                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                FEBRUARY 14, 2007 Session

         CHERYL BROWN GIGGERS, ET AL. v. MEMPHIS HOUSING
                       AUTHORITY, ET AL.

                    Direct Appeal from the Circuit Court for Shelby County
                           No. CT-000896-03    Kay S. Robilio, Judge



                     No. W2006-00304-COA-R3-CV - Filed August 3, 2007



This appeal involves a wrongful death action arising from the fatal shooting of a tenant at a public
housing property. The decedent was in the manager’s office of the apartment complex when another
tenant, who was involved in an altercation with a security guard on the premises, obtained a rifle
from his apartment and began shooting at the security guard. The decedent was struck and killed by
a bullet fired by the other tenant during the incident. The plaintiffs, the surviving children and sister
of the decedent, sued the defendant owner and operator of the public housing property, asserting
claims for wrongful death through negligence and breach of contract per the lease agreement. The
trial court granted the defendant’s motion for summary judgment. We affirm.


      Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

ALAN E. HIGHERS, J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,
and HOLLY M. KIRBY , J., joined.

Archie Sanders, III, Memphis, TN, for Appellants

C. Wesley Fowler, Memphis, TN, for Appellee, Memphis Housing Authority

Joe Lee Wyatt, William J. Wyatt, Memphis, TN, for Appellee, Scruggs Security & Patrol, LLC
                                             OPINION

                               I. FACTS & PROCEDURAL HISTORY

         The facts underlying the shooting incident at issue are undisputed. In 2002, the decedent,
Charles Cornelius Brown, Sr., was a resident of an apartment complex owned and operated by
Memphis Housing Authority (“MHA” or “Appellee”), located at 741 Adams Avenue in Memphis,
Tennessee. The shooter, L.C. Miller, who was 70 years of age at the time of the shooting, was also
a tenant at this property. On March 7, 2002, Mr. Miller was asked to stop “using bad language and
cursing” by a security guard for Scruggs Security & Patrol, LLC (“Scruggs”), a company with which
MHA had contracted to provide security for the property. The security guard then left his station to
visit the restroom, and Mr. Miller briefly went back to his own apartment. When the security guard
emerged from the restroom, Mr. Miller, who had apparently retrieved a rifle from his apartment,
began shooting at him. The decedent Mr. Brown, who was in the manager’s office of the apartment
complex, was struck and killed by one of the shots fired by Mr. Miller.

        On February 18, 2003, Mr. Brown’s surviving children, Cheryl Brown Giggers, Charles C.
Brown, Jr., Angela G. Brown, and Joann Fisher, his surviving sister (“Plaintiffs” or “Appellants”),
filed a complaint against the City of Memphis (“the City”) and MHA asserting claims for the
wrongful death of the decedent as a result of negligence, and for breach of contract pursuant to Mr.
Brown’s lease agreement. Plaintiffs alleged negligence by the defendants in failing to properly
screen Mr. Miller prior to leasing an apartment to him, failing to enforce internal admissions and
occupancy policies with regard to Mr. Miller, allowing Mr. Miller to possess a rifle, and failing to
properly assess an allegedly known threat or risk to the other tenants of the public housing property.
Plaintiffs further asserted that the defendants had breached their lease agreement with Mr. Brown
by failing to keep or maintain a “safe condition” at the premises. The City filed a motion to dismiss,
or alternatively, for summary judgment, arguing that it was not a proper party to the litigation and
that MHA existed as a separate entity. On September 12, 2003, the trial court entered an order
dismissing the City from the action and granting leave to Plaintiffs to amend their complaint.

        Plaintiffs amended their complaint to name MHA as the sole defendant on September 16,
2003. MHA filed its answer on April 28, 2004, in which it denied all liability and set forth several
affirmative defenses. On May 27, 2004, Plaintiffs filed a second amended complaint, adding
Scruggs as a defendant and alleging that Scruggs had negligently failed to secure the property
pursuant to its security contract with MHA. On August 20, 2004, Scruggs filed its answer in which
it denied liability and set forth various affirmative defenses. Scruggs asserted a cross-claim against
MHA alleging that it was negligent in screening Mr. Miller prior to his tenancy and negligent in
renting an apartment to him. Scruggs also sought indemnity in defending the litigation pursuant to
a provision in its contract with MHA. MHA in turn filed its own cross-claim, alleging that Scruggs
was vicariously liable for the negligent acts of its security guard, and that MHA was entitled to
indemnity from Scruggs pursuant to their security contract.



                                                 -2-
        On February 11, 2005, MHA filed a motion to dismiss or for summary judgment as to all
claims against it. On September 9, 2005, Plaintiffs took the deposition of Howard Terry, the head
of security for MHA, whose primary duties consisted of conducting background checks for new
tenants and submitting incident reports to MHA operations. Mr. Terry was questioned about the
shooting that occurred on March 7, 2002, as well as Mr. Miller’s history with MHA. The record
indicates that MHA had conducted a criminal background check on Mr. Miller through the Memphis
Police Department on January 27, 1996. The MHA interoffice memorandum describing the results
of this investigation, which purported to include “all incidents within the last three (3) years[,]”
clearly indicates that the investigation did not uncover information that would prevent Mr. Miller
from being housed with MHA, pursuant to its own policies.

        During the deposition of Mr. Terry, counsel for Appellants introduced several exhibits
documenting a 1998 incident in which Mr. Miller had attempted to stab another tenant after a verbal
altercation. With regard to the 1998 attempted stabbing incident involving Miller and another tenant,
the record contains a description of the incident by Mr. Terry in his deposition, and two MHA
reports. According to the first report, on or around May 7, 1998, the victim of the attack had been
singing outside of the apartments when Mr. Miller became angry and stated, “I’ll kill you if you
don’t stop singing in my ear.” Mr. Miller later “jumped out of some bushes swinging a knife [and]
scratching the victim on the arm.” A later report was issued on May 30, 1998, after the police had
done a follow-up investigation during patrol of the apartments. That report states that the victim
refused medical treatment from being cut on his arm with a pocket knife by Mr. Miller, and that the
victim “decided not to press charges at the time but eventually had taken legal measures due to
constant verbal threats from [Mr. Miller].” The report further indicated that Mr. Miller was arrested
for assault on that date. MHA thereafter sent Mr. Miller a letter notifying him that he was being
placed on probation for one year, and that future violations of any nature would be cause for
termination of his lease. Mr. Howard testified that he did not specifically recall the prior incident,
but that he was not surprised to learn of Miller’s one-year probation. He also stated that he was not
responsible for making recommendations to MHA or making decisions regarding evictions of
tenants, but that he understood a “one-strike” policy to be in effect by which a tenant “could be
evicted” for “anything that’s disruptive to or harm [sic] any of the people in public housing.”

      Plaintiffs filed a memorandum in opposition to MHA’s motion for summary judgment on
October 25, 2005. Plaintiffs submitted the following facts in support of its motion, among others:

               4. L.C. Miller was charged with aggravated assault in Memphis,
               Shelby County, Tennessee, in 1979. (See police record of L.C.
               Miller, Exhibit 3).

               5. In June 1977, L.C. Miller pled guilty to firing a weapon within the
               city limits. (See police record of L.C. Miller, Exhibit 3).

               6. In the [sic] May 1998, Mr. Miller, while a resident of the property
               at 741 Adams Avenue, hid behind some bushes and attempted to stab


                                                 -3-
                  another tenant with a knife and was charged with aggravated assault.
                  (See police record of L.C. Miller, Exhibit 3) and MHA Office Report,
                  Exhibit 7.

                  7. On May [sic] 7, 2002, Charles C. Brown, Sr. was shot and killed
                  in the lobby of the MHA property located at 741 Adams Avenue by
                  L.C. Miller.

                  8. Prior to May [sic] 2002, there had been between 10 to 20 shooting
                  incidents on MHA property. (Deposition of Howard Terry at pg. 44).

Plaintiffs argued that “MHA clearly had notice of the propensity for violence of Mr. Miler.” They
asserted that “MHA had actual notice of the 1998 incident where Mr. Miller with premeditation[]
hid behind bushes waiting for another tenant and attempted to stab that tenant with a knife” and that
“[d]espite its knowledge of the violent history of Mr. Miller, MHA took no steps to either remove
him as a tenant or to monitor closely his behavior.” Plaintiffs cited the deposition testimony of Mr.
Terry, in which he stated his opinion that Mr. Miller’s lease should have been terminated in 1998
after the attempted stabbing incident, and they argued that there remained an issue of material fact
as to whether MHA had a duty to remove Mr. Miller from his residence at the property. Plaintiffs
further argued that MHA’s failure to so act constituted “a breach of its obligation under its lease
agreement with Mr. Brown by failing to maintain a ‘safe condition’ on the premises as required by
the lease.” Plaintiffs also argued that “MHA failed to follow its own policies with regard to
screening applicants, renting to knowingly violent persons and allowing tenants to maintain fire guns
[sic] on the premises.”

        The trial court held a hearing on MHA’s summary judgment motion on October 28, 2005,
however, Appellants did not file a transcript of these proceedings with the record on appeal. The
trial court treated MHA’s motion as one for summary judgment, and in written correspondence to
the parties on November 28, 2005, the Honorable Kay S. Robilio set forth her findings and
conclusions as follows, in relevant part:1

                          Defendant MHA moves for Summary Judgment on several
                  grounds, arguing that MHA is not liable to Plaintiff/Decedent for the
                  shooting that occurred on March 7, 2002. Plaintiff bases the claim on
                  several theories of liability which Defendant argues are either non-
                  existent or inapplicable to the instant matter. The Court is presented
                  with both negligence and contract claims which will be dealt with in
                  that order.


         1
                  Although the issue is beyond the scope of our review on appeal, the trial court’s letter also
addressed M HA’s argument that any duty MHA owed to its residents regarding security was delegated to Scruggs
Security. The trial court ruled that the defendants’ contract operated to delegate MHA’s duties, regarding security
matters, to Scruggs.

                                                         -4-
        In order for Plaintiff to make a negligence claim, Plaintiff
must show a duty owed by MHA to Decedent. Plaintiff argues that
MHA’s internal policies set forth the duty and the failure to do so
[sic] evinces a breach of that duty. Such a supposition is incorrect.
Tennessee cases have not found internal policies to create a legal duty
and have even questioned whether internal policies are admissible for
any purpose whatsoever. Gibbs v. Robin Media Group, 2000 WL
1207201, *3 (Tenn. Ct. App. 2000). As the case law in Tennessee is
against Plaintiff’s proposition, the Court holds that the internal
policies of MHA created no duty on MHA’s part.

        Plaintiff also argues that Defendant owed a duty to all
residents to conduct criminal background checks. While there is
scant case law in Tennessee relating to any “required” criminal
background checks, the cases present[ed] run counter to Plaintiff’s
argument. See Herndon v. Hughes, 1998 WL 90745 (Tenn. Ct. App.
1998). Defendant not only asserts this, MHA also points out that a
criminal background check was undertaken. The results did not
present MHA with any evidence that would preclude Miller from
leasing an apartment. Plaintiff has not shown any deficiency in
Defendant’s background check or shown what would remedy the
alleged breach of that duty. Beyond the case law on this issue, public
policy mandates that the Court reject Plaintiff’s argument. In the
event that Plaintiff’s proposition was adopted, the result would be a
massive underclass of ex-convicts homeless due to an inability to find
housing. As this would be an untenable result, the Court rejects
Plaintiff’s argument that there is an affirmative duty on the part of
MHA to conduct a criminal background check of a prospective
resident.
                                  ...

        Plaintiff’s remaining claims are contractual in nature, based
on the lease contract between MHA and Miller, the shooter.
Defendant argues that Plaintiff has no standing to make any claim
based on MHA’s alleged breach. Tennessee case law, as well as
every other jurisdiction, limits standing to either the parties or
intended third party beneficiaries. See J.S. Haren Co. v. City of
Cleveland, 2003 WL 21276662, *5 (Tenn. Ct. App. 2003); Owner-
Operator Indep. Drivers Assoc. v. Concord EFS, 59 S.W.3d 63, 68
(Tenn. 2001). As Plaintiff cannot meet the requirements set forth in
Haren, Decedent could be characterized as a [sic] incidental third
party beneficiary, incapable of granting Plaintiff standing to make any
contractual claim based on the contract between MHS [sic] and


                                 -5-
               Miller.

On January 18, 2006, the trial court entered an order granting MHA summary judgment on all
claims. In the order, the court stated its conclusion that “there exists no duty running from the
Defendant The Memphis Housing Authority to the Plaintiffs in this matter with respect to the
criminal actions of Mr. L.C. Miller, which actions resulted in the death of Plaintiffs’ decedent.” The
trial court certified the judgment in favor of MHA as final pursuant to Rule 54.02 of the Tennessee
Rules of Civil Procedure. Plaintiffs filed a timely notice of appeal.

                                      II. ISSUES PRESENTED

Appellants present the following issue for review on appeal:
Whether the trial court erred by granting summary judgment in favor of MHA on Plaintiffs’ claims
for negligence and breach of contract.

Finding no error, we affirm the judgment of the trial court.

                                    III. STANDARD OF REVIEW

        Our Supreme Court has articulated the appropriate standard of review for an appeal of a trial
court’s grant of summary judgment as follows:

                       The standards governing an appellate court’s review of a
               motion for summary judgment are well settled. Since our inquiry
               involves purely a question of law, no presumption of correctness
               attaches to the lower court’s judgment, and our task is confined to
               reviewing the record to determine whether the requirements of Tenn.
               R. Civ. P. 56 have been met. See Hunter v. Brown, 955 S.W.2d 49,
               50-51 (Tenn. 1997); Cowden v. Sovran Bank/Central South, 816
               S.W.2d 741, 744 (Tenn. 1991). Tennessee Rule of Civil Procedure
               56.03 provides that summary judgment is appropriate where: (1) there
               is no genuine issue with regard to the material facts relevant to the
               claim or defense contained in the motion, see Byrd v. Hall, 847
               S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is entitled
               to a judgment as a matter of law on the undisputed facts. See
               Anderson v. Standard Register Co., 857 S.W.2d 555, 559 (Tenn.
               1993). The moving party has the burden of proving that its motion
               satisfies these requirements. See Downen v. Allstate Ins. Co., 811
               S.W.2d 523, 524 (Tenn. 1991). When the party seeking summary
               judgment makes a properly supported motion, the burden shifts to the
               nonmoving party to set forth specific facts establishing the existence
               of disputed, material facts which must be resolved by the trier of fact.
               See Byrd v. Hall, 847 S.W.2d at 215.


                                                 -6-
                       To properly support its motion, the moving party must either
               affirmatively negate an essential element of the non-moving party’s
               claim or conclusively establish an affirmative defense. See McCarley
               v. West Quality Food Serv., 960 S.W.2d 585, 588 (Tenn. 1998);
               Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). If the
               moving party fails to negate a claimed basis for the suit, the
               non-moving party’s burden to produce evidence establishing the
               existence of a genuine issue for trial is not triggered and the motion
               for summary judgment must fail. See McCarley v. West Quality
               Food Serv., 960 S.W.2d at 588; Robinson v. Omer, 952 S.W.2d at
               426. If the moving party successfully negates a claimed basis for the
               action, the non-moving party may not simply rest upon the pleadings,
               but must offer proof to establish the existence of the essential
               elements of the claim. (footnote omitted)

                       The standards governing the assessment of evidence in the
               summary judgment context are also well established. Courts must
               view the evidence in the light most favorable to the nonmoving party
               and must also draw all reasonable inferences in the nonmoving
               party’s favor. See Robinson v. Omer, 952 S.W.2d at 426; Byrd v.
               Hall, 847 S.W.2d at 210-11. Courts should grant a summary
               judgment only when both the facts and the inferences to be drawn
               from the facts permit a reasonable person to reach only one
               conclusion. See McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.
               1995); Carvell v. Bottoms, 900 S.W.2d 23, 26 (Tenn. 1995).

Staples v. CBL & Assocs., 15 S.W.3d 83, 88-89 (Tenn. 2000).

                                          IV. DISCUSSION

         On appeal, Appellants contend that the trial court erred when it granted summary judgment
against them on their claims for negligence and breach of contract. As to the former cause of action,
Appellants argue that MHA had notice of the propensity for violence of Miller, the shooter,
stemming from the 1998 incident in which he was involved in an altercation with another tenant and
attempted to stab the tenant in the arm with a pocket knife. Appellants rely upon Staples, 15 S.W.3d
at 89, in which the Tennessee Supreme Court reiterated that “[i]n assessing whether a duty is owed
in a particular case, courts must apply a balancing approach, based upon principles of fairness, to
identify whether the risk to the plaintiff was unreasonable.” They also cite Tedder v. Raskin, 728
S.W.2d 343, 348 (Tenn. Ct. App. 1987), for the Middle Section of this Court’s discussion of landlord
liability for the criminal acts of third parties and the holding that “[o]nce notice sufficient to cause
a reasonably prudent person to foresee the probability of harm is received, the duty to act arises and
the failure to take reasonable steps to correct the problem within a reasonable time is a breach of that
duty.”


                                                  -7-
         Appellants assert that “[d]espite its knowledge of the violent history of Miller, which
included an attack against another MHA residence [sic], MHA took no steps [to] either remove him
as a tenant or to monitor closely his behavior.” They argue that nothing in the record indicates “that
MHA set up any type of procedure to monitor Miller’s actions or to require that he receive any
counseling” and that MHA “essentially allowed a ticking time bomb to exist.” Appellants apparently
have abandoned their theories of liability of MHA based upon negligence in screening Miller prior
to leasing an apartment to him, as well as their claim that MHA negligently allowed Miller to possess
a rifle in his apartment. They continue to rely on the theory that, based upon notice of a foreseeable
risk of danger to other tenants, MHA had a duty to monitor Miller’s actions closely after the 1998
incident, or to evict him.2 We must examine the record considered by the trial court and determine
whether summary judgment was appropriate on the issue of whether MHA possessed a duty to take
the actions advocated by Appellants or otherwise protect Mr. Brown from the criminal actions of
L.C. Miller.

        To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff;
(2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3)
an injury or loss; (4) cause in fact; and (5) proximate, or legal cause. McClung v. Delta Square Ltd.
P’ship, 937 S.W.2d 891, 894 (Tenn. 1996). The question of the duty owed by a defendant to a
plaintiff is a question of law to be determined by the trial court. Id. Duty is the legal obligation
owed by a defendant to a plaintiff to conform to a reasonable person standard of care for protection
against unreasonable risks of harm. Id. A risk is unreasonable and gives rise to a duty to act with
due care if the foreseeable probability and gravity of harm posed by a defendant’s conduct outweigh
the burden upon a defendant to engage in alternative conduct that would have prevented the harm.
Staples, 15 S.W.3d at 90 (citing McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995)).

        The Middle Section of this Court discussed at length the standards for analyzing the liability
of landlords for the criminal acts of third parties in Tedder, 728 S.W.2d at 346-51. In that case, the
plaintiffs, a mother and son, were tenants in an apartment complex. Id. at 345. Early one morning,
while asleep in their apartment, the son was shot in the head after a bullet, fired from the apartment
next door, came through the wall of his bedroom. Id. This gunshot was apparently fired during an
attempted robbery of the apartment next door. Id. at 351. Several months earlier, the plaintiff
mother and a friend had complained to the apartment manager about being unable to find a parking
spot because of the number of people coming in and out of the apartment next door, and they voiced

         2
                    MHA contends that Plaintiffs’ failure to specifically plead this theory, which it refers to as “failure
to evict,” in their complaint prevents our consideration of this issue on appeal. W hile it is clear that Plaintiffs’
claims have shifted somewhat throughout this case, we believe that Plaintiffs’ allegation in their complaint that MHA
negligently failed to adhere to its own policies, together with Plaintiffs’ discussion of their eviction theory in the
opposition to MHA’s motion for summary judgment, was sufficient to fairly apprise MHA of their intended claims.
W e note a prior holding by the Middle Section of this Court: “[t]he formal issues framed in the pleadings are not
controlling on a motion for summary judgment. A court should also consider the issues presented by the other
materials offered by the parties to determine whether the motion should be granted.” Knight v. Hosp. Corp. of Am.,
No. 01A01-9509-CV-00408, 1997 Tenn. App. LEXIS 11, at *11-12 (Tenn. Ct. App. Jan. 8, 1997). As it appears
that this theory was presented for the trial court’s consideration on summary judgment, we find no harm in
considering the issue on appeal.

                                                           -8-
concerns that illegal activity was taking place in the neighboring apartment. Id. at 345-46. After the
shooting, the plaintiffs sued the owner and operator of the apartment complex, alleging, among other
theories, that the defendant “breached a duty to provide them a reasonably safe place to live by
failing to protect them from dangers inherent in living next door to an alleged drug dealer.” Id. at
346. After the plaintiffs presented their proof at trial, the trial court granted the defendant landlord’s
motion for a directed verdict. Id.

         Writing for the majority in a decision based upon the plaintiffs’ appeal, Judge Cantrell held
that “the same standard of care should apply to both the innkeeper and the landlord in the area of
liability for injuries to tenants resulting from third-party crimes on the premises[,]” explaining:

                In other words, ordinary negligence principles apply. The landlord is
                not an insurer of his tenants’ safety, but he can be held liable “where
                the injury of the guest [tenant] by the third party was made possible
                by the failure of the innkeeper [landlord] to exercise reasonable care
                under the circumstances.” [Zang v. Leonard, 643 S.W.2d 657, 664
                (Tenn. Ct. App. 1982)].
                         We do not perceive this extension of the common law as
                placing an undue burden on landlords. As in other negligence
                actions, the plaintiff will have to prove that the landlord was on notice
                of an unreasonable risk or likelihood of danger to his tenants caused
                by a condition within his control. Once notice sufficient to cause a
                reasonably prudent person to foresee the probability of harm is
                received, the duty to act arises and the failure to take reasonable steps
                to correct the problem within a reasonable time is a breach of that
                duty.
                         However, the plaintiff must further prove that the landlord’s
                failure to act was the proximate cause of the injury. To meet this
                burden, the plaintiff must show that the injury was a reasonably
                foreseeable probability, not just a remote possibility, and that some
                action within the landlord’s power more probably than not would
                have prevented the injury . . . . If the injury was not reasonably
                foreseeable, then the criminal act of the third party would be a
                superceding, intervening cause of the harm, relieving the landlord of
                liability.

Tedder, 728 S.W.2d at 348-49. The Court of Appeals went on to affirm the trial court’s grant of the
defendant’s motion for a directed verdict, finding that “the attempted burglary by a third party was
an unusual, unlikely, or remotely possible result (if a result at all) of the drug dealing, and was thus
an intervening, superceding cause of the plaintiffs’ injuries, relieving the defendants of liability for
negligence.” Id. at 351.

        The Tennessee Supreme Court expressed agreement with Tedder’s discussion of the


                                                   -9-
appropriate standard of care for landlords and tenants in situations involving criminal acts of third
parties in Doe v. Linder Constr. Co., Inc., 845 S.W.2d 173 (Tenn. 1992). In Doe, the plaintiff was
the purchaser of a home in a “planned unit development” who was raped by two contractors who had
gained key access to the residence. Doe, 845 S.W.2d at 175. The plaintiff sued the seller-builder
of her residence, its construction supervisor, the realtor, the realtor’s employee who sold the
residence to the plaintiff, and the homeowner’s association, asserting various theories of negligence.
Id. The trial court found that the criminal assault was an independent intervening act and granted
summary judgment in favor of the defendants. Id. The Court of Appeals held that the case presented
issues of fact for the jury, and reversed. Id.

        Although the facts before the Supreme Court were distinguishable from Tedder, the Doe
Court cited that decision’s statement “that the landlord is not an insurer but can be held liable when
his or her failure to exercise reasonable care under the circumstances was the proximate cause of
injury to the tenant.” Id. at 178 (citing Tedder, 728 S.W.2d at 348). The Court also discussed
several other holdings by our courts regarding the proof necessary to impose liability in similar
situations:

                       Many cases in which the plaintiff was injured by the criminal
               acts of persons other than the defendant have been decided by the
               Tennessee appellate courts against the plaintiff for failure to present
               facts sufficient to establish the elements of negligence. For instance,
               in Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975), a shopper
               who was assaulted in a shopping center parking lot brought an action
               in negligence against the owners of the shopping center and the
               businesses located in the center. In affirming the trial court’s
               dismissal of the action upon finding no breach of duty and no
               proximate cause, the Court stated:
                                At common law, a private person or
                       corporation, as distinguished from governmental
                       units, had no duty whatsoever to protect others from
                       the criminal acts of third parties. That general rule
                       has remained steadfast in the tort law of this country,
                       despite the exceptions that have appeared from time-
                       to-time, where special relationships and special
                       circumstances have combined to impose liability.
               Cornpropst, 528 S.W.2d at 191. The Court then reviewed the law
               generally and the case of Railroad v. Hatch, 116 Tenn. 580, 94 S.W.
               671 (Tenn. 1906) (absent reasonable grounds for an apprehension of
               danger the railroad would not be liable for an attack on one passenger
               by another), and stated:
                       The significance of Hatch to our inquiry is that where
                       the highest degree of care characterized the
                       relationship, the criminal acts of third parties imposes


                                                -10-
                        [sic] no liability unless there are present special
                        circumstances that create in the minds of reasonable
                        men an apprehension of danger.
                 Cornpropst, 528 S.W.2d at 192. Finally, the Court approved of the
                 following statement from Corbitt v. Ringley-Crockett, Inc., 496
                 S.W.2d 914 (Tenn. App. 1973), in recognizing one special
                 circumstance:
                                We hold that if the owner is to be held liable
                        for the sudden criminal acts of third persons there
                        must be a showing that the owner was on notice in
                        some manner of the imminent probability of the act.
                        Otherwise, there can be no issue for jury
                        determination. There is no such showing in this
                        record. The Trial Court should have directed a verdict
                        for the defendants.
                 Corbitt, 496 S.W.2d at 919.

Id. at 183-84. The Court affirmed the trial court’s dismissal of the plaintiff’s action, concluding that
“[t]o hold as negligence the failure to prevent the theft or unauthorized taking of a key by workers
or others lawfully on a construction site, under the circumstances of this case, would place an
unrealistic burden on contractors and other employers.”3 Id. at 184.

        In Speaker v. Cates Co., 879 S.W.2d 811 (Tenn. 1994), the plaintiffs, survivors of a decedent
as in the present case, brought a wrongful death action against the apartment complex where the
decedent had lived and the security company with which the apartment complex contracted for
certain services. The decedent had been a resident of the apartments for several years, and had asked
the resident manager to change the lock on his front door because his ex-roommate had written him
a bad check. Id. at 814. The lock was changed that same day. Id. A few days later, the former
roommate and his companion contacted the decedent and arranged to come by the apartment to
obtain his personal belongings. Id. Once the former roommate and his companion arrived at the
apartment that evening, either one or both of them murdered the decedent. Id. The trial court and
the Court of Appeals found that the plaintiffs failed to present sufficient evidence to establish notice

        3
                 The Court also quoted Prosser and Keeton for the following relevant passage:

                 On its face, the problem is one of whether the defendant is to be held liable for
                 an injury to which the defendant has in fact made a substantial contribution,
                 when it is brought about by a later cause of independent origin, for which the
                 defendant is not responsible. In its essence, however, it becomes again a
                 question of the extent of the defendant’s original obligation; and once more the
                 problem is not primarily one of causation at all, since it does not arise until cause
                 in fact is established. It is rather one of the policy as to imposing legal
                 responsibility.

Doe, 845 S.W.2d at 184 (citing P RO SSER AN D K EETON   O N THE   L AW   OF   T O RTS , § 44, p. 301 (5th ed. 1984)).

                                                         -11-
of impending harm to a tenant, and the Supreme Court agreed, stating:

               With regard to notice of prior criminal acts on the premises, the
               plaintiffs offered the affidavit of a Memphis police officer verifying
               that there had been at least 25 criminal incidents at [the apartment
               complex] in the six months preceding the date of [the decedent’s]
               murder. Again, even if the defendants had knowledge of those
               criminal acts, such does not constitute “notice of an unreasonable risk
               or likelihood of danger [to the decedent] caused by a condition within
               [the defendants’] control .” . . . Consequently, [the defendants] had
               no duty to protect [the decedent] from the criminal acts of [the former
               roommate and his companion], which were an independent
               intervening cause of [the decedent’s] injuries. See Doe v. Linder
               Contr. Co., 845 S.W.2d at 182. The evidence is not sufficient to
               support a cause of action for negligence against [the defendants].

Id. at 815.

        “The Tennessee Supreme Court has in recent years consistently and repeatedly held that the
proper analytical framework for determining the existence or non-existence of duty is a balancing
approach based on principles of fairness and justice.”                      Biscan v. Brown, No.
M2001-02766-COA-R3-CV, 2003 Tenn. App. LEXIS 875, at *55 (Tenn. Ct. App. Dec. 15, 2003).
In McClung v. Delta Square Ltd. P’ship, 937 S.W.2d 891 (Tenn. 1996), our Supreme Court again
discussed the issue of duty in the context of criminal acts by third parties. The Court held that while
businesses are not insurers of their customers’ safety, they do have a duty to take reasonable steps
to protect their customers from foreseeable criminal acts by third parties. Id. at 902. The Court
overruled Cornpropst v. Sloan, 528 S.W.2d 188, 197 (Tenn. 1975), insofar as the decision held that
“conditions in the area [of the defendant business] are irrelevant” in assessing the foreseeability of
a criminal act. McClung, 937 S.W.2d at 899. The McClung Court also found that “foreseeability
of harm on which liability may be imposed is not limited to criminal acts of third parties that are
known or should be known to pose an imminent probability of harm to customers” and that
“[c]onditions other than those which pose an imminent threat to persons on the premises are relevant
to the foreseeability of harm.” Id. The Court went on to join those courts that generally imposed
a duty upon businesses to take reasonable measures to protect their customers from foreseeable
criminal acts. Id. In defining “foreseeability,” the Court found that neither a “prior incidents rule”
nor a “totality of the circumstances approach” provided “a suitable balance between the burden of
the duty to be imposed and the nature of the rights to be protected[.]” Id. at 899-901. The Court
examined its recent opinions addressing the existence or nonexistence of a duty in negligence cases
and concluded that each inquiry generally demonstrated a balancing approach consistent with
principles of fairness. Id. at 901 (citing Woodson v. Porter Brown Limestone Co., 916 S.W.2d 896
(Tenn. 1996); Eaton v. McLain, 891 S.W.2d 587 (Tenn. 1994); Pittman v. Upjohn Co., 890 S.W.2d
425 (Tenn. 1994); Haynes v. Hamilton County, 883 S.W.2d 606 (Tenn. 1994); Speaker v. Cates
Co., 879 S.W.2d 811 (Tenn. 1994); Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993); Doe v.


                                                 -12-
Linder Constr. Co., 845 S.W.2d 173 (Tenn. 1992); Hames v. State, 808 S.W.2d 41 (Tenn. 1991);
McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991)). The Court then held as follows:

                      After careful consideration of the jurisprudence of other
              jurisdictions and our own, we adopt the following principles to be
              used in determining the duty of care owed by the owners and
              occupiers of business premises to customers to protect them against
              the criminal acts of third parties: A business ordinarily has no duty to
              protect customers from the criminal acts of third parties which occur
              on its premises. The business is not to be regarded as the insurer of
              the safety of its customers, and it has no absolute duty to implement
              security measures for the protection of its customers. However, a
              duty to take reasonable steps to protect customers arises if the
              business knows, or has reason to know, either from what has been or
              should have been observed or from past experience, that criminal acts
              against its customers on its premises are reasonably foreseeable,
              either generally or at some particular time.

                      In determining the duty that exists, the foreseeability of harm
              and the gravity of harm must be balanced against the commensurate
              burden imposed on the business to protect against that harm. In cases
              in which there is a high degree of foreseeability of harm and the
              probable harm is great, the burden imposed upon defendant may be
              substantial. Alternatively, in cases in which a lesser degree of
              foreseeability is present or the potential harm is slight, less onerous
              burdens may be imposed. By way of illustration, using surveillance
              cameras, posting signs, installing improved lighting or fencing, or
              removing or trimming shrubbery might, in some instances, be cost
              effective and yet greatly reduce the risk to customers. See Seibert v.
              Vic Regnier Builders, Inc., 856 P.2d at 1339-40. In short, “the degree
              of foreseeability needed to establish a duty decreases in proportion to
              the magnitude of the foreseeable harm” and the burden upon
              defendant to engage in alternative conduct. Pittman v. UpJohn Co.,
              890 S.W.2d at 433 (Tenn. 1994). “As the gravity of the possible harm
              increases, the apparent likelihood of its occurrence need be
              correspondingly less to generate a duty of precaution.” PROSSER &
              KEETON ON THE LAW OF TORTS at 171. The degree of foreseeability
              needed to establish a duty of reasonable care is, therefore, determined
              by considering both the magnitude of the burden to defendant in
              complying with the duty and magnitude of the foreseeable harm.

                      As a practical matter, the requisite degree of foreseeability
              essential to establish a duty to protect against criminal acts will


                                               -13-
               almost always require that prior instances of crime have occurred on
               or in the immediate vicinity of defendant’s premises. Courts must
               consider the location, nature, and extent of previous criminal
               activities and their similarity, proximity, or other relationship to the
               crime giving rise to the case of action. To hold otherwise would
               impose an undue burden upon merchants.

McClung, 937 S.W.2d at 901-02. In Turner v. Jordan, 957 S.W.2d 815, 818 n. 3 (Tenn. 1997), the
Tennessee Supreme Court cited the McClung decision for its discussion of duty and foreseeability,
and the Court observed that “the analysis of duty and proximate cause is similar. . . [W]hile duty and
proximate cause are separate components of a negligence claim, the analysis for each may require
consideration of foreseeability principles and public policy matters.”

         In this case, after a thorough review of the record and the arguments submitted by the parties,
we are unable to find any genuine issue as to any material fact in this case that would support a
finding that such an isolated violent outburst by Mr. Miller was sufficient to notify MHA that
criminal acts against its tenants were reasonably foreseeable, either generally or at some particular
time. Appellants failed to demonstrate that MHA’s knowledge of Mr. Miller’s previous altercation
with another MHA tenant in 1998, or his criminal charges from the 1970's, were sufficient to give
rise to a duty upon MHA to act to prevent the death of decedent, Mr. Brown, in 2002. The degree
of notice imputed to the defendants in the Tedder and Speaker decisions was more specific than that
asserted by Appellants in the case at bar, yet in those cases, the defendants were absolved from tort
liability based upon a lack of a duty to act or for a wanting of proximate cause.

        Furthermore, even assuming that the 1998 incident in which L.C. Miller attempted to stab
another tenant was sufficient to impose a duty upon MHA to take actions to prevent foreseeable
harm to other tenants by Mr. Miller, we find that the actions advocated by Appellants exceed the
scope of MHA’s duty of care as landlord and owner of the apartment complex. The scope of that
duty depends on all relevant circumstances, including foreseeability of harm to the plaintiff and other
similarly situated persons. Heggs v. Wilson Inn Nashville-Elm Hill, Inc., No. M2003-00919-COA-
R3-CV, 2005 Tenn. App. LEXIS 535, at *9 (Tenn. Ct. App. Aug. 25, 2005) (citing Pittman v.
Upjohn Co., 890 S.W.2d 425, 433 (Tenn. 1994)). Appellants have cited no authority, in this
jurisdiction or elsewhere, for the proposition that landlords have an affirmative duty to evict or
closely monitor a tenant who is known to have a criminal history, and numerous public policy
considerations dissuade this Court from establishing such a precedent on the facts of this case. It is
undisputed that MHA placed Mr. Miller on probation for one year after the attempted stabbing
incident in 1998. Considering the tragically chaotic events that led to the death of Mr. Brown in
2002, and applying the balancing approach favored by our Supreme Court in McClung, we find that
Appellants’ position that MHA was under a legal duty to evict Miller or closely monitor his behavior
clearly places an unrealistic burden on MHA. Therefore, we affirm the trial court’s entry of
summary judgment in favor of MHA on Appellants’ claim for wrongful death through negligence.

       Appellants’ remaining claim against MHA is for breach of contract. On appeal, they briefly


                                                 -14-
submit that there remains a genuine issue of material fact concerning whether MHA breached its
lease with the decedent. Apparently, Appellants’ sole basis for this theory is language within the
lease agreement providing that MHA will “maintain the dwelling unit and the development in
decent, safe and sanitary condition.”4

         We believe that Appellants’ arguments on this issue are similar to those considered and
rejected by this Court in Archer v. Burton Plaza Assoc., Ltd., No. 03A01-9511-CV-00417, 1996
Tenn. App. LEXIS 136 (Tenn. Ct. App. March 4, 1996). In that wrongful death case, the plaintiffs’
decedent was murdered inside the laundry room of the apartment building where he lived. Archer,
1996 Tenn. App. LEXIS 136, at *1. Alleging claims of negligence and breach of contract, the
plaintiffs sued the owners and operators of the apartment complex. Id. Addressing the contract
issue first, we considered the lease provisions relied upon by the plaintiffs in that case, under which
the landlord agreed to “maintain the common areas and facilities in a safe condition.” Id. Applying
well-established principles of contract interpretation, we found the intention of the parties to the
contract to be clear, and stated:

                  We are of the opinion that, in proper context, the terms
                  “maintenance” and “maintain the common areas and facilities in a
                  safe condition” are limited to maintaining the property so that the
                  common areas and facilities are free from physical defects. We find
                  that under the terms of the contract, the parties did not contemplate
                  protection of the occupants from harm by third persons. Accordingly,
                  we are of the opinion that the trial court was correct in sustaining the
                  motion for summary judgment on the breach of contract issue.

Id. at *6.

        The lease provision relied upon by Appellants in this case is virtually identical to the one
before this Court in Archer. In fact, the provision relied upon by Appellants is even more focused
upon physical characteristics of the property, considering its reference to a “decent” and “sanitary”
condition. We similarly conclude that this language does not manifest an intention of the parties that
MHA would broadly assume the protection of Mr. Brown from harm by third persons. Rather, this

         4
                    W e recognize that in its November 28, 2005 memorandum, the trial court’s discussion of the
breach of contract claim dealt only with Appellant’s claims based upon MHA’s lease with L.C. Miller.
Notwithstanding Appellants’ apparent abandonment of this theory on appeal, we agree with the trial court’s
conclusion that Appellants lacked standing to assert liability of MHA based upon certain provisions of its lease with
the shooter, Mr. Miller. The breach of contract claim now before us, based upon the provision of Mr. Brown’s lease
with MHA, was not specifically pled in either of Appellants’ amended complaints. However, Appellants did include
this argument in their motion in opposition to MHA’s motion for summary judgment. The record does not indicate
an express ruling on this issue, and Appellants have not included a transcript from the summary judgment hearing in
the record before this Court. Because we are not at liberty to presume, even in the absence of an express ruling
thereon, that the trial court overlooked a viable issue in the case, Brookside Mills v. William Carter Co., No.
03A01-9403-CH-00111, 1994 Tenn. App. LEXIS 674, at *16-17 (Tenn. Ct. App. 1994), we will presume that the
trial court considered and ruled upon this argument at the hearing below.

                                                        -15-
provision illustrates MHA’s agreement to keep the apartment and premises free from physical
defects. Therefore, it is our opinion that the trial court appropriately granted MHA summary
judgment on Appellants’ cause of action for breach of contract.

                                      IV. CONCLUSION

       For the foregoing reasons, the trial court’s entry of summary judgment in favor of MHA is
affirmed. Costs are assessed against Appellants, Cheryl Brown Giggers, Charles C. Brown, Jr.,
Angela G. Brown, and Joann Fisher, and their surety, for which execution may issue if necessary.




                                                    ___________________________________
                                                    ALAN E. HIGHERS, JUDGE




                                             -16-
