landlords with tenants suffering from similar forms of online harassment.
Although hindsight is 20/20, Lindsay is certainly not a case where the tenant’s concerns went unaddressed. On the contrary, the defendant-landlord took multiple remedial measures intended to protect Lindsay, including directing her to the police. Yet none of it proved sufficient to avoid a jury trial.
So what can landlords do to avoid finding themselves in a similar situation?
First, landlords should carefully document all instances of tenant abuse or harassment. This includes all forms of both physical and online misconduct.
Indeed, an important takeaway from Lindsay is the significance ascribed to the offending Facebook messages; clearly the court recognized the “escalation” inherent in physical harassment transitioning to digital torment.
In an article for Forbes discussing Lindsay, noted commentator and professor Eric Goldman observed how the “combination of [Lindsay's] fear for her physical safety, plus the invasion of [her] online privacy while she was inside her apartment, create[d] an unacceptable environment that landlords shouldn’t ignore.”
Second, if a landlord has a policy to expel undesirables from the property (or has done so in the past), it should be sure to uniformly apply that practice when complaints escalate or the possibility for physical harm is present. It certainly appears attempting to add Haynes to the lease was a misstep. Indeed, banned individuals may be considered trespassers if found at the property, which, in turn, may limit the landlord’s liability for criminal conduct. The fact that Towne Properties issued notifications to others who caused trouble at the complex—whereas Haynes never received a similar admonition despite his known dangerous propensities, and instead, was given the opportunity to be added to Schmidt’s lease—was of particular significance.
Third, landlords should consider whether extenuating circumstances exist in which a tenant should be let out of his or her lease. As Goldman observed, while landlords should not necessarily “tear up leases when tenants say they feel unsafe in their apartments, especially where there hadn’t been any overt threats,” considering alternative arrangements may be worthwhile.
Lastly, the relocation of harassed tenants should be kept confidential.
As for tenants suffering from online abuse, Facebook has a strict no-harassment policy and instructions on how to report abuse on its site.
Hopefully with the guidance gleaned from Lindsay, tenants can feel safer and landlords more secure in knowing their potential for liability is mitigated.
Jeffrey N. Rosenthal is an attorney with Blank Rome. He concentrates his practice in the areas of complex corporate and commercial litigation, and specializes in cases involving technology. He regularly publishes articles on the nontraditional uses of social media and its implications for modern practice. He can be reached at email@example.com.