UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SALLY THATCHER; ROBERT THATCHER,
Plaintiffs-Appellants,

v.

THE TC OPERATING LIMITED
                                                                   No. 98-1253
PARTNERSHIP, t/a Town & Country
Apartments, the TC Hollows
Company,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-95-2549-WMN)

Argued: December 2, 1998

Decided: February 12, 1999

Before WILKINSON, Chief Judge, MURNAGHAN, Circuit Judge,
and HERLONG, United States District Judge for the
District of South Carolina, sitting by designation.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Guerdon Macy Nelson, LAW OFFICE OF G. MACY
NELSON, Towson, Maryland, for Appellants. William Carlos Parler,
Jr., PARLER & WOBBER, L.L.P., Towson, Maryland, for Appellee.
ON BRIEF: Mary Ellen Niles, SCHWARTZ & NILES, Glen Burnie,
Maryland, for Appellants. Jennifer S. Cavey, PARLER & WOBBER,
L.L.P., Towson, Maryland, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

The instant case is an appeal by a residential tenant from a decision
that the landlord of her apartment complex is not liable in negligence
for failing to prevent her from being sexually assaulted in her com-
plex's laundry room. The tenant, Sally Thatcher ("Thatcher"), con-
tends that the landlord, TC Operating Limited Partnership ("TC"),1
breached its duty to take reasonable measures to protect its tenants
from crime, given reports of burglaries and other property crimes.
Alternatively, Thatcher argues that the TC's voluntary decision to
provide a lock for the laundry room door gave rise to a duty to main-
tain it, and that its failure to do so was a proximate cause of the sexual
assault (i.e., the TC's failure increased the possibility of crimes
against persons).

I.

Thatcher leased from TC an apartment in the Hollows apartment
complex in Glen Burnie, Maryland. The tenancy began August 1,
1992 and extended for a term of one year. The Hollows is a twelve-
building complex in which each building may contain as many as six
units. In Thatcher's unit, the laundry room was on the basement floor
while her apartment was on the second floor.
_________________________________________________________________

1 TC is titled as Town & Country Apartments, the entity from which
Thatcher rented her apartment.

                     2
In addition to the Hollows, TC managed another Glen Burnie
apartment complex named the Woodhill. The Hollows and Woodhill
complexes are approximately one and a quarter miles apart, in differ-
ent police precincts and separated by Route 100, a major thorough-
fare. Moreover, the Woodhill is very near a shopping complex.
Despite those differences, TC often directed tenants of the Woodhill
to pay their rent at the Hollows, and various management and janito-
rial personnel serviced both facilities.

On the evening of January 14, 1993, Thatcher went to the laundry
room to retrieve a rug from the dryer. The lock on the laundry room
door was broken.2 She entered the laundry room, which was approxi-
mately ten feet long and seven feet wide, and walked over to the
dryer. Approximately ten seconds later, the assailant entered the room
and sexually assaulted her.3 Thatcher did not know the assailant, who
has never been identified.

Thatcher instituted the suit underlying this appeal on August 30,
1995. TC moved to dismiss the claim, or in the alternative for sum-
mary judgment, arguing that Thatcher's sexual assault was unforesee-
able as a matter of Maryland law. Thatcher responded by proffering
numerous documents containing statements by tenants of the Hollows
and Woodhill complexes that there were several property crimes com-
mitted both before and after Thatcher's assault. The district court
granted TC's motion, concluding that the evidence proffered by
Thatcher, even if true, is insufficient to make crimes of violence fore-
seeable to TC. Thatcher filed a timely appeal.
_________________________________________________________________

2 TC disputes Thatcher's assertion that the lock was broken. However,
the district judge assumed it to be broken for the purposes of TC's
motion to dismiss/summary judgment. As is demonstrated below,
Thatcher did not present enough evidence to create a genuine issue as to
whether the condition of the lock would have made a difference.

3 TC also disputes Thatcher's assertion that she was sexually assaulted.
In fact, the police officer investigating the matter submitted an affidavit
stating that she did not believe that the attack occurred. However, for the
purposes of TC's motions, the district court assumed that Thatcher was
attacked, as will we.

                    3
II.

We review de novo the district court's grant of a motion to dismiss
for failure to state a claim. See Flood v. New Hanover County, 125
F.3d 249, 251 (4th Cir. 1997). Likewise, our review of the grant of
summary judgment is also plenary. See Evans v. Technologies App.
& Serv. Co., 80 F.3d 954, 958 (4th Cir. 1996). In reviewing the grant
of summary judgment (into which the motion to dismiss has been
converted, see FED. R. CIV. P. 12(b)(6)), we view all facts and reason-
able inferences in the light most favorable to the nonmovant. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587
(1986). As we are sitting in diversity -- Thatcher is a citizen of Flor-
ida while TC is a citizen of Maryland -- the rule of Erie v. Tompkins,
304 U.S. 64, 78 (1938), requires that we apply the law of the forum
state, Maryland.

In finding that TC was not liable to Thatcher, the district court con-
cluded that evidence of violent crimes at other apartment complexes
in Glen Burnie owned by TC was irrelevant to any duties TC owed
to the tenants of the Hollows. Moreover, it held that because the
crimes reported at the Hollows were property crimes and not crimes
against people, they were insufficient as a matter of law to make it
foreseeable that violent crimes (such as rape) would occur in TC's
common area. The district court based its reasoning on the Court of
Appeals of Maryland's decision in Scott v. Watson, 359 A.2d 548,
550 (Md. 1976). As that is the seminal case in Maryland discussing
the extent of a landlord's duty to its tenants, we begin there.

In Scott, the plaintiff (the decedent's daughter) brought a wrongful
death suit in federal district court against the decedent's landlord
alleging that the landlord's failure to provide sufficient security mea-
sures proximately caused the murder of the decedent in the under-
ground parking facility of the decedent's apartment building in
Baltimore. Realizing that the question was a novel one under Mary-
land law, the district court certified three questions to the Court of
Appeals of Maryland ("the state court").

The first question asked whether, under Maryland law, a landlord
had a duty to protect its tenants from the criminal acts of third parties
in common areas of the premises. The state court answered this ques-

                     4
tion in the negative, reasoning that such a duty effectively would
make landlords insurers of their tenants' safety. See id. at 553. Rather,
the state court concluded, the duty that a landlord owes its tenants is
"to use reasonable diligence and ordinary care to keep the portion
retained under his control in reasonably safe condition." Id. at 552
(citation omitted).4

The second question asked whether the landlord's knowledge of
criminal activity on the premises or in the neighborhood creates a
duty to protect the tenant. See id. at 553. The court held that the duty
of reasonable care applied and was flexible enough to consider the
landlord's knowledge and to require it to take reasonable steps to
reduce the risk of harm to the tenants. See id. However, that duty only
existed to the extent that the dangerous conditions existed on the land-
lord's premises; landlords have no control over-- and thus no liabil-
ity for -- neighborhood crime. See id.

We pause here because a great deal of Thatcher's appeal raises the
question of whether the landlord's knowledge in the instant case is
sufficient to impose upon it a duty to take further security measures.
In answering that question, we look to the Scott court's view of the
facts in that case. Although it did not apply the law it enunciated to
the facts of the case, its statements are telling.

The multistory complex in which Scott was murdered contained
retail stores open to the public on the ground floor and apartments on
the floors above the ground floor. There were two outdoor parking
lots and an underground garage. The parking garage could be entered
through a "sliding steel door" which was operated by "an electrocard
device."5 Id. at 550.

In addition to the "electrocard device," the landlord supplied the
following security devices: two closed circuit television cameras sur-
veilling the building's basement retail shops; a guard on duty from 10
p.m. to 6 a.m. who patrolled the inside of the building four times a
_________________________________________________________________
4 Thatcher does not argue that TC had a general duty to protect her
from the criminal acts of third parties.
5 Approximately 450 tenants and their guests had access to the parking
garage. Id. at 550.

                     5
night and the outside, including the garage, two times a night; a
switchboard operator who monitored the television system and main
entrance; and a doorman who parked the residents' cars for them if
the tenants so desired. See id. at 550-51.

Despite those security measures, all of which were voluntarily
undertaken, there were reports of crime on the premises. For example,
in the three month period prior to the murder, there were two burgla-
ries of apartments, a robbery of a retail store and rape of the
employee, two auto thefts (one of a car parked on the street in front
of the complex), and two assaults on persons standing near the apart-
ment building. See id. at 554. In addition, there were several prior
complaints of illegal entries into apartments. See id. Despite that
criminal activity, however, the court expressly noted that the landlord
had no knowledge that any violent crime or threat thereof had been
perpetrated in the common areas of the apartment building portion of
the complex. See id.

Given the Scott court's conclusions as to the criminal activity
abounding in that case, the district court in the instant case correctly
concluded that evidence of drug sales, burglaries and sexual assaults
(including in the laundry room) at the Woodhill-- even if true --
were irrelevant. It reasoned that because the Scott court held that
neighborhood crime could not be considered, crime that occurred at
the Woodhill -- a different apartment complex-- certainly could not
be considered.

Thatcher contends that her case fits within the Scott rule. She first
argues that the crimes at the Woodhill are relevant because TC treated
the Hollows and the Woodhill as "sister properties" and many of the
management and staff personnel overlapped. Second, she urges con-
sideration of the other crimes based on the Scott court's statement that
the only relevant crimes are those occurring on the landlord's "prem-
ises." Id. at 554. Since the Woodhill and Essex are also TC's prem-
ises, she argues, they fit the definition. Finally, she argues that the
landlord's duty to take reasonable measures to prevent crimes against
persons or property in the common areas if it knows or should know
that they occur, see id., requires the conclusion that the property
crimes here were sufficient to put TC on notice that the common areas
were susceptible to crimes against persons.

                     6
However, the Scott court's rationale supports just the opposite con-
clusions. As for the first two arguments, it is important to note that
the Woodhill and Hollows complexes are: (1) more than a mile apart;
(2) separated by a four lane highway (State Route 100); and (3) in dif-
ferent police precincts. TC's decisions to use the same maintenance
personnel for both complexes and to allow Woodhill residents to
bring their rental payments to the Hollows' rental office do not
change the fact that the complexes are two distinct entities in two dis-
tinct neighborhoods. When we consider that the bulk of the criminal
activity in Scott occurred on the same premises -- if not the same
common area -- as the murder, see id. at 550-51, a holding that crimi-
nal activity occurring more than a mile away from the relevant prem-
ises, in a different complex and in a different neighborhood was
relevant would be incongruous. Moreover, Thatcher's argument
would have us hold that all of an owner's real property, although
located all over the world, constitutes one premises.

Thatcher's third argument is similarly flawed. We note that in
Scott, a car was stolen from either the underground garage (the one
in which Scott's body was found) or the lobby-level garage less than
three months before the murder. See id. at 554. Despite that property
crime, which may have occurred in the same common area as the
murder, the Scott court found that "prior to Scott's death, the landlord
had no knowledge that any tenant or invitee had been the victim of
a crime involving physical harm (or threats) occurring in the common
areas within the apartment building." Id. That finding suggests that
property crimes such as the fire in the laundry room of the Essex, a
TC managed apartment building several miles away, and the alleged
sexual assaults at the Woodhill are insufficient to establish notice to
TC as to activities in the common areas of the Hollows.6
_________________________________________________________________

6 Thatcher notes that there were reports of vagrants congregating under
the stairwells of the Hollows. However, there is no evidence that any
vagrants that may have been there committed any crimes or even
approached any of the tenants of the Hollows. As for the sexual assaults
at the Woodhill, the resident who stated that two sexual assaults occurred
admitted that she had no personal knowledge of them, and in any event,
did not state whether the perpetrators were residents of the Woodhill,
with lawful access to the laundry room, or total strangers.

                    7
Moreover, in cases more recent than Scott where Maryland's courts
have imposed liability upon the landlord, the crime actually commit-
ted was very similar to the previous criminal activity that gave the
landlord notice of the dangerous conditions.7 For example, in New
Summit Associates v. Nistle, 533 A.2d 1350, 1358 (Md. 1987), work-
ers who were remodeling an apartment adjacent to the plaintiff's cre-
ated peepholes in the plaintiff's bathroom wall. See id. at 1353. The
landlord knew that the construction workers had created peepholes in
some of the other apartments they had remodeled, but failed to warn
the plaintiff or patch the holes in her mirror when she complained.
See id. Thus, the landlord was liable for the plaintiff's emotional inju-
ries.

In Rock v. Danly, 633 A.2d 485 (Md. App. 1993), the court
affirmed a jury finding of liability against a landlord where an attack
on a tenant near her apartment occurred after numerous incidents of
suspicious -- although not necessarily criminal-- behavior, by work-
ers in her apartment. See id. at 488. Specifically, the plaintiff noticed
some workers, who were lawfully in the building remodeling an
apartment, on the fire escape outside her apartment looking in her
window, see id., and that a worker had been inside her apartment
without her knowledge. See id. On one occasion, in the middle of the
night, a worker entered her apartment. She awoke before he left the
foyer, and asked him to leave. See id.

In fact, the attack itself ensued after the plaintiff saw a worker leav-
ing her apartment with some of her belongings and chased him into
the hallway. See id. During the entire period, management promised
to investigate the matter and identify the workers. See id. Thus, in that
case, the suspicious activity occurred in or very near the place where
the actual assault occurred, and the assault itself was the direct result
of that activity. That is not the case here.
_________________________________________________________________
7 One case prior to Scott appeared to require even more similarity than
Scott. In Nigido v. First National Bank of Baltimore, 288 A.2d 127 (Md.
1972), the Maryland Court of Appeals stated in a case involving a cus-
tomer of a bank who was injured during a robbery, that the bank's ability
to foresee a robbery did not mean that it could foresee a customer being
shot. See id. at 128.

                     8
III.

The district court also concluded that the failure to fix the lock was
not the proximate cause of the sexual assault on Thatcher. In reaching
its conclusion, the court reasoned that although, under the law as
explained in Scott, TC did assume a duty, Thatcher's failure to estab-
lish that the door was fully closed was fatal to her causation argu-
ment. We agree with the district court's conclusion.

The third question certified to the Maryland Court of Appeals in
Scott was whether a landlord assumes a duty to protect his tenants
from harm by third parties when he voluntarily undertakes specific
measures to so protect them. See id. at 554-55. The court answered
that question in the affirmative, holding that such a voluntary under-
taking could, under the proper circumstances, give rise to a duty. See
id. at 555. However, the court cautioned that the plaintiff must still
establish proximate causation, and may do so only by showing that
the breach of duty "enhanced the likelihood of the particular criminal
activity which occurred." Id. at 556.

While it is a closer question than the others, Thatcher cannot pre-
vail. Assuming that the TC's decision to put a lock on the door gave
rise to a duty and that TC breached that duty by failing to repair the
lock, Thatcher still cannot establish that a working lock would have
made a difference. As she cannot establish that the failure of the lock
was the cause-in-fact of the assault, she cannot establish proximate
causation.

Thatcher's contention is that there is an issue as to whether the
door actually closed, because she heard the door open. If the door
closed completely, then a properly functioning lock would arguably
have deterred the assailant.

Although Thatcher testified that she heard the door open, that fact
alone is not enough to preclude summary judgment. We note that she
twice testified that she did not see the door shut behind her and had
no idea of whether the assailant caught the door before it closed. That
she neither saw nor (presumably) heard the door close despite being
in a small room8 for approximately ten seconds is significant. That
_________________________________________________________________
8 She described the room as being about ten feet long and seven feet
wide.

                    9
significance is increased because Thatcher is the only one of the two
persons (the other being the as yet unidentified assailant) who could
know whether the door was completely shut. Moreover, nothing in the
record gives us any indication that the door makes a sound only when
opened after being shut completely. In light of the absence of evi-
dence establishing that the door may have been shut completely,
Thatcher cannot avoid summary judgment.

Moreover, Thatcher has presented almost no evidence that the
assailant was someone who did not have lawful access to the laundry
room or building. Thatcher asserts that the assailant could not have
been a tenant because he had an offensive smell and she did not rec-
ognize him. Her only description of the assailant to the police very
nearly matched the description of a tenant who lives on her floor.9
While the tenant has been exonerated, Thatcher's description illus-
trates the point that the assailant could be anybody-- including a ten-
ant. Tenants, of course, would have lawful and complete access to the
laundry room. Moreover, there is no evidence that the assailant was
not a guest of a tenant or member of the maintenance staff, each of
whom would have had access to the laundry room. In short, there is
no evidence that a working lock would have prevented her injury.10
Therefore, we affirm the district court's conclusion as to this issue.
_________________________________________________________________
9 We hasten to note here that there is absolutely no evidence that the
tenant was the assailant. In fact, he cooperated fully with the police and
allowed his photograph to be taken for identification purposes. When
shown his photo, Thatcher did not identify the tenant as the assailant.

10 Thatcher also contended that other safety measures, such as a glass
panel on the door through which she could have seen the attacker com-
ing, should have been installed. However, no statutory or common law
authority specifically requires those measures, and there has been no
determination that they were reasonably necessary under the circum-
stances. Moreover, those measures would not have helped her anyway.
She testified that she did not see anyone near the laundry room when she
entered it, and the assailant himself came into the room after her. Thus,
before she entered the room, the glass panel would have revealed an
empty laundry room. After she entered, she could not have used the glass
panel because she was not facing the door; had she been facing it, she
would know whether it shut completely.

                    10
CONCLUSION

Although we express sincere regret for the terrible assault on Mrs.
Thatcher, we find that there is no basis upon which to impose liability
on the landlord. Therefore, we affirm the district court's decision to
grant summary judgment to TC.

AFFIRMED

                    11
