Pubdate: Wed, Mar 31 1999 Source: Oregonian, The (OR) Copyright: 1999 The Oregonian Contact: 1320 SW Broadway, Portland, OR 97201 Fax: 503-294-4193 Website: http://www.oregonlive.com/ Forum: http://forums.oregonlive.com/ Author: David R. Anderson of The Oregonian staff Note: You can reach David Anderson at 503-294-7663 or by e-mail SUIT MAY CHANGE HOW LANDLORDS OPERATE A Settlement, In A Case Where A Man Fleeing A Problem Residence Caused A Woman's Death, Serves As A Warning Gregory Amerson and his sisters talked to at least eight attorneys before they finally found one who would take their groundbreaking case against the landlord of a suspected drug house in Northeast Portland. It was a lawsuit that apparently had never been tried in Oregon, maybe never in the United States, as far as anyone could tell. And a lot of lawyers thought it was a stretch. The issue? Was the landlord liable for the death of Amerson's mother, E. Jean Amerson, who was killed in December 1996 when a criminal suspect left the house, sped from police and crashed into the 68-year-old woman's car? If the landlord knew or should have known drugs were being dealt out of the house, should he have evicted the tenants and possibly prevented the fatal crash? The case went to trial last week in Multnomah County Circuit Court. But before a jury could answer those questions, Amerson's four adult children settled the lawsuit. The landlord, Charles Bernards of Tigard, and his company, Venture B.C. Inc., settled for $250,000. Insurance will cover $150,000. But Bernards, who owns at least eight Portland rental properties, must pay $100,000. Because the lawsuit was settled, it does not have the precedent value of a case tried, appealed and ruled on by an appellate court. Still, the case has the potential to change the way landlords do business. Already, the law firm that represented Amerson's family has used it to encourage another landlord to evict tenants from a problem house. The case might even convince some landlords to get out of the business, said Emily Cedarleaf, executive director of the Multifamily Housing Council of Oregon, the largest trade association for rental property owners in Oregon. At the least, she said, landlords are going to be responsible for more community policing. "For us, it's going to mean that landlords are going to be held to a higher standard," Cedarleaf said. "This one is going to be scary." Law enforcement officials already see the case as another tool to fight drug houses. Jim Hayden, the neighborhood deputy district attorney for North and Northeast Portland, hopes that neighbors of suspected drug houses will take the next legal step and sue landlords for the disruption and diminishment of property values the houses cause. "I think the implications are tremendous," Hayden said. "I intend, when I deal with landlords who are not minding their p's and q's, to tell them about this case." Screening tenants For Circuit Judge Michael Marcus, who was assigned the case and is an expert in landlord/tenant law, the message to landlords is to screen tenants. In this case, Venture B.C. and Bernards were negligent because they never discovered that the tenants were evicted from their previous rental unit because of drug activity, according to court documents filed by Amerson's lawyers. But for the defendants, this is a case of small-business owners who felt squeezed by the legal system. Bernards said no one has ever proved to him that drugs were being sold by the tenants living in the house at that time. He settled the lawsuit, he said, because he could not borrow money while the lawsuit was pending, because the strain was tremendous and because of many other reasons. But he still says he didn't do anything wrong. "We're not willing to spend five years of our lives on something that we had nothing to do with," Bernards said. There is conflicting evidence about whether the house in the 4800 block of Northeast 22nd Avenue was a drug house in 1996 and how much Bernards knew. The house has a history of complaints. Portland police began keeping a log of drug-related complaints on the house in 1989, a year before Bernards bought it. Then twice in 1993, police wrote Bernards about tenants suspected of dealing drugs. Officers also served a search warrant in February 1993. Bernards said that he evicted the tenants who were the subject of the search warrant and that the subsequent tenants moved out before he could evict them. Then in early 1996, police received complaints from a neighbor of late-night activity, people walking out of the house with small plastic bags and syringes lying in the yard. In the police log, two officers noted in June 1996 that someone probably was dealing methamphetamine from the house and that stolen vehicles often were parked in front. On Aug. 30, 1996, the Drugs and Vice Division wrote Venture B.C., notifying the landlord that police had received complaints of drug activity and warning that the city might shut down the house under its drug house ordinance if the landlord failed to act. Bernards returned the call but had trouble hooking up with the officer assigned to the case. Bernards said he repeatedly visited the house in late 1996 and never saw any evidence of drugs. At least twice, police tried to buy drugs at the house using an informant but were unsuccessful. On Dec. 13, 1996, police had the house under surveillance. When officers ran a check on the license plate of a car parked in front, they found the registered owner had an arrest warrant. Another man, whom police later identified as Michael Eric Nitschke, walked out of the house and got into the car. Police followed and tried to pull him over. But Nitschke sped away, and police broke off the chase. At the intersection of Northeast 29th Avenue and Bryce Street, Nitschke smashed into Jean Amerson's car. The great-grandmother was on her way to buy Christmas presents. She died the next day. Manslaughter conviction Nitschke was convicted of first-degree manslaughter, driving under the influence of intoxicants and six other charges. Amerson's family first sued the city and the Police Bureau for chasing Nitschke. But they dropped that suit after learning that police followed their policies and broke off the pursuit within seconds of Nitschke speeding away because it was too dangerous, Gregory Amerson said. Then they sued Venture B.C.,Bernards and a partner. Later, they amended the suit to drop the partner and demand $2.5 million. The family claimed the landlord was liable under two theories, common-law negligence and violation of a state law that makes it a crime to knowingly allow a property to be used to sell illegal drugs. Prosecutors almost never charge people with the crime because it is so difficult to prove that a person knew beyond a reasonable doubt, said Mark McDonnell, a Multnomah County senior deputy district attorney who heads the drug unit. But in a civil case, the proof is only a preponderance of the evidence, meaning that it is more likely than not that the landlord knew. The key issues the Amerson family had to prove were whether the landlord failed to use reasonable care and whether it was foreseeable that the negligence could lead to Amerson's death. "It was a difficult legal question, no doubt about it," said Bernard Jolles, the lawyer who eventually took on the case for Amerson's family. The Dram Shop Act The case is similar to lawsuits based on Oregon's Dram Shop Act, which says restaurant and tavern operators can be held liable for a patron's actions off the premises if the nightspot served the patron while he or she was visibly drunk. The most analogous case was a dog-bite lawsuit in which a family sued a landlord after their daughter was bitten by a tenant's dog in a parking lot next to the rental property. The Oregon Supreme Court ruled in 1993 that a landlord could be held liable for an injury the tenant's dog caused off the rental property only if the landlord allowed the tenants to have a dog and knew the dog caused an unreasonable risk to people off the property. In that case, the landlord knew the county had posted a "potentially dangerous dog" sign on the landlord's property. In the case against Bernards, Gregory Amerson said the family sued not for money but to show landlords they have a responsibility to the larger community. "It was about having this case prevent this from happening to another family," Amerson said. "It was the fact that we wanted our mother's death to mean something." - --- MAP posted-by: Jo-D