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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

GILBERTO CANO JUAREZ,                          No. 72856-3-I


                        Appellant,             DIVISION ONE


               v.



BRAVADO APARTMENTS, LLC, a
foreign corporation doing business in
Washington as Buena Casa                       UNPUBLISHED OPINION
Apartments; JAGENDER SINGH, and
JANE DOE SINGH, a Marital
Community; GURMEET SINGH and
JANE DOE SINGH 2, a Marital
Community; and DOES 1-10,

                        Respondents.           FILED: November 9, 2015

      Schindler, J. — Gilberto Cano Juarez appeals summary judgment dismissal of

his lawsuit against Bravado Apartments LLC and its owners (collectively Bravado

Apartments). Because there is no dispute that Juarez was not a tenant, a subtenant, or

a business invitee of Bravado Apartments, we affirm.

       Bravado Apartments owns the Buena Casa apartment complex located on a full
city block in Kent. There are 14 apartment buildings in the complex and an iron fence
that surrounds the complex. There are two access gates.

       In January 2012, Juarez lived in unit M-110 with a woman and her two children.
On January 20, Juarez ate dinner at a nearby restaurant. As Juarez approached one of
No. 72856-3-1/2



the entrance gates to the Buena Casa, he noticed two men were following him. After

Juarez walked through a poorly lit area of the apartment complex, the two men knocked

him down, threatened him with a gun, and demanded money. Juarez reported the

assault to the police. He did not report the assault to the Bravado Apartments.

       On January 21, 2014, Juarez filed a "Complaint for Damages" against Bravado

Apartments LLC and its owners. Juarez alleged Bravado Apartments owed him a duty

as a tenant and failed to "maintain the premises in a safe manner." Juarez alleged

Bravado Apartments knew of numerous incidents of criminal activity and the lack of a

security gate created an unreasonable risk of injury to tenants. Juarez also alleged

Bravado Apartments owed him a duty as a business invitee and that it failed to "inspect,

maintain, repair, and safeguard its property for the protection of the business invitees."

       Bravado Apartments filed an answer and asserted a number of affirmative

defenses including failure to state a claim upon which relief can be granted.

       Bravado Apartments filed a motion for summary judgment arguing there was no

evidence to establish it owed a duty to protect Juarez from the criminal actions of a third

party. Bravado Apartments asserted Juarez was not a tenant, a subtenant, or a

business invitee of Bravado Apartments. Bravado Apartments submitted the lease

agreement with the tenant of unit M-110 and portions of the deposition of Juarez.

       The lease agreement lists "Maria I. Rodriguez-Hernandez" as the lessee and

states, in pertinent part:

       The LESSEE shall not assign this lease, sublet the premises, give
       accommodation to any roomers or lodgers, or permit the use of the
       premises for any purpose other than as a private dwelling solely for
       LESSEE(S). This Apartment is being rented for the occupancy by the
       following named persons only.
No. 72856-3-1/3


The lease agreement names only Rodriguez-Hernandez as an occupant of unit M-110.

In his deposition, Juarez concedes he did not sign a lease with Bravado Apartments

and did not pay rent to Bravado Apartments.

       In opposition, Juarez argued his "status as tenant, sub-tenant, or invitee" is in

dispute. Juarez claimed he was a business invitee because he contributed to the rent

paid to Bravado Apartments. Juarez submitted the portion of his deposition where he

states that he contributed money to pay the rent, documents where he used the address

at Buena Casa, apartment listings that describe Buena Casa as a "gated community,"

and police reports regarding criminal activity at Buena Casa.

      The trial court granted the summary judgment motion to dismiss the lawsuit. In

the "Order Granting Defendants' Motion for Summary Judgment," the court states that

Bravado Apartments and Juarez "were not in a landlord-tenant relationship on January

20, 2012. Nor was [Juarez] a business invitee." Because a special relationship did not

exist, the court ruled Bravado Apartments "did not owe a duty to protect [Juarez] from

the criminal acts of third parties over whom they had no control." Juarez appeals.

      We review summary judgment de novo and engage in the same inquiry as the

trial court. Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993). Summary

judgment is proper if the pleadings, depositions, answers, and admissions, together with

the declarations, show that there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. CR 56(c).

      The moving party has the burden of showing the absence of a genuine issue of

material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

Once the moving party shows an absence of a genuine issue of material fact, the
No. 72856-3-1/4



burden shifts to the nonmoving party " 'to establish the existence of an element

essential to that party's case, and on which that party will bear the burden of proof at

trial.'" Young. 112 Wn.2d at 225 (quoting Celotex Corp. v. Catrett. 477 U.S. 317, 322,

106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)).

       To prevail on a negligence claim, a plaintiff must establish (1) the existence of a

duty, (2) breach of that duty, (3) proximate cause, and (4) resulting injury. Hutchins v.

1001 Fourth Ave. Assocs.. 116 Wn.2d 217, 220, 802 P.2d 1360(1991). Whether a duty

exists is a question of law that we review de novo. Degel v. Majestic Mobile Manor.

Inc.. 129 Wn.2d 43, 48, 914 P.2d 728 (1996).

      At common law and as a general rule," 'a private person does not have a duty to

protect others from the criminal acts of third parties.'" Nivens v. 7-11 Hoagv's Corner,

133 Wn.2d 192, 199, 943 P.2d 286 (1997) (quoting Hutchins. 116 Wn.2d at 223).

Washington recognizes an exception to this rule where a special relationship exists

between the defendant and the victim. Nivens. 133 Wn.2d at 200.

      Juarez argues that because he lived at Buena Casa, Bravado Apartments owes

a duty to protect him from criminal conduct of a third party. Juarez also contends that

the special relationship between a landlord and a tenant extends to him as a subtenant.

      Washington recognizes a special relationship exists between a landlord and a

tenant. Degel. 129 Wn.2d at 49. In addition, a landlord may be liable to the " 'tenant

and others lawfully upon the leased property with the consent of the tenant or a

subtenant.'" Griffin v. W. RS. Inc.. 97 Wn. App. 557, 569, 984 P.2d 1070 (1999)

(quoting Restatement (Second) of Property: Landlord and Tenant § 17.3 (1977)),

rev'd on other grounds by 143 Wn.2d 81. 13 P.3d 558 (2001).
No. 72856-3-1/5


      Juarez was not a tenant of Bravado Apartments and there is no evidence he

lived in the apartment with the consent of the tenant. Juarez did not sign a lease

agreement with Bravado Apartments and did not pay rent to Bravado Apartments.

There is no evidence that Bravado Apartments knew Juarez lived in unit M-110 or

permitted him to do so. Bravado Apartments leased unit M-110 to Maria I. Rodriguez-

Hernandez. Rodriguez-Hernandez did not list any other occupants as living in the unit.

The lease agreement specifically prohibited assignment of the lease, subletting the

premises, and giving accommodation to "roomers or lodgers." Because the undisputed

record shows Juarez was not a tenant or subtenant and did not live in the apartment

complex with the consent of the tenant, we conclude there is no special relationship

between Bravado Apartments and Juarez.

      Juarez also argues Bravado Apartments owed him a duty as a business invitee.

Juarez argues he is a business invitee because he paid rent to live in unit M-110.

Washington recognizes that the relationship between a business and a business invitee

constitutes a special relationship "because the invitee enters the business premises for

the economic benefit of the business." Nivens. 133 Wn.2d at 202. The landowner's

duty arises as the "quid pro quo for the expected benefit." McKinnon v. Wash. Fed.

Sav. & Loan Ass'n. 68 Wn.2d 644, 649, 414 P.2d 773 (1966).

       In determining status as a business invitee,

      the ultimate goal is to differentiate (1) an entry made for a business or
      economic purpose that benefits both entrant and occupier, from (2) an
      entry made for a purpose that either (a) benefits only the entrant or (b) is
      primarily familial or social.

Thompson v. Katzer. 86 Wn. App. 280, 286, 936 P.2d 421 (1997).
No. 72856-3-1/6


        Juarez presented no evidence that he paid rent to Bravado Apartments.

Rodriguez-Hernandez signed the lease for unit M-110 and agreed to pay the rent.

Because the record shows the purpose of entering Buena Casa was not for the mutual

benefit of Bravado Apartments, Juarez was not a business invitee.1

        Juarez contends the court erred in determining duty without considering the

foreseeability of criminal conduct on the premises. We disagree. "[0]nce 'a duty is

found to exist from the defendant to the plaintiffthen concepts of foreseeability serve to

define the scope of the duty owed.'" McKown v. Simon Property Group. Inc.. 182

Wn.2d 752, 762, 344 P.3d 661 (2015) (quoting Schoolevv. Pinch's Deli Market. Inc..

134 Wn.2d 468, 475, 951 P.2d 749 (1998)). Foreseeability is both a legal and factual

inquiry. McKown. 182 Wn.2d at 764. The legal inquiry regards whether the defendant

owes a duty at all, the factual inquiry regards whether the plaintiff's injury "is reasonably

perceived as being within the general field of danger covered by the duty owed by the

defendant." McKown. 182 Wn.2d at 764. Because Bravado Apartments owed no duty

to Juarez, foreseeability does not create such a duty.




          11n his brief on appeal, Juarez argues for the first time that a landowner has a duty to protect any
person lawfully on the landowner's property from foreseeable criminal conduct. Juarez also claims for the
first time that he was a public invitee on the Bravado Apartments property. We do not consider an
argument raised for the first time on appeal. RAP 9.12 ("On review of an order granting or denying a
motion for summary judgment the appellate court will consider only evidence and issues called to the
attention of the trial court.").
No. 72856-3-1/7


      We affirm the summary judgment dismissal of the lawsuit against Bravado

Apartments.




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WE CONCUR:




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