Davis v. Christian Brotherhood Homes of Jackson, Mississippi, Inc., 2005-CA-01743-COA.

• Decision Date: 08 May 2007
• Docket Number: No. 2005-CA-01743-COA.,2005-CA-01743-COA.
• Citation: 957 So.2d 390
• Parties: Bernice DAVIS, individually and on behalf of the Wrongful Death Beneficiaries of Lucius Davis, Deceased, Appellant v. CHRISTIAN BROTHERHOOD HOMES OF JACKSON, MISSISSIPPI, INC., William E. McKnight and Southland Management Corporation, Appellees.
• Court: Mississippi Court of Appeals

957 So.2d 390

Bernice DAVIS, individually and on behalf of the Wrongful Death Beneficiaries of Lucius Davis, Deceased, Appellant v. CHRISTIAN BROTHERHOOD HOMES OF JACKSON, MISSISSIPPI, INC., William E. McKnight and Southland Management Corporation, Appellees.

No. 2005-CA-01743-COA.

Court of Appeals of Mississippi.

May 8, 2007.

Jennifer Paige Wilkins, Barry W. Howard, Robert Farley Wilkins, attorneys for appellant.

Walker Reece Gibson, Michael Wayne Baxter, Ridgeland, attorneys for appellees.

Before LEE, P.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1. This wrongful death action brought under a theory of premises liability arose from circumstances surrounding the shooting death of Lucius Davis at Christian Brotherhood Apartments ("CBA") in Jackson, Mississippi on February 4, 2003. Lucius's mother, Bernice Davis, initiated this action in her individual capacity and as representative of the wrongful death beneficiaries of Lucius. Davis now appeals to this Court from the Circuit Court of Hinds County's grant of summary judgment in favor of Appellees Christian Brotherhood Homes of Jackson, Mississippi, Inc.("CBH"), William E. McKnight, and Southland Management Corporation ("Southland").¹ Davis asserts that summary judgment was improper because there were genuine issues of material fact with regard to (1) the duty owed to Lucius Davis, (2) Christian Brotherhood's knowledge of an atmosphere of violence on the premises of CBA or of the violent nature of Troy Younger, (3) whether a lack of security measures at CBA constituted a breach of the duty Christian Brotherhood owed to Lucius, and (4) whether the lack of security at CBA was the proximate cause of Lucius's death. Finding no reversible error, we affirm the summary judgment of the circuit court.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In the early morning hours of February 4, 2003, shortly after midnight, Troy Younger shot Lucius Davis multiple times in the parking lot of CBA after an argument over a burglary committed earlier that evening. Lucius was transported to the University Medical Center where he was pronounced dead several hours later. Bernice Davis, individually and on behalf of Lucius Davis's wrongful death beneficiaries, filed a complaint on May 21, 2004,² asserting claims based on the negligence of Christian Brotherhood for failing to warn of or remedy the dangerous conditions created by the criminal activity which Davis alleges was prominent on the premises of CBA. Davis alleges that Christian Brotherhood negligently failed to employ security guards or take any other security measures and that this lack of security on the premises of CBA proximately caused Lucius's death.

¶ 3. Lucius was thirty years old at the time of his death. Although it is not clear from the record the extent of his learning disability, the record indicates that Lucius was not employed at the time of his death and was receiving disability and Social Security benefits of approximately $500 per month. Lucius was never a tenant at CBA, but for over a year prior to his death, he resided with his mother, Bernice Davis, and his sister, Felicia Allen, who were both tenants at CBA.

¶ 4. The record does not paint a complete picture of the day's events preceding Lucius's death. Christian Brotherhood asserts that Younger and Lucius had been drinking and socializing peacefully several hours prior to the shooting, and that Lucius and Younger had both participated in the burglary of CBA resident Robert Douglas Ricks's apartment. Ricks testified in a deposition conducted on March 15, 2005, that he had seen Lucius, Younger, and other individuals "hanging out" in the CBA parking lot drinking alcohol several hours prior to the shooting. Ricks also testified that after arriving at his apartment later that evening in response to a neighbor's report that his apartment had been burglarized, he witnessed Younger and other individuals running from the parking lot when they saw Ricks drive up. Lucius, however, did not flee. According to Ricks, Lucius approached him and Ricks told Lucius that "I just want my stuff back." Ricks testified that Lucius then walked out of his apartment and returned a few minutes later with some of the stolen items, and said, "I'm sorry."

¶ 5. Davis refutes that Lucius was involved in the burglary of Ricks's apartment, pointing to the fact that the police burglary report, completed the night of the burglary, states that there was "no suspect information" given to police by Ricks. Davis also points to the deposition testimony of Kelonzo McElroy, whose deposition testimony is the only eyewitness account of the shooting which appears in the record. Kelonzo testified that, just prior to the shooting, he and Marvin Warren were sitting alone in Marvin's car when Lucius approached the vehicle and asked for a ride to a store to buy additional beer. Marvin told Lucius that he could not leave because he had no driver's license and the police were there investigating the burglary of Ricks's apartment. Lucius agreed to wait, and apparently got into the back seat of Marvin's car. Kelonzo testified further as follows:

We sat around, and then [Younger] came walking from around the other way, . . . and want to argue with [Lucius]. They were arguing, but Lucius let him in the car on the backseat. They was on the backseat together arguing about who broke in the house and who stole the 21-inch TV, this and that. So Lucius, he like, Man, you know I ain't do it. I ain't do it. Y'all try to sell me a TV. He saying the other guy did it. [Younger] did it. And the way it looked like, Lucius don't bother nobody.

¶ 6. Although there is some dispute as to why the shooting occurred, it is not disputed that the shooting took place on the premises of CBA, and that at the time of the shooting, there were no security guards or any other security measures in place to restrict access to CBA's premises. CBA is a low-income apartment complex located in Jackson, Mississippi. At the time of the shooting incident at issue, CBA participated in a rent subsidy program administered by the Department of Housing and Urban Development ("HUD") for low-income families, and was owned by CBH. CBH was formed as a non-profit corporation by two religious organizations, apparently for the express purpose of providing affordable housing to low and moderate income families.³

¶ 7. Southland managed CBA in exchange for a percentage of the rent collected from the tenants. In effect, Southland oversaw the daily operations of CBA and made decisions regarding the maintenance and safety of the facilities, collection of rents, and hiring of on-site managerial, administrative, and maintenance personnel. Ultimately, Southland had the authority to make all managerial decisions affecting CBA, including whether to provide on-site uniformed security guards, or whether to incorporate any other type of security measures on the premises. This authority was regulated only by the routine inspections and restrictions enforced by HUD and by yearly meetings with representatives of CBH, including Reverend William E. McKnight.⁴

¶ 8. From approximately 1996 through September, 2001, Southland employed Cooper Security to provide uniformed security guards at CBA. In explaining why Southland discontinued Cooper's services after this date, Rick Green, one of Southland's vice presidents who was responsible for CBA, stated that "we had not had any problems for a very long time," and the money that had been spent on security was needed to provide physical maintenance for the property. A letter dated September 10, 2001, was sent to Cooper Security by Lamar Miller, CBA manager, stating that Christian Brotherhood could no longer afford Cooper's services. Contrary to what was reflected in the letter from Miller and in contrast to the deposition testimony of Rick Green as to why Cooper Security was terminated, Yolanda Howard, Miller's secretary, testified in her deposition that the real reason Cooper Security was terminated was because the security guards were not "doing their jobs." According to Howard, Cooper's security guards were not patrolling as they were supposed to and at times did not show up for work at all. Howard testified that Miller's letter was written so that Cooper Security would have a good reference from Christian Brotherhood. In any event, Green asserted that security was no longer necessary at CBA for the safety of the tenants.

¶ 9. Davis disputes Southland's assertion that security was no longer needed at CBA, pointing to numerous instances of criminal activity that occurred both before and after the services of Cooper Security were discontinued at CBA. Davis cites Jackson Police Department ("JPD") crime statistics for the precinct and beat encompassing CBA, a log of criminal activity at CBA reported to JPD from January 1, 2000, through the time of Lucius's shooting death, as well as personal accounts of shootings and other criminal activity as reflected in the deposition testimony of tenants and employees at CBA.⁵ Davis contends that this evidence of criminal activity dictated that security guards and other security measures were needed at CBA, and she also asserts that the number and frequency of such activity in and around the premises of CBA made Lucius's shooting death reasonably foreseeable.

¶ 10. Christian Brotherhood subsequently filed a motion for summary judgment, asserting it owed no duty to Lucius to protect him from criminal activity because of his status as a licensee and because the shooting was not reasonably foreseeable. Christian Brotherhood also asserted that any alleged breach was not the proximate cause of Lucius's death. In rendering his bench ruling on Christian Brotherhood's motion for summary judgment, the trial court judge did not rule on all of the issues presented by the parties. As to the issue of whether or not the shooting was foreseeable in light of the evidence of criminal...