Lord v. Saratoga Capital, Inc.

• Decision Date: 14 November 1995
• Docket Number: No. 94-2129/BraMl.,94-2129/BraMl.
• Citation: 920 F. Supp. 840
• Parties: Juanita LORD, Plaintiff, v. SARATOGA CAPITAL, INC., a California corporation; and Sun Pac, a California General Partnership, consisting of James F. Fox and W.M. Lyles Co.; Defendants.
• Court: U.S. District Court — Western District of Tennessee

920 F. Supp. 840

Juanita LORD, Plaintiff, v. SARATOGA CAPITAL, INC., a California corporation; and Sun Pac, a California General Partnership, consisting of James F. Fox and W.M. Lyles Co.; Defendants.

No. 94-2129/BraMl.

United States District Court, W.D. Tennessee, Western Division.

November 14, 1995.

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Charles J. Swayze, Jr., Whittington, Brock, Swayze & Dale, Greenwood, Mississippi, for plaintiff.

Louis J. Miller, H. Leo Beale, II, Waring Cox Morgan Keegan Tower, Memphis, Tennessee, for defendants.

ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

McCALLA, District Judge.

PROCEDURAL POSTURE

On July 29, 1995, both defendants, Saratoga Capital, Inc., ("Saratoga") and Sun Pac, submitted motions for summary judgment under Federal Rule of Civil Procedure 56 on all six causes of action alleged by plaintiff, Juanita Lord, in her Third Amended Complaint. On August 30, 1995, plaintiff filed answers to defendants' motions. On October 31, 1995, the Court held a hearing on the motions. Plaintiff and defendants have briefed the pertinent legal issues.

FACTS

On December 27, 1992, plaintiff signed a lease to reside at Willow Lake Apartments in Memphis, Tennessee, which was/is owned by defendant Sun Pac and managed by defendant Saratoga. In the early morning on April 28, 1993, an unknown assailant entered plaintiff's apartment at Willow Lake through a window and committed burglary, rape, sodomy, and battery. As a result of these crimes, plaintiff suffered property loss, physical injuries, and severe emotional distress.

On February 22, 1994, plaintiff brought suit against defendant Saratoga, alleging four causes of action: 1) negligence in breaching the duty "to provide security, protection and a safe place to reside," 2) breach of the implied warranty of habitability and safety, 3) premises liability in failing to exercise reasonable care in addressing conditions known to pose an unreasonable risk of harm, and 4) product liability in leasing an apartment which was defective and unreasonably dangerous. On April 26, 1994, plaintiff filed her Second Amended Complaint,¹ alleging the same four causes of actions, but adding Sun Pac as a defendant. On May 16, 1994, Saratoga filed its Answer to the Second Amended Complaint. On June 30, 1994, Sun Pac filed its Answer. On November 3, 1994, plaintiff filed her Third Amended Complaint, adding two causes of action: 5) intentional misrepresentation in that Willow Lake employees told her that the complex had "security" and showed her a document purportedly authored by "Willow Lake Security" when, in fact, Willow Lake had no security personnel, and 6) negligent misrepresentation in that Willow Lake failed to exercise reasonable care in making the claims of "security." On November 18, 1994, Saratoga and Sun Pac each filed an answer to the Third Amended Complaint.

After several months of discovery by plaintiff and defendants, on July 29, 1995, Saratoga and Sun Pac filed separate motions for summary judgment under Federal Rule of Civil Procedure 56 as to all six causes of action asserted by plaintiff. Both Saratoga and Sun Pac have submitted briefs and supplemental briefs in support of their motions, and plaintiff has responded to each motion and submitted briefs in support of her responses. Finally, the Court has heard the oral argument of all parties in an October 31, 1995, hearing.²

ANALYSIS

Saratoga moved for summary judgment on all of plaintiff's asserted causes of action on the grounds that no genuine issue of material fact exists and Saratoga is entitled to judgment as a matter of law in that plaintiff fails to make out prima facie cases. Sun Pac moved for summary judgment as to all of plaintiff's asserted causes of action on the theory that Sun Pac has effectively delegated its rights in the operation of Willow Lake Apartments to Saratoga, and, thus, only Saratoga could be liable to plaintiff. Disposition of both of defendants' motions requires the Court to consider first the frontal attack on plaintiff's asserted causes of action found in Saratoga's motion and accompanying briefs. For this purpose, only three of plaintiff's six asserted causes of action merit serious discussion: negligence, intentional misrepresentation, and negligent misrepresentation.³

In the context of summary judgment, the Court must determine whether "there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). If the moving party establishes that there are no genuine issues of material fact, then summary judgment will be appropriate unless the nonmoving party establishes every element of its case on which it will have the burden at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 321, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). According to the Sixth Circuit, this requires the nonmoving party to "put up or shut up" for the critical issues of its asserted causes of action. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1478 (6th Cir.1989). In evaluating the evidence offered for the essential elements of the case, the evidence is viewed in the light most favorable to the nonmoving party. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The essential elements of the nonmoving party's case are determined by reference to the substantive law of the case.

Under the principles of Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), the substantive law of this case is governed by the law of Tennessee. This Court has jurisdiction based on diversity of citizenship. The facts giving rise to this action occurred in Tennessee. A discussion of the evidence in this case with reference to the Tennessee law for negligence, intentional misrepresentation, and negligent misrepresentation follows.

I. Negligence

To establish a prima facie case for negligence, a plaintiff must prove: 1) the defendant owed the plaintiff a duty of care, 2) the defendant breached that duty, 3) proximate causation, and 4) damages. McClenahan v. Cooley, 806 S.W.2d 767, 774 (Tenn.1991). Specific rules have developed for the negligence liability of a landowner for injuries resulting from dangerous conditions on the landowner's property. Tennessee law on the liability of landlords to tenants for the criminal actions of third parties is a specific application of the traditional elements of a negligence action. See Speaker v. Cates Co., 879 S.W.2d 811 (Tenn.1994); Tedder v. Raskin, 728 S.W.2d 343 (Tenn.Ct. App.1987). Once a landlord is "on notice of an unreasonable risk or likelihood of danger to his tenants caused by a condition within his control," the landlord has a duty to "take reasonable steps to correct the problem within a reasonable time." Tedder, 728 S.W.2d at 348. A tenant must establish proximate causation by a showing "that the injury suffered by the tenant as a result of the criminal actions of a third party was a reasonably foreseeable probability, not just a remote possibility, and that some action within the landlord's power more probably than not would have prevented the injury." Id. at 348-49. "If the injury was not reasonably foreseeable, then the criminal act of the third party would be a superseding, intervening cause of the harm, relieving the landlord of liability." Id. at 349.

A. Duty

A landlord's duty arises when the landlord has notice. Notice may be actual or constructive. See Benson v. H.G. Hill Stores, Inc., 699 S.W.2d 560, 563 (Tenn.Ct. App.1985). Constructive notice may be deemed to exist based on past criminal activity, but the crimes must be suggestive of the probability of the occurrence of a particular crime in the near future. See Lewter v. O'Connor Management Inc., 886 S.W.2d 253, 256 (Tenn.Ct.App.1994) ("Ordinarily ... other crimes must be contemporaneous with or so closely connected in time with the injury to plaintiff as to `pose an imminent probability of harm'"); Goans v. Parkridge Hosp., No. 591, slip op. at 3 (Tenn.Ct.App. Oct. 1, 1982) (noting that constructive notice may arise when past crimes are "so numerous and so near in time that a likelihood of imminent harm exists"). Plaintiff claims that defendants may be charged with actual and constructive notice of the imminent probability of harm to the plaintiff. Plaintiff's Brief in Response to Defendant Saratoga's Motion for Summary Judgment (hereinafter, Plaintiff's Brief in Response to Saratoga), at 19-23. Defendants contend that plaintiff has offered no evidence of actual knowledge and that plaintiff's evidence of past criminal activity is insufficient as a matter of law to constitute constructive notice of the threat of harm to plaintiff. Brief in Support of Defendant Saratoga Capital, Inc.'s Motion for Summary Judgment (hereinafter, Saratoga's Brief), at 9; Defendant, Saratoga Capital, Inc.'s Supplemental Brief in Support of Its Motion for Summary Judgment (hereinafter, Saratoga's Supplemental Brief), at 12-17.

1. Actual Notice

Plaintiff makes an argument under the heading of constructive notice that the Court construes to be an argument for implied actual notice. Plaintiff's Brief in Response to Saratoga, at 20-23; see Mowdy v. Kelly, 667 S.W.2d 489, 494 (Tenn.Ct.App. 1983) (Cantrell, J., dissenting) (citing Black's Law Dictionary 1258 (3d ed. 1933)). Plaintiff has offered evidence that there was an attempted break-in at another apartment in the Willow Lake complex in the hours before plaintiff was assaulted and raped in her apartment. Harris Aff.; Police Report no. 930428-009131. Plaintiff contends that defendants should be charged with notice since, if defendants had exercised reasonable diligence, they would have known of the earlier break-in attempt and concluded that the same perpetrator would soon thereafter attempt to...