Freyberg v. Dco 2400 14TH St., LLC

304 A.3d 971

Joel FREYBERG, Appellant, v. DCO 2400 14TH STREET, LLC, et al., Appellees.

No. 21-CV-0546

District of Columbia Court of Appeals.

Argued March 30, 2023

Decided November 22, 2023

William H. Shawn, Washington, DC, with whom Steven M. Oster was on the brief, for appellant.

Robert P. Fletcher, Washington, DC, with whom Darcy C. Osta, Washington, DC, was on the brief, for appellees.

Before Deahl and Howard, Associate Judges, and Glickman, Senior Judge.

Deahl, Associate Judge:

Joel Freyberg alleged that property was stolen from his apartment when his landlords gave contractors access to it to make needed repairs. The contractors were there to remediate damage resulting from a gunfight within the apartment building's hallways that led to a stray bullet bursting a pipe, which flooded Freyberg's apartment and dozens of others. Freyberg alleged that his landlords unlocked his door, left it ajar, and failed to take any reasonable measures to either supervise the contractors working in his unit or to prevent trespassers from entering it. Freyberg sued the landlords for negligence. The landlords filed a motion to dismiss, which the court granted on the ground that Freyberg had not shown the "heightened foreseeability" generally required when one person sues another for damages resulting from the defendant's failure to protect against a third party's intervening criminal act.

Freyberg now appeals and contends that he adequately stated a claim for negligence under two distinct theories. On the first theory, he argues that he was not required to demonstrate heightened foreseeability because the landlords did not merely fail to protect against theft but affirmatively removed protections against it that he had put in place when they unlocked his front door and left it ajar. In short, he argues that he does not need to show heightened foreseeability where his landlords created the opportunity for crime in the first place by leaving his door open without putting any substitute security measures in place (such as supervising who was coming and going from the apartment). On the second theory, Freyberg argues that the landlords failed to implement reasonable security measures to prevent the gunfight from happening in the first place, and because that gunfight was a but-for cause of the theft, his landlords should be held liable.

We conclude that the trial court erred in dismissing Freyberg's complaint because he adequately stated a claim for negligence under the first theory, though not the second. People close and lock their doors to prevent crimes like the theft of their belongings. If, as Freyberg alleges, his landlords unlocked his front door, left it ajar, and did not monitor the people going in and out of the unit, he did not need to plead the heightened foreseeability that applies in failure-to-protect cases; his landlords did not merely fail to act, but affirmatively removed protections that Freyberg himself had put in place. In that circumstance, the heightened foreseeability requirement simply does not apply. We therefore reverse the dismissal of Freyberg's negligence claim and remand for further proceedings.

I.

Freyberg alleged the following in his complaint. A gunfight broke out "just down the hallway" from Freyberg's unit in a Columbia Heights apartment building. A stray bullet hit a pipe in the water sprinkler system, flooding fifty-six units in the building, including Freyberg's. The apartment building's management sent an email to the residents explaining what had happened and letting them know that there would be contractors coming in to repair the damage to their apartments, though Freyberg was out of town at the time. When Freyberg returned the next day, he "discover[ed] his apartment front door unlocked and ajar," but there was "no sign of [the apartment] building[’s] management security or other personnel present" and "unidentified individuals were entering and exiting his and other apartments at will." Several items of property were missing from his apartment, including "watches, cufflinks, other valuable jewelry, clothing, and shoes." Freyberg found a pair of his shoes in a nearby vacant apartment that he was told was full of trash waiting to be disposed of, but he did not recover any of the other items.

Freyberg sued the property's owner, DCO 2400 14th Street, LLC, and the property's operator, UDR, Inc. (collectively, the landlords), in D.C. Superior Court. ¹ Freyberg claimed that their negligence led to his property being stolen, and he asserted that the value of his missing property was "in excess of $75,000," and estimated it to be $500,000. He also brought claims for breach of contract, breach of the implied warranty of habitability, and housing code violations. Only his negligence and breach of contract claims are at issue in this appeal.

Freyberg advanced two distinct theories of negligence. First, he argued that it was "foreseeable" to the landlords that his "personal property would be stolen due to [their] unlocking, opening, and leaving ajar the door to [his] apartment without providing any security personnel." Second, he alleged that the landlords’ failure to secure the building led to the gunfight, which in turn led to his property being stolen. Relevant to this second theory, he alleged that the landlords "failed to keep the building[’]s exterior doors and locks in good repair," "failed to secure the building to prevent entry of unauthorized individuals," "failed to eject trespassers and criminals from the building," "failed to do minimal background checks into prospective tenants," and "allowed gang, drug, and other illegal activities in the building's common areas." In Freyberg's view, that meant the landlords "knew or should have known the building was unsafe" and yet "failed to take reasonable steps to prevent criminal activity at the building."

Freyberg's breach of contract claim focused on a separate complaint: he alleged that DCO failed to enforce various provisions in its residents’ leases. More specifically, the residents’ leases "prohibit[ed] conduct including, inter alia , criminal activity, possession of a weapon, possession of a controlled substance, disturbing or threatening the health and safety of building residents, possessing drug paraphernalia, etc. " And the leases contained both a "Crime/Drug Free Housing Addendum" and a "Smoke Free Lease Addendum," which taken together authorized DCO to terminate the leases of any residents who smoked or engaged in criminal activity in the building. According to Freyberg, there was "incessant marijuana smoking" and other "known, repeated violations" of these provisions on his floor, yet DCO never terminated the leases of residents who committed those violations, in violation of their contractual duties to him.

The landlords moved to dismiss Freyberg's entire suit for failure to state a claim under Rule 12(b)(6). See Sup. Ct. Civ. R. 12(b)(6). The trial court granted the motion and dismissed each of Freyberg's claims. Freyberg now appeals.

II.

Freyberg makes four arguments on appeal: (1) he sufficiently pled a claim of negligence when he alleged that his landlords affirmatively removed protections that he had placed on his property (by closing and locking his front door), which led to the theft of his property; (2) he sufficiently pled a claim of negligence against the landlords for failing to secure the apartment building, leading to the theft of his property; (3) he sufficiently pled a breach of contract claim against DCO for its failure to eject tenants that violated various lease provisions; and (4) the trial court abused its discretion in dismissing Freyberg's complaint without giving him leave to amend and in denying his motion to file a sur-reply. We consider each argument in turn.

A.

Freyberg first argues that he adequately pled a claim of negligence against the landlords based on the theory that they created an opportunity for crime by unlocking his door and leaving the apartment unsupervised, allowing third parties to enter it and steal his property. We agree.

We review de novo the dismissal of a complaint under Rule 12(b)(6). Chamberlain v. Am. Honda Finance Corp. , 931 A.2d 1018, 1022 (D.C. 2007). We treat the facts alleged in the complaint as true and construe them in the light most favorable to the nonmoving party (here, Freyberg). Id. at 1023. The complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Id. (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). And the complaint must "allege the elements of a legally viable claim." Id. "Bare allegations of wrongdoing that ‘are no more than conclusions are not entitled to the assumption of truth,’ and are insufficient to sustain a complaint." Logan v. LaSalle Bank Nat. Ass'n , 80 A.3d 1014, 1019 (D.C. 2013) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ).

To establish negligence, a plaintiff must show that "(1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, and (3) the breach of duty proximately caused damage to the plaintiff." Murphy v. Schwankhaus , 924 A.2d 988, 991 (D.C. 2007) (citation omitted). An intervening act of a third person may break the chain of causation, relieving the initial actor of liability for want of proximate cause, in certain circumstances. Lacy v. District of Columbia , 424 A.2d 317, 323 (D.C. 1980) ; see also Spar v. Obwoya , 369 A.2d 173, 178 (D.C. 1977).

Where the intervening act is criminal, we have often said that the defendant will be relieved of liability unless the plaintiff can make a "heightened showing of foreseeability," i.e., that "the criminal act [wa]s so foreseeable that a duty arises to guard against it." ² Bd. of Trustees of Univ. of D.C. v. DiSalvo , 974 A.2d 868, 870 (D.C. 2009) (citations omitted). "The crux of heightened...