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13-P-1908                                                Appeals Court

    CARINE BELIZAIRE, administratrix,1        vs.   DEBORAH A. FURR.


                             No. 13-P-1908.

        Suffolk.       October 15, 2014. - September 11, 2015.

            Present:   Kafker, C.J., Trainor, & Milkey, JJ.


Negligence, One owning or controlling real estate,
     Foreseeability of harm, Duty to prevent harm. Landlord and
     Tenant, Execution of lease, Tenancy at will, Landlord's
     liability to third person. Real Property, Lease.



     Civil action commenced in the Superior Court Department on
October 13, 2010.

     The case was heard by Heidi E. Brieger, J., on a motion for
summary judgment.


    Sheldon S. Ananian for the plaintiff.
    Richard E. Bennett for the defendant.


    KAFKER, C.J.       Carl Hentz Belizaire (the victim) was shot

and killed by an unknown assailant at a party held on September

19, 2009, in an apartment in a two-family building (the


    1
        Of the estate of Carl Hentz Belizaire.
                                                                      2


property) owned by Deborah A. Furr (the defendant).      The

plaintiff, Carine Belizaire, as administratrix of the victim's

estate, brought suit against the landlord claiming that she was

negligent for failing to keep the property safe during the

party.    The defendant moved for summary judgment, and a Superior

Court judge granted it.     The plaintiff appealed.   Because the

plaintiff cannot establish essential elements of her negligence

claim,2 we affirm.

     1.    Background.   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),
                                                                       9


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.
                                                                     12


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.   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.
