Smith v. Willow Wood Apartments TC, L.P
| Docket Number | Civil Action 3:19-CV-402-DPJ-FKB |
| Decision Date | 28 December 2021 |
| Parties | HARRY SMITH PLAINTIFF v. WILLOW WOOD APARTMENTS TC, L.P. DEFENDANT |
| Court | U.S. District Court — Southern District of Mississippi |
Plaintiff Harry Smith was assaulted and shot while picking up a family member from a party at Willow Wood Apartments. He seeks to hold the apartment complex liable, contending an atmosphere of violence existed on the property. The facts are more fully explained in the Court's September 24, 2020 Order denying summary judgment. See Order [44].
The case is now before the Court on two motions in limine filed by Defendant Willow Wood [54, 55]. After fully considering the motions and discussing them with counsel during the pretrial conference, the Court grants in part and denies in part Defendant's first motion [54] and denies its second motion [55] without prejudice.
O'Rear v. Fruehauf Corp., 554 F.2d 1304, 1306 n.1 (5th Cir. 1977) (quoting Robert T. Hyde, Jr., Commentary The Motion in Limine: Pretrial Trump Card in Civil Litigation, 27 U. Fla. L. Rev. 531, 531 (1975)). An order granting a motion in limine does not preclude the party sponsoring the evidence from revisiting the issue at trial but that party must raise the issue outside the jury's presence. See El-Bawab v. Jackson State Univ., No. 3:15-CV-733-DPJ-FKB, 2018 WL 3715836, at *2 n.1 (S.D.Miss. Aug. 3, 2018). Importantly, “a motion in limine cannot be a substitute for a motion for summary judgment, a motion to dismiss, or a motion for directed verdict.” Morgan v. Mississippi, No. 2:07-CV-15-MTP, 2009 WL 3259233, at *1 (S.D.Miss. Oct. 8, 2009) (citing 21 Fed. Prac. & Proc. § 5037.18).
Defendant's first motion in limine addresses nine subject areas, but Smith agrees that he will not offer evidence or argument regarding five of those issues. Specifically, the jury will not hear evidence or argument regarding (1) expert opinions; (2) future damages; (3) lost wages or earning capacity; (4) documents Smith did not disclose; and (5) settlement discussions. Defendant's motion is granted as to those subject areas. That leaves four disputed areas, though the parties narrowed some of those issues during the pretrial conference.
To establish foreseeability, Smith has previously offered service calls from people at the Willow Wood Apartments over the preceding two years complaining about various potential crimes-some violent, others not. Smith offers the calls to show an atmosphere of violence on the premises.
Under Mississippi law, acts by a third party are reasonably foreseeable if the business owner has “(1) actual or constructive knowledge of the third party's violent nature, or (2) actual or constructive knowledge that an atmosphere of violence existed on the premises.” Minor Child ex rel. Doe v. Miss. State Fed'n of Colored Women's Club Hous., 941 So.2d 820, 827 (Miss. Ct. App. 2006). “Pertinent factors for consideration are (1) ‘the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant's business premises,' and (2) ‘the frequency of criminal activity on the premises.'” Id. (quoting Crain v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So.2d 1186, 1189-90 (Miss. 1994)).
Defendant seeks exclusion of those service calls on two grounds. First it argues that there is nothing verifying that the crimes ever occurred. The Court addressed this issue when it denied summary judgment, and there is no need to repeat that analysis. But in addition to that analysis, the Court further notes American National Insurance Co. v. Hogue, where the Mississippi Court of Appeals considered similar evidence and ruled that, “[a]lthough these compilations were records of calls made and not necessarily crimes committed, this evidence created a jury question on notice that assaults were occurring.” 749 So.2d 1254, 1259 (Miss. Ct. App. 2000) (Southwick, J.); see also Rogers v. Sunbelt Mgmt. Co., 52 F.Supp.3d 816, 823 n.5 (S.D.Miss. 2014) (Starrett, J.) () (citing Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So.2d 390, 402-03 (Miss. Ct. App. 2007) ()). So here, admissibility to prove foreseeability is not contingent on proof that the reported crimes occurred.
Willow Wood further objects to the call logs because most calls related to dissimilar incidents. Defendant premises that argument on Evans v. Schucker's Piano & Oyster Bar, Inc., where the trial court granted summary judgment, and the Mississippi Supreme Court affirmed. 281 So.3d 302 (Miss. 2019). In doing so, the Evans court noted that the plaintiff offered an unauthenticated list of service calls over a 10-year period, only a small percentage of which would be considered similar. Id. at 308. The Court did not, however, say the other calls were inadmissible.
As noted, the jury must consider (1) “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant's business premises, ” and (2) “the frequency of criminal activity on the premises.” Crain, 641 So.2d at 1189-90. The call list in the present case speaks to these issues and is more extensive and relevant than the one in Evans. See Order [44] at 3-4; see also Tillman v. Wendy's Int.'l, Inc., No. 00-60661, 2001 WL 360691, at *2 (5th Cir. Mar. 13, 2001) (“The ‘prior similar incidents' prong is not offensespecific.”) (citing Am. Nat'l Ins. Co., 749 So.2d at 1260)). Defendant's motion is denied.
Smith did not designate a security expert, so Willow Wood moves to exclude any testimony suggesting safety measures that should have been taken or why the absence of those measures caused this event. In response, Smith states: “While none of Smith's witnesses may have the ability to testify as to the efficacy of certain security measures, they may certainly testify as to the lack of any such measures to the extent that they know.” Pl.'s Resp. [56] at 3-4. In other words, they may factually...
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