Rogers et al v. Sunbelt Management Co. et al
Filing
65
ORDER denying Defendants' 50 Motion for Summary Judgment; and granting in part and denying in part Defendants' 57 Motion to Strike. Signed by District Judge Keith Starrett on September 15, 2014 (dsl)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
FREDRICK ROGERS, YAMINAH BERRY,
ARIEANNA BERRY, DEMETREOUS BERRY,
FOR AND ON BEHALF OF THEMSELVES
AND ALL OTHERS THAT MIGHT BE
ENTITLED TO RECOVER FOR THE
WRONGFUL DEATH OF JACQUELINE
BERRY
V.
PLAINTIFFS
CIVIL ACTION NO. 2:13cv145-KS-MTP
SUNBELT MANAGEMENT CO.,
WOODBRIAR ASSOCIATES, LTD, AND
BRIARWOOD ASSOCIATES, LTD
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Defendants’ Motion for Summary
Judgment [50] and Motion to Strike Affidavit of Yaminah Berry [57]. Having considered
the submissions of the parties, the record, and the applicable law, the Court finds that
the Motion for Summary Judgment should be denied and that the Motion to Strike
Affidavit of Yaminah Berry should be granted in part and denied in part.
BACKGROUND
This is an action for wrongful death brought under a theory of premises liability
arising from the shooting death of Jacqueline Berry at the Briarwood Apartments in
Jefferson Davis County, Mississippi. The Briarwood Apartments are located in an
unincorporated area just outside the City of Prentiss. Plaintiffs Fredrick Rogers,
Yaminah Berry, Arieanna Berry, and Demetreous Berry are the biological children of
Jacqueline Berry, deceased. Defendants Sunbelt Management Co. and Woodbriar
Associates, Ltd. (hereinafter collectively referred to as “Defendants” or “Sunbelt”) own,
operate, and/or manage the Briarwood Apartments.1 It appears that “Briarwood
Associates, Ltd.” is not a separate entity, but instead is the former name of Woodbriar
Associates, Ltd. (See 1st Am. Certif. & Agreement of Ltd. P’ship [18-1].)
In December of 2012, Jacqueline Berry lived with Mary Hammond, a family
member, at the Briarwood Apartments. (See Y. Berry Dep. [50-2] 29:21-25.) Yaminah
Berry, Jacqueline Berry’s daughter, also lived at the subject premises in a separate
apartment. (See Y. Berry Dep. [50–2] 7:1-6, 30:20-31:2.) Plaintiffs claim that shortly
after midnight on December 15, three individuals attempted to break into Yaminah
Berry’s apartment in order to commit a robbery. Yaminah Berry, Jacqueline Berry,
Devon Brown, and others were inside the apartment at that time.2 Plaintiffs claim that
one of the intruders, James “Jamie” McLaurin, began firing shots into the apartment
during the attempted break-in, and that one of the shots struck and killed Jacqueline
Berry. For purposes of summary judgment, Defendants have “accept[ed] as true the
position that Jamie McLaurin pulled the trigger that caused Jacqueline Berry’s death.”
(Defs.’ Brief in Supp. of Mot. for SJ [51] at p. 2.) Jamie McLaurin, Eddie Harris, and
Adrian Demetrius Speights were all arrested for capital murder in connection with the
death of Jacqueline Berry. (See Recommendation for Prosecution [50-6]; Aff. in State
Cases [56-1 at ECF p. 2]; Justice Court Subpoenas [56-1 at ECF pp. 14-16].) However,
it does not appear that a grand jury indictment has been returned on any of these
1
The parties have not distinguished between these two entities for purposes of the
subject motions.
2
Devon Brown is the father of Yaminah Berry’s child, who was approximately one
year old at the time of the incident.
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individuals as of the date of this opinion.
On June 11, 2013, Plaintiffs, individually and on behalf of all other wrongful death
beneficiaries of Jacqueline Berry, filed suit against Sunbelt in the Circuit Court of
Jefferson Davis County, Mississippi. (See Compl. [1-1 at ECF p. 2].) Plaintiffs claim
that the Defendants had actual or constructive knowledge of the Briarwood Apartments
being dangerous and unsafe due to the existence of prior criminal incidents; that there
were no guards or other appropriate security measures in place at the Briarwood
Apartments; and, that the shooting death of Jacqueline Berry was a foreseeable event
in light of the numerous prior crimes committed at the subject premises. Count one of
the Complaint alleges negligence and asserts that Plaintiffs are entitled to recover
damages under Mississippi’s wrongful death statute, section 11-7-13 of the Mississippi
Code. In count two, Plaintiffs claim that the conduct of the Defendants was gross,
willful, wanton, and reckless, justifying an award of punitive damages.
On July 5, 2013, Sunbelt removed the proceeding to this Court on the basis of
diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. (See Notice of
Removal [1].) The Notice of Removal asserts that the Plaintiffs are citizens of
Mississippi, while the Defendants are citizens of Alabama. Sunbelt contends §
1332(a)’s amount in controversy requirement is met due to the Plaintiffs seeking
damages for wrongful death and punitive damages. The Court is satisfied that federal
subject matter jurisdiction exists pursuant to § 1332.
On June 27, 2014, Defendants filed their Motion for Summary Judgment [50].
On July 28, 2014, Defendants filed their Motion to Strike Affidavit of Yaminah Berry
(“Motion to Strike”) [57]. Yaminah Berry’s affidavit is an exhibit to Plaintiffs’ Response in
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Opposition to Defendants’ Motion for Summary Judgment [54]. (See Y. Berry Aff. [543].) The subject motions have been fully briefed and the Court is ready to rule.
DISCUSSION
I.
Motion to Strike [57]
Defendants argue that the Court should strike and not consider Yaminah Berry’s
affidavit in ruling on summary judgment because the affidavit contradicts her prior
deposition testimony. It is well accepted in the Fifth Circuit that a “nonmovant cannot
defeat a motion for summary judgment by submitting an affidavit which directly
contradicts, without explanation, his previous testimony.” Albertson v. T.J. Stevenson &
Co., 749 F.2d 223, 228 (5th Cir. 1984) (citations omitted); see also S.W.S. Erectors, Inc.
v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (“[T]his court does not allow a party to
defeat a motion for summary judgment using an affidavit that impeaches, without
explanation, sworn testimony.”) (citations omitted). However, the Fifth Circuit has also
held that in ruling on summary judgment, a trial “court must consider all the evidence
before it and cannot disregard a party’s affidavit merely because it conflicts to some
degree with an earlier deposition.” Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893
(5th Cir. 1980) (citations omitted). A party’s conflicting testimony generally gives rise to
an issue of credibility and it is the jury’s role to weigh testimony and resolve credibility
issues. See id. at 893-94; see also EEOC v. Chevron Phillips Chem. Co., 570 F.3d
606, 608, 612 n.3 (5th Cir. 2009) (reversing the trial court’s grant of summary judgment
and noting that the “very fact . . . the magistrate judge questioned Netterville about
perceived discrepancies between her deposition and affidavit tends to indicate that the .
. . judge was weighing evidence and resolving conflicts in the summary judgment
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evidence, and failing to give the plaintiff the benefit of all favorable inferences that could
be drawn”).
Defendants specifically challenge the following statements contained in the
affidavit:
In the five (5) years preceding my mother, Jacqueline Berry’s, death on
December 16, 2012, I personally observed the following conduct at
Briarwood: drugs sales, people shooting guns and people fighting with guns
and without guns. I also was a witness to Stacy Hall being shot at the
apartments across the street from Briarwood.
....
My lawyer has read to me the portion of the Defendants’ brief that deals with
James McLaurin being an invited guest in my home prior to my mother being
shot. Nothing could be further from the truth. I was scared to death of
James McLaurin as he was loud, usually carried a gun and quite often
displayed it while at Briarwood. James McLaurin had never been in my
apartment before the day of my mother’s death and on the day of her death
he barged into my apartment uninvited. I did not ask him to come in. He just
walked in and demanded to use a phone charger.
....
On April 21, 2011 I personally observed James McLaurin shot [sic] at three
police officers at the complex next door to Briarwood.
(Y. Berry Aff. [54-3] at ¶¶ 2, 5, 7.)
The portion of Yaminah Berry’s July 10, 2014 affidavit stating that she personally
observed shootings and fights at the Briarwood Apartments directly conflicts with her
February 18, 2014 deposition testimony. At deposition, Yaminah Berry testified that she
was aware of shootings, people kicking in doors, and fights occurring at the subject
premises prior to her mother’s death. However, Yaminah Berry also testified that she
“never witnessed” with her “own eyes” any of these violent crimes. (Y. Berry Dep. [50-2]
14:4-13.) No explanation has been offered for this variance in Yaminah Berry’s sworn
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statements. Therefore, the Court will disregard Yaminah Berry’s testimony by affidavit
that she personally observed shootings and fights at the Briarwood Apartments in the
five years preceding her mother’s death. See S.W.S. Erectors, Inc., 72 F.3d at 496;
Albertson, 749 F.2d at 233 n.9.
There is some tension between Yaminah Berry’s deposition testimony and
affidavit regarding her interactions with Jamie McLaurin on the night leading up to the
subject incident. Yet, the Court does not perceive any direct contradictions
necessitating the striking of affidavit testimony. Moreover, segments of Yaminah
Berry’s deposition support or correspond with the above-quoted section of the affidavit
concerning Jamie McLaurin. For instance, Yaminah Berry testified that she was aware
of McLaurin shooting at police officers some years before her mother’s death. (Y. Berry
Dep. [50-2] 15:22-17:9.) It is not beyond the realm of reason to accept Yaminah Berry’s
statement that she “was scared to death of James McLaurin” in light of her apparent
belief that he had previously shot at law enforcement officials. (Y. Berry Aff. [54-3] at ¶
5.) Yaminah Berry also testified by deposition that she was not friends with Jamie
McLaurin, and Defendants fail to cite any portion of her deposition providing that she
invited Jamie McLaurin into her apartment or that McLaurin had ever been inside the
apartment before the day of the subject incident. As a result, any potential
discrepancies between Yaminah Berry’s affidavit and deposition testimonies concerning
her dealings with Jamie McLaurin go toward her credibility and are better left for the jury
to consider and weigh. Chevron Phillips Chem. Co., 570 F.3d at 612 n.3; KennettMurray Corp., 622 F.2d at 895.
In sum, the Court will disregard the portion of Yaminah Berry’s affidavit stating
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that she personally observed fights and shootings at the Briarwood Apartments prior to
her mother’s death in ruling on the Defendants’ summary judgment motion. The
Defendants’ request that Yaminah Berry’s affidavit be stricken or disregarded is
otherwise denied.
II.
Motion for Summary Judgment [50]
A.
Standard of Review
Federal Rule of Civil Procedure 56 provides that “[t]he court shall grant summary
judgment if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
“Where the burden of production at trial ultimately rests on the nonmovant, the movant
must merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.
2010) (citation and internal quotation marks omitted). The nonmovant must then “come
forward with specific facts showing that there is a genuine issue for trial.” Id. “An issue
is material if its resolution could affect the outcome of the action.” Sierra Club, Inc. v.
Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010) (quoting Daniels
v. City of Arlington, Tex., 246 F.3d 500, 502 (5th Cir. 2001)). “An issue is ‘genuine’ if the
evidence is sufficient for a reasonable jury to return a verdict for the nonmoving party.”
Cuadra, 626 F.3d at 812 (citation omitted).
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009) (citing Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 343 (5th Cir. 2007)). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inferences to
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be drawn therefrom in the light most favorable to the nonmoving party.” Sierra Club,
Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials, speculation,
improbable inferences, unsubstantiated assertions, and legalistic argumentation do not
adequately substitute for specific facts showing a genuine issue for trial.” Oliver v.
Scott, 276 F.3d 736, 744 (5th Cir. 2002) (citation omitted). Summary judgment is
mandatory “against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Brown v. Offshore Specialty Fabricators, Inc., 663 F.3d
759, 766 (5th Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 (1986)).
B.
Analysis
A negligence cause of action encompasses four elements: (1) duty, (2) breach
of duty, (3) causation, and (4) damages or injury. See Thomas v. Columbia Group,
LLC, 969 So. 2d 849, 852 (¶ 11) (Miss. 2007) (citing Lyle v. Mladinich, 584 So. 2d 397,
398 (Miss. 1991)).3 In a premises liability case, the duty owed to the injured party
depends upon his or her status as an invitee, licensee, or trespasser. See Minor Child
v. Miss. State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc.,
941 So. 2d 820, 826 (¶ 20) (Miss. Ct. App. 2006). “[A]n invitee is a person who goes
upon the premises of another in answer to the express or implied invitation of the owner
or occupant for their mutual advantage.” Id. at 826 (¶ 21) (emphasis and citation
3
The Court applies the substantive law of Mississippi in this action founded on
diversity jurisdiction. See Cox v. Wal-Mart Stores E., L.P., 755 F.3d 231, 233 (5th Cir.
2014) (citing Wood RIH Acquisitions MS II, LLC, 556 F.3d 274, 275 (5th Cir. 2009)).
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omitted). The Court’s review of the parties’ summary judgment briefing reveals no
dispute over Jacqueline Berry’s status as an invitee at the time of the subject incident.4
Thus, no discussion of the duty owed to a licensee or trespasser is necessary.
A business owner or operator owes an “invitee the duty to maintain the premises
in a reasonably secure or safe condition.” Lyle, 584 So. 2d at 399 (citing Goodwin v.
Derryberry Co., 553 So. 2d 40, 43 (Miss. 1989)). This duty has been expanded to
require protection against criminal attacks under certain circumstances. See id.
Although a business proprietor is “not an insurer of the invitee’s safety, [it] has a duty to
exercise reasonable care to protect the invitee from reasonably foreseeable injury at the
hands of other patrons.” Id. (citations omitted). A criminal act may be considered
reasonably foreseeable if the proprietor “had cause to anticipate the third party act.”
Minor Child, 941 So. 2d at 827 (¶ 26) (citing Crain v. Cleveland Lodge 1532, Order of
the Moose, Inc., 641 So. 2d 1186, 1189 (Miss. 1994)). “Cause to anticipate” an assault
may be established by “(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.” Id. Evidence supporting “the existence of an atmosphere of violence
may include ‘the overall pattern of criminal activity prior to the event in question that
occurred in the general vicinity of the defendant’s business premises, as well as the
frequency of criminal activity on the premises.’” Gatewood v. Sampson, 812 So. 2d
212, 220 (¶ 14) (Miss. 2002) (quoting Lyle, 584 So. 2d at 399).
The Defendants’ summary judgment arguments can be separated into two
4
The Plaintiffs’ ability to present evidence on the issue of damages also does not
appear to be in dispute at this stage of the litigation.
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categories. First, Defendants contend that the Plaintiffs lack sufficient proof to establish
that the murder of Jacqueline Berry at the Briarwood Apartments was a foreseeable
event. Second, Defendants argue that the proximate cause of Jacqueline Berry’s death
was in no way related to any absence of security measures at the subject premises.
These contentions will be addressed in turn.
1.
Foreseeability
As noted above, the foreseeability of, or cause to anticipate criminal activity may
be established by the defendant’s knowledge of a third party’s violent nature or
knowledge of an atmosphere of violence on the subject premises. The issue of
foreseeability bears upon the duty owed, the breach of that duty, and causation. See
Davis v. Christian Bhd. Homes of Jackson, Miss., Inc., 957 So. 2d 390, 401 (¶ 24), 404
(¶ 31), 405 (¶ 33) (Miss. Ct. App. 2007) (considering the existence of prior criminal
activity on the defendant’s premises in determining whether fact issues existed on each
of these elements); cf. Doe v. Wright Sec. Servs., Inc., 950 So. 2d 1076, 1085 (¶ 37)
(Miss. Ct. App. 2007) (“Causation, like duty, involves questions of foreseeability.”)
(citation omitted).
a.
Actual or Constructive Knowledge of the Assailant’s
Violent Nature
The summary judgment record evidences several violent crimes allegedly
committed by Jamie McLaurin.5 In November of 2003, McLaurin purportedly shot at two
5
A criminal conviction is not a prerequisite for a particular incident to constitute
competent evidence in a foreseeability analysis. See Davis, 957 So. 2d at 402-03 (¶
26) (rejecting the defendant’s argument that crime statistics should not be considered
because they failed to indicate whether the crimes reflected were actually committed);
Am. Nat’l Ins. Co. v. Hogue, 749 So. 2d 1254, 1259 (¶ 14) (Miss. Ct. App. 2000)
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individuals, resulting in his arrest for aggravated assault. (See Doc. No. [56-8].) In
October of 2005, a warrant for the arrest of McLaurin was issued for the crime of armed
robbery. (See Doc. No. [56-5].) In July of 2008, McLaurin was charged with simple
assault based on the allegation that he slapped and choked LaShonda Smith. (See
Doc. No. [56-13].) On or about April 21, 2011, McLaurin purportedly fired shots at law
enforcement officials, resulting in his arrest for aggravated assault on a police officer.
(See Doc. Nos. [56-2], [56-3].) In or about October of 2011, McLaurin allegedly shot
Eddie Harris at the Briarwood Apartments. (See Brown Dep. [50-3] 42:1-4, 43:9-16,
46:10-47:12; Rogers Aff. [54-8] at ¶ 3; Doc. No. [56 at ECF p. 23].) It appears that
Carlotta Williams, the manager of the Briarwood Apartments, was also a Deputy Clerk
for the Justice Court of Jefferson Davis County when some of the above-listed crimes
were purportedly committed by McLaurin. (See Doc. Nos. [56-2 at ECF p. 2], [56-5 at
ECF p. 15], [56-13 at ECF p. 3].) Perhaps, that is why Sunbelt concedes that it,
“through its Manager, Carlotta Williams, was aware of McLaurin’s violent nature.”
(Defs.’ Brief in Supp. of Mot. for SJ [51] at p. 2.)
Notwithstanding the foregoing concession, Sunbelt implies that it did all it could
with respect to McLaurin when on August 31, 2012, Ms. Williams went to the Jefferson
Davis County Jail and told him to stay away from the Briarwood Apartments. “Carlotta
Williams did what the law allows—ban McLaurin from the property.” (Defs.’ Brief in
(“Although these compilations were records of calls made and not necessarily crimes
committed, this evidence created a jury question of whether American National was on
notice that assaults were occurring.”). Further, the Court accepts the parties’ stipulation
that Jamie McLaurin shot and killed Jacqueline Berry for purposes of summary
judgment.
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Supp. of Mot. for SJ [51] at p. 14.) In essence then, Sunbelt is arguing that it breached
no duty, or, stated differently, that it acted as a reasonable and prudent business owner
in giving McLaurin a one time warning to keep off the premises. See Glover v. Jackson
State Univ., 968 So. 2d 1267, 1277 (¶ 29) (Miss. 2007) (“Negligence is doing what a
reasonable, prudent person would not do, or failing to do what a reasonable, prudent
person would do, under substantially similar circumstances.”).
The expected testimony of Dale Jones, Plaintiffs’ expert witness, weighs against
the conclusion that Sunbelt complied with the applicable standard of care. Mr. Jones is
of the opinion that the Briarwood Apartments failed to utilize the most basic of security
measures at the time of the subject incident, including, but not limited to, an access
gate, surveillance cameras, uniformed security, and a banned list. (See Jones Report
[50-1] at pp. 4-5.) Mr. Jones is also expected to testify that “[s]imply telling James
McLaurin to stay off the property without implementing measures to assure the
enforcement of this directive,” caused Jacqueline Berry’s death. (Jones Aff. [54-4] at ¶
3.) The affidavit of Fredrick Rogers also conflicts with a finding that Sunbelt acted as a
reasonable and prudent premises owner. Mr. Rogers states that he lived at the
Briarwood Apartments in the five (5) years preceding Jacqueline Berry’s death and
during this time period, no one “tried to deter drug use, shootings, drinking and fights
that occurred numerous times a week if not . . . daily”. (Rogers Aff. [54-8] at ¶¶ 2, 6.)
Mr. Rogers also states that if Ms. Williams told McLaurin to stay off the premises, it did
no good because “McLaurin continued to visit, wander, trespass, harass and intimidate
residents” between August 31, 2012 and December 16, 2012. (Rogers Aff. [54-8] at ¶
7.)
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The question of whether the defendant breached its duty is usually for the jury to
resolve. See Lyle, 584 So. 2d at 400 (citation omitted). In light of the Defendants’
admitted knowledge of Jamie McLaurin’s violent nature, the Court determines that
reasonable jurors could find that advising McLaurin to keep away from the premises
without employing any backup measures, such as private security, in case McLaurin
failed to heed the warning was unreasonable under the circumstances. Cf. Bennett v.
Highland Park Apartments, LLC, No. 2012-CA-01629-COA, 2014 WL 3408970, at *1 (¶
3), *4 (¶ 14) (Miss. Ct. App. July 15, 2014) (finding that fact issues existed as to whether
there was a breach of duty where the plaintiff alleged that the defendant failed to hire
security or maintain surveillance cameras and access gates at an apartment complex).
Therefore, Carlotta Williams’ one time warning to Jamie McLaurin does not mandate
summary judgment in the Defendants’ favor.
b.
Actual or Constructive Knowledge of an Atmosphere of
Violence
The following particulars, in toto, create a jury issue as to whether an atmosphere
of violence existed at the Briarwood Apartments prior to the shooting of Jacqueline
Berry:
(i)
An affidavit executed by Ronald B. Barnes, the manager of the Briarwood
Apartments from approximately March/April of 2008 to March/April 2011,
provides that he had discussions with his supervisors regarding the level
of crime and violence at the subject premises, the need for on-site security
and additional security measures to prevent violent crimes, and the
inability of local law enforcement to safeguard the premises. (See Barnes
Aff. [54-1] at ¶ 2.) Mr. Barnes further states, “The owners and managers
of Briarwood to date have done nothing we discussed to prevent crime at
Briarwood . . . .” (Barnes Aff. [54-1] at ¶ 2.)
(ii)
John Wayne Tolar, an investigator for the Jefferson Davis County Sheriff’s
Office (hereinafter “Sheriff’s Office”) since January 1, 2012, testifies by
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affidavit that the Sheriff’s Office receives weekly requests for assistance
regarding shootings, assaults, and break-ins at the Briarwood Apartments
and the surrounding area. (See Tolar Aff. [54-2] at ¶¶ 2-3.) Between
January 1, 2012 and the date Jacqueline Berry was killed, Tolar spoke
with management for the Briarwood Apartments about the high level of
criminal activity occurring at the subject premises, the need for on-site
security and additional security measures, and the inability of the Sheriff’s
Office to provide additional patrol services due to staffing and budgeting
issues. (See Tolar Aff. [54-2] at ¶ 5.) Tolar further states that “none of the
suggestions I made to make Briarwood Apartments safer have been
accomplished and Briarwood Apartments remains a very unsafe place to
live or even visit because of the level of unchecked violence.” (Tolar Aff.
[54-2] at ¶ 5.)
(iii)
An affidavit from Rontonagles McNair, who worked as a dispatcher and
supervised all the other dispatchers for the Sheriff’s Office from January 1,
2000 to December 31, 2011, states that in the last five years of his
employment, the Sheriff’s Office received ten to twelve calls for assistance
per week with respect to the Briarwood Apartments and the surrounding
area, and that the calls “routinely involved violent crimes such as
shootings, assaults and breaking and entering.” (McNair Aff. [54-5] at ¶¶
2-3.)
(iv)
Richard Johnson, a captain for the Sheriff’s Office between 1996 and
December 31, 2011, testifies by affidavit that within the last five years of
his employment, he and those working under his supervision responded to
several calls for assistance per week regarding criminal activity at the
Briarwood Apartments and the surrounding area, and that the calls
“routinely involved violent crimes such as shootings, assaults, fights and
breaking and entering.” (Johnson Aff. [54-6] at ¶¶ 2, 4.)
(v)
An affidavit executed by Ron Strickland, the Sheriff of Jefferson Davis
County, states that since he took office in January of 2012, the Sheriff’s
Office has received numerous calls per week to respond to criminal
activity (including, but not limited to, shootings and fights) at the Briarwood
Apartments and the surrounding area. (See Strickland Aff. [54-7] at ¶¶ 23.)
(vi)
The affidavit of Fredrick Rogers provides that he personally witnessed
fights and shootings at the Briarwood Apartments prior to the death of his
mother, Jacqueline Berry. (See Rogers Aff. [54-8] at ¶ 2.) Rogers also
states that Jamie McLaurin shot Eddie Harris at the Briarwood Apartments
prior to his mother’s death. (See Rogers Aff. [54-8] at ¶ 3.)
(vii)
Devon Brown testified at deposition that he witnessed Jamie McLaurin
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shoot at police officers at the apartment complex across the street from
the Briarwood Apartments, which Sunbelt also manages.6 (See Brown
Dep. [50-3] 43:17-21, 47:13-19.)
In their Rebuttal Brief [59], the Defendants seem to argue that crime data or
statistics are required to establish the existence of an atmosphere of violence and that
affidavits from law enforcement officials regarding their recollection of crime data are
insufficient as a matter of law. This argument fails to negate the existence of a genuine
issue of material fact for several reasons. First, the Mississippi Supreme Court and
Mississippi Court of Appeals have affirmed jury verdicts in premises liability cases
where the evidence at trial included testimony from police officers regarding the
frequency of criminal activity on the subject premises.7 Second, the Defendants do not
cite, and this Court is unaware of any legal authority holding that the sworn statement of
a law enforcement official regarding criminal activity must be disregarded in the
absence of corroborating police records or reports.8 Third, the above-cited affidavits
6
Prior instances of violent crime need not specifically occur on the defendant’s
premises in order to be counted under an atmosphere of violence analysis. See
Gatewood, 812 So. 2d at 220-21 (¶¶ 15-17) (holding that reports of violent crimes in the
neighborhood surrounding the defendant’s premises created a fact issue).
7
See InTown Lessee Assocs., LLC v. Howard, 67 So. 3d 711, 714-15 (¶¶ 5-7), 718
(¶ 23) (Miss. 2011) (“Numerous Jackson police officers testified at trial regarding calls
for service at InTown.”); Gibson v. Wright, 870 So. 2d 1250, 1257-58 (¶¶ 23-27) (Miss.
Ct. App. 2004) (referencing testimony from two police officers regarding crime at the
defendants’ business and the surrounding area in its holding that substantial evidence
supported the jury’s finding that the murder of the plaintiff’s decedent was reasonably
foreseeable).
8
Neither of the two authorities cited by the Defendants in the “atmosphere of
violence” section of their Rebuttal Brief [59] is instructive on this point. See Tillman v.
Wendy’s Int’l, Inc., 252 F.3d 434, 2001 WL 360691 (5th Cir. Mar. 13, 2001); Kroger Co.
v. Knox, 98 So. 3d 441 (Miss. 2012). There was no discussion of any police officer’s
testimony in Tillman. In Kroger Co., the Mississippi Supreme Court appeared to give no
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executed by current or former law enforcement officials reference weekly reports of
criminal activity at the Briarwood Apartments, which can be construed as reflecting “the
overall pattern of criminal activity” or “frequency of criminal activity on the premises.”
Thomas, 969 So. 2d at 854 (¶ 20) (quoting Lyle, 584 So. 2d at 399). The Court must
construe the evidence in the nonmovants’ favor at this stage of the case. See Sierra
Club, Inc., 627 F.3d at 138. Fourth, Defendants ignore the sworn statements of private
citizens regarding violent crimes occurring at the Briarwood Apartments and the
surrounding area,9 as well as the affidavits of Ronald B. Barnes (a private citizen) and
John Wayne Tolar (a law enforcement official) indicating that Sunbelt was advised of
the need for additional security measures prior to the death of Jacqueline Berry. (See
Barnes Aff. [54-1] at ¶ 2; Tolar Aff. [54-2] at ¶ 5.) The Court cannot overlook these
averments in ruling on summary judgment.10
weight to expert testimony regarding “calls for service” because the plaintiff “presented
no police reports or other evidence verifying the accuracy of the calls.” 98 So. 3d at 444
(¶ 18) (emphasis added). Here, viewing the summary judgment record in the Plaintiffs’
favor, the Court finds evidence confirming the veracity of calls for service in the form of
the affidavits executed by current or former law enforcement officers attesting to their
personal knowledge of criminal activity, including shootings and fights, at the Briarwood
Apartments. (See Tolar Aff. [54-2] at ¶¶ 6-7; Johnson Aff. [54-6] at ¶¶ 5-6; Strickland
Aff. [54-7] at ¶¶ 4-5.)
9
(See Rogers Aff. [54-8] at ¶¶ 2-3; Brown Dep. [50-3] 43:9-21, 47:4-19.)
10
See Thomas, 969 So. 2d at 854-55 (¶¶ 21-23) (reversing the trial court’s grant of
summary judgment where there was testimony that the apartment manager planned,
but ultimately failed, to improve security in light of a prior shooting); Bennett, 2014 WL
3408970, at *5 (¶ 19) (considering, inter alia, witness accounts that demonstrated the
defendant was aware of an atmosphere of violence); cf. Howard, 67 So. 3d at 714 (¶ 5)
(taking note of law enforcement advising the defendant to undertake additional security
measures in affirming the trial judge’s denial of a motion for directed verdict); Gibson,
870 So. 2d at 1257-58 (¶¶ 26-27) (same).
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The Defendants admit having knowledge of Jamie McLaurin’s violent nature.
Further, genuine issues of material fact exist as to whether an atmosphere of violence
existed at the Briarwood Apartments. As a result, Defendants are not entitled to
summary judgment as a matter of law based on the contention that McLaurin’s shooting
of Jacqueline Berry was unforeseeable under the circumstances. Mississippi “law
requires only that the defendant foresee that some violent act . . . might occur, not the
particular violent . . . act” at issue in the litigation. Glover, 968 So. 2d at 1279 (¶ 41).
2.
Proximate Cause
“Proximate cause has two separate and distinct concepts: 1) cause in fact; and
2) foreseeability.” Hunt v. Mid S. Waffles, Inc., No. 2:11cv45, 2012 WL 681443, at *7
(S.D. Miss. Feb. 29, 2012) (citing Davis, 957 So. 2d at 404). “‘Cause in fact’ means
‘that the act or omission was a substantial factor in bringing about the injury, and without
it the harm would not have occurred.’” Id. The matter of foreseeability has been
addressed in the preceding section of this opinion.
Defendants argue the evidence shows that the three suspects (Jamie McLaurin,
Eddie Harris, and Adrian Speights) were all in Yaminah Berry’s apartment as social
guests a few minutes prior to the shooting incident “and therefore the cause in fact of
this shooting in no way can be attributed to any lack of a private security guard or other
security measure . . . .” (Defs.’ Brief in Supp. of Mot. for SJ [51] at p. 2.) Portions of the
depositions of Yaminah Berry and Devon Brown favor this argument. Devon Brown
testified that shortly before the subject incident, he shared a drink with Adrian Speights.
(See Brown Dep. [50-3] 18:10-16, 26:1-25, 29:4-21.) Yaminah Berry testified that Jamie
McLaurin entered her apartment two times on the night leading up to the subject
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incident. The first time, McLaurin walked in and asked if he could borrow a phone
charger. (See Y. Berry Dep. [50-2] 41:1-42:2.) Yaminah Berry agreed, and McLaurin
stayed in the apartment approximately three or four minutes until his phone rang. (See
Y. Berry Dep. [50-2] 52:10-53:3.) As to the second instance, McLaurin stepped in the
doorway and told Jacqueline Berry that he had gotten one of her beers from the
apartment upstairs. (See Y. Berry Dep. [50-2] 53:16-55:13.) McLaurin did not knock
before entering Yaminah Berry’s apartment either time. (See Y. Berry Dep. [50-2]
41:11-19, 55:5-13.) Yaminah Berry further provided that Eddie Harris was in the
apartment at some point because her friend, Chaka Easterling, was visiting and Chaka
was Eddie’s girlfriend. (See Y. Berry Dep. [50-2] 36:10-37:1, 40:7-25.) These
circumstances support the Defendants’ contention that a security guard could not have
prevented McLaurin from suddenly changing his identity from a guest or visitor to a
robber/assailant.
On the other hand, the summary judgment record also evidences circumstances
militating against the conclusion that no security measures could have prevented the
criminal act at issue in this lawsuit. There was a passage of time, although brief in
nature (approximately five minutes), between the suspects leaving the area of Yaminah
Berry’s apartment and then returning and attempting to kick in the door. (See Y. Berry
Dep. [50-2] 68:9-13; Brown Dep. [50-3] 29:17-21.) One of the suspects, Jamie
McLaurin, was purportedly armed with “a big, assault type of rifle” during the attempted
break-in. (Brown Dep. [50-3] 20:18-25, 24:6-16.) Another one of the individuals had a
pistol. (See Brown Dep. [50-3] 20:18-25.) Shortly before the shooting of Jacqueline
Berry, the suspects allegedly knocked out an individual named Pete Lampton and
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disabled the lighting outside Yaminah Berry’s apartment. (See Brown Dep. [50-3]
36:16-39:25.) Giving Plaintiffs the benefit of these facts and the resulting inferences,
the Court is unable to hold as a matter of law that a security presence at the subject
premises would have had no deterrent effect on this brazen, criminal behavior. Cf. Lyle,
584 So. 2d at 400 (reversing the trial court’s grant of summary judgment and rejecting
the “reasoning that the presence of a security person would have made no difference”
as to the plaintiff’s assault). Also relevant here are Yaminah Berry’s statements that
Jamie McLaurin was not an invited guest and that he just barged into her apartment
prior to the subject incident,11 as well as Carlotta Williams’ August of 2012 warning to
McLaurin for him to stay away from the apartments due to her knowledge of his violent
nature. These facts lend credence to the Plaintiffs’ argument that if the Defendants had
taken appropriate measures to ensure the alleged banned list was enforced, McLaurin
would not have been present on the premises and Jacqueline Berry would still be alive.
Cf. Thomas, 969 So. 2d at 855 (¶ 22) (finding that a material fact issue existed as to
proximate cause in part because the apartment manager failed to carry out her plan to
ban the assailant from the premises).
“Where reasonable minds might differ on the matter, questions of proximate
cause and of negligence . . . are generally for determination . . . [by the] jury.” Hankins
Lumber Co. v. Moore, 774 So. 2d 459, 464 (¶ 11) (Miss. Ct. App. 2000) (citing Am.
Creosote Works of La. v. Harp, 215 Miss. 5, 60 So. 2d 514, 517 (Miss. 1952)).
Moreover, the issue of a criminal act constituting a “superseding intervening cause is so
11
(See Y. Berry Aff. [54-3] at ¶ 5.)
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inextricably tied to causation, it is difficult to imagine a circumstance where such issue
would not be one for the trier of fact.” O’Cain v. Harvey Freeman & Sons, Inc., 603 So.
2d 824, 830 (Miss. 1991) (citation omitted). Based on the above-discussed evidence,
the Court finds that reasonable minds could differ on the question of whether a lack of
security measures at the Briarwood Apartments was the cause in fact of Jacqueline
Berry’s murder. Thus, jury issues also exist on the matter of causation.
The principal authorities cited by the Defendants in support of their proximate
cause arguments do not alter this conclusion. See Kroger Co., 98 So. 3d 441; Double
Quick, Inc. v. Lymas, 50 So. 3d 292 (Miss. 2010); Davis, 957 So. 2d 390. In Kroger
Co., the Mississippi Supreme Court considered whether the defendant had a duty to
place an armed guard in its parking lot. See 98 So. 3d at 442 (¶ 1). The claim in this
action is that Sunbelt failed to utilize basic security measures, such as surveillance
cameras and on-site security. Furthermore, the Mississippi Supreme Court never
proceeded past the issue of the defendant’s duty to address whether the absence of an
armed security guard was the cause in fact of the subject assault. See 98 So. 3d at 445
(¶¶ 23-24).
In Davis, the fact that on-duty City of Jackson Police Department officers were at
the subject premises when the plaintiff’s decedent was shot and killed negated the
contention that security guards would have deterred the shooting. See 957 So. 2d at
407-08 (¶ 42). “If the presence of JPD on the premises . . . did not deter Younger from
shooting Lucius, we fail to see how a jury could conclude that security guards would
have provided any deterrence.” Id. at 408 (¶ 42). Here, no evidence has been
presented showing that any law enforcement official was present at the Briarwood
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Apartments at the time of Jacqueline Berry’s murder. The appellate court also found no
facts establishing that Younger would have been denied access to the property by
security guards or a keypad entrance. See id. at 407 (¶ 41). In this case, Jamie
McLaurin was purportedly banned from the Briarwood Apartments by Carlotta Williams
on August 31, 2012. However, the Plaintiffs have submitted proof supporting the
reasonable inference that the Defendants failed to take any steps to enforce the ban.
“After August 31, 2012 and up until December 16, 2012, James McLaurin and
numerous other individuals who did not live at Briarwood and who appeared to have no
legitimate reason to be there, continued to visit, wander, trespass, harass and intimidate
residents and invited visitors of Briarwood.” (Y. Berry Aff. [54-3] at ¶ 3; see also Rogers
Aff. [54-8] at ¶ 7.)
The Mississippi Supreme Court reversed the trial court’s refusal to grant a motion
for judgment notwithstanding the verdict (“JNOV”) in Lymas, holding that the only
evidence presented on the issue of proximate cause was the conclusory and
speculative testimony of the plaintiffs’ expert witnesses. See 50 So. 3d at 299 (¶¶ 3235). The Court is not yet in a position to determine whether all of the evidence
presented at trial, including the testimony of expert and fact witnesses,12 is sufficient to
support a jury verdict in the Plaintiffs’ favor. Moreover, the Court discerns no
appreciable difference between the degree of specificity in the affidavit of the Plaintiffs’
12
An expert opinion regarding causation is not a prerequisite to the maintenance of a
premises liability action for the failure to provide adequate security. See Hunt, 2012 WL
681443, at *7.
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expert witness, Dale Jones,13 and the expert testimony submitted by the plaintiffs in the
more recent Mississippi Supreme Court case of InTown Lessee Associates, LLC v.
Howard, 67 So. 3d at 715 (¶ 9), on the issue of proximate cause. In Howard, the trial
court’s denial of a motion for JNOV was affirmed. See id. at 717-18 (¶¶ 21-23).
Finally, the Defendants’ repeated contention that only under a strict liability
standard could they be held liable is unconvincing. Notwithstanding the Court’s ruling
on summary judgment, the Plaintiffs will be required to prove each and every element of
their negligence claim in order to obtain a damage award from the jury. Therefore, the
central question of whether the Defendants breached “a duty to exercise reasonable
care to protect . . . [Jacqueline Berry] from reasonably foreseeable injury at the hands
of” Jamie McLaurin will proceed to trial. Thomas, 969 So. 2d at 853 (¶ 15) (quoting
Gatewood, 812 So. 2d at 219-20).
CONCLUSION
For the foregoing reasons:
IT IS ORDERED AND ADJUDGED that the Motion to Strike [57] is granted in
part and denied in part, as outlined above.
IT IS FURTHER ORDERED AND ADJUDGED that the Motion for Summary
Judgment [50] is denied.
SO ORDERED AND ADJUDGED this the 15th day of September, 2014.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE
13
(See Jones Aff. [54-4] at ¶ 3.)
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