              IN THE SUPREME COURT OF MISSISSIPPI

                       NO. 2015-CA-01484-SCT

AUBREY MITCHELL, INDIVIDUALLY AND ON
BEHALF OF ALL THE HEIRS AT LAW AND
WRONGFUL DEATH BENEFICIARIES OF
DEVIN R. MITCHELL, DECEASED, AND
MYRTLE MITCHELL, INDIVIDUALLY AND AS
THE NATURAL MOTHER AND NEXT FRIEND
OF AUBREONNA D. MITCHELL, A MINOR

v.

RIDGEWOOD EAST APARTMENTS, LLC, UAH
PROPERTY MANAGEMENT, L.P. AND TAVARIS
FRANSHAY COLLINS

DATE OF JUDGMENT:              06/09/2015
TRIAL JUDGE:                   HON. JAMES T. KITCHENS, JR.
TRIAL COURT ATTORNEYS:         WILLIAM ROLAND
                               WALTER WILLIAM DUKES
                               ROBERT B. MARSHALL, JR.
                               DAVID RANDALL WADE
                               JEFFREY GRAY BAKER HOUSTON
COURT FROM WHICH APPEALED:     CLAY COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:      DAVID RANDALL WADE
                               DENNIS C. SWEET, III
                               JEFFREY GRAY BAKER HOUSTON
ATTORNEYS FOR APPELLEES:       WALTER WILLIAM DUKES
                               DRURY SUMNER HOLLAND
NATURE OF THE CASE:            CIVIL - PERSONAL INJURY
DISPOSITION:                   AFFIRMED - 12/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

     BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ.

     KITCHENS, JUSTICE, FOR THE COURT:
¶1.    In the early-morning hours of January 1, 2012, sixteen-year-old Devin Mitchell was

shot to death outside the apartment of his cousin, Queenie Walker, at Ridgewood East

Apartments in West Point, Mississippi. Mitchell’s family sued Ridgewood East, alleging,

inter alia, premises liability. The Circuit Court of Clay County granted summary judgment

to Ridgewood East. Finding that no genuine issue of material fact exists with regard to

whether Mitchell’s murder was foreseeable to Ridgewood East Apartments, we affirm the

judgment of the Circuit Court of Clay County.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On December 31, 2011, Queenie Walker, a tenant of Ridgewood East Apartments

since 2003, invited her cousins, Devin Mitchell, then sixteen years of age, and Aubreonna

Mitchell, then fourteen years of age, to spend the night at her apartment. At midnight, Devin,

Aubreonna, and Walker’s three daughters went outdoors to celebrate the new year. Around

1:00 a.m. or 1:30 a.m., Devin visited with Porsha Ewing, who also resided at Ridgewood

East, outside the window of her nearby apartment, for about an hour. The girls returned into

Walker’s apartment, but Devin remained outside. Because it was late, Walker called for

Devin to return inside also. Devin replied, “I’m coming . . . .”

¶3.    As Devin was returning, three, four, or five shots rang out from above Walker’s

apartment. Walker realized that Devin had been shot when she saw him on the ground “not

moving” just fifteen feet from the door to her apartment. Walker’s daughter dialed 911 on

a cellular telephone, because Walker “was shaking so bad.” According to the incident report




                                              2
prepared by police, the call was received at 2:55 a.m. on January 1, 2012. Walker went out

to Devin and assured him that help was on the way.

¶4.    At her deposition, Walker testified that “the guy” came down the stairs and that she

asked him what he had done and “started screaming at him” and “cursing at him.” Walker

stated that “the guy” was Tavaris Collins, that he was “[r]unning around after the shooting,”

and that his eyes were dilated and “he looked spaced out” and appeared to be “on

something.” According to Walker, Collins had put away the gun he had used in the shooting

and was wielding a different Tech-9 handgun, which he set on the ground “as if he was trying

to show me . . . that he didn’t do it.” Collins was arrested when the police arrived, around

2:57 a.m.1

¶5.    Devin was taken by ambulance to the Clay County Hospital, from which he was

transported by helicopter to a Tupelo hospital where he died of a bullet wound to the head.

¶6.    According to an affidavit of the Ridgewood East Apartments property manager,

Felecia Finley, Collins was not a resident of the complex. He was a visitor of Yashia Davis,

who had been a resident of the apartment complex since 2010. Davis lived at Ridgewood

East Apartments with her two children. Porsha Ewing testified at Collins’s criminal trial that

Collins had been staying at Ridgewood East with his girlfriend, Davis, for two years. Collins

was the father of one of Davis’s children and he would stay to babysit his child while Davis

worked.



       1
        In May 2015, Collins was convicted of first-degree murder and two counts of
possession of a weapon by a convicted felon. Collins v. State, 2016 WL 6477040, *1 (Miss.
Ct. App. Nov. 1, 2016).

                                              3
¶7.    On September 7, 2012, Devin’s parents, Aubrey Mitchell, individually and on behalf

of the heirs at law and wrongful death beneficiaries of Devin Mitchell, and Myrtle Mitchell,

individually and as the natural mother and next friend of Aubreonna Mitchell, a minor

(collectively the Mitchells), filed their first amended complaint against Ridgewood East

Apartments, Antelope Investment Properties,2 which conducted its business as Ridgewood

East Apartments, UAH Property Management, L.P., the management company which

operated Ridgewood East Apartments, Collins, and nine Doe defendants, in the Circuit Court

of Clay County (collectively Ridgewood East). The Mitchells alleged, inter alia, that

Ridgewood East had actual or constructive knowledge of the prior violent criminal conduct

of Collins and that an atmosphere of violence existed at Ridgewood East at the time of the

shooting.

¶8.    On March 18, 2014, Ridgewood East designated Bruce A. Jacobs, Ph.D., as an expert

in criminology. The trial court denied Ridgewood East’s first summary judgment motion,

which had been filed on October 9, 2013. Ridgewood East filed its second motion for

summary judgment on March 31, 2014, arguing that no genuine issue of material fact existed

with respect to foreseeability. Attached to the motion was Jacobs’s affidavit. Jacobs, who

examined crime data from the West Point Police Department for the three-year period

preceding the shooting, opined that no atmosphere of violence existed at Ridgewood East.3


       2
           Antelope was dismissed as a party by agreed order on April 16, 2014.
       3
           Dr. Jacobs stated that the data he reviewed revealed the following:

       •        Not a single homicide occurred at the property in that three-year period.
       •        Not a single robbery (armed or strong arm) occurred at the property in

                                                4
Having reviewed the police report of the incident, area crime data, and the deposition

testimony of the witnesses, he concluded that no evidence existed that tended to put

Ridgewood East on notice that Collins posed a threat to residents.

¶9.    The Mitchells responded on July 11, 2014, and sought further discovery. Attached to

the response were various West Point Police Department incident reports from 2009 to 2013

involving Ridgewood East. On February 27, 2015, the Mitchells designated John A. Harris,

B.S., M.S., as an expert in the field of premises liability and security. Harris stated in his

affidavit, which was filed on March 29, 2015, that, in his professional opinion and within a

reasonable degree of certainty, the shooting was foreseeable because it was reasonably

foreseeable that: (1) residents and guests of the apartment would celebrate New Year’s Eve,

(2) on New Year’s Eve, residents and guests “may engage in the use of drugs or alcohol,” (3)

residents and guests might violate the 10:00 p.m. curfew on New Year’s Eve, (4) residents

and guests would violate the apartment handbook rule against public drunkenness, (5)

residents and guests might violate the apartment handbook “rule against weapons on the

property in the absence of management or security officers on the property at the time” to

ensure the rule’s enforcement, (6) a resident or guest could be injured if the apartment’s rules



              that three-year period.
       •      Not a single rape or sexual assault occurred at the property in that three-
              year period.
       •      Not a single nondomestic aggravated assault occurred at the property
              in that three-year period.
       •      Not a single gun crime of any kind occurred at the property in that
              three-year period.
       •      Not a single person was seriously injured in any act of predatory
              (stranger-on[-]stranger) violence during that three-year period.

                                               5
and policies were not enforced; and that it was unreasonable “for a reasonably prudent

apartment manager/operator to shift the entire burden of enforcing the complex’s policies and

rules to the residents or even to the guests at the complex,” and that Ridgewood East’s breach

of the duty of care applicable to “reasonably prudent apartment owners, managers and

operators” caused or contributed to the shooting.

¶10.   Ridgewood East’s second motion for summary judgment was heard on May 15, 2015.

The trial court entered its order granting summary judgment to Ridgewood East on June 16,

2015. It found that, while Collins had lived on, or visited daily, the property for

approximately two years, the apartment possessed neither actual nor constructive knowledge

of his presence, since he had not been added to Davis’s lease and no complaints previously

had been filed involving him. The trial court further found that the Mitchells had not rebutted

the conclusions of Dr. Jacobs, and that Harris’s affidavit did not address whether an

atmosphere of violence existed at Ridgewood East or whether Ridgewood East was on notice

of Collins’s violent nature. The trial court determined that no genuine issue of material fact

existed with regard to foreseeability.

¶11.   The Mitchells filed a motion for relief from summary judgment pursuant to

Mississippi Rule of Civil Procedure 60(b) on June 26, 2015, which the trial court denied on

September 1, 2016. Aggrieved, the Mitchells filed a notice of appeal on September 28, 2015.

¶12.   The Mitchells argue on appeal that Collins himself constitutes an unreasonably

dangerous condition and that Ridgewood East had constructive knowledge both of his




                                              6
presence at the complex and of his violent nature.4 They further assert that Ridgewood East,

by incorporating into the tenants’ written lease contracts property rules and policies, assumed

the duty to prevent rule and policy violations and thereby rendered third-party criminal acts

foreseeable.

                                STANDARD OF REVIEW

¶13.   We review a trial court’s grant of summary judgment de novo. Borries v. Grand

Casino, Inc., 187 So. 3d 1042, 1045 (Miss. 2016) (citing Davis v. Hoss, 869 So. 2d 397, 401

(Miss. 2004)). “The judgment sought shall be rendered forthwith if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the affidavits,

if any, show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.” Miss. R. Civ. P. 56(c). The movant bears “the

burden of demonstrating that no genuine issue of fact exists,” while the nonmovant “should

be given the benefit of every reasonable doubt.” Borries, 187 So. 3d at 1046 (citing Tucker

v. Hinds Cty., 558 So. 2d 869, 872 (Miss. 1990)). The evidence is to be viewed in the light

most favorable to the nonmoving party. Stribling Inv., LLC v. Mike Rozier Constr. Co., Inc.,

189 So. 3d 1216, 1219 (Miss. 2016) (citing Cade v. Beard, 130 So. 3d 77, 81 (Miss. 2014)).

“The party opposing the motion must be diligent and, by allegations or denials, must set forth

specific facts showing that there are genuine issues for trial.” Porter v. Grand Casino of

Miss., Inc., 181 So. 3d 980, 983 (Miss. 2016) (citing Davis, 869 So. 2d at 401).

       4
          The Mitchells do not raise the issue of atmosphere of violence on appeal, though
it was in part a basis for the grant of summary judgment. Generally, “a question not raised
on appeal will not be considered by the court.” Whittington v. H.T. Cottam Co., 158 Miss.
847, 130 So. 745, 749 (1930).

                                              7
                                        ANALYSIS

       1.     Whether Ridgewood East had constructive knowledge of Tavaris
              Collins’s violent nature.

¶14.   The Mitchells argue that, because Ridgewood East is federally subsidized and subject

to the regulations of the United States Department of Housing and Urban Development

(HUD), which authorizes public housing projects to obtain criminal history records,

Ridgewood East had constructive knowledge of Collins’s violent nature.5 Ridgewood East

responds that the HUD regulations merely authorize criminal background checks but do not

mandate them. According to Ridgewood East, even assuming a duty to conduct a background

check existed, the Mitchells presented no evidence to support their claim that Ridgewood

East knew of Collins’s presence on the property and, therefore, had constructive knowledge

of his violent tendencies.




       5
         The trial judge, who had presided over Collins’s criminal trial, found that “Collins
did have a prior felony conviction for aggravated assault . . . .” At the summary judgment
hearing, counsel for the Mitchells stated that “my information suggest[s] that [Collins] had
an aggravated assault felony conviction since 1999.” The trial court responded that Collins
had been “convicted of an aggravated assault back in ’98 or ’99.” The trial court continued
that Collins “had a possession of cocaine conviction that resulted in the a[g] assault being
revoked.” The record does not inform us how the trial court knew of Collins’s prior
aggravated assault and possession-of-cocaine convictions. No evidence was adduced to
support the trial court’s finding. Ridgewood East property manager Felecia Finley submitted
an affidavit in which she stated that she “had no knowledge of Mr. Collins’ alleged criminal
background . . . .” Ridgewood East’s lawyer admitted, with no specificity, that had a
background check been conducted, Ridgewood East “would have seen that he had a prior.”
And the West Point Police Department Incident Report indicates that Collins may have been
a felon in possession of a firearm, but no specifics about any prior felony convictions exist
in the record before this Court, nor were any specifics about prior offenses provided to the
trial court.

                                             8
¶15.   Plaintiffs must, in order to recover on a negligence claim, demonstrate “that the

defendant breached a particular duty owed to the plaintiff, and that the breach of duty

proximately caused damages.” Adams v. Hughes, 191 So. 3d 1236, 1240 (Miss. 2016)

(quoting Kroger Co. v. Knox, 98 So. 3d 441, 443 (Miss. 2012)). While “those in control of

real property have a duty, if reasonably possible, to remedy most dangerous conditions on

their property and to warn of those they cannot eliminate, that duty presupposes the defendant

knew, or should know, of the dangerous condition.” Id. This analysis applies to premises-

liability cases involving thirty-party assaults: “[w]here the alleged dangerous condition is the

threat of an assault, the requisite cause to anticipate the assault may arise from (1) actual or

constructive knowledge of the assailant’s violent nature, or (2) actual or constructive

knowledge that an atmosphere of violence exists on the premises.” Id.

¶16.   This Court has considered cases involving actual knowledge of the assailant’s violent

nature. In the case of Galanis v. CMA Management Company, 175 So. 3d 1213, 1214 (Miss.

2015), the mother of Andreas Galanis, who had been murdered by his roommate, Bobby

Batiste, filed a premises-liability action against the owners and management of the apartment

complex where the murder had occurred. The trial court granted summary judgment, having

determined that the owners and management could not be held liable for failing to warn

Galanis of Batiste’s violent tendencies. Id. at 1214. This Court reversed the judgment and

remanded the case because evidence in the record showed that Batiste had filed a “resident

concern form” in which he complained about a prior roommate. Id. The letter indicated that

Batiste could not “take it anymore” and that he did not “want to get violent.” Id. at 1215.



                                               9
Batiste continued that he hoped “this get[s] resolved soon because I really don’t want to take

matters in[to] my own hands.” Id. The Court held that the apartment complex had actual

knowledge of Batiste’s violent tendencies. Id. at 1218.

¶17.   In another case, the assailant, who had days before shot and grazed the victim,

returned to the apartment complex, where he shot and killed the victim. Thomas v. Columbia

Group, LLC, 969 So. 2d 849, 852 (Miss. 2007). The Court reversed and remanded the trial

court’s grant of summary judgment because the complex had knowledge of the assailant’s

violent nature:

       The apartment manager at Shady Lane knew about the first shooting at least
       two days after it happened. Even if she did not hear about the shooting until
       two days after it happened, it was still several days before the second shooting,
       resulting in Thomas’s death, occurred. There is even testimony that the
       apartment manager “knew something like this was going to happen,” and that
       she was going to do something about it.

Id. at 854-55. The Court held that, based in part on “the manager’s statement that she was

going to ban and evict [the assailant] as well as improve security,” the record presented a

genuine issue of material fact. Id. at 855.

¶18.   This Court has not considered, however, the issue of whether an attack is foreseeable

based on the property owner’s constructive knowledge of an assailant’s violent nature.

Constructive knowledge is defined as “‘information or knowledge of a fact imputed by law

to a person (although he may not actually have it), because he could have discovered the fact

by proper diligence, and his situation was such as to cast upon him the duty of inquiring into

it.’” Doe ex rel. Brown v. Pontotoc Cty. Sch. Dist., 957 So. 2d 410, 417 (Miss. Ct. App.

2007) (quoting Black’s Law Dictionary 1062 (6th ed. 1990)).

                                              10
¶19.   To show that Ridgewood East by proper diligence could have discovered Collins’s

violent nature, the Mitchells cite federal HUD laws and regulations, which are reproduced,

in pertinent part, below:

       (c) Authority to deny admission to criminal offenders

       Except as provided in subsections (a) and (b) of this section and in addition to
       any other authority to screen applicants, in selecting among applicants for
       admission to the program or to federally assisted housing, if the public housing
       agency or owner of such housing (as applicable) determines that an applicant
       or any member of the applicant’s household is or was, during a reasonable time
       preceding the date when the applicant household would otherwise be selected
       for admission, engaged in any drug-related or violent criminal activity or other
       criminal activity which would adversely affect the health, safety, or right to
       peaceful enjoyment of the premises by other residents, the owner, or public
       housing agency employees, the public housing agency or owner may--

       (1) deny such applicant admission to the program or to federally assisted
       housing . . . .

42 U.S.C. § 13661(c).

       § 5.855 When am I specifically authorized to prohibit admission of individuals
       who have engaged in criminal activity?

       (a) You may prohibit admission of a household to federally assisted housing
       under your standards if you determine that any household member is currently
       engaging in, or has engaged in during a reasonable time before the admission
       decision:

              (1) Drug-related criminal activity;

              (2) Violent criminal activity;

              (3) Other criminal activity that would threaten the health, safety,
              or right to peaceful enjoyment of the premises by other
              residents; or

              (4) Other criminal activity that would threaten the health or
              safety of the [public housing agency] or owner or any employee,

                                               11
              contractor, subcontractor or agent of the [public housing agency]
              or owner who is involved in the housing operations.

24 C.F.R. § 5.855(a).

       § 5.903 What special authority is there to obtain access to criminal records?

       (a) Authority. If you are a [public housing agency] that administers the Section
       8 program and/or the public housing program, this section authorizes you to
       obtain criminal conviction records from a law enforcement agency, as defined
       in § 5.902. You may use the criminal conviction records that you obtain from
       a law enforcement agency under the authority of this section to screen
       applicants for admission to covered housing programs and for lease
       enforcement or eviction of families residing in public housing or receiving
       Section 8 project-based assistance.

       (b) Consent for release of criminal conviction records.

              (1) In order to obtain access to records under this section, as a
              responsible entity you must require every applicant family to
              submit a consent form signed by each adult household member.

       ....

24 C.F.R. § 5.903(a), (b)(1).

¶20.   In support of their argument, the Mitchells attach Davis’s lease agreement which

required that she yearly recertify to Ridgewood East the “income and composition of [her]

household . . . for the purpose of determining [her] rent and assistance payment.” A 2010

request for transfer indicated that Davis had “[a]dded a second child to the household,” and

listed herself, Yashia Davis, and two minor children, Cedrickus Hodges and Yavarian

Collins. The Mitchells also submitted to the trial court the transcript of Porsha Ewing’s

testimony from Collins’s criminal trial. Ewing testified that Collins had been staying with his

girlfriend at Ridgewood East for “[m]aybe about two years.” According to the Mitchells, “[i]f



                                              12
Yashia Davis had told [Ridgewood East] that [Collins] was a member of her household,

[Ridgewood East] would have conducted a criminal background check on [Collins], which

would have revealed [Collins’s] prior felony convictions and his violent nature.” The

Mitchells also speculate that Collins would have been denied a lease tenancy if Ridgewood

East had conducted a background check.

¶21.   To find that knowledge of Collins’s criminal record was imputed to Ridgewood East,

this Court first must determine that Ridgewood East had a duty to inquire into it. But the

HUD regulations presented by the Mitchells are merely permissive: Ridgewood East was

authorized, not required, to deny admission to criminal offenders if it:

       determine[d] that an applicant or any member of the applicant’s household is
       or was, during a reasonable time preceding the date when the applicant
       household would otherwise be selected for admission, engaged in any drug-
       related or violent criminal activity or other criminal activity which would
       adversely affect the health, safety, or right to peaceful enjoyment of the
       premises by other residents . . . .

42 U.S.C. § 13661(c)(1); 24 C.F.R. 5.855(a) (1)-(4). Ridgewood East also was authorized

to obtain access to criminal records; but, if it chose to do so, it was required to obtain a

consent form from the applicant family, signed by each adult household member. 24 C.F.R.

§ 5.903(b)(1). Cf. 24 C.F.R. § 5.854 (requiring landlord to prohibit admission of applicant

if applicant “has been evicted from federally assisted housing for drug-related criminal

activity”); 24 C.F.R. § 5.856 (requiring landlord to establish standards prohibiting “admission

to federally assisted housing if any member of the household is subject to a lifetime

registration requirement under a State sex offender registration program”); 24 C.F.R. § 5.857

(requiring landlord to “establish standards that prohibit admission to federally assisted

                                              13
housing” if the landlord has “reasonable cause to believe that a household member’s abuse

or pattern of abuse of alcohol interferes with the health, safety, or right to peaceful enjoyment

of premises by other residents”).

¶22.   Nothing in the record demonstrates that Ridgewood East at any point undertook to

obtain the criminal records of its tenants and that, in the event a tenancy applicant had a

criminal record, it had a policy of denying admission. Indeed, this Court recently rejected the

argument that an apartment complex could assume a heightened duty of care by adopting a

policy of conducting background checks of prospective tenants. Compare Galanis, 175 So.

3d at 1221 (Kitchens, J., dissenting) (“A jury could find that Batiste’s stealing Galanis’s debit

card was within the realm of foreseeable harm that was within the risk being taken by 21

Apartments allowing someone with a criminal history to live in its apartment complex. . . .

After all, is not the purpose of having a policy to exclude residents with a criminal history

to avoid the commission of crimes on the apartment complex’s premises?”), with Galanis,

175 So. 3d at 1218 (“21 Apartments—as premises owner—already owed Galanis—as an

invitee—a duty of reasonable care. Certainly, the Galanises may argue to the jury that 21

Apartments breached its duty to warn of known dangers by failing to reveal the results of

Batiste’s background check when it matched Batiste and Galanis as potential roommates. But

that is an issue of breach, not duty.”)

¶23.   Even under the standard articulated in the Galanis dissent, the Mitchells’ claims fail.

Davis’s (and Walker’s) lease permitted Ridgewood East to terminate a tenant’s lease in the

following relevant circumstances:



                                               14
       ...

       (3) drug related criminal activity engaged in[,] on[,] or near the premises[] by
       any tenant, household member, or guest, and any such activity engaged in on
       the premises by any other person under the tenant’s control;

       (4) determination made by the Landlord that a household member is illegally
       using a drug;

       (5) determination made by the Landlord that a pattern of illegal use of a drug
       interferes with the health, safety, or right to peaceful enjoyment of the
       premises by other residents;

       (6) criminal activity by a tenant, any member of the tenant’s household, a guest
       or another person under the tenant’s control:

              (a) that threatens the health, safety, or right to peaceful
              enjoyment of the premises by other residents (including property
              management staff residing on the premises);

              (b) or that threatens the health, safety, or right to peaceful
              enjoyment of their residences by persons residing in the
              immediate vicinity of the premises;
       ...

       (10) if the Landlord determines that the tenant, any member of the tenant’s
       household, a guest or another person under the tenant’s control has engaged
       in the criminal activity, regardless of whether the tenant, any member of the
       tenant’s household, a guest or another person under the tenant’s control has
       been arrested or convicted for such activity.

¶24.   A 2011 lease addendum stated, in pertinent part, that:

       1.     The Resident [or] any member at the Resident’s household, or a guest
              or other person under the Resident’s control shall not engage in or
              facilitate criminal activity on or near the project including, but not
              limited to, violent criminal activity or drug-related criminal activity.

       2.     The Resident or any member of the Resident’s household shall not
              permit the dwelling unit to be used for, or to facilitate, criminal activity,
              including, but not limited to, violent criminal activity or drug-related
              criminal activity.

                                               15
       3.       “Violent criminal activity” means any felonious criminal activity that
                has as one of its elements the use, attempted use, or threatened use of
                physical force against the person or property of another.
       ...

       5.       One or more violations of section 1 or 2 of this lease Addendum
                constitutes a substantial violation of the Lease and material
                noncompliance with the Lease. Any such violation is grounds for
                termination of tenancy and eviction from the unit.

¶25.   The lease agreement and addendum allowed for termination in the event a tenant, or

a member of the tenant’s household or a guest, engaged in a criminal activity. The lease

agreement and addendum did not mandate a background check or indicate that the landlord

would terminate the lease based on the results of a background check if one were to be

conducted. Additionally, the Ridgewood East lease required its tenants yearly to recertify the

composition of their respective households. A consent form was required to allow HUD to

obtain records “verifying employment and income of individuals participating in specified

programs and . . . to conduct analyses of the employment and income reporting of these

individuals.”

¶26.   The Ridgewood East policies differ from those of the apartment complex discussed

by the dissent in Galanis. In that case, 21 Apartments had required that tenants “agree[] to

an investigation of [his or her] ‘credit, character, and reputation,’ including a criminal

background check.” Galanis, 175 So. 3d at 1221 (Kitchens, J., dissenting). There, the

apartment complex employed a “‘zero tolerance’ policy for criminal history,” meaning that

persons having a criminal history would be denied admission. Id. No evidence in the record

demonstrates that such policies existed at Ridgewood East.



                                              16
¶27.   It cannot be said that Ridgewood East was on constructive notice of Collins’s

presence at the apartment complex because Ridgewood East had no duty—either at law or

assumed based on its policies—to conduct a criminal history background check on it’s

tenants, let alone a guest of a tenant.

¶28.   The Mitchells next analogize this case to a slip-and-fall claim in which the

constructive knowledge of a dangerous condition is imputed to the property owner based

upon the length of time the dangerous condition existed. “If the dangerous condition was

created by someone not associated with the operation of the store, the plaintiff must produce

evidence demonstrating that the operator had actual or constructive knowledge of the

condition.” Drennan v. Kroger Co., 672 So. 2d 1168, 1170 (Miss. 1996) (citing Downs v.

Choo, 656 So. 2d 84, 86 (Miss. 1995)). “Constructive knowledge is present where, based on

the length of time that the condition existed, the operator exercising reasonable care should

have known of its presence.” Drennan, 672 So. 2d at 1170 (citing Waller v. Dixieland Food

Stores, Inc., 492 So. 2d 283, 285 (Miss. 1986)). The Mitchells argue that, in this case,

Ridgewood East “had two years to discover [that Collins] was living at Ridgewood East

Apartments and to require his consent to a criminal background check if he wanted to remain

a member of Yashia Davis’s household at Ridgewood East Apartments.” (Emphasis in

original.)

¶29.   In Drennan, 672 So. 2d at 1168, a woman slipped and fell at a Kroger grocery store.

This Court reversed the trial court’s grant of a directed verdict to Kroger because “Drennan

produced evidence demonstrating that Kroger should have been aware from past conditions,



                                             17
occurrences, and stains on the ceiling that the area above aisle four leaked in periods of heavy

rain” and that such “circumstances created an inference that the Kroger store should have

been aware of the leaks in the roof.” Id. at 1172. Cf. Jones v. Imperial Palace of Miss., Inc.

147 So. 3d 318, 321 (Miss. 2014) (“[I]n the case before us today, the plaintiff produced no

evidence that Imperial knew or had reason to know that the particular bumper that caused

Jones’s injury was misaligned at the time of the injury”). Here, the Mitchells have put forth

no evidence to show that Ridgewood East should have known of the violent tendencies of

Collins. No evidence in the record demonstrates that Ridgewood East ever, in the two years

Collins was alleged to have been living there, experienced a problem with Collins or learned

of a complaint against him that should have put it on notice of his violent tendencies.

Moreover, apart from a brief discussion by the trial court and counsel at the summary

judgment hearing,6 no evidence in the record before this Court supports that Collins’s

criminal history included a violent crime.

¶30.   Finally, the Mitchells argue that the policies of Ridgewood East allowed it

“reasonably [to] enter the apartment units in order to enforce the rule against authorized [sic]

persons living on the property.” The Ridgewood East Resident Handbook required that

“[g]uests staying longer than two nights at a time or more than two nights per week must be

registered at the rental office. NO guests may stay on a permanent basis. Failure to adhere

to this policy is a violation of your lease agreement.” And it is true that the lease agreement

provided that the landlord was permitted to “enter the unit for the purpose of making



       6
           See supra fn. 6.

                                              18
reasonable repairs, conducting periodic inspections, and providing extermination services.”

The Resident Handbook allowed for periodic inspections of the unit, but the purpose of the

periodic inspections was to ensure that “good housekeeping practices are being followed by

the residents,” that the “apartment is being properly maintained by the maintenance staff,”

and that “possible structure and other damages are repaired as required.” The policy of

periodic inspections did not exist for the purpose of enforcing Ridgewood East’s guest

policy.

¶31.      Because Ridgewood East did not have constructive knowledge of Collins’s violent

nature, this issue is without merit.

          2.    Whether Ridgewood East’s property rules and policies rendered
                third-party criminal acts foreseeable by imposing a duty on
                Ridgewood East to prevent rule and policy violations.

¶32.      The Mitchells argue that the two-prong test by which foreseeability in premises

liability cases involving third-party assaults may be proved is not the “exclusive method of

proving foreseeability . . . .” (Emphasis in original.) They continue that “where a defendant

has assumed duties defined by the words and terms of a written contract, evidence of those

contractual duties can be sufficient evidence to prove ‘foreseeability’ in premises liability

cases involving third-party criminal assaults . . . .” According to the Mitchells, Ridgewood

East’s rules and policies prohibited weapons, alcohol, illicit drugs, public drunkenness,

fighting, or verbal altercations and, therefore Ridgewood East “clearly breached [its] duty

to enforce the rules.”




                                             19
¶33.    But this Court soundly has rejected the argument that a heightened duty of care can

be assumed in the context of a premises-liability claim. Galanis, 175 So. 3d at 1218. This

Court cited Doe ex rel. Doe v. Wright Security Services, Inc., 950 So. 2d 1076, 1078 (Miss.

Ct. App. 2007), in which the Jackson Public School District (JPSD) had contracted with

Wright Security Services (Wright) to provide security for students at a bus stop. A student

was sexually assaulted by another student after having been permitted by a Wright security

guard to go unescorted to a nearby restaurant’s restroom. Id. The student sued Wright,

arguing that, through its contract with JPS, it had assumed a duty to protect the children at

the bus stop. Id. The Mississippi Court of Appeals agreed and reversed and remanded the

trial court’s grant of summary judgment to Wright, finding that a genuine issue of material

fact existed regarding whether the injuries were foreseeable. Id. at 1086. More specifically,

the court held that “this is not a premises liability case,” and that the duty of care “resulted

from Wright’s contract with JPSD to provide security services at the bus stop for the students

. . . .” Id. at 1081.

¶34.    In Galanis, this Court found Doe to be distinguishable, because Galanis was a

premises-liability case: “Doe stands for the proposition that one may assume a duty of

reasonable care where one previously did not exist,” but “the contract in Doe created

Wright’s duty of reasonable care, whereas 21 Apartments already owed a duty of reasonable

care to Galanis.” Galanis, 175 So. 3d at 1217-18. The Court found that Doe could be

applicable “if 21 Apartments had contracted with someone to provide security, and the

Galanises had tried to sue that party,” but that such was not the case: “21 Apartments did not



                                              20
contract with anyone to protect its tenants, and no one contracted with 21 Apartments to

protect its tenants.” Id. at 1218.

¶35.   Similarly, here, Ridgewood East owed only a duty of reasonable care to prevent

foreseeable harm to Devin Mitchell. And while the Guest Policy in the Resident Handbook,

which was incorporated by reference into the lease agreement, prohibited alcoholic

beverages, loitering in the parking lot, public drunkenness, fighting, disturbances, verbal

altercations, threats, or weapons on the grounds7 and the lease contract permitted Ridgewood

East to terminate the lease if a tenant or guest used an illicit drug or engaged in “drug related

activity,” it cannot be said that by incorporating policies and rules into the lease agreement,

Ridgewood East assumed a contractual duty to tenants and guests to prevent any and all

violations of the rules, even those of which it had no actual or constructive knowledge.

¶36.   No genuine issue of material fact exists with regard to foreseeability of a third-party

criminal act based on the existence of Ridgewood East’s policies and rules. This issue is

without merit.




       7
        No evidence in the record supports the Mitchells’ assertion that:

       Defendants assumed other duties under the lease agreement as well, including
       but not limited to, a duty to (1) reasonably stop and question guests on the
       property; (2) to reasonably require guests to provide identification; (3) to
       reasonably enter apartment units to determine whether unauthorized persons
       were living in the unit . . . .

                                               21
                                     CONCLUSION

¶37.   Because no genuine issue of material fact exists in the record before this Court on the

question of the foreseeability of the tragic shooting death of Devin Mitchell, we affirm the

Circuit Court of Clay County’s grant of summary judgment to Ridgewood East.

¶38.   AFFIRMED.

    WALLER, C.J., DICKINSON, P.J., KING, COLEMAN, MAXWELL AND
BEAM, JJ., CONCUR. RANDOLPH, P.J., AND LAMAR, J., NOT PARTICIPATING.




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