Armstrong v. Nip JV, LLC

• Decision Date: 08 July 2021
• Docket Number: 20-P-983
• Citation: 100 Mass.App.Ct. 1101,170 N.E.3d 723 (Table)
• Parties: Megan ARMSTRONG & another v. NIP JV, LLC, & others.
• Court: Appeals Court of Massachusetts

100 Mass.App.Ct. 1101

170 N.E.3d 723 (Table)

Megan ARMSTRONG & another¹

v.NIP JV, LLC, & others.²

20-P-983

Appeals Court of Massachusetts.

Entered: July 8, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Megan Armstrong, appeals from a Superior Court summary judgment dismissing her claims against defendants NIP JV, LLC, and NIP Owner IV, LLC (together, the landlord). We affirm.

Background. We summarize the facts in the light most favorable to Armstrong, the party who opposed summary judgment, indulging all permissible inferences and resolving all conflicts in the record in her favor. See Sarkisian v. Concept Restaurants, Inc., 471 Mass. 679, 680 (2015) ; Belizaire v. Furr, 88 Mass. App. Ct. 299, 300 (2015).

Armstrong was attacked in the parking lot of a property where her employer, Premier Education Group, L.P. (PEG), operated a trade school called the Salter School. PEG leased the premises from the landlord.

Armstrong's assailant, Douglas Sparks, Armstrong's ex-boyfriend who suffered from mental illness, entered the parking lot in a rented car. Sparks attacked Armstrong and a coworker, Matthew Roux, hitting them with the car, and striking them with his hands and with a knife. Police responded to the incident, ultimately shooting and killing Sparks. Just before the attack, PEG employees saw Sparks driving around the parking lot and behaving strangely; however, none of them called the police or the landlord. Consequently, the landlord was not aware of any of the events preceding the attack or of the attack itself until after the incident occurred.

Discussion. We review the allowance of summary judgment "de novo and from the same record as the motion judge," Meyer v. Veolia Energy N. Am., 482 Mass. 208, 211 (2019), to determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). See Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). "Where the nonmovant bears the burden of proof at trial, the moving party ‘is entitled to summary judgment if [it] demonstrates ... that [the nonmovant] has no reasonable expectation of proving an essential element’ " of her claim. Wolsfelt v. Gloucester Times, 98 Mass. App. Ct. 321, 324 (2020), quoting Butcher v. University of Mass., 483 Mass. 742, 747 (2019), cert. denied sub nom., Butcher v. Vishniac, 141 S. Ct. 165 (2020).

Armstrong brought this negligence action, alleging that the landlord "failed to provide adequate security ... or place other measures or procedures in place to report suspicious behavior." To prevail on summary judgment, the landlord needed to demonstrate that Armstrong had no reasonable expectation of showing that the landlord "failed to discharge a duty of care owed to [her]," that the injury she suffered was "reasonably foreseeable," or that the landlord's "breach [of duty] ... [was] the proximate or legal cause of [her] injury." Christopher v. Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 222 (2003). See Heath-Latson v. Styller, 487 Mass. 581, 584 (2021) ; Creatini v. McHugh, 99 Mass. App. Ct. 126, 129 (2021).

1. The role of foreseeability. The question of foreseeability closely relates to the duty of care. See Dubuque v. Cumberland Farms, Inc., 93 Mass. App. Ct. 332, 347 n.25 (2018). "Fundamentally, the existence of a duty of care depends upon the foreseeability of a risk of harm that the defendant has an ability to prevent." Heath-Latson, 487 Mass. at 584. See Jupin v. Kask, 447 Mass. 141, 147 (2006) ("precondition to this duty is, of course, that the risk of harm to another be recognizable or foreseeable"); Glick v. Prince Italian Foods of Saugus, Inc., 25 Mass. App. Ct. 901, 902 (1987) ("no duty owed when the risk which results in the plaintiff's injury is not one which could be reasonably anticipated by the defendant"). "[L]imits to the scope or definition of reasonable foreseeability [are] based on considerations of policy and pragmatic judgment," Poskus v. Lombardo's of Randolph, Inc., 423 Mass. 637, 640 (1996), in light of what a defendant could anticipate "in the ordinary and normal course of events" (quotation and citation omitted). Glick, supra.

Although the foreseeability of harm is ordinarily a question of fact reserved for the jury, see Luisi v. Foodmaster Supermarkets, Inc., 50 Mass. App. Ct. 575, 577 (2000), "the outer limits of foreseeability have been long defined by judges." McLaughlin v. Vinios, 39 Mass. App. Ct. 5, 9 (1995). "The issue of foreseeability can be resolved as a matter of law only where" -- as here -- " ‘no rational view of the evidence would warrant a finding of [foreseeability].’ " Dubuque, 93 Mass. App. Ct. at 348, quoting Glick, 25 Mass. App. Ct. at 902.

2. Landlord's duty of care. A landowner's duty of care is necessarily limited. See Luisi, 50 Mass. App. Ct. at 577. See also Belizaire, 88 Mass. App. Ct. at 302-303 (tenancy "limits the [landowner's] control over the premises and further attenuates her from the circumstances surrounding [the plaintiff's injury]"). "A landlord ‘is not a guarantor of the safety of persons in a [property's] common area. A landlord is not free, however, to ignore reasonably foreseeable risks of harm to tenants, and others lawfully on the premises.’ " Griffiths v. Campbell, 425 Mass. 31, 34 (1997), quoting Whittaker v. Saraceno, 418 Mass. 196, 197 (1994). See Dubuque, 93 Mass. App. Ct. at 347. A landlord must "guard against ... those risks that it knew or reasonably should have known about and against which it could have employed reasonable preventive measures." Id. The same is true for commercial landlords like the defendants, even though a commercial landlord's duty of care is ordinarily lower than that of a residential landlord. See Whittaker, supra.

The general rule limiting a landlord's duty of care is subject to certain exceptions, which Armstrong contends apply here.

a. Reasonably foreseeable unlawful acts of third persons. While a landlord generally "does not owe a duty to take affirmative steps to protect against dangerous or unlawful acts of third persons," Belizaire, 88 Mass. App. Ct. at 304, quoting Luoni v. Berube, 431 Mass. 729, 731 (2000), the landlord may be liable "for failing to prevent reasonably foreseeable criminal acts" that harm those who are lawfully on the landlord's property. Griffiths, 425 Mass. at 34. See Heath-Latson, 487 Mass. at 586 (plaintiff failed to establish defendant owed duty to protect against harm by third party where plaintiff alleged no facts "demonstrating that the defendant should have foreseen the risk of harm caused by a third party to lawful visitors").

Liability attaches in the "rare cases" where the unlawful act of a third party is foreseeable to the landlord, and the landlord does nothing to prevent it. Belizaire, 88 Mass. App. Ct. at 304, citing Griffiths, 425 Mass. at 35. Such an act may be considered foreseeable if the landlord is aware of a history of prior similar criminal acts on or near the premises, see, e.g., Whittaker, 418 Mass. at 199-200 ; Belizaire, supra at 305, or is "affiliated in any way with, or [is] knowledgeable about, the assailant or any dispute that the assailant may have had with the [plaintiff]." Belizaire, supra.

The summary judgment record shows that the attack on Armstrong was an unforeseeable, random act of violence. The record is devoid of evidence of a history of similar violent acts, or of any criminal activity, on or around the property. While a pattern of prior similar attacks is not necessary for liability to be imposed, see Luisi, 50 Mass. App. Ct. at 577, the record contains no evidence demonstrating that the landlord "knew or reasonably should have known that a physical attack might occur." Whittaker, 418 Mass. at 200. Sparks had no connection to the landlord, which was unaware of his presence on the property or of his disturbing behavior prior to and at the time of the attack. See Belizaire, 88 Mass. App. Ct. at 305. See also Foley v. Boston Hous. Auth., 407 Mass. 640, 645-646 (1990) (attack by one employee against another unforeseeable to employer where record showed no "pattern of incidents involving employees" and employer had no knowledge that attacker would present risk to victim).

Even if the attack had been foreseeable, its random, personal nature suggests that "no reasonable preventive measures taken by the defendants could have prevented the sudden and unprovoked attack on the plaintiff." See Luisi, 50 Mass. App. Ct. at 579. Contrast Dubuque, 93 Mass. App. Ct. at 347-348 (landlord liable for failing to take reasonable safety measures where accident was not "anomalous" or "random"). The record demonstrates that "the defendant[s] had no duty to the plaintiff to provide protection against a not reasonably foreseeable act of violence against her." Whittaker, 418 Mass. at 200-201.

b. Special relationship. Another exception to the general rule limiting a landowner's duty of care is the existence of "a special relationship between the landowner and a plaintiff in which a plaintiff would reasonably expect a landowner to take steps to protect the plaintiff from harm." Creatini, 99 Mass. App. Ct. at 129. See Heath-Latson, 487 Mass. at 585, and cases cited; Whittaker, 418 Mass. at 197, and cases cited (noting special relationship between college and students, common carrier and passengers, and hotel and guests).

Relying on Mullins v. Pine Manor College, 389 Mass. 47, 50-51 (1983), Armstrong asserts that the landlord should have been aware of an elevated risk of violence because a trade school is...