Minor Child ex rel. John Doe v. Federation, 2005-CA-00055-COA.

• Decision Date: 21 March 2006
• Docket Number: No. 2005-CA-00055-COA.,2005-CA-00055-COA.
• Citation: 941 So.2d 820
• Parties: MINOR CHILD by and through Her Parents and Next Friends JOHN DOE and Jane Doe, Parents; and John Doe and Jane Doe, Parents, Individually, Appellants v. MISSISSIPPI STATE FEDERATION OF COLORED WOMEN'S CLUB HOUSING FOR the ELDERLY IN CLINTON, INC. d/b/a Federation Tower; and Southland Management Corporation, Individually, Appellees.
• Court: Mississippi Court of Appeals

941 So.2d 820

MINOR CHILD by and through Her Parents and Next Friends JOHN DOE and Jane Doe, Parents; and John Doe and Jane Doe, Parents, Individually, Appellants v. MISSISSIPPI STATE FEDERATION OF COLORED WOMEN'S CLUB HOUSING FOR the ELDERLY IN CLINTON, INC. d/b/a Federation Tower; and Southland Management Corporation, Individually, Appellees.

No. 2005-CA-00055-COA.

Court of Appeals of Mississippi.

March 21, 2006.

Rehearing Denied July 25, 2006.

Certiorari Denied November 2, 2006.

COPYRIGHT MATERIAL OMITTED

James Ashley Ogden, Jackson, attorney for appellants.

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

Before KING, C.J., BARNES and ROBERTS, JJ.

ROBERTS, J., for the Court.

SUMMARY OF THE CASE

¶ 1. On July 11, 2002, John and Jane Doe, the parents and next friends of K.D., filed a complaint on K.D.'s behalf.¹ Filed in the Hinds County Circuit Court, K.D. sued a Mississippi corporation called "the Mississippi State Federation of Colored Women's Club Housing for the Elderly in Clinton, Inc. d/b/a Federation Tower Apartments and Southland Management Corporation" (Federation Tower). K.D. sued Federation Tower under causes of action for negligent security, failure to warn, and for failure to maintain the apartment complex in a reasonably safe condition. Essentially, K.D. claimed that, because of Federation Towers's negligence, Tony Kelly entered the premises and raped her at least six times.

¶ 2. Federation Tower filed a motion for summary judgment. According to the record before the circuit court, the opposing parties presented two distinctly different versions of events. According to the Does, Kelly took advantage of the lack of security at Federation Tower, entered the premises, lived on the premises as a trespasser, encountered K.D. as she played and otherwise went about the apartments, and raped K.D. Federation Towers presented a much different version of events. According to Federation Towers, K.D. opened the fire doors and let Kelly in so that they could have consensual sex.²

¶ 3. The circuit court granted Federation Tower's motion for summary judgment and held (1) there was no genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge of Kelly's violent nature and (2) there was no genuine issue of material fact as to whether Federation Tower had actual or constructive knowledge that a violent atmosphere was present at Federation Tower. Aggrieved, K.D. appeals and raises the following issues:

I. WHETHER THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT IN FAVOR OF THE DEFENDANTS.

II. WHETHER [K.D.] PRESENTED A GENUINE ISSUE OF MATERIAL FACT AS TO [FEDERATION TOWER'S] ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF TONY KELLY'S VIOLENT NATURE.

III. WHETHER [K.D.] PRESENTED A GENUINE ISSUE OF MATERIAL FACT REGARDING PROOF OF AN ATMOSPHERE OF VIOLENCE ON THE PREMISES.

IV. WHETHER [FEDERATION TOWER'S] FAILURE TO KEEP FIRE EXIT DOORS LOCKED CAUSED [K.D.'S] INJURIES IS A QUESTION OF FACT FOR THE JURY.

V. WHETHER [FEDERATION TOWER] PROXIMATELY CAUSED [K.D.'S] INJURIES IS A QUESTION OF FACT FOR THE JURY.

VI. WHETHER [THE] TRIAL COURT ERRED IN GRANTING [FEDERATION TOWER'S] MOTION TO STRIKE AFFIDAVITS OF WITNESS AMHURST BROWN.

VII. WHETHER [THE] TRIAL COURT ERRED IN DENYING [K.D.'S] MOTION TO STRIKE AFFIDAVIT OF DON BYINGTON.

Finding that the circuit court erred in granting summary judgment, we reverse and remand.

FACTS

¶ 4. During the week, K.D. lived with her mother and stepfather in Jackson, Mississippi. Otherwise, K.D. spent weekends with her father, John Doe. John lived in one of the apartments at Federation Tower, located in Clinton, Mississippi. Federation Tower was an "assisted living" complex. John was approximately fifty years old, had a tenth grade education, was on dialysis treatment after a kidney transplant, and previously had hip replacement surgery, had two heart attacks with subsequent bypass surgery, and had poor eyesight. Apparently, he was a Social Security disability recipient.

¶ 5. During March of 2001, a friend of John's noticed that K.D., then eleven years old, appeared pregnant. John called K.D.'s mother, Jane Doe, and asked if she knew whether K.D. was pregnant. K.D. initially denied that she could have been pregnant. K.D. finally confessed that it was possible that she was pregnant, as she had been raped by a man named Tony Kelly. K.D. explained that Kelly raped her during her visits with her father.

¶ 6. On March 20, 2001, Dr. Louisa Lawson examined K.D. and determined that, at that time, K.D. was five to six months pregnant. Additionally, Robert Mahaffey, an investigator with the Hinds County Sheriff's Department, referred K.D. to the Mississippi Children's Advocacy Center. On March 26, 2001, K.D. visited the Mississippi Children's Advocacy Center and met with Denease Bishop, a clinical therapist. Bishop and K.D. discussed her encounters with Kelly. On April 5, 2001, K.D. visited the Children's Advocacy Center again. Again, K.D. met with Bishop. K.D. related at least six incidents that involved sexual activity with Kelly.

¶ 7. Kelly was prosecuted for statutory rape. On May 31, 2001, Kelly filed a petition to plead guilty to statutory rape. The circuit court sentenced Kelly to a twenty year sentence with thirteen years suspended and seven years to serve.³ At the time of this opinion, Kelly is in prison serving his sentence.

¶ 8. K.D., by and through her parents, sued Federation Towers on July 11, 2002. On November 4, 2002, K.D., her father, and her mother all gave their depositions. In K.D.'s deposition, she discussed the times that Kelly raped her.

¶ 9. K.D. testified that Kelly first raped her during September of 2000. On a weekend visit with her father, K.D. went from his first floor apartment to her father's friend's apartment on the third floor. K.D. passed a message from her father and left the third floor. As K.D. went down the stairwell, Tony Kelly appeared from underneath the stairwell and grabbed K.D. K.D. screamed for help. K.D. testified in her deposition that she saw James Gray, the night and weekend manager of Federation Tower, about five to ten feet away. K.D. testified that she called to him and asked him to help her. According to K.D., Gray ignored her cries and walked away. Kelly then dragged K.D. into the stairwell and raped her. Kelly told K.D. that he would harm her father if she told anyone what happened, so she did not report the incident. She went back to her father's apartment. Her father asked her what was wrong. She replied "nothing" and left the apartment to play with a friend.

¶ 10. K.D. alleged that Kelly raped her a second time during November of 2000. At that time, K.D. played hide-and-seek with a friend. As they played in the hallways and stairwell, Kelly again appeared from underneath the stairwell and raped her. After Kelly released her, she went back to her father's apartment and took a bath. She did not report the rape because she was afraid.

¶ 11. Approximately a month and a half after the second rape, K.D. walked from her father's apartment to a friend's grandmother's apartment. Again, Kelly appeared from underneath the stairwell and raped K.D. After Kelly raped her, K.D. went back to her father's apartment and took a bath. She did not report that rape at the time. K.D. alleged that Kelly raped her as many as six times.

¶ 12. On November 26, 2002, Gladys Miller, the manager of Federation Tower, gave her deposition. Miller testified that there was not an atmosphere of violence at Federation Tower. Miller also testified that he had no notice of Kelly's violent nature. James Gray, the night manager of Federation Tower, gave his deposition the same day as Miller. Gray claimed that he did not witness K.D. call out to him. He testified that he narrowly missed witnessing some variety of a sexual encounter involving K.D. Gray stated that, as he walked down a hallway, he heard someone run away. When he turned the corner, he only saw K.D. Gray claimed that K.D. was adjusting her clothes when he saw her. In particular, Gray claimed K.D. was fastening the straps on her overall shorts. Gray concluded that K.D. had been involved in some type of sexual activity and that her partner ran away when they heard Gray approaching.

¶ 13. On September 2, 2004, Kelly gave a deposition. Kelly claimed that he had consensual sex with K.D. Kelly suggested that K.D. would open a fire door for him to allow him access to the apartments. According to Kelly, he would enter the apartments through K.D.'s help and then have consensual sex with K.D.—either in the stairwell or in her father's apartment.

¶ 14. Amherst Brown, a resident of Federation Tower, submitted two affidavits. The basic conclusion in Brown's two affidavits was that Kelly trespassed at Federation Tower and that there was an atmosphere of violence and frequent crime at Federation Tower. However, Don Byington, the Chief of Police for the City of Clinton, submitted an affidavit in which he stated that the area surrounding Federation Tower was a low-crime area.

¶ 15. As mentioned, Federation Tower filed a motion for summary judgment. On October 8, 2004, Federation Towers filed a motion to strike Amherst Brown's two affidavits. K.D. filed a motion to suppress Don Byington's affidavit. On November 23, 2004, the circuit court granted Federation Tower's motion to strike Amherst Brown's affidavits. However, the circuit court denied K.D.'s motion to suppress Don Byington's affidavit. That same day, the circuit court entered an order and granted Federation Towers' motion for summary judgment. The circuit court held that K.D. failed to prove that Federation Towers had actual or constructive knowledge of Kelly's violent nature and that K.D. failed to prove that Federation Towers had actual or constructive knowledge of an atmosphere of violence at Federation Towers.

¶ 16. As for K.D.'s allegation that James Gray saw Kelly pull K.D....