Katerina Galanis v. CMA Management Company

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2012-CA-01757-COA
KATERINA GALANIS AND CHRISTINA APPELLANTS
GALANIS
v.
CMA MANAGEMENT COMPANY FORMERLY APPELLEES
D/B/A AMBLING MANAGEMENT COMPANY,
AMBLING MANAGEMENT COMPANY, LLC,
FORMERLY D/B/A AMC ACQUISITIONS, LLC,
AMBLING MANAGEMENT COMPANIES, INC.
AND ALTA MSU, LLC
DATE OF JUDGMENT: 09/28/2012
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS: SEAN ROBERTS GUY
SEAN J. TINDELL
ATTORNEY FOR APPELLEES: DAVID L. SANDERS
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
TRIAL COURT DISPOSITION: GRANTED APPELLEES’ MOTION FOR
SUMMARY JUDGMENT
DISPOSITION: AFFIRMED - 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.
ROBERTS, J., FOR THE COURT:
¶1. Bobby Batiste murdered his roommate, Andreas Galanis, in the apartment that they
shared at 21 Apartments in Starkville, Mississippi. Andreas’s mother, Katerina Galanis, and
1
his sister, Christina Galanis, (the Galanises) sued Batiste 1 and the companies2 that owned and
managed 21 Apartments. According to the Galanises, 21 Apartments negligently failed to
warn Andreas of Batiste’s violent tendencies. 21 Apartments moved for summary judgment
and argued that there was no evidence that it had actual or constructive knowledge of
Batiste’s propensity for violence, so it had no duty to warn Andreas. The Oktibbeha County
Circuit Court agreed. The Galanises appeal. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. 21 Apartments began leasing apartments during August 2006. Located near the
campus of Mississippi State University, 21 Apartments was marketed toward college
students. Batiste was one of 21 Apartments’ original tenants.
¶3. During 2007, 21 Apartments hired Ambling Management Company LLC to manage
the apartments. Ambling instituted a policy of performing background checks through an
outside service on all people who applied for new leases and existing tenants who sought to
renew their leases. If the applicant was ineligible to lease an apartment due to his prior
criminal history, the applicant received a letter informing him of the negative results. 21
Apartments did not receive a comprehensive list of the applicant’s criminal record.
¶4. When Batiste sought to renew his lease during 2007, his background check indicated
1
Batiste filed a pro se answer. He denied that he was liable for Andreas’s death.
2
At the time Batiste killed Andreas, 21 Apartments was owned by Alta MSU LLC
and managed by Ambling Management Company. For the sake of brevity, we refer to the
Appellees collectively as 21 Apartments in this opinion unless stated otherwise.
2
that he had a prior criminal history. Consequently, 21 Apartments told Batiste that his
renewal application had been denied. A few months later, attorney James A. Williams faxed
a letter to 21 Apartments and explained that Batiste was “not a convicted felon.” Williams
further explained that Batiste had been charged with credit-card fraud. According to
Williams, although Batiste had pled guilty, Batiste’s case had been “non-adjudicated, which
means that he submitted to probation, but [he] was not convicted.” Williams attached a copy
of Batiste’s non-adjudication order.3 Because 21 Apartments’ policy prohibited leasing to
anyone who had been convicted of a crime, and Batiste had not been adjudicated guilty of
credit-card fraud, 21 Apartments allowed him to renew his lease.
¶5. Months later, Andreas applied to lease an apartment. He was instantly approved. To
help tenants find roommates, 21 Apartments provided a questionnaire regarding each tenant’s
study habits, social lifestyle, and other factors. Although 21 Apartments notified tenants of
potential roommates and introduced them, it was up to the individual tenants to select a
roommate. In other words, 21 Apartments did not force any particular tenants to share an
apartment. 21 Apartments introduced Andreas and Batiste because they were both football
fans, and they were both older than traditional college students. After Andreas and Batiste
3
Batiste was not convicted of credit-card fraud. Instead, the circuit court deferred
the acceptance of his guilty plea, and placed him on non-adjudicated probation for four years
and ordered him to pay restitution. Presumably, if Batiste had satisfactorily completed his
non-adjudicated probationary term, the charge would have been dismissed and expunged
from his record as set forth in Mississippi Code Annotated section 99-15-26 (Supp. 2014).
3
met, they chose to become roommates.4
¶6. Leasing consultant Lorenzo Butler thought that Andreas and Batiste were close
friends. During his deposition, Butler said that Andreas and Batiste “were together all [of]
the time.” Andreas and Batiste both told Butler that they liked living together. According
to bookkeeper5 Debbie Owen, Andreas and Batiste “were best friends.” Owen added that
“wherever you saw [Andreas or Batiste], you saw the other.”
¶7. However, on March 6, 2008, Andreas told Owen that his debit card had been used
without his permission, and he suspected that Batiste was responsible. Owen advised
Andreas to file a report with the Oktibbeha County Sheriff’s Department. Andreas followed
Owen’s advice and spoke with Deputy Steven Woodruff. Deputy Woodruff asked Andreas
if he wanted to file charges against Batiste, but Andreas declined. Andreas told Deputy
Woodruff that he wanted to try to resolve the issue with Batiste.
¶8. Sometime after Andreas returned to his apartment, Batiste killed him. Batiste was
later convicted of capital murder and sentenced to death. Batiste v. State, 121 So. 3d 808,
823 (¶1) (Miss. 2013). On direct appeal, the Mississippi Supreme Court affirmed Batiste’s
conviction and sentence. Id.4
Andreas and Batiste were both twenty-seven years old when they became
roommates. They were also both students at Mississippi State University. An international
student named Jaewoo Joo also shared an apartment with Andreas and Batiste, but he had
returned to South Korea before Batiste went to trial for capital murder.
5
Owen began working for 21 Apartments during July 2006. Sometime between then
and March 2008, Owen had been promoted to assistant manager. Even so, Owen said that
her employment responsibilities did not change much.
4
¶9. In March 2009, the Galanises sued 21 Apartments and Batiste. According to the
Galanises, 21 Apartments “knew or . . . should have known that [it] failed to provide . . .
reasonabl[y] safe premises for Andreas . . . .” The Galanises also claimed that 21 Apartments
was liable for Andreas’s death because it had failed to warn him of Batiste’s criminal history
or his violent tendencies “before assigning him to share living space with . . . Batiste.”
¶10. More than three years later, 21 Apartments filed a motion for summary judgment.
Among other things, 21 Apartments argued that summary judgment was appropriate because
it did not have actual or constructive knowledge that Batiste was a violent person, so it had
no duty to warn Andreas of Batiste’s violent personality. The circuit court agreed and
granted 21 Apartments’ motion for summary judgment.6 The Galanises appeal.
STANDARD OF REVIEW
¶11. An appellate court conducts a de novo review of a trial court’s decision to grant a
motion for summary judgment. Kilhullen v. Kansas City S. Ry., 8 So. 3d 168, 174 (¶14)
(Miss. 2009). Mississippi Rule of Civil Procedure 56(c) provides that summary judgment
“shall be rendered . . . 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 a judgment as a matter of law.” We
must review the evidence in the light most favorable to the nonmoving party. Kilhullen, 8
6
The circuit court later entered a corrected order finding that it was a final judgment
as set forth in Rule 54(b) of the Mississippi Rules of Civil Procedure. Although he is
presently sentenced to death, Batiste remains a viable defendant to the Galanises’ lawsuit.
5
So. 3d at 174 (¶14).
¶12. To overcome a motion for summary judgment, the nonmoving party “may not rest
upon the mere allegations or denials of his pleadings, but his response . . . must set forth
specific facts showing there is a genuine issue for trial.” M.R.C.P. 56(e). The Mississippi
Supreme Court has recently held:
[I]n a summary[-]judgment hearing, the burden of producing evidence in
support of, or in opposition to, the motion is a function of Mississippi rules
regarding the burden of proof at trial on the issues in question. The movant
bears the burden of persuading the trial judge that: (1) no genuine issue of
material fact exists, and (2) on the basis of the facts established, he is entitled
to [a] judgment as a matter of law. The movant bears the burden of production
if, at trial, he would bear the burden of proof on the issue raised. In other
words, the movant only bears the burden of production where [he] would bear
the burden of proof at trial. Furthermore, summary judgment is appropriate
when the non[]moving party has failed to make a showing sufficient to
establish the existence of an element essential to the party’s case, and on which
that party will bear the burden of proof at trial.
Karpinsky v. Am. Nat’l Ins. Co., 109 So. 3d 84, 88-89 (¶11) (Miss. 2013) (quotations
omitted).
ANALYSIS
I. DUTY TO WARN
¶13. The Galanises claim that the circuit court erred when it held that 21 Apartments did
not have a duty to warn Andreas that Batiste was a violent person. According to the
Galanises, the circuit court should have found that 21 Apartments had actual or constructive
knowledge of Batiste’s violent personality. Therefore, the Galanises reason that 21
Apartments had a duty to warn Andreas of Batiste’s personality.
6
¶14. This is clearly a premises-liability case. “Premises liability is a theory of negligence
that establishes the duty owed to someone injured on a landowner[’s] premises as a result of
‘conditions or activities’ on the land.” Double Quick Inc. v. Moore, 73 So. 3d 1162, 1165
(¶8) (Miss. 2011) (quoting Doe v. Jameson Inn Inc., 56 So. 3d 549, 553 (¶11) (Miss. 2011)).
To successfully demonstrate negligence, a plaintiff must prove that (1) the defendant had a
duty “to conform to a specific standard of conduct for the protection of others against the
unreasonable risk of injury”; (2) the defendant breached that duty; (3) there is a causal
relationship between the breach and the alleged injury; and (4) the plaintiff suffered “injury
or damages.” Rein v. Benchmark Constr. Co., 865 So. 2d 1134, 1143 (¶30) (Miss. 2004).
The primary issue in this case is whether 21 Apartments had a duty to warn Andreas that
Batiste was a violent person. We are mindful that “the existence . . . of a duty of care is a
question of law.” Id. We review questions of law de novo. Pascagoula Sch. Dist. v. Tucker,
91 So. 3d 598, 603 (¶8) (Miss. 2012).
¶15. It is undisputed that Andreas was an invitee.7 “[A] property owner is not the insurer
of an invitee’s safety. Instead, a ‘premises owner must employ reasonable care to protect an
invitee from ‘reasonably foreseeable injuries at the hands of another.’” Holmes v. Campbell
Props. Inc., 47 So. 3d 721, 725 (¶14) (Miss. Ct. App. 2010) (quoting Newell v. S. Jitney
Jungle Co., 830 So. 2d 621, 623 (¶6) (Miss. 2002)). “An assault on the premises is
7
“An invitee is a person who enters the premises of another in response to an express
or implied invitation of the owner or occupant for their mutual advantage.” Moore, 73 So.
3d at 1166 (¶12).
7
reasonably foreseeable[8 ] if the defendant had either: (1) actual or constructive knowledge
of the assailant’s violent nature, or (2) actual or constructive knowledge an atmosphere of
violence existed on the premises.” Id. “[T]he important component of the existence of the
duty is that the injury is ‘reasonably foreseeable,’ and thus it is appropriate for the trial judge
to decide.” Rein, 865 So. 2d at 1143 (¶29) (quoting Lyle v. Mladinich, 584 So. 2d 397, 399
(Miss. 1991)).
¶16. The Galanises do not argue that there was an atmosphere of violence at 21
Apartments. Instead, they argue that 21 Apartments had actual or constructive knowledge
that Batiste was a violent person. According to the Galanises, 21 Apartments should have
realized that Batiste was a violent person based on a “resident-concern form” that Batiste
submitted regarding one of his previous roommates.
¶17. Before Batiste and Andreas were roommates, Batiste’s roommates were Arthur Hosey
and Demarcus Cousins. Approximately one year before Batiste killed Andreas, Batiste
submitted a resident-concern form regarding Hosey’s poor housekeeping. Within the
resident-concern form, Batiste stated:
Since October . . . 2006, [Hosey] has been messing up the living area and not
cleaning it up. Our kitchen is so messy that we have flies now. A[ ]lot of them
[are] dead on the floor. To resolve this earlier, I took it upon myself to clean
the whole living area twice. That failed because it [became] dirty [again]. I
8
It is necessary to distinguish foreseeability in the context of the existence of a duty,
and foreseeability in the context of causation. “While duty and causation both involve
foreseeability, duty is an issue of law, and causation is generally a matter for the jury. Juries
are not instructed in, nor do they engage in, consideration of the policy matters and the
precedent which define the concept of duty.” Rein, 865 So. 2d at 1143 (¶30).
8
have also tried talking to him about keeping it clean. It goes in one ear and out
[of] the other. There have been times when [other people] have come down.
They can be a witness to it. Even [property manager] Nandra [Jackson] has
seen the mess. I can’t take it anymore. I don’t want to get violent. He’s had
to[o] many chances. I wish he would leave now[,] because I can’t stay in an
environment where every[ ]time I turn around[,] I have a fly in my room. I
keep my things clean and my room organized. He doesn’t even take out the
trash. I hope this get[s] resolved soon because I really don’t want to take
matters into my own hands.
According to the Galanises, Batiste’s statements that he did not “want to get violent” and he
did not “want to take matters into [his] own hands” put 21 Apartments on notice that Batiste
was a violent person. Additionally, the Galanises note that Owen, the bookkeeper and
assistant manager at 21 Apartments, swore in an affidavit that she had no reason to believe
that Batiste was a violent person before he killed Andreas. The Galanises further note that
during Owen’s deposition, she was confronted with Batiste’s resident-concern form. After
repetitive questioning by one of the Galanises’ lawyers, Owen relented and testified that she
would not have signed her affidavit if she would have been aware of Batiste’s resident-
concern form. The Galanises reason that there was a genuine issue of material fact regarding
whether 21 Apartments had a duty to warn Andreas that Batiste was a violent person.
¶18. However, even in the context of summary judgment, the existence of a duty is a
question of law. Rein, 865 So. 2d at 1143 (¶30) (affirming in part a trial judge’s decision to
grant a motion for summary judgment based on the absence of a duty). It follows that the
existence of a duty is not a question of fact. “[T]herefore, the ruling by the trial court was
a judgment call as a matter of law, but certainly not impermissible.” Id. at 1144 (¶31).
¶19. Essentially, the Galanises argue that 21 Apartments should have known that Batiste
9
was a violent person because he said he did not want to “take matters into his own hands”
or use violence to resolve a dispute. However, there is no evidence that 21 Apartments had
any reason to think that Batiste had been violent with his former roommate.
¶20. Additionally, it is unreasonable to view Batiste’s resident-concern form in a vacuum
as though 21 Apartments only had it as a means to determine whether Batiste was a violent
person. The Galanises deposed three people who had worked at 21 Apartments at the time
that Batiste lived there. According to Owen, Batiste frequently visited the office multiple
times each week. Within her affidavit, Owen described Batiste as “very nice and helpful.”
She added that “he was extremely outgoing, friendly[,] and kind,” and he “appeared . . . to
be a very peaceful person.” Jackson described Batiste in similar terms.
¶21. Butler, the former leasing consultant for 21 Apartments, said that he “would have
considered [Batiste to be] a friend . . . .” Butler also said that “everyone liked” Batiste.
Butler used the following terms to describe Batiste: personable, funny, nice, mannerable,
friendly, pleasant, and very respectable. Butler stated that it was “hard not to like someone
like that.”
¶22. Butler also personally observed Batiste when Batiste operated the gate to the
apartments during a few weekends when Mississippi State University had home football
games. According to Butler, Batiste did “a fantastic job.” Butler explained that Batiste had
to turn away some people who did not live at 21 Apartments. Butler added that some of the
people who Batiste turned away became angry and cursed at Batiste. Even so, Batiste
remained calm and “never got tempermental.”
10
¶23. Furthermore, it was undisputed that Andreas and Batiste appeared to get along well
with each other. According to Butler, they both had said that they enjoyed living together.
There was testimony that they were frequently seen together. In her affidavit, Owen said that
Andreas and Batiste appeared to be “best buddies.” The employees of 21 Apartments had
no reason to believe that Batiste would attack Andreas.
¶24. As far as the employees of 21 Apartments knew, Batiste had never been violent with
anyone. Instead, Batiste maintained the appearance of a personable, outgoing, friendly, and
engaging person. It is unreasonable to hold 21 Apartments to a precognitive duty to warn
Andreas that Batiste was a violent person based solely on Batiste’s expressed desire to avoid
violence. “The actor is not bound to a precision of anticipation [that] would include an
unusual and improbable or extraordinary occurrence, although such happening is within the
range of possibilities.” Rein, 865 So. 2d at 1144 (¶32). “[T]he principles of common law
must be kept within practical bounds and so as not to occupy an attitude which would place
it over and above the heads of those who must carry on the everyday affairs of life.” Id. As
a matter of law, we find that Batiste’s resident-concern form did not provide 21 Apartments
with actual or constructive knowledge that Batiste was a violent person. It follows that 21
Apartments did not have a duty to warn Andreas that Batiste was a violent person. Having
found such, it is unnecessary to determine whether there are genuine issues of material fact
regarding the remaining elements of a prima facie case of negligence. Accordingly, there is
no merit to this issue.
II. BACKGROUND CHECK
11
¶25. The Galanises also argue that 21 Apartments had a duty to deny Batiste’s application
for a lease based on his prior criminal history for credit-card theft.9 The Galanises reason
that if 21 Apartments had followed its policy, Batiste would have never lived with Andreas.
They further reason that Batiste would not have stolen from Andreas, Andreas would not
have confronted Batiste, and Batiste would not have killed Andreas.
¶26. As discussed previously, Batiste’s former attorney contacted 21 Apartments and
explained that Batiste had pled guilty to credit-card fraud, but he had not been adjudicated
guilty. Batiste’s former attorney also sent 21 Apartments a non-adjudication order. A
subsequent background check showed that Batiste had not been convicted of any offense.
¶27. It was 21 Apartments’ policy to decline an application if the prospective tenant had
been convicted of a felony. Although Batiste had pled guilty to credit-card fraud, he had not
been adjudicated guilty. Technically, Batiste had not been convicted of a felony, and 21
Apartments did not act contrary to its own policy. Furthermore, it was not foreseeable that
because Batiste had pled guilty but not been adjudicated guilty of credit-card fraud, he would
kill one of his roommates. There is no merit to this issue.
9
Judge Griffis’s dissent notes the Galanises’ claim that 21 Apartments also had
constructive notice of Batiste’s violent nature because an investigative report from
Lauderdale County indicated that Batiste had been arrested for simple assault during June
2002. However, Butler stated that the background check “only told [him] that the person did
not pass the background check . . . .” In other words, the background check did not produce
a comprehensive criminal history. There is no evidence that 21 Apartments had notice that
Batiste had been charged with simple assault during June 2002. And there is no evidence
that Batiste had been convicted of that charge. In fact, the record indicates that the simple-
assault charge had been dismissed.
12
III. HEIGHTENED DUTY OF CARE
¶28. Finally, the Galanises argue that because 21 Apartments performed background
checks on prospective tenants and helped tenants find potential roommates, 21 Apartments
owed Andreas a “heightened” duty of care. To support their argument, the Galanises rely
entirely on Doe ex rel. Doe v. Wright Security Services, 950 So. 2d 1076 (Miss. Ct. App.
2007). In Doe, this Court reversed a circuit court’s decision to grant summary judgment in
favor of a security service after a student was sexually assaulted by another student while
neither student was on school property. Id. at 1086 (¶43). We held that summary judgment
was inappropriate because the security service had contracted with the victim’s school
district to provide security services; thus, the security service had accepted the duty to protect
the victimized student. Id. at 1080 (¶15). We further noted that Doe was not a premises-
liability case. Id. at 1081 (¶18).
¶29. 21 Apartments’ policies of performing limited background checks and assisting
tenants in finding roommates do not rise to a contractual “heightened” duty of care. 21
Apartments did not guarantee that a tenant would not be harmed by a roommate. Tenants
were informed that they were responsible for their own safety. 21 Apartments did not
promise to do anything for Andreas beyond what it provided. Furthermore, 21 Apartments
merely introduced Andreas and Batiste. 21 Apartments did not force Andreas to live with
Batiste. Andreas and Batiste both chose to share an apartment. We find no merit to the
Galanises’ argument that 21 Apartments owed Andreas a “heightened” duty of care.
¶30. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT IS
13
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANTS.
LEE, C.J., IRVING, P.J., ISHEE, CARLTON AND FAIR, JJ., CONCUR.
GRIFFIS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY
MAXWELL AND JAMES, JJ.; ISHEE, J., JOINS IN PART. MAXWELL, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GRIFFIS, P.J.;
JAMES, J., JOINS IN PART. JAMES, J., DISSENTS WITHOUT SEPARATE
WRITTEN OPINION. BARNES, J., NOT PARTICIPATING.
GRIFFIS, P.J., DISSENTING:
¶31. I respectfully dissent.
¶32. In Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993), the supreme court held:
All motions for summary judgment should be viewed with great skepticism
and if the trial court is to err, it is better to err on the side of denying the
motion. When doubt exists whether there is a fact issue, the non-moving party
gets its benefit. Indeed, the party against whom the summary judgment is
sought should be given the benefit of every reasonable doubt.
A motion for summary judgment should be overruled unless the trial court
finds, beyond any reasonable doubt, that the plaintiff would be unable to prove
any facts to support his claim. If facts are in dispute, it is not the province of
the trial court to grant summary judgment thereby supplanting a full trial with
its ruling. “Accordingly, the court cannot try issues of fact on a Rule 56
motion; it may only determine whether there are issues to be tried.”
(Internal citations omitted). This Court’s de novo review of the motion for summary
judgment requires that we decide whether there are issues to be tried.
¶33. The majority has determined that “[i]t is unreasonable to hold 21 Apartments to a
precognitive duty to warn Andreas that Batiste was a violent person based solely on Batiste’s
expressed desire to avoid violence.” The majority then concludes that “[a]s a matter of law,
we find that Batiste’s resident-concern form did not provide 21 Apartments with actual or
14
constructive knowledge that Batiste was a violent person. It follows that 21 Apartments did
not have a duty to warn Andreas that Batiste was a violent person.”
¶34. The circuit court correctly stated the applicable law:
“The criminal acts of a third party may be deemed reasonably foreseeable if
the premises owner had cause to anticipate such acts.” Davis v. Christian
Brotherhood Homes of Jackson, Mississippi, Inc., 957 So. 2d 390, 402 (¶22)
(Miss. Ct. App. 2007). “Cause to anticipate may be imputed to the premises
owner by virtue of his (1) actual or constructive knowledge of the third party's
violent nature, or (2) actual or constructive knowledge that an atmosphere of
violence existed on the premises.” Id.I agree with that this is not an “atmosphere of violence” case. Instead, the Galanises survive
summary judgment if they can show that there is a genuine issue of a material fact in dispute
as to “whether 21 Apartments had actual or constructive knowledge of Batiste's violent
nature, prior to Galanis'[s] murder.”
¶35. The Galanises argue that there was a genuine issue of a material fact that would
establish actual or constructive notice by 21 Apartments. They claim that (a) 21 Apartments
knew Batiste had pled guilty to the felony of uttering forgery, (b) an investigative report from
Lauderdale County indicates Batiste was arrested for simple assault on June 11, 2002, and
(c) Batiste had threatened to “get violent” in the resident concern form he filed against Arthur
Hosley. The majority and the circuit court rejected all three arguments. I disagree.
¶36. I begin with the resident concern form. Batiste complained to 21 Apartments about
his then-roommate:
I can't take it anymore. I don't want to get violent. He's had to[o] many
chances. I wish he would leave now because I can't stay in an environment
where ever time I turn around I have a fly in my room. I keep my things clean
15
and my room organized. He doesn't even take out the trash. I hope this get
resolved soon because I really don't want to take matters in my own hands.
(Emphasis added).
¶37. The circuit court found that “[t]here is nothing in the evidence before this [c]ourt to
indicate that Batiste ever acted on this statement.” Indeed, if Batiste had acted on this threat,
there would be no question that 21 Apartments had a duty to warn future roommates. But
such is not the case here. Instead, the question is whether there are any facts in dispute that
would allow reasonable minds to conclude whether this statement was sufficient to establish
21 Apartments had actual or constructive knowledge of Batiste's “propensity for violence.”
¶38. What did Batiste communicate to 21 Apartments when he said, “I don’t want to get
violent”? The majority reasons that “it is unreasonable to view Batiste’s resident-concern
form in a vacuum as though 21 Apartments only had it as a means to determine whether
Batiste was a violent person.” In fact, I agree with the majority that “[t]his statement is
ambiguous in that it is open to multiple interpretations.” However, I do not attempt to make
the interpretation as to what Batiste meant with the language he used and what 21
Apartments understood when it received this form. Certainly, I cannot accept the majority’s
and the circuit court’s interpretation that Batiste only meant something nonviolent.
¶39. I do not know what Batiste meant when he wrote “I don’t want to get violent” or “I
really don't want to take matters in my own hands.” A reasonable person could conclude that
this negative statement also expressed the intent to “get violent.”
¶40. For the purpose of summary judgment, the standard of review requires that we review
16
all evidentiary matters in the light most favorable to the nonmoving party and give the
nonmoving party the benefit of every reasonable doubt. Applying this standard of review,
I cannot accept the “literal” interpretation by the majority and the circuit court. Instead, I
find that reasonable minds may interpret this language differently. Thus, the words Batiste
chose to use indicate to me that a possible interpretation of “get violent” could be a threat
of violence. The interpretations offered by the majority and the circuit court, in my opinion,
are mere speculation.
¶41. The Galanises also point to the testimony of Debbie Owen. 21 Apartments offered
the affidavit of Owen to support its motion for summary judgment. There, Owen stated, “I
had no knowledge whatsoever of anything that would lead me to believe that Bobby Batiste
had a violent nature or violent tendencies.” As an employee of 21 Apartments, Owen signed
and received Batiste’s resident concern form on April 17, 2007. She then stated that she did
not read the resident concern form when Batiste gave it to her. Instead, she placed it on the
desk of her boss, Nandra Jackson.
¶42. At her deposition, Owen testified:
Q. You didn't really take a look at this until after you had offered your
affidavit in this case?
A. I don't remember, actually, when I actually saw it, to be honest.
Q. And again, in your affidavit, you say that, “I had no knowledge
whatsoever of anything that would lead me to believe that Bobby
Batiste had a violent nature or violent tendencies.” Obviously, if you
had read this before you did that affidavit, where he clearly states, “I
don't want to get violent,” that would be in contradiction to what's in
your affidavit; correct?
17
A. I didn't read this, though.
Q. Right. Because it's in contradiction to what's in your affidavit.
A. I don't understand what you're saying to me, or what you're asking me.
Q. Well, I guess what I'm saying is this, Debbie: You did an affidavit and
said, “I had no knowledge whatsoever of anything that would lead me
to believe that Bobby Batiste had a violent nature or violent
tendencies."
A. That's correct.
Q. That's correct. And had you read this beforehand -
A. I would have known.
Q. You would have known, and you would not have put that in your
affidavit?
Q. Correct?
A. Correct.
¶43. Owen’s deposition testimony, in my opinion, indicates that there is a genuine issue
of a material fact in dispute as to whether 21 Apartments had actual or constructive
knowledge of Batiste’s “propensity for violence.”
¶44. The Galanises also argue that 21 Apartments had a duty to warn Andreas of Batiste's
foreseeable criminal acts. To support this claim, they argue that a landowner owes “an
invitee the duty ‘to keep the premises reasonably safe and when not reasonably safe to warn
only where there is hidden danger or peril that is not in plain and open view.’” Massey v.
Tingle, 867 So. 2d 235, 239 (¶13) (Miss. 2004) (other citations omitted). These duties are
separate duties. Mayfield v. The Hairbender, 903 So. 2d 733, 738 (¶20) (Miss. 2005). The
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breach of either duty will support a negligence claim, and they must be separately analyzed.
Id.
¶45. The Galanises offer the following facts to support the duty to warn. 21 Apartments
first discovered Batiste’s criminal history in February 2007, as a result of the background
check they were performing for his lease renewal. Once 21 Apartments discovered Batiste's
criminal history, it informed Batiste that he could not work for 21 Apartments, that his
renewal rental application had been denied, and that his lease would not be renewed. Batiste
convinced 21 Apartments to make an exception for him, which would allow him to remain
a tenant, despite his criminal history. In July 2007, almost six months later, Batiste's attorney
sent a letter along with a copy of a nonadjudicated order for credit-card theft in Kemper
County, Mississippi. The Galanises contend that these documents notified 21 Apartments
that Batiste had pled guilty to the felony of credit-card theft. Thus, the Galanises argue that
21 Apartments failed to maintain a reasonably safe premises by allowing Batiste to
participate in its roommate-matching program with his past criminal history and threats
against previous roommates.
¶46. The Galanises also point to evidence of 21 Apartments employees. Owen admitted
that it was against 21 Apartments’ policy to allow tenants with a criminal history to live at
21 Apartments. Butler also stated that there was a “zero tolerance” policy preventing lease
agreements with applicants that had a negative criminal background check. They conclude
that 21 Apartments made an exception to the “zero tolerance” policy to allow Batiste to live
there; it did not make an exception that would allow Batiste to work for 21 Apartments.
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Hence, they claim that 21 Apartments was not going to give an admitted credit-card thief an
opportunity to steal from 21 Apartments as an employee, but they did not mind giving Batiste
an opportunity to steal from an unsuspecting roommate while they collected his rent
payments. As a result, the Galanises conclude that “[t]he party in the best position to
eliminate a dangerous condition should be burdened with that responsibility.” Tharp v.
Bunge Corp., 641 So. 2d 20, 25 (Miss. 1994). 21 Apartments was in the best position to
eliminate the dangerous condition by simply adhering to its “zero tolerance” policy. It
concludes that had 21 Apartments not changed its initial decision not to renew a lease with
Batiste, Andreas would not have been placed in a dangerous environment.
¶47. In addition, the Galanises point to 21 Apartments’ response when Andreas told 21
Apartments that he had discovered that a significant amount of money was missing from his
bank account and that his credit card had been stolen. He told 21 Apartments that he
suspected Batiste, and he sought guidance from 21 Apartments. Instead of counseling
Andreas that Batiste’s criminal history could present a dangerous condition, 21 Apartments
said nothing.
¶48. The question for us to decide is whether 21 Apartments has met its burden for
purposes of summary judgment. “A duty to warn arises when there is a dangerous
condition.” Richardson v. Grand Casinos of Miss., Inc., 935 So. 2d 1146, 1149 (¶10) (Miss.
Ct. App. 2006). I find that there are genuine issues of a material fact in dispute as to whether
21 Apartments had a duty to warn Andreas of Batiste’s criminal history and threats.
¶49. Next, the Galanises argue that 21 Apartments had a heightened self-imposed duty not
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to allow Batiste to lease with other roommates in the roommate-matching program. 21
Apartments had a duty to provide reasonably safe premises to its tenants. Once 21
Apartments became aware of Batiste's criminal history and/or violent nature, it should not
have allowed him to continue residing at the apartment complex. Despite having a “zero
tolerance” policy for criminal history, 21 Apartments changed its decision not to renew
Batiste's lease, and allowed him to be paired with Andreas in the roommate-matching
program.
¶50. When Andreas signed his rental application for 21 Apartments, a portion of the
application he completed dealt with the roommate-matching program, which “assign[s]
rooms based on the interest, study and living habits” of roommates. As part of the
application process, Andreas (and all other tenants or prospective tenants) agreed to a
necessary investigation of “credit, character, and reputation,” including a criminal
background check. 21 Apartments’ operation manual states its policy that “conducting a
thorough background check prior to accepting an application for residency is critical and is
policy.” When Andreas consented to the background investigation, he was placed on notice
that a criminal history would result in denial of the application. Thus, 21 Apartments
implicitly agreed to match Andreas with a roommate that had also passed his criminal
background check. Essentially, 21 Apartments contractually agreed to perform the due
diligence for Andreas pertaining to properly vetting his “matched” roommates.
¶51. By consenting to participate in the roommate-matching program, Andreas believed
that any potential roommate 21 Apartments paired him with would have undergone the same
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scrutiny. The roommate-vetting service was a duty created and assumed by 21 Apartments.
The duty to perform a background check and properly screen tenants was part of the
agreement 21 Apartments made to each tenant, not just Andreas. This was a self-imposed
and created duty to invitees that is greater than the normal common-law duties owed to
invitees. See Doe v. Wright Sec. Servs., 950 So. 2d 1076, 1080 (¶13) (Miss. Ct. App. 2007)
(stating that a “duty also exists where a party contracts to undertake or otherwise assumes
a duty”).
¶52. The Galanises argue that 21 Apartments created a duty that did not otherwise exist by
agreeing to run background checks on tenants participating in their roommate-matching
program. In so doing, 21 Apartments had a heightened and special duty to provide Andreas
with reasonably safe premises on which to live and to warn Andreas of Batiste's history. 21
Apartments breached this heightened duty by allowing Andreas to be “matched” with a
known criminal. Pursuant to 21 Apartments’ policies, Batiste should not have been allowed
to lease from 21 Apartments, and his continued tenancy was in violation of the policy. 21
Apartments’ breaches, coupled with its failure to inform Andreas of the information it had
about Batiste, were the proximate cause of Andreas's death.
¶53. For these reasons, I respectfully dissent.
MAXWELL AND JAMES, JJ., JOIN THIS OPINION. ISHEE, J., JOINS THIS
OPINION IN PART.
MAXWELL, J., DISSENTING:
¶54. The majority recognizes “[t]his is clearly a premises-liability case.” And it also
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correctly notes “duty is a question of law.” Maj. Op. (¶¶14, 18). So I am unsure why it
latches onto a non-premises liability case, Rein v. Benchmark Construction Co., 865 So. 2d
1134 (Miss. 2004), to justify its holding that 21 Apartments owed no duty as a matter of law.
¶55. In Rein, the question of duty was truly a question—given the quite tenuous
relationship between the injured party and the defendant.10 But here, the duty 21 Apartments
owed to its business invitees “is well-settled under Mississippi law.” Karpinsky v. Am. Nat’l
Ins., 109 So. 3d 84, 89 (¶12) (Miss. 2013). A business owner owes its invitees the duty to
keep its premises in a reasonably safe condition. Id. And as part of this duty, a business
owner must protect its invitees from injuries at the hand of others that are reasonably
foreseeable. Kroger Co. v. Knox, 98 So. 3d 441, 444 (¶16) (Miss. 2012); see also Corley v.
Evans, 835 So. 2d 30, 38 (¶22) (Miss. 2003); Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss.
1991).
¶56. In determining if a third-party injury is “reasonably foreseeable,” trial judges are not
without guidance. According to the supreme court, a third-party-inflicted injury is
10
In Rein, the question of duty was unsettled, because the facts were so unusual—the
family of a nursing-home patient, who died from fire-ant bites, sued the construction
company that had built the nursing home two years earlier, claiming a causal link between
the home’s construction and the fire-ant infestation. Rein, 865 So. 2d at 1137 (¶¶3-4). The
construction company argued it could not have reasonably foreseen its actions could have
somehow led to a patient dying from fire-ant bites, and thus it owed no duty to protect that
patient. Id. at 1139 (¶13). The supreme court agreed, concluding the construction company
“may have reasonably foreseen an insect infestation as a result of improper construction
techniques and poor planning of the drainage system[,]” but “could not reasonably foreseen
that [a resident] would be attacked and killed by fire ants two years after construction of the
[nursing home].” Id. at 1146 (¶40).
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reasonably foreseeable if there is “cause to anticipate the wrongful or negligent act” of that
third party. Corley, 835 So. 2d at 38 (¶23) (quoting Grisham v. John Q. Long V.F.W. Post,
519 So. 2d 413, 416 (Miss. 1988)). This “requisite cause” for anticipating the assault may
arise from two types of knowledge— “(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.” Kroger, 98 So. 3d at 443 (¶14) (quoting Lyle, 584 So. 2d at 399).
¶57. So in this case, the pertinent question of law—Did 21 Apartments owe Andreas a duty
to protect him against Batiste?—is answered by precedent. Under Mississippi tort law,
21 Apartments owed Andreas a duty if it had either actual or constructive knowledge of
Batiste’s violent nature. To prove this duty exists, the Galanises must factually prove
21 Apartments had actual or constructive knowledge of Batiste’s violent nature. This is all
they had to show to trigger 21 Apartments’ duty to protect Andreas. Cf. Karpinsky, 109 So.
3d at 89 (¶12).
¶58. Since the Galinises were opposing summary judgment, their burden of proof is really
best described as a “burden of production.” See id. at (¶13). What that means is that, to
survive summary judgment, the Galanises needed only produce sufficient evidence to
establish the essential duty element. See id. at (¶17). And I agree with Judge Griffis that the
Galanises met their burden of production. See Brown v. Credit Ctr., Inc., 444 So. 2d 358,
362 (Miss. 1983) (“[T]he party against whom the summary judgment has been sought should
be given the benefit of every reasonable doubt.”).
¶59. The apartment’s complaint form showed Batiste had previously documented his anger
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over a run-in with a past roommate. As Batiste put it, “I can’t take it anymore. I don’t want
to get violent . . . . I hope [my personal issues with my roommate] get resolved soon because
I really don’t want to take matters into my own hands.” (Emphasis added).
¶60. I do agree with the majority that neither the trial judge nor this court on de novo
review may focus solely on the complaint form without considering all evidence presented.
But Rule 56 requires all evidence be viewed in the light most favorable to the Galanises. See
Karpinsky, 109 So. 3d at 88 (¶9). And when this form is viewed in the light most favorable
to them, I find it is sufficient to show 21 Apartments was either actually or constructively on
notice about Batiste’s violent nature.
¶61. Because I find the Galineses met their burden of production on the duty element, I
would reverse the grant of summary judgment and remand this case for further proceedings.
GRIFFIS, P.J., JOINS THIS OPINION. JAMES, J., JOINS THIS OPINION IN
PART.
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