Hail v. Regency Terrace Owners Association12/22/1999
ecial-circumstances exception to the general rule.
HOUSTON, Justice (concurring in part and dissenting in part).
I concur in the main opinion insofar as it relates to the summary judgment for Bagby Elevator Company. However, I dissent from the reversal of the summary judgments for Regency Terrace Owners Association and Metcalf Realty Company, Inc.
Mrs. Hail sued the Association and Metcalf under a premises-liability theory, arguing that they were liable for her husband's death, which occurred as a result of arson on their property. These defendants sought a summary judgment, contending that because the fire was the criminal act of a third party they cannot be held liable under a theory of premises liability. I agree with their argument. "It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person." Moye v. A.G. Gaston Motels, Inc., 499 So. 2d 1368, 1370 (Ala. 1986). See Ex parte McRae's of Alabama Inc., 703 So. 2d 351 (Ala. 1997); C.A. v. Wal-Mart, Inc., 683 So. 2d 413 (Ala. 1996); Baptist Memorial Hosp. v. Gosa, 686 So. 2d 1147 (Ala. 1996); Broadus v. Chevron USA, Inc., 677 So. 2d 199 (Ala. 1996); Habich v. Crown Cent. Petroleum Corp., 642 So. 2d 699 (Ala. 1994); Dailey v. Housing Auth. for the Birmingham Dist., 639 So. 2d 1343 (Ala. 1994); E.H. v. Overlook Mountain Lodge, 638 So. 2d 781 (Ala. 1994); W.L.O. v. Smith, 585 So. 2d 22 (Ala. 1991); Webster v. Church's Fried Chicken, Inc., 575 So. 2d 1108 (Ala. 1991); Douglas v. McDonald's Corp., 565 So. 2d 137 (Ala. 1990); Morton v. Prescott, 564 So. 2d 913 (Ala. 1990); Bailey v. Bruno's, Inc., 561 So. 2d 509 (Ala. 1990); Williams v. First Alabama Bank, 545 So. 2d 26 (Ala. 1989); Nail v. Jefferson County Truck Growers Ass'n, Inc., 542 So. 2d 1208 (Ala. 1988); O.H. v. Ballard Realty Co., 516 So. 2d 519 (Ala. 1987); Childers v. Winn-Dixie Stores, Inc., 514 So. 2d 879 (Ala. 1987); Frazier v. Laborers Int'l Union of N. America, Local No. 559, 502 So. 2d 743 (Ala. 1987); Petrella v. Peddler's Motor Inn Best Western, 488 So. 2d 497 (Ala. 1986); Simpson v. Wolf Ridge Corp., 486 So. 2d 418 (Ala. 1986); Law v. Omelette Shop, Inc., 481 So. 2d 370 (Ala. 1985); Ortell v. Spencer Cos., 477 So. 2d 299 (Ala. 1985); Henley v. Pizitz Realty Co., 456 So. 2d 272 (Ala. 1984); Stripling v. Armbrester, 451 So. 2d 789 (Ala. 1984); Latham v. Aronov Realty Co., 435 So. 2d 209 (Ala. 1983); Berdeaux v. City National Bank of Birmingham, 424 So. 2d 594 (Ala. 1982); Gaskin v. Republic Steel Corp., 420 So. 2d 37 (Ala. 1982); and Parham v. Taylor, 402 So. 2d 884 (Ala. 1981).
"`Special circumstances' exist only when the defendant `knew or had reason to know of a probability of conduct by third persons that would endanger the plaintiff.'" Saccuzzo v. Krystal Co., 646 So. 2d 595, 596 (Ala. 1994), quoting Nail, 542 So. 2d at 1211. Knowledge on the part of the defendant that there is a probability of harm to the plaintiff caused by a third party will create a duty to take reasonable precautions. Henley, 456 So. 2d at 277, cited in Ortell, 477 So. 2d at 299. However, while prior criminal incidents occurring on a premises can indicate such knowledge on the part of the premises owner, they are not conclusive on the question of knowledge. Saccuzzo, 646 So. 2d at 596, citing Williams, 545 So. 2d at 27. This Court has asked the following question in these cases: Does the evidence suggest that the defendant knew, or had reason to know, that actions of a third party on the defendant's premises posed an "'imminent probability of harm'" to the plaintiff? Henley, 456 So. 2d at 277, quoting Stipling, 451 So. 2d 789. This question is really one of foreseeability.
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