What Should Landlords Do If a Tenant Is Accused of a Violent Crime?

I just ran across Nero v. Kansas State Univ., a very interesting 1993 Kansas Supreme Court case that I excerpt below. My question:

Say that you’re a landlord in Kansas, and you learn that a tenant of yours is accused of a violent crime (rape, assault and battery, and the like), of a sort that the tenant might conceivably commit against another tenant. The tenant hasn’t been convicted, mind you; he has just been accused, arrested, and the released on bail — the trial won’t be for several months. What should you, as a reasonable landlord, do?

[UPDATE: Paragraph added.] Assume that nothing in the lease prevents you from evicting the tenant; the question, among other things, is whether, given Nero, you’d feel that the duty of reasonable care requires you to do so. Also, if the answer is that you should evict him, where should the tenant live while he’s waiting for trial? (I take it that if a landlord has a duty to evict the tenant under such circumstances, other landlords’ duty of reasonable care would require them to check whether the tenant is currently under indictment, at least if such checks are cheap, and then refuse to rent to the tenant under those circumstances.)

Here’s the excerpt:

… Shana Nero was sexually assaulted in a coed residence hall by a fellow residence hall student, Ramon Davenport.

Thirty-five days earlier, Ramon Davenport resided in Moore Hall, a coed residence hall at KSU. On that date, April 28, 1990, Ramon Davenport was accused of raping J.N., a female resident of Moore Hall.

The following Monday, April 30, 1990, because of the accusation of rape against Davenport and after consultation between KSU housing and student life administrators and staff members, Davenport was assigned temporarily to Marlatt Hall, an all-male residence hall on the other side of the campus. The Assistant Director of Housing, Dr. Rosanne Priote, sent Davenport a letter dated April 30, 1990, confirming the temporary residence hall assignment and requesting he not enter Moore Hall or Derby Food Center until further notice in order to provide “some physical distance” between J.N. and Davenport. After meeting with Davenport, Dr. Susan M. Scott, Associate Dean of Student Life, in a letter dated May 2, 1990, confirmed Davenport’s voluntary agreement to be reassigned to Marlatt Hall for the remainder of the academic year. Dr. Scott also commented that because Davenport had agreed to the reassignment, KSU would not initiate immediately a university adjudication of the incident, but reserved the right to do so at a later date depending upon the outcome of the criminal charge. KSU does not have a set policy, practice, or procedure for removing from student housing a student accused of the rape or sexual assault of another student in a residence hall.

On May 2, 1990, Davenport was charged with rape in the Riley County District Court. He pleaded not guilty and was released on bond. The Manhattan Mercury and the Kansas State Collegian reported Davenport’s arrest, the charge against him, his plea of not guilty, and his release on bond.

At the close of the 1989-90 academic year, only one residence hall, Goodnow Hall, was available for students attending intersession and summer school. Goodnow Hall was a coed residence hall.

Davenport moved into Goodnow Hall for the 1990 spring intersession, beginning May 18 and ending June 3. Shana Nero, a University of Oklahoma student, came to KSU for the intersession and was assigned to Goodnow Hall. Nero had two brief conversations with Davenport prior to June 2, 1990. She knew he was a KSU student living in the same residence hall.

On June 2, 1990, Nero was doing laundry and watching television in the basement recreation room of Goodnow Hall. Davenport came into the lounge and sexually assaulted her while the two of them were watching television.

On June 4, 1990, KSU terminated Davenport’s summer school residence hall contract and instructed him to remove his belongings from Goodnow Hall by 8:00 p.m. that evening and not to enter any food service building or residence hall for any reason.

Nero brought a complaint against Davenport under KSU’s Policy Prohibiting Sexual Violence, which had been adopted in 1989. Pursuant to Nero’s complaint, Davenport was found to have violated the policy.

On August 29, 1990, Davenport pleaded guilty to the rape of J.N. In exchange for Davenport’s plea on the rape charge, the sexual assault charge involving Nero was dropped.

Nero subsequently filed a negligence suit against KSU, alleging the university had a duty to protect her against Davenport’s sexual advances and had failed to exercise reasonable care to do so…. The trial court granted KSU’s motion for summary judgment. Nero appealed to the Court of Appeals….

[The court concluded that the university had no special duty to Nero based on the university-student relationship, but then turned to the duty arising out of the university’s being Nero’s landlord. -EV]

“A proprietor of an inn, tavern, restaurant, or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same.”

“The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger.”

Other jurisdictions have applied the landowner-invitee analysis to determine whether a university has a duty to protect students from the criminal actions of third parties. In analyzing the issue, [most of the courts] relied upon Restatement (Second) of Torts § 344 (1964), which provides:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

“(a) discover that such acts are being done or are likely to be done, or

“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

The general rule is that a landowner has no duty to protect an invitee on the landowner’s premises from a third party’s criminal attack unless the attack is reasonably foreseeable. Prior similar acts committed upon invitees furnish actual or constructive notice to a landowner. A university owes student tenants the same duty to exercise due care for their protection as a private landowner owes its tenants.

We emphasize that a university is not an insurer of the safety of its students. Nonetheless, a university has a duty of reasonable care to protect a student against certain dangers, including criminal actions against a student by another student or a third party if the criminal act is reasonably foreseeable and within the university’s control.

Here, KSU knew of the alleged rape and had taken reasonable steps under the circumstances- i.e., it removed Davenport from the coed dormitory and moved him across campus and into an all-male dormitory. The university requested that Davenport stay away from the coed dorm and the food service building. School was ending, and Davenport was allowed to finish the semester.

When Davenport enrolled for intersession, KSU had the option of refusing to rent space to him. Instead, the university placed him in a coed dorm with the plaintiff, who is from a different state and presumably had no knowledge of the pending rape charge against Davenport. Nero knew Davenport was a fellow student living in the same dormitory, which may have given her a false sense of security. She ended up alone with Davenport in a public area. Had Davenport been a stranger and not living in the same dormitory, Nero might have been more likely to protect herself by immediately leaving the area.

We are of the opinion reasonable people would disagree whether Davenport’s attack on Nero was foreseeable. Thus, that issue must be resolved by the trier of facts, and the trial court erred in granting summary judgment.

Six, Justice, concurring and dissenting:

The chronology of the on-campus events linking KSU, Davenport, and Nero in the spring-summer of 1990 is significant. (1) On April 28, 1990, a student, J.N. reported to law enforcement officers that Davenport had raped her in his room in Moore Hall, a coed residence hall, where both resided. (2) On April 30, 1990, Davenport was assigned temporarily to Marlott Hall, an all-male residence hall, in order to put distance between Davenport and J.N. (3) On May 2, 1990, Davenport was charged with rape in the district court. He entered a plea of not guilty, and his release on bond was continued by the court. (4) On May 2, 1990, the Associate Dean of Student Life, after meeting with Davenport, reached an agreement that Davenport would be permanently assigned to Marlott Hall for the remainder of the academic year. The Dean explained that KSU would not instigate any university adjudication of the matter but that, pending disposition of the case in the criminal justice system, KSU might, at a future time, hold a judicial hearing. (5) J.N. did not invoke the university’s policy prohibiting sexual violence and filed no complaint with KSU which would have triggered KSU’s proceeding under its established sexual violence policy. (7 [sic]) On April 29, 1990, May 3, 1990, and May 8, 1990, Davenport’s arrest, the charges, his plea of not guilty, and his release on bond were reported in the local and campus newspapers (the Manhattan Mercury and the Kansas State Collegian). (8) The spring intersession commenced May 18, 1990, and ended June 3, 1990. Both Nero and Davenport enrolled. (9) Davenport moved into Goodnow Hall for the intersession. Goodnow Hall is coed and was the only student housing hall open for the intersession. Nero also lived in Goodnow Hall. (10) On June 2, 1990, Nero reported to the housing staff that Davenport, with whom she was acquainted, assaulted her while the two were watching TV in the Goodnow Hall lounge between 2:00 and 3:00 a.m. (11) On June 4, 1990, KSU determined that Davenport should be evicted from Goodnow Hall. (12) On August 29, 1990, Davenport changed his plea to guilty on the J.N. rape charge.

Foreseeability

On June 2, 1990, Davenport was at liberty on a continuing bond and presumed innocent of the rape of J.N. Every defendant is entitled to the innocence presumption. The law should not require universities to confine or control students who only have been accused of crimes or to warn other students that a criminal charge or accusation is pending against a student living in one of the residence halls. KSU poses a rhetorical question: “Surely plaintiff is not suggesting that a picture or description of a student labeled ‘rapist’ should have been posted or circulated in Goodnow Hall.” If Davenport was a person with dangerous propensities, the trial court undoubtedly would have imposed more specific conditions of release to assure public safety. K.S.A.1992 Supp. 22-2802(1) (“Any person charged with a crime shall … be ordered released … upon the execution of an appearance bond in an amount … sufficient to assure the appearance of such person before the magistrate when ordered and to assure the public safety.”[)] (Emphasis added.) KSU did not have actual knowledge that Davenport raped J.N. until Davenport pled guilty to the rape charge two months after the attack upon Nero. The fact Davenport had been accused and charged with rape was not a valid basis for KSU administrators to conclude he would attack Nero or any other female resident. Davenport was entitled to a presumption of innocence until the rape charge against him was adjudicated. KSU, also, is entitled to acknowledge the presumption. The fact that KSU now knows Davenport raped J.N. does not mean that KSU knew or should have known either that Davenport raped J.N. at the time he accosted Nero or that Davenport was a person with dangerous propensities….

Short of posting guards in the lounges, hallways, and bedrooms of the residence halls, KSU could hardly control the dynamics of the encounter that took place between Nero and Davenport. College students are legally regarded as adults. They expect a high level of privacy in their living arrangements, and there is little expectation of or tolerance for supervision of students living in modern-day university housing. Thus rests a continuing predicament for university administrators — a predicament compounded, in my view, by the majority opinion….

The majority, in the case at bar, imposes a duty on KSU because the sexual advances of Davenport on Nero may have been reasonably foreseeable and within the university’s control. The opinion concludes that when Davenport enrolled for intersession, KSU had the option of refusing to rent space to him. On what basis? He was at that time presumed to be innocent of the incident involving J.N. The record reflects no other antisocial behavior on his part. Goodnow Hall was the only residence hall open for intersession. A refusal of student housing might well have triggered a claim against KSU by Davenport based on the student housing denial. The majority presumes that Nero had no knowledge of the pending rape charge against Davenport. I find no basis in the record for such a presumption. University administrators are now confronted with a Hobson’s choice when dealing with students criminally charged who enter pleas of not guilty. Is the prudent administrator to assume such students are guilty until proven innocent?

There is no evidence in the record that suggests Davenport was not free to enter the TV lounge at Goodnow Hall regardless of whether he lived in that hall, another residence hall, or off campus. The fact that KSU had control of his dormitory assignment does not mean KSU could have prevented Davenport from attacking Nero in the Goodnow Hall lounge. KSU did not assign Davenport to a coed dormitory arbitrarily. Goodnow Hall was the only residence hall open during spring intersession. Nero does not allege Goodnow Hall lacked adequate security, such as guards or locked doors.

Davenport’s June 2, 1990, sexual advances on Nero were, as a matter of law, not reasonably foreseeable. The imposition of a criminal charge against a student does not suggest that, during the pendency of the action, the student will engage in any similar act. A reasonable expectation would be that a student charged with a crime would take particular care as to future conduct….

McFarland, Justice, concurring and dissenting:

I join in the concurring and dissenting opinion of Justice Six.

I am concerned that the majority is placing an unreasonable and legally unjustified burden on the defendant Kansas State University and all other Kansas colleges and universities which provide housing to their students.

J.N. accused Ramon Davenport of having raped her on April 28, 1990. The incident allegedly occurred in the middle of the night in Davenport’s room at the coed residence hall in which they each resided. There is nothing to indicate that J.N. was forced to enter Davenport’s room. Presumably, then, they were well acquainted at the time of the incident. Criminal charges were filed. The University responded by separating J.N. and Davenport — moving Davenport, with his agreement, to another residence hall housing only male students. When only one residence hall was available for the period of the intersession, Davenport was moved into the coed facility where the incident involving Nero occurred in the lounge area.

As the majority points out, the days of strict monitoring by a coed university of the private lives of its students is over. College students are to be treated as adults. When faced with a decision as to what to do when one student alleges sexual improprieties by a fellow resident, a university has a judgment call to make. Such a call has to be made on a case-by-case basis. The alleged impropriety herein was the subject of a criminal charge which, practically speaking, eliminates any meaningful due process proceeding by the University until after resolution of the criminal charge. It is unlikely the defense attorney would permit his or her client to tell the client’s version of the events in a due process proceeding prior to resolution of the criminal charge. Yet, the University has entered into a contract with the accused resident to provide housing and cannot act arbitrarily. Thus, the University is placed in a very difficult situation.

The majority opinion would have the University warn fellow students of Davenport’s potential risk to them. How is this to be done? Word of mouth? Publication in the student newspaper? Flyers? Requiring Davenport to wear sandwich boards stating, “I am a rapist, beware”? Branding his forehead with the word, “Rapist”? In this country, an accused person is presumed innocent. The majority opinion, in essence, requires the University to presume guilt, treat the accused as a pariah, and ostracize him from all female students….