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THE NATIONAL CRIME VICTIM BAR ASSOCIATION CIVIL JUSTICE DATABASE

Vertucci v. NHP Management Co.
701 N.E.2d 604, Ind.App., IN, 11/06/1998
Category Victim v. Third Party 
Topic Premises, Landlords 
Filename Failure of Security 
Crime Child Sexual Assault 
Location Apartment building, common areas 
Prevailing Party Plaintiff 
Other Parties Landlord 
Holding

Statement of Facts: In August 1994, 15-year-old S.V. was sexually assaulted at the swimming pool at the Bent Tree apartments by a non-resident. S.V.'s parents, the Vertuccis, tenants at Bent Tree, sued the landlord, NHP Management Company ("NHP"), for negligence. They asserted that they were assured upon moving in that there was security at the complex. NHP moved for summary judgment, asserting that they had no duty to protect S.V. from a criminal attack by a third party non- resident, pointing to an exculpatory clause in the lease agreement that did not guarantee the safety of residents, their families or guests. The trial court granted NHP's motion. Holding: The Court of Appeals of Indiana reversed, holding that the trial court erred when it granted NHP's motion for summary judgment. The exculpatory clause prevented Bent Tree from assuming a duty to protect from "theft, vandalism, or casualty." The assault was an intentional act, and thus could not be considered a "casualty." While there is no common law duty to protect tenants from the actions of non-tenants, there is an exception: a landlord may be held liable for tenant security if it voluntarily enacts measures designed to protect residents, but does so negligently. When assuming a duty to protect, the landlord must exercise reasonable care and skill. In this case, the finder of fact could reasonable infer that NHP did undertake measures to provide security by issuing ID cards and informing the Vertuccis that they would be checked in the common areas. 


Damage Award none 
Victim's Counsel     
Plaintiff's Counsel LInda Y. Hammel, Indianapolis 
Plaintiff's Expert      
Defense Counsel W. Brent Threlkeld, Indianapolis 
Defense Expert      

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