UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FELISHA NAILS,

Plaintiff-Appellant,

and

MARY A. WHITE, As personal

representative of the estate of

Arnetha White,

Plaintiff,

v.

COMMUNITY REALTY COMPANY,

No. 97-1716

Defendant-Appellee,

and

KENNETH J. LUCHS, General Partner;

JULIAN R. KOSSOW; FOSTER SHANNON;

DAVID R. WILSON, General Partners;

EAST LAKE LIMITED PARTNERSHIP;

LENNARD METRO MD-I LIMITED

PARTNERSHIP,

Defendants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Herbert N. Maletz, Senior Judge, sitting by designation.

(CA-94-2978-AMD)

Submitted: November 10, 1998

Decided: December 17, 1998

Before ERVIN and MOTZ, Circuit Judges, and

PHILLIPS, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Cheryl Lynne Howard, Greenbelt, Maryland; W. Eric Cloud, THE

CLOUD LAW FIRM, Washington, D.C., for Appellant. Patricia M.

Thornton, MCCARTHY, BACON & COSTELLO, L.L.P., Lanham,

Maryland, for Appellee.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

At approximately 3 a.m. on Thursday, March 25, 1994, tenant

Mary A. White and her friend Felisha Nails returned to the Lake

Arbor Towers Apartments parking lot. As they neared the front

entrance of the building, a man walked out of the entrance with a gun,

demanded money, forced the women to return to their car, and locked

Nails in the trunk. Thereafter, the assailant shot White four times, killing her. At approximately 6 a.m., Ms. White's fiance discovered Nails

in the trunk and found White's body in a wooded area near the parking lot. White and Nails sued the Community Realty Company, Inc.

("Community Realty")1 and related defendants on several grounds.

Nails appeals the district court's order granting summary judgment to

Community Realty on her negligence claim, finding that the limited

criminal activity which had occurred at Lake Arbor Towers prior to

the incident was insufficient as a matter of law to establish a duty to

protect invitees from criminal activity. For the reasons that follow, we

affirm.

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1 Community Realty managed and operated the property.

 2
In Maryland, the basic elements necessary for a negligence cause

of action are a duty or obligation which the defendant is under to protect plaintiff from injury, a failure to discharge that duty, and actual

loss or injury to the plaintiff proximately resulting from that failure.

See Scott v. Watson, 359 A.2d 548, 552 (Md. 1976).2 There is no special duty imposed upon the landlord to protect his tenants against

crimes perpetrated by third parties on the landlord's premises. See id.

Rather, a landlord who has set aside areas for the use of his tenants

in common owes them the duty of reasonable and ordinary care to

keep the premises safe. The landlord is not an insurer of tenants and

is only obliged to use reasonable diligence and ordinary care to keep

common areas in reasonably safe condition. See id. The landlord's

duty to exercise reasonable care for the safety of the tenants, in common areas under his control, is sufficiently flexible to be applied to

cases involving criminal activity. Therefore, if the landlord knows, or

should know, of criminal activity against persons or property in the

common areas, he then has a duty to take reasonable measures, in

view of the existing circumstances, to eliminate the conditions contributing to the criminal activity. This duty arises primarily from

criminal activities existing on the landlord's premises--not from

knowledge of general criminal activities in the neighborhood. See id.

at 554; see also Brown v. Baltimore & Ohio R.R. , 805 F.2d 1133,

1139 (4th Cir. 1986).

The district court held a hearing on the parties' cross-motions for

summary judgment. Although plaintiffs were afforded almost two

years of discovery, the only relevant criminal activity found by the

district court was that another person, Sandra Scottland, had her purse

snatched at knife point four months prior to the incident at issue.3 The

hearing also revealed that Lake Arbor Towers regularly provided a

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2 Scott was referred to the Court of Appeals of Maryland for the certification of several state law questions by the District Court for the District

of Maryland.

3 Ms. Scottland was not physically harmed during the robbery and did

not file a police report. She did recall speaking to an unidentified person

at the apartment complex, but only for the purpose of recovering the contents of her purse. We decline Nails' invitation to consider evidence of

other crimes not properly before the district court. See Fed. R. Civ. P.

56(e); Ruffin v. Shaw Indus. Inc., 149 F.3d 294, 300 (4th Cir. 1998).

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security guard from approximately 6 p.m. to midnight and that a

security card was needed to gain access to the entrance of the building. Nails' theory of the case was that, if a security guard had been

on duty at the time, the assault and murder would have been prevented. Relying on Scott the district court found this sole instance of

violent criminal conduct insufficient, as a matter of law, to create a

duty for Lake Arbor Towers to provide all night security, as urged by

Nails. See 359 A.2d at 552-54.

Under Maryland law whether a landlord has a duty to protect tenants is a legal question, see Scott, 359 A.2d at 553-54, which we

review de novo. See generally United States v. Hall, 972 F.2d 67, 69

(4th Cir. 1992). In Scott the court found a duty to protect tenants from

criminal activity because the complex had suffered five or six illegal

entries into apartments, two more apartments were burglarized, a car

was stolen from the garage, and there was a robbery and rape in a

ground level store. See Scott, 359 A.2d at 554. These incidents were

fairly described as "increasing criminal activity on the premises." Id.

at 552. Like the district court, we have found no relevant case law

(and have been provided none by Nails) to support Nails' contention

that a solitary robbery, not involving a gun and not involving actual

harm to the victim, puts a landlord on notice of increasing criminal

activity on the premises sufficient to give rise to a legal duty to protect against armed robbers on the premises. Accordingly, we affirm

the district court's order granting summary judgment to Community

Realty and dismissing the action. We dispense with oral argument as

the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.

AFFIRMED

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