                      IN THE SUPREME COURT OF TENNESSEE
                                  AT JACKSON
                          October 2, 2008 Session Heard at Nashville1

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

                          Appeal by Permission from the Court of Appeals
                                 Circuit Court for Shelby County
                            No. CT-000896-03     Kay S. Robilio, Judge



                      No. W2006-00304-SC-R11-CV - Filed February 3, 2009


The plaintiffs, survivors of a tenant shot and killed by the criminal act of another tenant, filed suit
against the defendant housing authority, alleging negligence and breach of contract for failure to
provide a safe premises. The trial court granted summary judgment in favor of the housing authority
and the Court of Appeals affirmed. We granted review to determine whether the housing authority
owed a duty of care, an essential component of the claim, under the theory of negligence. Because
the potential for violence in the housing project was reasonably foreseeable and the gravity of the
harm outweighed the burden on the housing authority to have taken reasonable protective measures,
the judgment is reversed and the cause is remanded to the trial court for further proceedings.

                Tenn. R. App. P. 11; Judgment of the Court of Appeals Reversed
                  and Case Remanded to the Circuit Court for Shelby County

GARY R. WADE, J., delivered the opinion of the court, in which CORNELIA A. CLARK and WILLIAM
C. KOCH , JR., JJ., and E. RILEY ANDERSON , SP .J., joined. JANICE M. HOLDER , C.J., filed a concurring
and dissenting opinion.

Archie Sanders, III, Memphis, Tennessee, for the appellant, Cheryl Brown Giggers, Angela G.
Brown, Charles C. Brown, and JoAnn Fisher.

Charles Wesley Fowler, Memphis, Tennessee, for the appellee, Memphis Housing Authority and,
Joe Lee Wyatt and William Joseph Wyatt, Memphis, Tennessee, for the appellee, Scruggs Security
and Patrol, LLC.

Timothy David Patterson, Memphis, Tennessee, for the Amicus Curiae, Pacific Legal Foundation.


        1
          Oral argument was heard at the Davidson County Drug Court IV in Nashville, T ennessee, as a part of this
Court’s Supreme Court Advancing Legal Education for Students (S.C.A.L.E.S.) project.
                                                    OPINION

        On March 7, 2002, at approximately 11:45 a.m., L.C. Miller, a tenant in Jefferson Square,
one of several public housing projects owned by the Memphis Housing Authority (“MHA”), argued
with the housing project’s security guard, fired shots in the direction of his office, and struck and
killed Charles Cornelius Brown, Sr., another tenant at the facility who happened to be in the office
area at that time. Brown was not involved in the argument. Miller was subsequently shot by the
security guard, who was an employee of Scruggs Security and Patrol, LLC (“Scruggs”), a private
company which provided security at the facility at the time of the shooting.2

                                   Procedural History and Facts
        On February 18, 2003, Cheryl Brown Giggers, Charles C. Brown, Jr., and Angela G. Brown,
Brown’s surviving children, and Joann Fisher, his sister, (the “Plaintiffs”) filed a wrongful death suit
against the City of Memphis (the “City”) and MHA, alleging both negligence and breach of contract.
The Plaintiffs contended that the City and MHA were negligent in several ways: by failing to
adequately investigate Miller’s background prior to allowing him to lease a unit in the high rise
Jefferson Square Apartments; by failing to enforce internal policies which would have affected
Miller’s status as a tenant; by allowing Miller to possess a rifle on the premises; and by failing to
properly assess the risk Miller presented to the other tenants on the property. The Plaintiffs also
asserted that the City and MHA had breached a contractual obligation within their lease agreement
by failing to maintain a safe premises.

        Upon motion, the trial court dismissed the City as a defendant and the Plaintiffs amended the
complaint, naming MHA as the sole defendant. After MHA filed an answer, the Plaintiffs amended
the complaint a second time, adding Scruggs as a defendant. Scruggs filed a cross-claim against
MHA, alleging negligence in the investigation of Miller’s background prior to allowing him to rent
an apartment within the project. Scruggs also sought indemnity pursuant to a provision in its
contract with MHA. In turn, MHA filed a cross-claim, asserting that Scruggs was vicariously liable
for the negligent acts of its security guard and seeking indemnity pursuant to their contract. Later,
MHA filed a motion to dismiss the original complaint and, in the alternative, sought summary
judgment as to the Plaintiffs’ claims.

        A concise statement of the pertinent facts appears in the pleadings and in the supplemental
documentation in the record. When Miller filed an application to reside in the apartment complex
in 1996, MHA investigated his credit history and performed a home visit. It was the responsibility
of MHA’s department of security to conduct background checks for prospective tenants.3 Howard
Terry, who had served as an MHA employee since 1994 but as the department head only since 2000,

         2
          In 1998, when Miller had an altercation with another tenant, James Tiplett, a different security company was
under contract with MHA.

         3
            In 1996, M HA did background checks through the Sheriff’s Department only on new tenants. After the
shooting, MHA was authorized to use the National Crime Information Center (NCIC) not only for new tenants but also
for re-certification purposes.

                                                         -2-
administered security for Jefferson Square and three other high rise buildings at the time this suit was
filed. As a part of his responsibilities, he directed investigations and received reports of any
incidents on the various premises that relate to security. Records in Terry’s office indicated that on
January 27, 1996, MHA asked the Sheriff’s Department to conduct a background check on Miller.
The investigation, which extended over the three years prior to the application, did not “uncover
information that prohibit[ed] his . . . being housed . . . pursuant to MHA admission policies.”

         On May 8, 1998, well after Miller had taken occupancy of an apartment unit, he inflicted a
pocket knife wound upon another tenant after a verbal exchange. A report filed with MHA indicated
that Miller, agitated by James Tiplett, who was another tenant at the apartments, threatened to kill
Tiplett unless he “stop[ped] singing in my ear.” Shortly thereafter, Miller “jumped out of some
bushes swinging a knife, scratching [Tiplett] on the arm.” The report established that Tiplett refused
medical treatment and that he originally declined to press charges, but did so afterwards when Miller
continued to make verbal threats. Miller was arrested for aggravated assault as a result of the
incident and a second report was filed by MHA. While the ultimate disposition on the criminal
charge is not a part of the record, MHA placed Miller on probationary status for one year, warning
that future violations would be basis for a termination of his lease. When questioned during a pre-
trial deposition, Terry professed that he had no recollection of the 1998 incident but he did
acknowledge that MHA had a “one-strike” policy in effect at that time, calling for eviction for the
first instance of disruptive behavior. He explained that Derwin Jackson, the operations manager for
MHA, had the responsibility of determining whether to evict based upon the report filed. Jackson
served in that position in 1998 but left in 2000, some two years before the shooting incident. The
following exchange took place during the course of the Terry deposition:

       Q.      From a security perspective, if you know we have a tenant who has assaulted
               another tenant with a knife, do you believe from a security perspective it is
               a good idea for that tenant who assaulted the other tenant to remain a tenant
               on the property or should that tenant’s lease be terminated?
       A.      The tenant’s lease should be terminated.

        In response to the motion for summary judgment by MHA, the Plaintiffs submitted exhibits
establishing that Miller had been charged with aggravated assault in 1979 and, in 1977, had pled
guilty to firing a weapon within the city limits. There was no indication that MHA was aware of
either incident. Further, the Plaintiffs also provided documentation of the 1998 altercation that
resulted in the charge of aggravated assault against Miller. They also alleged that there had been
between ten and twenty shooting incidents on the various MHA properties and numerous other
assaults prior to the May 7, 2002 murder of Charles Cornelius Brown, Sr. Based upon the 1998
incident, the Plaintiffs argued that MHA had notice of Miller’s propensity for violence and reiterated
their contention that MHA had failed to maintain a safe premises. They asserted that MHA had
failed to observe its own internal policies which were designed to prevent violence on the part of its
tenants.




                                                  -3-
        The trial court held that neither the internal policies of MHA nor the contents of the criminal
background check of Miller created any duty to the Plaintiffs under these circumstances. Moreover,
after observing that a policy excluding those with prior records would result in “a massive underclass
of ex-convicts homeless due to an inability to find housing,” the trial court rejected the Plaintiffs’
argument that there was an affirmative duty on the part of MHA to conduct a criminal background
check on prospective residents. Finally, the trial court held that the Plaintiffs were not entitled to
recover as third party beneficiaries for breach of the terms of the lease agreement between MHA and
Miller.

       On direct appeal, the Plaintiffs argued that because MHA had some awareness of Miller’s
propensity for violence and, therefore, had a duty to take reasonable steps to maintain a safe
premises, the trial court erred by dismissing the alternative theories of recovery in tort and by
contract. Based upon MHA’s prior knowledge of Miller’s violent behavior, the Plaintiffs contended
that MHA had a duty to monitor his actions or evict him from the premises.

        The Court of Appeals affirmed the grant of summary judgment in favor of MHA, holding that
“an isolated violent outburst by . . . Miller was [in]sufficient to notify MHA that criminal acts against
its tenants were reasonably foreseeable, either generally or at some particular time” and, in
consequence, insufficient to give rise to a duty in these circumstances. Giggers v. Memphis Hous.
Auth., No. W2006-00304-COA-R3-CV, 2007 WL 2216553, at *11 (Tenn. Ct. App. Aug. 3, 2007).
The Court of Appeals further held that a landlord has no affirmative duty to evict or closely monitor
a tenant who is known to have a criminal history. Id. at *12. Considering the foreseeability and the
gravity of the harm against the commensurate burden imposed on the landlord to provide protections
against that harm, our intermediate court held generally, without specifically addressing the factors
making up the balancing test, that public policy considerations weighed against the imposition of any
duty. Id. Our Court of Appeals also considered the lease provision requiring MHA to “maintain the
dwelling unit and development in decent, safe and sanitary condition” as a separate basis for liability,
ruling that the language merely obligated the landlord to maintain the property so that the apartments
and common areas were free from physical defects and concluding that the general rules of contract
interpretation “did not contemplate protection of [tenants] from harm by third persons.” Id. at *12-
13 (quoting Archer v. Burton Plaza Assocs., Ltd., No. 03A01-9511-CV-00417, 1996 WL 93584, at
*2 (Tenn. Ct. App. Mar. 4, 1996)).

        We granted the application for permission to appeal to consider the propriety of the
negligence claim and specifically whether MHA, having knowledge of Miller’s prior act of violence
at the apartments, owed a duty to Charles Cornelius Brown, Sr.

                                         Standard of Review
         The scope of review of a grant of summary judgment is well established. Because our
inquiry involves a question of law, no presumption of correctness attaches to the judgment, and our
task is to review the record to determine whether the requirements of Rule 56 of the Tennessee Rules
of Civil Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn. 1997);
Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).


                                                  -4-
        A summary judgment may be granted only when there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall,
847 S.W.2d 208, 214 (Tenn. 1993). The party seeking the summary judgment has the ultimate
burden of persuasion “that there are no disputed, material facts creating a genuine issue for trial . .
. and that he is entitled to judgment as a matter of law.” Id. at 215. If that motion is properly
supported, the burden to establish a genuine issue of material fact shifts to the non-moving party.
In order to shift the burden, the movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish an essential element
of his case. Id. at 215 n.5; Hannan v. Altell Publ’g Co., 270 S.W.3d 1, 8-9 (Tenn. 2008).
“[C]onclusory assertion[s]” are not sufficient to shift the burden to the non-moving party. Byrd, 847
S.W.2d at 215; see also Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does
not apply the federal standard for summary judgment. The standard established in McCarley v. West
Quality Food Service., 960 S.W.2d 585, 588 (Tenn. 1998), sets out, in the words of one authority,
“a reasonable, predictable summary judgment jurisprudence for our state.” Judy M. Cornett, The
Legacy of Byrd v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev. 175,
220 (2001).

        Courts must view the evidence and all reasonable inferences therefrom in the light most
favorable to the non-moving party. Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn. 1997). A grant
of summary judgment is appropriate only when the facts and the reasonable inferences from those
facts would permit a reasonable person to reach only one conclusion. Staples v. CBL & Assocs.,
Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this Court must discard all
countervailing evidence. Byrd, 847 S.W.2d at 210-11. Recently, this Court confirmed these
principles in Hannan.

                                 Applicable Law in Negligence Suits
         Our Court of Appeals accurately assessed the applicable law. In order to establish a prima
facie claim of negligence, basically defined as the failure to exercise reasonable care, a plaintiff must
establish the following essential elements: “(1) a duty of care owed by defendant to plaintiff; (2)
conduct 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.” McCall v. Wilder, 913 S.W.2d 150, 153
(Tenn. 1995); see also Naifeh v. Valley Forge Life Ins. Co., 204 S.W.3d 758, 771 (Tenn. 2006). The
first element, that of duty, and the dispositive issue in this case, is the legal obligation of a defendant
to conform to a reasonable person’s standard of care in order to protect against unreasonable risks
of harm. Burroughs v. Magee, 118 S.W.3d 323, 328-29 (Tenn. 2003); McClung v. Delta Square Ltd.
P’ship., 937 S.W.2d 891, 894 (Tenn. 1996). In general, an individual has a duty to others to refrain
from engaging in misfeasance, affirmative acts that a reasonable person “should recognize as
involving an unreasonable risk of causing an invasion of an interest of another” or acts “which
involve[] an unreasonable risk of harm to another.” Restatement (Second) of Torts §§ 284, 302
(1965). Under our common law, however, courts were reluctant to impose liability for nonfeasance,
a course of inaction, as opposed to an act risking harm to others. W. Page Keeton, et al., Prosser
and Keeton on the Law of Torts § 56, at 373 (5th ed. 1984). As a means of mitigating the harshness
of the common law rule, exceptions have been created for circumstances in which the defendant has


                                                   -5-
a special relationship with either the individual who is the source of the danger or the person who
is at risk. Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 860 (Tenn. 1985). In Cornpropst v. Sloan,
528 S.W.2d 188 (Tenn. 1975), for example, this Court made the following observation:

        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.

Id. at 191. The relationship between a landlord and a tenant is one of those relationships deemed
special, placing an obligation on landlords to use reasonable care to protect tenants against
unreasonable risk of foreseeable harm. See Speaker v. Cates Co., 879 S.W.2d 811, 814-15 (Tenn.
1994); Tedder v. Raskin, 728 S.W.2d 343, 347 (Tenn. Ct. App. 1987); cf. Doe v. Linder Constr.
Co., 845 S.W.2d 173, 177-78 (Tenn. 1992); Biscan v. Brown, 160 S.W.3d 462, 478-79 (Tenn. 2005).
This relationship creates an affirmative charge to either control the source of the danger or to protect
an endangered tenant. See Restatement (Second) of Torts §§ 314A(1)(a), 314A(2) & 315(b). Thus,
a landlord, while not an insurer, owes a tenant the duty “to take reasonable precautions to protect [his
or her] tenants from criminal acts of third parties on the leased premises,” among other foreseeable
dangers. Tedder, 728 S.W.2d at 347; see also Linder Constr. Co., 845 S.W.2d at 177-78.

         Traditionally, the question of whether a defendant owes a duty of care to the plaintiff is a
question of law to be determined by the courts. West v. E. Tenn. Pioneer Oil Co., 172 S.W.3d 545,
550 (Tenn. 2005) (“Although not a part of the early English common law, the concept of duty has
become an essential element in all negligence claims,” as well as a question of law for the courts);
Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn. 1994); Glenn v. Conner, 533 S.W.2d 297, 302
(Tenn. 1976). In its determination of the legal issue, “[a] decision by the court that, upon any version
of the facts, there is no duty, must necessarily result in judgment for the defendant. A decision that
if certain facts are found to be true, a duty exists, leaves open the other questions [as to the presence
of negligence].” Lindsey, 689 S.W.2d at 859 (quoting Prosser, § 37 at 236). In McCall, we held that
“[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 defendant’s conduct outweigh the burden upon defendant to engage
in alternative conduct that would have prevented the harm.” McCall, 913 S.W.2d at 153. “[T]he
imposition of a legal duty reflects society’s contemporary policies and social requirements
concerning the right of individuals and the general public to be protected from another’s act or
conduct.” Bradshaw v. Daniel, 854 S.W.2d 865, 870 (Tenn. 1993). In McClung, under
circumstances comparable to these, this Court “impose[d] a duty upon businesses to take reasonable
measures to protect their customers from foreseeable criminal attacks.” McClung, 937 S.W.2d at
899.

        In order to determine whether a duty is owed in a particular circumstance, courts must first
establish that the risk is foreseeable, and, if so, must then apply a balancing test based upon
principles of fairness to identify whether the risk was unreasonable. Satterfield v. Breeding


                                                  -6-
Insulation Co., 266 S.W.3d 347, 366 (Tenn. 2008). That is, in consideration of, among other things,
the presence or absence of prior similar incidents, and other circumstances, does the foreseeability
of the harm outweigh the burden of the duty imposed? McClung, 937 S.W.2d at 901. In Downs ex
rel. Downs v. Bush, 263 S.W.3d 812, 820 (Tenn. 2008), we held as follows:

       The foreseeability of the harm is a key factor in the equation because, in general
       terms, “[f]oreseeability is the test of negligence.” West, 172 S.W.3d at 552 (quoting
       Linder Constr. Co., 845 S.W.2d at 178); Hale v. Ostrow, 166 S.W.3d 713, 716-17
       (Tenn. 2005). “‘A risk is foreseeable if a reasonable person could foresee the
       probability of its occurrence or if the person was on notice that the likelihood of
       danger to the party to whom is owed a duty is probable.’” West, 172 S.W.3d at 551
       (quoting Linder Constr. Co., 845 S.W.2d at 178). However, foreseeability alone does
       not create a duty to exercise reasonable care. McClung, 937 S.W.2d at 904. If the
       risk is foreseeable, then courts should weigh the remaining factors to determine if an
       imposition of duty is justified.

       Although no duty will arise when a risk of injury is not generally foreseeable, foreseeability
alone “is not, in and of itself, sufficient to create a duty.” Satterfield, 266 S.W.3d at 366. Rather,
when a minimum threshold of foreseeability is established, courts must engage in “an analysis of the
relevant public policy considerations,” id. at 364-65, to determine whether a duty enforceable in tort
must be imposed. While not exclusive, the factors are as follows:

       [T]he foreseeable probability of the harm or injury occurring; the possible magnitude
       of the potential harm or injury; the importance or social value of the activity engaged
       in by defendant; the usefulness of the conduct to defendant; the feasibility of
       alternative, safer conduct and the relative costs and burdens associated with that
       conduct; the relative usefulness of the safer conduct; and the relative safety of
       alternative conduct.

McCall, 913 S.W.2d at 153. See also Burroughs, 118 S.W.3d at 329.

        When and if the trial court determines that the foreseeability of the harm and its particular
gravity outweigh the burden of taking reasonable protective measures, the question “of duty and of
whether defendants have breached that duty . . . is one for the jury to determine based upon proof
presented at trial.” McClung, 937 S.W.2d at 904. As previously stated, whether a defendant owed
a duty of care is a question of law for the court to decide. West, 172 S.W.3d at 550; Stewart v. State,
33 S.W.3d 785, 793 (Tenn. 2000). Nevertheless, courts should take precautions to avoid any
invasion of the province of the jury. Satterfield, 266 S.W.3d at 367-68.

                                               Analysis
       Recently, in Satterfield, we determined that a family member of an employee who was
exposed to asbestos at his workplace fell within a class of individuals who an employer, in the light
most favorable to the validity of the claim, could have reasonably foreseen would be harmed by the


                                                 -7-
exposure. Id. at 367. Also, in Downs, we held that the driver and passengers of a vehicle might
reasonably have foreseen a risk of harm to an intoxicated passenger whom they allegedly placed in
the bed of a pickup truck. Downs, 263 S.W.3d at 821. In each of these opinions, we described
foreseeability as particularly important, paramount to the analysis of duty. See Hale, 166 S.W.3d at
716-17. In those cases, we acknowledged that consideration of the issue first required a
determination as to whether “a reasonable person could foresee the probability of its occurrence or
. . . was on notice that the likelihood of danger to the party to whom is owed a duty is probable.”
West, 172 S.W.3d at 550 (quoting Linder Constr. Co., 845 S.W.2d at 178). “Foreseeability must be
determined as of the time of the acts or omissions claimed to be negligent.” Linder Constr. Co., 845
S.W.2d at 178.

        As noted, the landlord and tenant qualify as having a special relationship. Further, violence
in a housing project is, generally speaking, foreseeable. Poverty is common in such areas.4 In
consequence, precautions are warranted. The record establishes that MHA, aware of this potential
danger, took some measures to guard against violence. In 1996, criminal background checks
extending over a period of three years, a credit history report, and a home visit were warranted for
a variety of reasons, including safety. The question, of course, is whether MHA, with some general
knowledge of criminal activity within its housing complexes and a particular knowledge of Miller’s
altercation with another tenant four years earlier, could have reasonably foreseen the probability of
a violent act. We think so. Indeed, the risk of violent attack at a housing project is nothing new.
See, e.g., Dailey v. Hous. Auth. for Birmingham Dist., 639 So.2d 1343, 1343-44 (Ala. 1994)
(housing project tenant killed by stray bullet from gunfight while standing on her porch); Williams
v. N.Y. City Hous. Auth., 867 N.Y.S.2d 442, 443 (N.Y. App. Div. 2008) (tenant shot while talking
to friend in outdoor common area of public housing complex); Smith v. Howard, 489 So.2d 1037,
1037-38 (La. Ct. App. 1986) (decedent shot and killed by housing project tenant about whom other
tenants had previously complained). The potential for violence in the Jefferson Square Apartments
was, therefore, generally foreseeable by the landlord. Under our law, of course, it is only when the
injury is not foreseeable that a criminal act by a third party constitutes “a superseding, intervening
cause of the harm, relieving the landlord of liability.” Linder Constr. Co., 845 S.W.2d at 178
(quoting Tedder, 728 S.W.2d at 349).

        Because of competing social concerns, the application of the balancing test to determine
whether a duty existed presents a particularly difficult question in this instance. Miller, some four
years prior to the shooting, had assaulted another tenant with a pocket knife and was charged with
felony assault. These events were documented by MHA and presented a recognizable, potential risk




         4
             Tom Jones, The Audacity of Hope?, Memphis Magazine, Oct. 1, 2008, available at
http://www.memphismagazine.com/gyrobase/Magazine/Content?oid=oid%3A51019 (last visited Dec. 30, 2008). This
article estimated that 162,000 Memphians live in poverty (the equivalent of the entire population of Chattanooga). It
suggests that the percentage of youths under eighteen living in poverty, the statistic most pertinent to crime rates, is 42%.

                                                            -8-
to other tenants within the facility.5 That MHA was aware of Miller’s conduct establishes a prima
facie case of specific foreseeability, the first factor in the balancing test. The second factor, the
possible magnitude of the harm, also supports the existence of a duty on the part of MHA. A violent
act by the use of a weapon obviously presents a risk of significant injury. Armed with a rifle, Miller
fired a shot which proved to be fatal to another tenant who just happened to be in the security office
area at the time.

      The third factor in the balancing test favors MHA. Initially, a public housing facility is
designed to provide affordable housing to low income tenants. 6                            The


         5
          In Williams v. Gorman, 520 A.2d 761, 765 (N.J. Super. Ct. App. Div. 1986), the court ruled that there was
no duty to evict when the violent tendencies of a tenant who fired a shotgun into the victim’s adjoining unit were
unknown to the landlord.

        6
          The Section 8 housing and voucher program, under which the federal government provides subsidies to local
public housing agencies in an effort to improve living conditions for low-income families, was created by the Housing
Act of 1937, also known as the W agner-Steagall Act. The 1937 Act included the following “Declaration of Policy”:

         It is hereby declared to be the policy of the United States to promote the general welfare of the Nation
         by employing its funds and credit, as provided in this Act, to assist the several States and their political
         subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary
         housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low
         income, in rural or urban communities, that are injurious to the health, safety, and morals of the
         citizens of the Nation.

W agner-Steagall Housing Act, ch. 896, § 1, 50 Stat. 888, 888 (1937) (current version at 42 U.S.C. § 1437(a) (2006)).

         The Quality Housing and W ork Responsibility Act of 1998 (QHW RA) was an effort to reform public housing
and the federal Section 8 voucher formula. Section 505 of the QHW RA (P.L. 105-276) amended the policy directive
section of the 1937 Act significantly. As a result of the QHW RA amendments, that section currently reads:

         It is the policy of the United States--

         (1) to promote the general welfare of the Nation by employing the funds and credit of the Nation, as
         provided in this chapter--

                  (A) to assist States and political subdivisions of States to remedy the unsafe housing
                  conditions and the acute shortage of decent and safe dwellings for low-income families;

                  (B) to assist States and political subdivisions of States to address the shortage of housing
                  affordable to low-income families; and

                  (C) consistent with the objectives of this subchapter, to vest in public housing agencies that
                  perform well, the maximum amount of responsibility and flexibility in program
                  administration, with appropriate accountability to public housing residents, localities, and the
                  general public;

         (2) that the Federal Government cannot through its direct action alone provide for the housing of every
                                                                                                            (continued...)

                                                             -9-
importance of the social value of affordable public housing in Tennessee cannot be overstated.
Figures from the United States Census Bureau indicate that in 2007, over 900,000 Tennesseans, or
nearly 15 percent of the state’s population, subsisted at or below the federal poverty guidelines.7
Shelby County is the largest of the ninety-five counties in Tennessee, and its largest city, Memphis,
is the most populated city in the state and the 18th-largest in the nation.8 Public housing is


         6
          (...continued)
         American citizen, or even a majority of its citizens, but it is the responsibility of the Government to
         promote and protect the independent and collective actions of private citizens to develop housing and
         strengthen their own neighborhoods;

         (3) that the Federal Government should act where there is a serious need that private citizens or groups
         cannot or are not addressing responsibly; and

         (4) that our Nation should promote the goal of providing decent and affordable housing for all citizens
         through the efforts and encouragement of Federal, State, and local governments, and by the
         independent and collective actions of private citizens, organizations, and the private sector.

42 U.S.C. § 1437(a).

         The Hope VI block grant program was created in 1992 as part of P.L. 102-389. Its “Purposes” section also was
revised by the QHW RA, specifically Section 535 of that Act:

         The purpose of this section is to provide assistance to public housing agencies for the purposes of--

         (1) improving the living environment for public housing residents of severely distressed public housing
         projects through the demolition, rehabilitation, reconfiguration, or replacement of obsolete public
         housing projects (or portions thereof);

         (2) revitalizing sites (including remaining public housing dwelling units) on which such public housing
         projects are located and contributing to the improvement of the surrounding neighborhood;

         (3) providing housing that will avoid or decrease the concentration of very low-income families; and

         (4) building sustainable communities.

         It is also the purpose of this section to provide assistance to smaller communities for the purpose of
         facilitating the development of affordable housing for low-income families that is undertaken in
         connection with a main street revitalization or redevelopment project in such communities.

42 U.S.C. § 1437v(a) (2006).


        7
           U.S. Census Bureau, Current Population Survey (CPS), Annual Social and Economic (ASEC) Supplement,
Poverty Status by State: 2007, http://pubdb3.census.gov/macro/032008/pov/new46_100125_01.htm (last visited Dec.
30, 2008).

         8
           See http://www.tennessee.gov/tacir/County_Profile/shelby_profile.htm (last visited Dec. 30, 2008);
http://www.census.gov/popest/cities/tables/SUB-EST2007-01.csv (last visited Dec. 30, 2008). The September 27, 2007
                                                                                                     (continued...)

                                                          -10-
particularly useful as a tool to alleviate a growing population of homeless people.9 There is much
truth in the trial judge’s observation that the exclusion of those with prior records of criminal
conduct from federal housing would create a “massive underclass [of the] . . . homeless.”

         MHA operated Jefferson Square Apartments pursuant to its authorization under Tennessee’s
Housing Authorities Law, Tennessee Code Annotated sections 13-20-101, et seq., which grants
broad powers for furthering the public purpose of providing affordable housing to Tennesseans. The
value of this service extends to the provision of affordable housing to individuals with some history
of misconduct. As President George W. Bush explained in the last State of the Union address of his
first term: “This year, some 600,000 inmates will be released from prison back into society. We
know from long experience that if they can’t find work, or a home, or help, they are much more
likely to commit crime and return to prison. . . . America is the land of second chance, and when the
gates of the prison open, the path ahead should lead to a better life.” George W. Bush, State of the
U n i o n       A d d r e s s        ( J a n .     2 0 ,    2 0 0 4),         av a i l a b l e     a t
http://www.whitehouse.gov/news/releases/2004/01/20040120-7.html (last visited Jan. 6, 2009).
According to the Bureau of Justice Statistics, 2,807 prisoners were released from state prison in
Shelby County in 2001, including 916 violent offenders – the 24th highest release number and 22nd
highest violent release numbers, respectively, among all the counties in the 37 states for which data
was available (by comparison, Davidson County had 1,911 releases and 588 violent releases, ranking
within the top 40 in both categories). U.S. Department of Justice, Bureau of Justice Statistics,
Reentry Trends in The United States (2004), available at
http://www.ojp.usdoj.gov/bjs/reentry/tables/countytab.htm (last visited Dec. 22, 2008). Thus, in
addition to serving the public by providing affordable housing generally, housing authorities often
provide appropriate housing opportunities to those individuals who face the task of reintegrating into
society.10 In short, the third factor weighs heavily in favor of MHA.


         8
          (...continued)
headline in the Memphis Commercial Appeal was “Memphis Leads U.S. in Violent Crimes.” Hanna Rosin, American
Murder M ystery, The Atlantic, Jul./Aug. 2008, available at http://www.theatlantic.com/doc/200807/memphis-crime.

         9
           In August of 2002, it was estimated that 2,000 individuals in Shelby County were without a residence on any
given night, and that 7,000 people were homeless for some period of time during 2001. Memphis/Shelby County
Mayors’ Task Force of Homelessness, Blueprint to Break the Cycle of Homelessness and Prevent Future Homelessness,
August 2002, at 2, available at http://www.ich.gov/slocal/plans/memphis.pdf (last visited Jan. 6, 2009). On January 10,
2007, the Tennessean reported a homeless population of 1,542 in Nashville. Michael Cass, Homeless Count Finds 1,542
in Nashville, Tennessean (Nashville,TN), Jan. 10, 2007, at 1B. Furthermore, the U.S. Department of Housing and Urban
Development estimated that, in 2005, some 5.99 million renter households nationwide have worst case housing needs,
defined as having no greater than 50% area median income, not receiving housing assistance, and either paying at least
50% of their income for housing or living in severely inadequate housing. Office of Policy Development and Research,
Department of Housing and Urban Development, Affordable Housing Needs 2005: Report to Congress 11 (2007),
available at http://www.huduser.org/Publications/pdf/AffHsgNeeds.pdf (last visited Jan. 6, 2009).

         10
              In M iller v. W hitworth, 455 S.E.2d 821, 827 (W . Va. 1995), the W est Virginia Supreme Court observed that

         the economic impact on landlords of housing in high crime areas could be quite severe if known
                                                                                                    (continued...)

                                                           -11-
         The fourth factor, the usefulness of stricter, alternative conduct, is neutral. While more
careful scrutiny of potential tenants might serve to limit the risks of harm to current tenants,
enforcing a more aggressive policy of identifying and excluding potentially dangerous tenants would
force MHA to deny housing to some individuals who present indications of future risk but who, if
provided with housing, might never harm anyone. Moreover, preventive policies will inevitably
result in a further intrusion on the privacy of tenants, rendering public housing a less attractive option
for many of the blameless individuals whom MHA is charged to serve. B.A. Glesner, Landlords as
Cops: Tort, Nuisance & Forfeiture Standards Imposing Liability on Landlords for Crime on the
Premises, 42 Case W. Res. L. Rev. 679, 683, 763 (1992).

        The fifth factor, like the first and second, favors, by a small margin, the imposition of a duty
on MHA. Although some preventive policies might be expensive and onerous, simply evicting
Miller following the knife attack would undoubtedly have been feasible. The one-strike policy, if
consistently enforced, would naturally produce a safer environment. Housing authorities routinely
deny housing to individuals based on factors indicating their potential risk of violence. According
to information received by Human Rights Watch in response to a Freedom of Information Act
Request to the U.S. Department of Housing and Urban Development (“HUD”), public housing
authorities required to provide data to HUD denied admission into project-based public housing to
46,657 applicants under “one strike” tenant screening procedures in 2002. Human Rights Watch,
No Second Chance: People with Criminal Records Denied Access to Public Housing (2004),
available at http://www.hrw.org/en/reports/2004/11/17/no-second-chance?print (last visited Jan. 6,
2009). As previously stated, MHA was aware of Miller’s attack on Tiplett and took steps to
reprimand him. Even though Miller successfully completed his period of probation as a tenant and
some four years had passed since the 1998 incident, there is no credible suggestion that the
additional step of evicting him was not a feasible option.

        The sixth factor, the costs and burdens of safer conduct, slightly favors the Plaintiffs. Some
steps, such as evicting tenants following violent confrontations, might have low costs and affect a
small number of tenants. In this instance, for example, taking the additional step of evicting Miller
may have resulted in minimal administrative expense. Other preventive measures, on the other hand,
such as more closely monitoring the activities of tenants or probing their backgrounds more
aggressively, would likely create both greater costs to MHA and greater burdens on tenants and
potential tenants. At this stage, however, because the menu of potential safer measures includes
some less expensive steps, this factor favors submission of the liability question to the jury.

        The seventh and eighth factors – the usefulness and safety of the alternative conduct – do not
strongly favor either conclusion. On one hand, the facts of this case alone demonstrate that evicting
tenants after violent confrontations may increase the safety of other tenants in that same building.

        10
          (...continued)
        criminal activity in the neighborhood alone will impose a duty on the landlord. Providing security to
        tenants costs money, and some tenants would not be able to afford the rent a landlord would have to
        charge to provide security in high crime areas. The result would be that low-income persons may find
        themselves without any housing.

                                                        -12-
It is less clear, however, whether these evictions would serve the safety of the public as a whole or
simply export risk from one place to another.11 Eviction is not incarceration. An individual who is
evicted because he poses a risk must relocate somewhere else and pose the same risk there. See
Rosin, American Murder Mystery (discussing data showing that dense areas of violent crime exist
in neighborhoods surrounding large housing projects in Memphis, and subsequent “hot spots” of
crime have arisen in areas of Memphis where former public housing residents had relocated when
their projects were demolished). The costs associated with providing a more secure facility and the
need to accommodate low-income tenants are competing forces. A housing authority provides a
valuable societal purpose. Nevertheless, on balance, closely monitoring tenants with prior criminal
records or subjecting tenants to a re-certification process by use of NCIC or other available means
to ascertain violent propensities does not appear to be overly burdensome.

        For a duty to exist, the conduct of a defendant must create a recognizable risk to either a
plaintiff or a class of persons, such as tenants in an apartment building. Restatement (Second) of
Torts § 281, cmt. c. Consideration of foreseeability necessarily involves an assessment of the
likelihood of harm serious enough in nature to take precautionary steps. In making this
determination, courts must ascertain whether the defendant had the obligation of vigilance.
Satterfield, 266 S.W.3d at 367. By viewing the complaint of the Plaintiffs in the light most favorable
to the validity of their claims, we must conclude that tenants within the Jefferson Square Apartments
could, with reasonable foreseeability, have been exposed to a risk of violent attacks resulting in
physical harm. At this stage in the proceedings, MHA has offered no explanation why a duty to act
with reasonable care to reduce its tenants’ unreasonable risk of physically injurious attack would
have an impermissible adverse effect on its ability to provide affordable housing to low income
tenants.

                                             Conclusion
        In summary, a special relationship exists between a landlord and a tenant, placing an
obligation on a landlord to take reasonable measures of protection. Because a reasonable person
could foresee the probability of violence in Jefferson Square and because the gravity of the potential
harm outweighs, although marginally in this instance, the burden of taking protective measures for
the safety of the tenants, we are unable to determine as a matter of law that the Plaintiffs are not
entitled to recovery on a claim of negligence under any version of the facts. There are, therefore,
genuine issues that preclude a summary judgment favorable to MHA.

        Our ruling does not foreclose the possibility that the Plaintiffs will be unable to present
sufficient evidence to support the claim or that MHA will successfully defend the propriety of its
actions under all circumstances. All landlords – whether public housing authorities or the owners

         11
            At times, evictions may even inflame violence. For example, the Knoxville News-Sentinel reported that 19-
year-old alleged gang member Kojak Lewis’ “criminal convictions got his family evicted from a housing project in
Northwest Knoxville, and he moved with his family to East Knoxville, home of rival gang, the East Side, according to
police. Lewis was shot as he stood on a sidewalk.” Lewis “was the first known . . . gang member to be gunned down
gang-style [in Knoxville].” Jamie Satterfield, Inner-City Gangs Targeted by Latest KPD Initiative; Members Blamed
for Drug Trade, Shootings, Knoxville News-Sentinel, July 29, 1996, at A1.

                                                        -13-
of luxury high-rises – have a duty to use reasonable care to protect their tenants from unreasonable
risks of physically injurious attacks by third parties, if those risks are foreseeable and public policy
considerations do not militate otherwise. However, the question of what steps, if any, are required
by the duty of reasonable care will inevitably depend on the facts of individual cases and should be
left to the finder of fact, not the courts. The judgment of the Court of Appeals is reversed, the
summary judgment as to the Plaintiffs’ tort claim is set aside, and the cause is remanded to the trial
court for further proceedings.

       Costs are assessed against MHA, for which execution may issue if necessary.



                                                        ___________________________________
                                                        GARY R. WADE, JUSTICE




                                                 -14-
