Giggers v. Memphis Housing Authority
Decision Date | 03 February 2009 |
Docket Number | No. W2006-00304-SC-R11-CV.,W2006-00304-SC-R11-CV. |
Parties | Cheryl Brown GIGGERS et al. v. MEMPHIS HOUSING AUTHORITY et al. |
Court | Tennessee Supreme Court |
Archie Sanders, III, Memphis, Tennessee, for the appellant, Cheryl Brown Giggers, Angela G. Brown, Charles C. Brown, and JoAnn Fisher.
Charles Wesley Fowler, Memphis, Tennessee, for the appellee, Memphis Housing Authority and, Joe Lee Wyatt and William Joseph Wyatt, Memphis, Tennessee, for the appellee, Scruggs Security and Patrol, LLC.
Timothy David Patterson, Memphis, Tennessee, for the Amicus Curiae, Pacific Legal Foundation.
GARY R. WADE, J., delivered the opinion of the court, in which CORNELIA A. CLARK and WILLIAM C. KOCH, JR., JJ., and E. RILEY ANDERSON, Sp.J., joined. JANICE M. HOLDER, C.J., filed a concurring and dissenting opinion.
The plaintiffs, survivors of a tenant shot and killed by the criminal act of another tenant, filed suit against the defendant housing authority, alleging negligence and breach of contract for failure to provide a safe premises. The trial court granted summary judgment in favor of the housing authority and the Court of Appeals affirmed. We granted review to determine whether the housing authority owed a duty of care, an essential component of the claim, under the theory of negligence. Because the potential for violence in the housing project was reasonably foreseeable and the gravity of the harm outweighed the burden on the housing authority to have taken reasonable protective measures, the judgment is reversed and the cause is remanded to the trial court for further proceedings.
On March 7, 2002, at approximately 11:45 a.m., L.C. Miller, a tenant in Jefferson Square, one of several public housing projects owned by the Memphis Housing Authority ("MHA"), argued with the housing project's security guard, fired shots in the direction of his office, and struck and killed Charles Cornelius Brown, Sr., another tenant at the facility who happened to be in the office area at that time. Brown was not involved in the argument. Miller was subsequently shot by the security guard, who was an employee of Scruggs Security and Patrol, LLC ("Scruggs"), a private company which provided security at the facility at the time of the shooting.2
Procedural History and Facts
On February 18, 2003, Cheryl Brown Giggers, Charles C. Brown, Jr., and Angela G. Brown, Brown's surviving children, and Joann Fisher, his sister, (the "Plaintiffs") filed a wrongful death suit against the City of Memphis (the "City") and MHA, alleging both negligence and breach of contract. The Plaintiffs contended that the City and MHA were negligent in several ways: by failing to adequately investigate Miller's background prior to allowing him to lease a unit in the high rise Jefferson Square Apartments; by failing to enforce internal policies which would have affected Miller's status as a tenant; by allowing Miller to possess a rifle on the premises; and by failing to properly assess the risk Miller presented to the other tenants on the property. The Plaintiffs also asserted that the City and MHA had breached a contractual obligation within their lease agreement by failing to maintain a safe premises.
Upon motion, the trial court dismissed the City as a defendant and the Plaintiffs amended the complaint, naming MHA as the sole defendant. After MHA filed an answer, the Plaintiffs amended the complaint a second time, adding Scruggs as a defendant. Scruggs filed a cross-claim against MHA, alleging negligence in the investigation of Miller's background prior to allowing him to rent an apartment within the project. Scruggs also sought indemnity pursuant to a provision in its contract with MHA. In turn, MHA filed a cross-claim, asserting that Scruggs was vicariously liable for the negligent acts of its security guard and seeking indemnity pursuant to their contract. Later, MHA filed a motion to dismiss the original complaint and, in the alternative, sought summary judgment as to the Plaintiffs' claims.
A concise statement of the pertinent facts appears in the pleadings and in the supplemental documentation in the record. When Miller filed an application to reside in the apartment complex in 1996, MHA investigated his credit history and performed a home visit. It was the responsibility of MHA's department of security to conduct background checks for prospective tenants.3 Howard Terry, who had served as an MHA employee since 1994 but as the department head only since 2000, administered security for Jefferson Square and three other high rise buildings at the time this suit was filed. As a part of his responsibilities, he directed investigations and received reports of any incidents on the various premises that relate to security. Records in Terry's office indicated that on January 27, 1996, MHA asked the Sheriff's Department to conduct a background check on Miller. The investigation, which extended over the three years prior to the application, did not "uncover information that prohibit[ed] his ... being housed ... pursuant to MHA admission policies."
On May 8, 1998, well after Miller had taken occupancy of an apartment unit, he inflicted a pocket knife wound upon another tenant after a verbal exchange. A report filed with MHA indicated that Miller, agitated by James Tiplett, who was another tenant at the apartments, threatened to kill Tiplett unless he "stop[ped] singing in my ear." Shortly thereafter, Miller "jumped out of some bushes swinging a knife, scratching [Tiplett] on the arm." The report established that Tiplett refused medical treatment and that he originally declined to press charges, but did so afterwards when Miller continued to make verbal threats. Miller was arrested for aggravated assault as a result of the incident and a second report was filed by MHA. While the ultimate disposition on the criminal charge is not a part of the record, MHA placed Miller on probationary status for one year, warning that future violations would be basis for a termination of his lease. When questioned during a pre-trial deposition, Terry professed that he had no recollection of the 1998 incident but he did acknowledge that MHA had a "one-strike" policy in effect at that time, calling for eviction for the first instance of disruptive behavior. He explained that Derwin Jackson, the operations manager for MHA, had the responsibility of determining whether to evict based upon the report filed. Jackson served in that position in 1998 but left in 2000, some two years before the shooting incident. The following exchange took place during the course of the Terry deposition:
Q. From a security perspective, if you know we have a tenant who has assaulted another tenant with a knife, do you believe from a security perspective it is a good idea for that tenant who assaulted the other tenant to remain a tenant on the property or should that tenant's lease be terminated?
A. The tenant's lease should be terminated.
In response to the motion for summary judgment by MHA, the Plaintiffs submitted exhibits establishing that Miller had been charged with aggravated assault in 1979 and, in 1977, had pled guilty to firing a weapon within the city limits. There was no indication that MHA was aware of either incident. Further, the Plaintiffs also provided documentation of the 1998 altercation that resulted in the charge of aggravated assault against Miller. They also alleged that there had been between ten and twenty shooting incidents on the various MHA properties and numerous other assaults prior to the May 7, 2002 murder of Charles Cornelius Brown, Sr. Based upon the 1998 incident, the Plaintiffs argued that MHA had notice of Miller's propensity for violence and reiterated their contention that MHA had failed to maintain a safe premises. They asserted that MHA had failed to observe its own internal policies which were designed to prevent violence on the part of its tenants.
The trial court held that neither the internal policies of MHA nor the contents of the criminal background check of Miller created any duty to the Plaintiffs under these circumstances. Moreover, after observing that a policy excluding those with prior records would result in "a massive underclass of ex-convicts homeless due to an inability to find housing," the trial court rejected the Plaintiffs' argument that there was an affirmative duty on the part of MHA to conduct a criminal background check on prospective residents. Finally, the trial court held that the Plaintiffs were not entitled to recover as third party beneficiaries for breach of the terms of the lease agreement between MHA and Miller.
On direct appeal, the Plaintiffs argued that because MHA had some awareness of Miller's propensity for violence and, therefore, had a duty to take reasonable steps to maintain a safe premises, the trial court erred by dismissing the alternative theories of recovery in tort and by contract. Based upon MHA's prior knowledge of Miller's violent behavior, the Plaintiffs contended that MHA had a duty to monitor his actions or evict him from the premises.
The Court of Appeals affirmed the grant of summary judgment in favor of MHA holding that "an isolated violent outburst by ... Miller was [in]sufficient to notify MHA that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time" and, in consequence, insufficient to give rise to a duty in these circumstances. Giggers v. Memphis Hous. Auth., No. W2006-00304-COA-R3-CV, 2007 WL 2216553, at *11 (Tenn.Ct.App. Aug.3, 2007). The Court of Appeals further held that a landlord has no affirmative duty to evict or closely monitor a tenant who is known to have a criminal history. Id. at *12. Considering the foreseeability and the gravity of the harm against the commensurate burden imposed on the landlord to provide protections against that harm, our intermediate court held...
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