Mitchell v. Ridgewood E. Apartments, LLC

• Decision Date: 15 December 2016
• Docket Number: NO. 2015–CA–01484–SCT,2015–CA–01484–SCT
• Citation: 205 So.3d 1069
• Parties: Aubrey MITCHELL, Individually and on behalf of All the Heirs at Law and Wrongful Death Beneficiaries of Devin R. Mitchell, Deceased, and Myrtle Mitchell, Individually and as the Natural Mother and Next Friend of Aubreonna D. Mitchell, a Minor v. RIDGEWOOD EAST APARTMENTS, LLC, UAH Property Management, L.P. and Tavaris Franshay Collins
• Court: Mississippi Supreme Court

205 So.3d 1069

Aubrey MITCHELL, Individually and on behalf of All the Heirs at Law and Wrongful Death Beneficiaries of Devin R. Mitchell, Deceased, and Myrtle Mitchell, Individually and as the Natural Mother and Next Friend of Aubreonna D. Mitchell, a Minor

v.RIDGEWOOD EAST APARTMENTS, LLC, UAH Property Management, L.P. and Tavaris Franshay Collins

NO. 2015–CA–01484–SCT

Supreme Court of Mississippi.

December 15, 2016

DAVID RANDALL WADE, DENNIS C. SWEET, III, JEFFREY GRAY BAKER HOUSTON, ATTORNEYS FOR APPELLANTS

WALTER WILLIAM DUKES, DRURY SUMNER HOLLAND, ATTORNEYS FOR APPELLEES

BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ.

KITCHENS, JUSTICE, FOR THE COURT:

¶ 1. In the early-morning hours of January 1, 2012, sixteen-year-old Devin Mitchell was shot to death outside the apartment of his cousin, Queenie Walker, at Ridgewood East Apartments in West Point, Mississippi. Mitchell's family sued Ridgewood East, alleging, inter alia , premises liability. The Circuit Court of Clay County granted summary judgment to Ridgewood East. Finding that no genuine issue of material fact exists with regard to whether Mitchell's murder was foreseeable to Ridgewood East Apartments, we affirm the judgment of the Circuit Court of Clay County.

FACTS AND PROCEDURAL HISTORY

¶ 2. On December 31, 2011, Queenie Walker, a tenant of Ridgewood East Apartments since 2003, invited her cousins, Devin Mitchell, then sixteen years of age, and Aubreonna Mitchell, then fourteen years of age, to spend the night at her apartment. At midnight, Devin, Aubreonna, and Walker's three daughters went outdoors to celebrate the new year. Around 1:00 a.m. or 1:30 a.m., Devin visited with Porsha Ewing, who also resided at Ridgewood East, outside the window of her nearby apartment, for about an hour. The girls returned into Walker's apartment, but Devin remained outside. Because it was late, Walker called for Devin to return inside also. Devin replied, "I'm coming ...."

¶ 3. As Devin was returning, three, four, or five shots rang out from above Walker's apartment. Walker realized that Devin had been shot when she saw him on the ground "not moving" just fifteen feet from the door to her apartment. Walker's daughter dialed 911 on a cellular telephone, because Walker "was shaking so bad." According to the incident report prepared by police, the call was received at 2:55 a.m. on January 1, 2012. Walker went out to Devin and assured him that help was on the way.

¶ 4. At her deposition, Walker testified that "the guy" came down the stairs and that she asked him what he had done and "started screaming at him" and "cursing at him." Walker stated that "the guy" was Tavaris Collins, that he was "[r]unning around after the shooting," and that his eyes were dilated and "he looked spaced out" and appeared to be "on something." According to Walker, Collins had put away the gun he had used in the shooting and was wielding a different Tech-9 handgun, which he set on the ground "as if he was trying to show me ... that he didn't do it." Collins was arrested when the police arrived, around 2:57 a.m.¹

¶ 5. Devin was taken by ambulance to the Clay County Hospital, from which he was transported by helicopter to a Tupelo hospital where he died of a bullet wound

to the head.

¶ 6. According to an affidavit of the Ridgewood East Apartments property manager, Felecia Finley, Collins was not a resident of the complex. He was a visitor of Yashia Davis, who had been a resident of the apartment complex since 2010. Davis lived at Ridgewood East Apartments with her two children. Porsha Ewing testified at Collins's criminal trial that Collins had been staying at Ridgewood East with his girlfriend, Davis, for two years. Collins was the father of one of Davis's children and he would stay to babysit his child while Davis worked.

¶ 7. On September 7, 2012, Devin's parents, Aubrey Mitchell, individually and on behalf of the heirs at law and wrongful death beneficiaries of Devin Mitchell, and Myrtle Mitchell, individually and as the natural mother and next friend of Aubreonna Mitchell, a minor (collectively the Mitchells), filed their first amended complaint against Ridgewood East Apartments, Antelope Investment Properties,² which conducted its business as Ridgewood East Apartments, UAH Property Management, L.P., the management company which operated Ridgewood East Apartments, Collins, and nine Doe defendants, in the Circuit Court of Clay County (collectively Ridgewood East). The Mitchells alleged, inter alia , that Ridgewood East had actual or constructive knowledge of the prior violent criminal conduct of Collins and that an atmosphere of violence existed at Ridgewood East at the time of the shooting.

¶ 8. On March 18, 2014, Ridgewood East designated Bruce A. Jacobs, Ph.D., as an expert in criminology. The trial court denied Ridgewood East's first summary judgment motion, which had been filed on October 9, 2013. Ridgewood East filed its second motion for summary judgment on March 31, 2014, arguing that no genuine issue of material fact existed with respect to foreseeability. Attached to the motion was Jacobs's affidavit. Jacobs, who examined crime data from the West Point Police Department for the three-year period preceding the shooting, opined that no atmosphere of violence existed at Ridgewood East.³ Having reviewed the police report of the incident, area crime data, and the deposition testimony of the witnesses, he concluded that no evidence existed that tended to put Ridgewood East on notice that Collins posed a threat to residents.

¶ 9. The Mitchells responded on July 11, 2014, and sought further discovery. Attached to the response were various West Point Police Department incident reports from 2009 to 2013 involving Ridgewood East. On February 27, 2015, the Mitchells designated John A. Harris, B.S., M.S., as an expert in the field of premises liability and security. Harris stated in his affidavit, which was filed on March 29, 2015, that, in his professional opinion and within a reasonable degree of certainty, the shooting was foreseeable because it was reasonably foreseeable that: (1) residents and guests of the apartment would celebrate New Year's Eve, (2) on New Year's Eve, residents and guests "may engage in the use of drugs or alcohol," (3) residents and guests might violate the 10:00 p.m. curfew on New Year's Eve, (4) residents and guests would violate the apartment handbook rule against public drunkenness, (5) residents and guests might violate the apartment handbook "rule against weapons on the property in the absence of management or security officers on the property at the time" to ensure the rule's enforcement, (6) a resident or guest could be injured if the apartment's rules and policies were not enforced; and that it was unreasonable "for a reasonably prudent apartment manager/operator to shift the entire burden of enforcing the complex's policies and rules to the residents or even to the guests at the complex," and that Ridgewood East's breach of the duty of care applicable to "reasonably prudent apartment owners, managers and operators" caused or contributed to the shooting.

¶ 10. Ridgewood East's second motion for summary judgment was heard on May 15, 2015. The trial court entered its order granting summary judgment to Ridgewood East on June 16, 2015. It found that, while Collins had lived on, or visited daily, the property for approximately two years, the apartment possessed neither actual nor constructive knowledge of his presence, since he had not been added to Davis's lease and no complaints previously had been filed involving him. The trial court further found that the Mitchells had not rebutted the conclusions of Dr. Jacobs, and that Harris's affidavit did not address whether an atmosphere of violence existed at Ridgewood East or whether Ridgewood East was on notice of Collins's violent nature. The trial court determined that no genuine issue of material fact existed with regard to foreseeability.

¶ 11. The Mitchells filed a motion for relief from summary judgment pursuant to Mississippi Rule of Civil Procedure 60(b) on June 26, 2015, which the trial court denied on September 1, 2016. Aggrieved, the Mitchells filed a notice of appeal on September 28, 2015.

¶ 12. The Mitchells argue on appeal that Collins himself constitutes an unreasonably dangerous condition and that Ridgewood East had constructive knowledge both of his presence at the complex and of his violent nature.⁴ They further assert that Ridgewood East, by incorporating into the tenants' written lease contracts property rules and policies, assumed the duty to prevent rule and policy violations and thereby rendered third-party criminal acts foreseeable.

STANDARD OF REVIEW

¶ 13. We review a trial court's grant of summary judgment de novo . Borries v. Grand Casino, Inc. , 187 So.3d 1042, 1045 (Miss. 2016) (citing Davis v. Hoss , 869 So.2d 397, 401 (Miss. 2004) ). "The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Miss. R. Civ. P. 56(c). The movant bears "the burden of demonstrating that no genuine issue of fact exists," while the nonmovant "should be given the benefit of every reasonable doubt." Borries , 187 So.3d at 1046 (citing Tucker v. Hinds Cty. , 558 So.2d 869, 872 (Miss. 1990) ). The evidence is to be viewed in the light most favorable to the nonmoving party. Stribling Inv., LLC v. Mike Rozier Constr. Co., Inc. , 189 So.3d 1216, 1219 (Miss. 2016) (citing Cade v. Beard , 130 So.3d 77, 81 (Miss. 2014) ). "The party opposing the motion must be diligent and, by allegations or denials, must set forth specific facts showing that there are genuine issues for trial." Porter v. Grand Casino of Miss., Inc. , 181 So.3d 980, 983 (Miss. 2016) (citing Davis , 869 So.2d at 401 ).

ANALYSIS

1. ...