Lucy Celes, Petitioner V. Lone Pine Apartments Et Al, Respondent's

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LUCY CELES,
Petitioner,
v.
LONE PINE APARTMENTS, LLC;
TARGA REAL ESTATE SERVICES, INC.;
METROPOLITAN DEVELOPMENT
COUNCIL,
Respondents.
No. 78788-8-I
DIVISION ONE
UNPUBLISHED OPINION
L EACH, J. — This court granted Lucy Celes’s request for discretionary review of
the trial court’s summary judgment order dismissing her negligence claim against Lone
Pine Apartments, LLC and Targa Real Estate Services, Inc., based on her injuries
caused by a fire intentionally set by her neighbor’s visitor. 	Celes contends that Lone
Pine and Targa breached their duty to exercise reasonable care to protect her from third
party criminal conduct. 	Because Celes has demonstrated a genuine issue of material
fact, we reverse and remand for further proceedings consistent with this opinion.
FACTS
Lucy Celes leased Unit 4, a second floor apartment in the Lone Pine Apartments,
owned by Lone Pine and managed by Targa. 	Lone Pine participated in the City of
Lakewood’s “Crime Free Multi-Housing Program.” 	To remain in that program, Lone
Pine could not rent to felons or people with drug convictions.

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When Lone Pine purchased the building, the Metropolitan Development Council
(MDC) leased three apartment units in it, including Unit 2. 	MDC subleased these three
units to low income and formerly homeless people. Unit 2 was across the stairwell from
Unit 4. MDC, not Targa, ran background checks on the potential tenants for apartments
they leased from Lone Pine.
Tyronda Bermudez subleased apartment unit number 2. Her boyfriend, Linwood
Smith, who was not a party to the sublease, lived there and sold drugs from the unit.
Both Bermudez and Smith had multiple prior felony convictions including drug-related
convictions.
Lone Pine and Targa had notice that Linwood Smith lived in Unit 2 and sold
drugs there. 	Celes and other tenants told the property manager, Michelle Riles, they
were suspicious of the drug activity coming from Unit 2. 	Ignacio Agbanlog, the
maintenance man, also suspected Unit 2’s drug activity and said he and the tenants
reported suspected drug activity to Riles.
In June 2014, Celes heard gunshots from Unit 2. 	She called Riles and 911.
Police came and took pictures. 	Police responded to Unit 2 for a report of domestic
violence on at least one other occasion when Smith threatened Bermudez with a knife.
On September 5, 2014, the residents of Unit 2 argued with a visitor, Roger
Faleafine. Neighbors heard Faleafine yell, “I’ll be back[,] I got you!”
The next morning, Faleafine returned and intentionally set fire to the common
stairwell between Unit 2 and Celes’s apartment. 	Celes woke up to the fire outside her
apartment door. 	She never heard a fire alarm sound. 	The fire then entered her

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apartment. 	To escape the fire, she jumped off her second story balcony onto the
ground. She suffered serious injuries from the fire and from the fall.
Celes sued Lone Pine and Targa for negligence, breach of duties owed to Celes
as a tenant/invitee, breach of implied warranty of safety and habitability, breach of the
Residential Landlord-Tenant Act, and breach of contract.
Lone Pine and Targa asked the trial court for a summary judgment dismissing
Celes’s claims. 	After the trial court denied this request, they sought but were denied
discretionary review. Lone Pine and Targa conducted additional discovery. They made
a second request for a summary judgment dismissal. 	They argued, in part, that the
undisputed facts did not support Celes’s negligence claim, because they did not show
that Lone Pine and Targa owed her a duty to protect her from arson committed by a
third party.
The 	trial 	court 	granted 	a 	partial 	summary 	judgment 	dismissing 	Celes’s
negligence claim stating:
The prior criminal acts of drug dealing are not sufficiently similar to arson.
The prior violent act of shots fired was not sufficiently similar to arson.
At Celes’ request, the trial court certified for immediate review under RAP
2.3(b)(4) the dismissal of her negligence claim for third party criminal conduct. 	We
granted Celes request for discretionary review.
STANDARD OF REVIEW
Celes challenges an order granting partial summary judgment dismissing her
claim that the respondents breached a duty to protect her from third party criminal

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conduct. 	We review an order granting summary judgment de novo.1 	Summary
judgment is appropriate when “there is no genuine issue as to any material fact” and
“the moving party is entitled to a judgment as a matter of law.”2 We view the evidence
in the light most favorable to the nonmoving party,3 here being Celes.
ANALYSIS
Celes claims the trial court should not have dismissed her negligence claim on
summary judgment because the record shows a material issue of fact about whether
Lone Pine and Targa owed her a duty to protect her against harmful criminal acts by
third parties. 	She first asserts the trial court did not use the correct test to determine
whether Lone Pine and Targa owed her a duty. 	She also asserts that because
respondents were aware of Unit 2’s drug activities, they owed her a duty to protect her
from third party criminal conduct.
To prevail on a negligence claim, a plaintiff must establish (1) the existence of a
duty, (2) breach of that duty, (3) resulting injury, and (4) proximate cause.4
Common law, and as a general rule, states, “a private person does not have a
duty to protect others from the criminal acts of third parties.”5 	An exception to this rule
1 Loeffelholz v. University of Washington, 175 Wn.2d 264, 271, 285 P.3d 854 (2012).
2 CR 56(c); Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886
(2008).
3 Loeffelholz, 175 Wn.2d at 271.
4 Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).
5 Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 199, 943 P.2d 286 (1997) (quoting
Hutchins, 116 Wn.2d at 223).

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applies when a special relationship exists between the defendant and the victim.6 One
of those special relationships exists between a landlord and a tenant.7
First, Celes asserts that the trial court should not have required her to present
evidence of sufficiently similar prior acts of violence in order to establish the duty to
protect her from criminal acts. We agree.
“Whether a duty exists is a question of law for the court.”8 In determining duty, if
the parties only show prior similar violent acts in order to establish duty (e.g. prior mall
shootings) a court should only focus on the prior similar incidents test.9 	But, if a party
offers evidence other than prior acts of similar violence, the trial court should not use the
prior similar acts test to determine the existence of a duty.10
The trial court limited its analysis to a similar incidents test based on a case
involving a mass shooting at a shopping mall where an employee, McKown, was shot.11
McKown sued the landowner alleging that it failed to exercise reasonable care to protect
him from foreseeable criminal harm.12 	In establishing whether the landowner had a
duty 	to 	protect 	McKown 	from 	third 	party 	criminal 	behavior, 	the 	court 	considered
“evidence of six other shootings and three other gun-related incidents” at the mall.13
Here, the court explained that when a landowner’s obligation to protect business
invitees from third party criminal conduct arises from past experience, the plaintiff must
6 Nivens, 133 Wn.2d at 200.
7 Griffin v. West RS, Inc., 97 Wn. App. 557, 984 P.2d 1070 (1999) (reversed on other
grounds).
8 N.L. v. Bethel School District, 186 Wn.2d 422, 430, 378 P.3d 162 (2016).
9 McKown v. Simon Property Group, Inc., 182 Wn.2d 752, 770, 344 P.3d 661 (2015).
10 McKown, 182 Wn.2d at 770.
11 McKown, 182 Wn.2d at 758.
12 McKown, 182 Wn.2d at 758.
13 McKown, 182 Wn.2d at 759-60.

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show history of prior similar incidents. 	Because Celes’s legal “argument was on
landowner’s past experience”, the trial court applied the prior similar incident test and
required Celes to show that “prior acts of violence are sufficiently similar in nature and
location, sufficiently close in time, and sufficiently numerous to have put the business on
notice.”
The court in McKown stated that it focused on prior similar acts because that was
the only theory meaningfully addressed by the parties.14 Here, Celes did not attempt to
establish a duty by only showing acts of similar violence. 	Instead, as acknowledged by
the trial court, she presented evidence of the landlords past experience, which included
criminal activity on the premises.
Celes’s evidence showed that Unit 2 had visitors coming and going through the
stairwell, where the fire that caused her injuries occurred, “at all hours of the day and
night, often staying for just a short time.” 	Multiple tenants and the maintenance man
had informed management of Unit 2’s drug activity. 	Lone Pine participated in the “City
of Lakewood’s Crime Free Multi Housing program,” which required Lone Pine to refrain
from renting to felons or people with drug related convictions. It also required Lone Pine
to conduct background checks on tenants, which it failed to do, because MDC agreed to
do the background checks. The apartment complex also had signs posted stating, “We
Have Joined The: LAKEWOOD CRIME FREE MULTI-HOUSING PROGRAM Keeping
Illegal Activity Out Of Rental Property.”
Unit 2’s drug activity and associated frequent visitors created an unsafe condition
in the common areas like the stairwell. 	And, Lone Pine did not comply with the
14 McKown, 182 Wn.2d at 770.

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requirements of a city program for which it advertised its participation. 	So, Celes
showed more than mere “acts of prior similar violence.” Because Celes did not attempt
to establish the duty by only showing acts of similar violence, the trial court should not
have used the prior similar incidents test.
Celes next claims that Lone Pine and Targa owed her a duty because the
criminal act causing her injuries fell within the general field of danger foreseeable
because of their knowledge of Unit 2’s activities and their role as the landlords.
“The residential landlord owes its tenant a duty to protect the tenant from
foreseeable criminal conduct of third persons on the premises. 	The landlord has the
affirmative duty to take reasonable steps to protect the tenant from such conduct to
satisfy its duty.”15 	Landlords are “entrusted with the responsibility with managing the
common areas.”16
“Foreseeability is not measured against the specific sequence of events leading
to harm or against the exact harm suffered.”17 	“[T]he question is whether the actual
harm fell within a general field of danger which should have been anticipated.”18
We recently examined the issue of foreseeability in determining whether a duty
exists in Meyers v. Ferndale School District.19 We noted how the trial court “incorrectly
focused its foreseeability analysis on the specific injury-causing event herein” and if one
15 Griffin, 97 Wn. App. at 570.
16 Faulkner v. Racquetwood Vill. Condo. Ass'n, 106 Wn. App 483, 487, 23 P.3d 1135
(2001).
17 Meyers v. Ferndale Sch. Dist., No. 79655-1-I, slip op. at 3, 457 P.3d 483 (Wash. Ct.
App. Feb. 10, 2020), http://www.courts.wa.gov/opinions/pdf/796551.pdf.
18 Hendrickson v. Moses Lake Sch. Dist., 192 Wn.2d 269, 276, 428 P.3d 1197 (2018)
(quoting McLeod v. Grant County Sch. Dist. No. 128, 42 Wn.2d 316, 321, 255 P.2d 360
(1953).
19 Meyers, slip op. No. 79655-1-I.

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focused “on the more general field of danger,” “there [was] a question of fact for the jury
regarding whether the harm . . . was foreseeable.”20
Here too, the harm fell into a general field of danger that respondents should
have anticipated. Respondents had the duty to manage the common areas such as the
stairwell.21 	The tenants of Lone Pine provided their landlord with notice of criminal
activity associated with Unit 2 when they informed Riles about the drug sale suspicions
and gunshots. 	Lone Pine also received notice when their employee Agbanlog reported
Unit 2’s suspected drug activity. 	So, Celes presented sufficient evidence to establish
that criminal activity occurred in the common area outside her apartment that exposed
tenants to danger. Lone Pine and Targa had a duty to protect tenants from this danger.
Lone Pine and Targa contend that the fire Faleafine set was not foreseeable and
as a result they had no duty to protect Celes from it. Their argument conflates whether
they had a duty and the scope of that duty. 	The record clearly establishes their duty to
protect tenants from harm caused by ongoing criminal activity. 	They knew about the
unsafe conditions that occurred in the common areas of their property. It was their duty
to “deal with issues that arise from the landlord’s control of the common areas of the
premises.”22
Their foreseeability argument raises the question of whether the fire in the
stairwell 	outside 	Celes’s 	apartment 	fell 	within 	the 	scope 	of 	their 	duty. 	“(W)hen
foreseeability is a question of whether the harm is within the scope of the duty owed, it
20 Meyers, slip op. at 4.
21 Griffin, 97 Wn. App. at 567.
22 Griffin, 97 Wn. App. at 570.

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is a question of fact for the jury.”23 	Celes demonstrated a genuine issue of fact about
foreseeability by submitting evidence showing the “well-known nexus between drugs or
drug trafficking and violence” and that the arson was a consequence of the drug related
criminal activity that occurred at Lone Pine.
Lone Pine and Targa had a duty to protect Celes from foreseeable third party
criminal conduct. The trial court should not have decided as a matter of law whether the
specific harm that injured Celes fell within the scope of that duty. 	Celes presented
sufficient evidence to make that a question for a jury to decide.
CONCLUSION
We reverse and remand for further proceedings. Celes used evidence other than
similar violent acts to establish a duty, so the similar prior incidents test used in McKown
does not apply here. 	Celes showed that respondents owed her a duty as a tenant to
protect her from foreseeable third party criminal conduct.
WE CONCUR:
23 McKown, 182 Wn.2d at 764.