Date: 09-12-2015

Case Style: Belizaire v. Furr

Case Number: 13-P-1908

Judge: Scott L. Kafker

Court: Massachusetts Appeals Court

Plaintiff's Attorney: Sheldon S. Ananian

Defendant's Attorney: Richard Bennett

Description: Summary judgment is granted where there
are no genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c),
as amended, 436 Mass. 1404 (2002). "When reviewing a grant of
summary judgment we consider the pleadings, depositions, answers
to interrogatories, and responses to requests for admission
under Mass.R.Civ.P. 36, 365 Mass. 795 (1974), together with the
affidavits." Federal Natl. Mort. Assn. v. Hendricks, 463 Mass.
635, 637 (2012). Our review of the summary judgment record is
de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). We make
all permissible inferences favorable to the nonmoving party, in
this case the plaintiff, and resolve all disputes or conflicts
in the summary judgment materials in her favor. Carey v. New
2 The complaint included a separate count labeled "wrongful death." The entire focus of the plaintiff's appellate argument, however, is on the negligence claim, and we discern no meaningful distinction between the two claims.
3
England Organ Bank, 446 Mass. 270, 273 (2006). We recount the
facts with these requirements in mind.
A. Ownership of the property. On October 7, 1997, the
defendant purchased the two-family property at 5-7 Edson Street
in Dorchester. The defendant lived at 5 Edson Street from 1997
until 2007, when she moved to Brockton. While she lived at 5
Edson Street, several of her children resided with her,
including her sons Thomas and John and her daughter Doreen.
Throughout the history of her ownership of the property, the
majority of the property's residents have been the defendant's
children, their friends, and other family members of the
defendant.
Of these residents, the defendant created formal, written
lease agreements with only two: Latisha Waiters and Rasheda
Adams. During her deposition, the defendant addressed the
payment of rent regarding Waiters, Adams, and her children:
Waiters was the defendant's tenant pursuant to the United States
Department of Housing and Urban Development Housing Choice
Voucher Program,3 who left due to an increase in rent; Adams was
evicted for nonpayment of rent; and the defendant had a "set-up"
with her children to do work around the property "in exchange
3 Commonly referred to as "Section 8." Figgs v. Boston Hous. Authy., 469 Mass. 354, 355 (2014).
4
for . . . a break on the rent." During 2009, the defendant
received only "sporadic" payments for rent at the property.
After Adams was evicted from 7 Edson Street in August of
2009, the defendant did not list the apartment for rent with a
rental agency. However, two weeks later, Andrew Korgenay4 moved
into the apartment.5 Korgenay is a friend of the defendant's
family, as he had grown up with her son Willie, and both the
defendant and her son John testified that they had known
Korgenay for twenty years. Though Korgenay had moved in, he did
not have much furniture. The defendant testified that she and
Korgenay had an understanding that Korgenay would rent the
apartment along with two roommates. Korgenay had not found
roommates by the time he vacated the apartment some three weeks
later. No evidence of rent paid, or even an agreement on a
rental amount, was presented to the motion judge.
B. The night in question. John Furr, one of the
defendant's sons, testified during his deposition that he
cohosted with Korgenay the party that took place on September
19, 2009, at 5-7 Edson Street. John testified that the occasion
4 Korgenay's name is variously spelled "Korngay," "Kornegay," and "Korgenay" in the documents associated with this case. We adopt the spelling "Korgenay" as used by the Superior Court judge in her memorandum of decision and order.
5 The defendant testified that her son, Willie, told her that Korgenay was having difficulties with his girlfriend and wanted to rent a room at 7 Edson Street.
5
was intended to be a housewarming party for Korgenay, so both he
and Korgenay "[c]alled a couple of people" to invite them to the
party. According to John, the party "wasn't that big" and the
attendees were comprised of their friends, many of whom were
mutual. However, John testified that he did not know the victim
or the two people who attended the party with the victim. He
also did not know the three other individuals who were shot that
evening at the party. Jennifer Washington, who attended the
party and was deposed by the plaintiff, testified that she did
not know John, Korgenay, or who threw the party. Washington
testified that she was not invited by John or Korgenay.
Washington attended the party with her sister Virginia, and
her friend Edwidge Doudiou. The three arrived at the property
between 12:30 P.M. and 1:00 A.M. on the night in question.
After parking, they walked to the back of the house and up some
stairs, where a woman standing outside the door charged them
five dollars each to enter. Washington had attended similar
types of parties at other locations and stated that usually
there was an admission fee to enter. The three paid the
admission fee and entered the kitchen.
Upon entering the kitchen, Washington noticed a so-called
"disc jockey" (DJ) in the corner. Though Washington could not
say for sure whether the DJ was a professional, he was operating
turntables. In the living room, where Washington estimated
6
there were forty to fifty people, she observed several large
speakers that were nearly her height.6 She thought that no
couches, tables, chairs, or other such furniture were present.
Washington stated that the alcohol was not free at the party --
she was "pretty sure" her sister paid for the drink she
consumed, though Washington did not witness the exchange.
Roughly thirty minutes after Washington's arrival at the
party, the victim and apparently three others were shot by an
unknown assailant inside the apartment. The victim died, and
his sister, as administratrix of the victim's estate, brought
the underlying suit, alleging that it was the defendant's
negligence, as owner of the property, that caused the victim's
death.
C. Prior criminal history at the property. Prior social
gatherings at the property were limited to events like birthday
parties and cookouts, and there was no evidence that any
shootings or other related acts of violence ever took place at
such gatherings. The shooting of the victim was the only
incident of gun violence ever to occur on the property. There
was one threat made with a gun approximately ten years prior to
the victim's death, which appears to have involved persons
6 Washington stated her height as five feet and eight inches, and that the speakers were roughly an inch shorter than her.
7
unrelated to this case.7 The few other reports on record of
violence at the property involved domestic disputes, again
unrelated to this shooting.
2. Discussion. For the defendant "[t]o be liable for
negligent conduct, [she] must have failed to discharge a duty of
care owed to the [victim], harm must have been reasonably
foreseeable, and the breach or negligence must have been the
proximate or legal cause of the [victim's] injury." Christopher
v. Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 222
(2003), citing Stamas v. Fanning, 345 Mass. 73, 75–76 (1962).
See Jupin v. Kask, 447 Mass. 141, 146 (2006).
We begin our analysis with the issue of whether there was a
tenancy in place. This distinction is important, because if a
tenancy did exist, it limits the defendant's control over the
premises and further attenuates her from the circumstances
surrounding the victim's death. This substantially increases
the plaintiff's burden in establishing that the defendant owed
the victim a duty to protect against the criminal acts of third
parties. See Griffiths v. Campbell, 425 Mass. 31, 34 (1997)
(case law focuses on foreseeability of criminal conduct and
landlord's ability to prevent that conduct); Luoni v. Berube,
431 Mass. 729, 732 (2000) (no special relationship obligates
7 No gun was found in the police search of the apartment on that occasion.
8
homeowner to protect social guest from other guest's hazardous
conduct), and cases cited. See generally Restatement (Third) of
Torts: Liability for Physical and Emotional Harm § 53 (2012)
(lessors owe duty of reasonable care to lessees and lawful
entrants regarding premises that lessor controls).
A. Korgenay's tenancy. In her memorandum of decision and
order, the motion judge concluded that "[a]t all relevant times,
7 Edson Street was orally leased to Andrew Korgenay." The
plaintiff argues that there was no oral lease and therefore no
tenancy between the defendant and Korgenay, and that at all
relevant times the property was under the defendant's exclusive
control.
Under Massachusetts law, a tenancy at will may be created
by an oral lease. See J. W. Grady Co. v. Herrick, 288 Mass.
304, 309 (1934); Jones v. Webb, 320 Mass. 702, 703 (1947).
There are two essential requirements for the creation of such a
tenancy: first, a contractual agreement between the landlord
and the tenant, and second, that the tenant exclusively occupy
the premises. See Central Mills Co. v. Hart, 124 Mass. 123, 125
(1878); Rogers v. Coy, 164 Mass. 391, 392 (1895); Williams v.
Seder, 306 Mass. 134, 136 (1940). The defendant emphasizes only
the second requirement. While "occupation by the tenant, with
the assent of the landlord, is indispensable" to the creation of
a tenancy at will, Milmore v. Landau, 307 Mass. 589, 591 (1940),
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the contractual foundation of a tenancy at will cannot be
ignored, see Commercial Wharf Corp. v. Boston, 208 Mass. 482,
489 (1911); Dennett v. Nesson, 244 Mass. 299, 301 (1923);
Williams v. Seder, supra. As such, the tenant's occupancy of
the premises must be "for a consideration -- usually the payment
of rent." Siver v. Atlantic Union College, 338 Mass. 212, 216
(1958), quoting from Williams v. Seder, supra. While the
payment of money is not a necessity, some form of consideration
is required.
In the current case, there is little to "no evidence of any
consideration for the granted privilege" of Korgenay's
occupancy. Siver v. Atlantic Union College, supra. Instead it
appears that there was an expectation that rent would be paid
and a lease executed when Korgenay acquired roommates in the
future. Korgenay also was a friend of the family, thereby
providing a reasonable explanation for his presence on the
property without consideration during the relevant time period,
including on the night of the shooting. See ibid. Such a
gratuitous arrangement does not create a tenancy at will.
Compare Taylan Realty Co. v. The Student Book Exch., Inc., 354
Mass. 777, 778 (1968).
On this incomplete record, we conclude that summary
judgment for the defendant on the ground that there was an oral
tenancy is problematic, as a trial appears to be necessary to
10
resolve material issues of fact, particularly the question of
consideration. However, even if there were no tenancy and the
defendant retained control over the entire premises, we conclude
that summary judgment in her favor still would be required.
B. The role of foreseeability. "As a general rule, a
landowner does not owe a duty to take affirmative steps to
protect against dangerous or unlawful acts of third persons."
Luoni v. Berube, 431 Mass. at 731. The Supreme Judicial Court
has, however, explained that in certain exceptional
circumstances, "[l]andlords may be liable for ignoring criminal
activities that occur on [their] premises and were known or
should have been known to them." Griffiths v. Campbell, 425
Mass. at 34. More particularly, liability has been imposed in
the rare cases "in which a person legally on the premises is
attacked, and the owner or landlord knew of or should have known
of both the previous attacks and the potential for a recurrence
based on a failure to take measures to make the premises safer."
Id. at 35. In these circumstances, the court has found that a
"landlord or property owner may be liable for failing to prevent
reasonably foreseeable criminal acts." Id. at 34. Compare Fund
v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 193-195 (1994)
(summary judgment to defendants reversed because stabbing of
hotel guest found to be within reasonably foreseeable risk of
harm given numerous nonviolent crimes and occasional violent
11
crime in hotel, and inadequate security), with Whittaker v.
Saraceno, 418 Mass. 196, 197 (1994) (judgment for plaintiff
reversed; landlord of commercial office building could not be
held liable for negligence for failing to prevent attack on
woman who worked in office building because landlord could not
have reasonably foreseen attack where no prior attacks had
occurred).
In this context, the "word 'foreseeable' has been used to
define both the limits of a duty of care and the limits of
proximate cause." Whittaker v. Saraceno, supra at 198. As the
court further explained, "As a practical matter, in deciding the
foreseeability question, it seems not important whether one
defines a duty as limited to guarding against reasonably
foreseeable risks of harm or whether one defines the necessary
causal connection between a breach of duty and some harm as one
in which the harm was a reasonably foreseeable consequence of
the breach of the duty." Id. at 198-199. We conclude that the
"attack on the [victim] was not reasonably foreseeable. There
was no evidence that the landlord knew or reasonably should have
known that a physical attack might occur in the [property]."
Id. at 200. Thus, the required elements, including a duty of
care owed to the victim, have not been established here.
There was no evidence of prior shootings or similar violent
incidents on the property. See Griffiths v. Campbell, 425 Mass.
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at 34. And though the plaintiff makes much of prior drug
activity at the property, this is insufficient to support a
finding of foreseeability. Id. at 35 ("If we were to conclude
that a homicide was reasonably foreseeable based on the failure
of a [landowner] to act on a suspicion of illegal drug activity,
we would be permitting inference upon inference to impose
liability"). See Whittaker v. Saraceno, supra at 200 (incidents
of malicious damage to and theft of vehicles and their contents
did not mean physical attack on plaintiff was foreseeable).
There was not even evidence of other large parties with
uninvited guests similar to the one in question taking place on
the property.8 See id. at 200-201.
Nor was there any evidence that the defendant was
affiliated in any way with, or knowledgeable about, the
assailant or any dispute that the assailant may have had with
the victim. The evidence submitted to the motion judge suggests
that the victim's death was tied to events beyond the party at
the defendant's property. In October of 2008, someone attempted
to shoot the victim while he was alone in his car. After that
incident, the victim's mother sent him to live with relatives in
Connecticut. He returned to Boston in April of 2009. In July
8 The plaintiff relies on cases imposing liability on tavern keepers or restaurant owners. The defendant here was neither. Contrast Christopher v. Father's Huddle Café, 57 Mass. App. Ct. at 222-226. Hosting an occasional party is quite different.
13
of 2009, the victim's sister bought him a plane ticket to Haiti,
where he stayed until his return to Boston on September 16,
2009, a mere three days before the party and his murder. There
is no evidence that the defendant knew about or was in any way
associated with the assailant or the underlying dispute between
the assailant and the victim, a guest.

Outcome: Thus, we conclude that summary judgment was properly granted as the harm to the victim was not within the scope of foreseeable risk. See Foley v.
Boston Hous. Authy., 407 Mass. 640, 646 (1990); Whittaker v.
Saraceno, supra at 200-201.

Judgment affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments: