Giggers v. Memphis Housing Authority, No. W2006-00304-COA-R3-CV (Tenn. App. 8/3/2007)
| Decision Date | 03 August 2007 |
| Docket Number | No. W2006-00304-COA-R3-CV.,W2006-00304-COA-R3-CV. |
| Parties | CHERYL BROWN GIGGERS, et al. v. MEMPHIS HOUSING AUTHORITY, et al. |
| Court | Tennessee Court of Appeals |
Archie Sanders, III, Memphis, TN, for Appellants
C. Wesley Fowler, Memphis, TN, for Appellee, Memphis Housing Authority
Joe Lee Wyatt, William J. Wyatt, Memphis, TN, for Appellee, Scruggs Security & Patrol, LLC
Alan E. Highers, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., and Holly M. Kirby, J., joined.
This appeal involves a wrongful death action arising from the fatal shooting of a tenant at a public housing property. The decedent was in the manager's office of the apartment complex when another tenant, who was involved in an altercation with a security guard on the premises, obtained a rifle from his apartment and began shooting at the security guard. The decedent was struck and killed by a bullet fired by the other tenant during the incident. The plaintiffs, the surviving children and sister of the decedent, sued the defendant owner and operator of the public housing property, asserting claims for wrongful death through negligence and breach of contract per the lease agreement. The trial court granted the defendant's motion for summary judgment. We affirm.
The facts underlying the shooting incident at issue are undisputed. In 2002, the decedent, Charles Cornelius Brown, Sr., was a resident of an apartment complex owned and operated by Memphis Housing Authority ("MHA" or "Appellee"), located at 741 Adams Avenue in Memphis, Tennessee. The shooter, L.C. Miller, who was 70 years of age at the time of the shooting, was also a tenant at this property. On March 7, 2002, Mr. Miller was asked to stop "using bad language and cursing" by a security guard for Scruggs Security & Patrol, LLC ("Scruggs"), a company with which MHA had contracted to provide security for the property. The security guard then left his station to visit the restroom, and Mr. Miller briefly went back to his own apartment. When the security guard emerged from the restroom, Mr. Miller, who had apparently retrieved a rifle from his apartment, began shooting at him. The decedent Mr. Brown, who was in the manager's office of the apartment complex, was struck and killed by one of the shots fired by Mr. Miller.
On February 18, 2003, Mr. Brown's surviving children, Cheryl Brown Giggers, Charles C. Brown, Jr., Angela G. Brown, and Joann Fisher, his surviving sister ("Plaintiffs" or "Appellants"), filed a complaint against the City of Memphis ("the City") and MHA asserting claims for the wrongful death of the decedent as a result of negligence, and for breach of contract pursuant to Mr. Brown's lease agreement. Plaintiffs alleged negligence by the defendants in failing to properly screen Mr. Miller prior to leasing an apartment to him, failing to enforce internal admissions and occupancy policies with regard to Mr. Miller, allowing Mr. Miller to possess a rifle, and failing to properly assess an allegedly known threat or risk to the other tenants of the public housing property. Plaintiffs further asserted that the defendants had breached their lease agreement with Mr. Brown by failing to keep or maintain a "safe condition" at the premises. The City filed a motion to dismiss, or alternatively, for summary judgment, arguing that it was not a proper party to the litigation and that MHA existed as a separate entity. On September 12, 2003, the trial court entered an order dismissing the City from the action and granting leave to Plaintiffs to amend their complaint.
Plaintiffs amended their complaint to name MHA as the sole defendant on September 16, 2003. MHA filed its answer on April 28, 2004, in which it denied all liability and set forth several affirmative defenses. On May 27, 2004, Plaintiffs filed a second amended complaint, adding Scruggs as a defendant and alleging that Scruggs had negligently failed to secure the property pursuant to its security contract with MHA. On August 20, 2004, Scruggs filed its answer in which it denied liability and set forth various affirmative defenses. Scruggs asserted a cross-claim against MHA alleging that it was negligent in screening Mr. Miller prior to his tenancy and negligent in renting an apartment to him. Scruggs also sought indemnity in defending the litigation pursuant to a provision in its contract with MHA. MHA in turn filed its own cross-claim, alleging that Scruggs was vicariously liable for the negligent acts of its security guard, and that MHA was entitled to indemnity from Scruggs pursuant to their security contract.
On February 11, 2005, MHA filed a motion to dismiss or for summary judgment as to all claims against it. On September 9, 2005, Plaintiffs took the deposition of Howard Terry, the head of security for MHA, whose primary duties consisted of conducting background checks for new tenants and submitting incident reports to MHA operations. Mr. Terry was questioned about the shooting that occurred on March 7, 2002, as well as Mr. Miller's history with MHA. The record indicates that MHA had conducted a criminal background check on Mr. Miller through the Memphis Police Department on January 27, 1996. The MHA interoffice memorandum describing the results of this investigation, which purported to include "all incidents within the last three (3) years[,]" clearly indicates that the investigation did not uncover information that would prevent Mr. Miller from being housed with MHA, pursuant to its own policies.
During the deposition of Mr. Terry, counsel for Appellants introduced several exhibits documenting a 1998 incident in which Mr. Miller had attempted to stab another tenant after a verbal altercation. With regard to the 1998 attempted stabbing incident involving Miller and another tenant, the record contains a description of the incident by Mr. Terry in his deposition, and two MHA reports. According to the first report, on or around May 7, 1998, the victim of the attack had been singing outside of the apartments when Mr. Miller became angry and stated, "I'll kill you if you don't stop singing in my ear." Mr. Miller later "jumped out of some bushes swinging a knife [and] scratching the victim on the arm." A later report was issued on May 30, 1998, after the police had done a follow-up investigation during patrol of the apartments. That report states that the victim refused medical treatment from being cut on his arm with a pocket knife by Mr. Miller, and that the victim "decided not to press charges at the time but eventually had taken legal measures due to constant verbal threats from [Mr. Miller]." The report further indicated that Mr. Miller was arrested for assault on that date. MHA thereafter sent Mr. Miller a letter notifying him that he was being placed on probation for one year, and that future violations of any nature would be cause for termination of his lease. Mr. Howard testified that he did not specifically recall the prior incident, but that he was not surprised to learn of Miller's one-year probation. He also stated that he was not responsible for making recommendations to MHA or making decisions regarding evictions of tenants, but that he understood a "one-strike" policy to be in effect by which a tenant "could be evicted" for "anything that's disruptive to or harm [sic] any of the people in public housing."
Plaintiffs filed a memorandum in opposition to MHA's motion for summary judgment on October 25, 2005. Plaintiffs submitted the following facts in support of its motion, among others:
4. L.C. Miller was charged with aggravated assault in Memphis, Shelby County, Tennessee, in 1979. (See police record of L.C. Miller, Exhibit 3).
5. In June 1977, L.C. Miller pled guilty to firing a weapon within the city limits. (See police record of L.C. Miller, Exhibit 3).
6. In the [sic] May 1998, Mr. Miller, while a resident of the property at 741 Adams Avenue, hid behind some bushes and attempted to stab another tenant with a knife and was charged with aggravated assault. (See police record of L.C. Miller, Exhibit 3) and MHA Office Report, Exhibit 7.
7. On May [sic] 7, 2002, Charles C. Brown, Sr. was shot and killed in the lobby of the MHA property located at 741 Adams Avenue by L.C. Miller.
8. Prior to May [sic] 2002, there had been between 10 to 20 shooting incidents on MHA property. (Deposition of Howard Terry at pg. 44).
Plaintiffs argued that "MHA clearly had notice of the propensity for violence of Mr. Miler." They asserted that "MHA had actual notice of the 1998 incident where Mr. Miller with premeditation[] hid behind bushes waiting for another tenant and attempted to stab that tenant with a knife" and that "[d]espite its knowledge of the violent history of Mr. Miller, MHA took no steps to either remove him as a tenant or to monitor closely his behavior." Plaintiffs cited the deposition testimony of Mr. Terry, in which he stated his opinion that Mr. Miller's lease should have been terminated in 1998 after the attempted stabbing incident, and they argued that there remained an issue of material fact as to whether MHA had a duty to remove Mr. Miller from his residence at the property. Plaintiffs further argued that MHA's failure to so act constituted "a breach of its obligation under its lease agreement with Mr. Brown by failing to maintain a `safe condition' on the premises as required by the lease." Plaintiffs also argued that "MHA failed to follow its own policies with regard to screening applicants, renting to knowingly violent persons and allowing tenants to maintain fire guns [sic] on the premises."
The trial court held a hearing on MHA's summary judgment motion on October 28, 2005, however, Appellants did not file a transcript of these...
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