Metropolitan News-Enterprise


Wednesday, November 15, 2006


Page 3


Apartment Owner Liable When Employee Shoots Tenant—C.A.


By a MetNews Staff Writer


An apartment owner who knows his employee has been convicted of

voluntary manslaughter, uses illegal drugs and carries loaded firearms around the premises may be liable when that employee shoots a tenant on the sidewalk outside the complex, the Third District Court of Appeal has ruled.

The court Monday reversed San Joaquin Superior Court Judge Carter P. Holly’s order granting summary judgment to Mark Wilton and other owners and managers of the Kentfield Apartments complex in a suit brought by their tenant Michael W. Hawkins.

“[A]n employer cannot allow a drug-addled convicted felon to carry and brandish loaded firearms during the course and scope of employment, particularly where, as here, the employment necessarily consists of making contact with members of the public, such as tenants and visitors to the complex,” Justice Fred K. Morrison, writing for the Court of appeal, said.

David A. Rodriguez was convicted of attempted murder for shooting Hawkins in 2003 outside the complex. Hawkins sued Wilton and other owners and managers of the apartments, alleging they were negligent in hiring Rodriguez as an apartment manager and security guard, and in allowing him to remain as a tenant after they knew of his dangerous propensities.

Hawkins alleged Wilton knew that Rodriguez had been convicted of voluntary manslaughter and served a prison term. Wilton had been warned by other tenants that Rodriguez “was dangerous,” was using methamphetamines and “tweeking” on crack,  and carried numerous different loaded firearms around the complex, Hawkins claimed.

Wilton had been warned that Rodriguez “had pulled a gun several times on another tenant and that the tenants were frightened for themselves and their children for their own personal safety,” Hawkins alleged.

Wilton denied the allegations and moved for summary judgment, based on a single legal theory:

“[B]ecause the shooting occurred outside the premises of the apartment complex between two individuals freely and voluntarily associating with each other, as a matter of public policy and as a matter of law, defendants had no duty to protect plaintiff.”

Wilton alleged that it was undisputed that the shooting occurred “in the city street and on the sidewalk outside the premises” and that Rodriguez and Hawkins “were ‘pretty good acquaintances’ and ‘pretty friendly’ who worked together for several weeks and spoke and smoked cigarettes” together almost daily.

Wilton also claimed there was no dispute that Hawkins had warned Wilton’s managers “a week or two before” that Rodriguez acted “weird,” carried guns, and was “going to end up killing somebody or something.” He further claimed it was undisputed that Hawkins continued to socialize with Rodriguez, freely let Rodriguez into his apartment and willingly went with Rodriguez to the street.

Wilton’s motion did not address whether Rodriguez was a tenant or an employee or Wilton’s alleged knowledge about Rodriguez’s conviction, drug use and display of firearms at the complex.

But Holly ruled that Hawkins’ tendered evidence regarding Rodriguez’s status was inadmissible on various grounds, and found that Rodriguez was not an employee or tenant “at the time of the shooting.”

Holly said:

“Rodriguez’s criminal conduct was not reasonably foreseeable under the circumstances here and, imposing a duty and liability on Defendants for not having prevented Rodriguez from coming onto the property to visit his family or . . .  the mother of his children and his children would be in violation of public policy.”

Hawkins appealed, arguing that Wilton did not meet his burden to show a lack of triable issues. Morrison agreed, saying:

“The facts tendered by Wilton do not address, far less negate, the theory that Rodriguez was Wilton’s employee and was allowed to carry firearms although he was known by Wilton to be a convicted felon (convicted of a serious and violent felony, viz., voluntary manslaughter) and known to be an out-of-control methamphetamine user who had threatened tenants.”

Morrison continued:

“An employer who allowed such conduct by a manager or security guard would not be insulated from respondeat superior liability simply because the tenant chose to socialize with the employee, or simply because the shooting took place on the sidewalk outside the apartment complex.”

The jurist explained:

“Such conduct merits liability because it should be discouraged, the victim should be compensated and the victim’s losses should be borne by the enterprise causing the risk moreover, liability will not impose an undue burden but will merely ensure that apartment owners who choose to employ security guards or managers will select, train and supervise them to avoid inflicting additional risks on their tenants.”

The case is Hawkins v. Wilton,  06 S.O.S. 5528.


Copyright 2006, Metropolitan News Company