Opinion
HHDCV146055943S
05-09-2016
Kenneth Blue, Administrator for the Estate of Kamesha Mills et al. v. Dye House Associates, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO STRIKE (#132)
Sheila A. Huddleston, J.
On December 7, 2013, John Lynn intentionally shot and killed Brittany Mills, Kamesha Mills, and Artara Benson inside the Dye House Apartments in Manchester. The plaintiffs, Kenneth Blue, Tashua Parker, and Darrin K. Benson, administrators of the estates of Kamesha Mills, Brittany Mills, and Artara Benson, respectively, brought this action against the defendants, Dye House Associates, LLC (Dye House), and Konover Residential Corporation, the owner and property manager, respectively, of Dye House Apartments, alleging negligence and recklessness. The defendants moved to strike the entire original complaint on the ground that the facts alleged were insufficient to establish that the defendants owed a duty to the plaintiffs' decedents to protect them from the criminal conduct of John Lynn. The court (Sheridan, J.) granted the motion to strike on October 19, 2015, ruling that the complaint failed to allege where on the premises the intentional criminal actions occurred and that the defendants were in exclusive control of the area where the criminal actions occurred.
As permitted by Practice Book § 10-44, the plaintiffs filed their first amended complaint on November 3, 2015. The defendants again moved to strike the entire complaint, arguing that the amended complaint still failed to set forth a sufficient factual basis to establish that the defendants owed a duty to the plaintiffs' decedents to protect them from John Lynn's criminal conduct.
Plaintiffs' Allegations
The plaintiffs allege the following facts which are taken as true for the purposes of this motion.
The defendant Dye House is the owner of the Dye House Apartments at 190 Pine Street in Manchester, and the defendant Konover Residential Corporation serves as the property manager for the Dye House Apartments. At all relevant times, the defendants exclusively controlled the security of the building.
Each of the decedents was a " resident, patron and/or guest" of Dye House Apartments. On December 7, 2013, each of the decedents was lawfully in Brittany Mills' apartment when she was shot and killed. The identity of their killer is not expressly stated. Other paragraphs of the amended complaint, however, allege that at all relevant times herein, John Lynn was a " resident, patron and/or guest at Dye House Apartments and was residing on the premises with the knowledge, consent, authority and approval" of the defendants, although he did not have a lease with the defendants, nor was he an authorized tenant.
The original complaint expressly identified John Lynn as the killer.
The plaintiffs allege that the deaths of their decedents resulted from the defendants' negligence. Their specific allegations of negligence fall into three general categories: (1) failure to provide adequate security to prevent unauthorized intruders from accessing the common areas of the Dye House Apartments and failure to promulgate adequate security procedures (counts one through five, paragraph 7, subparagraphs a, b, e, f, g, h, i, j, k, m, and count six, paragraph 8, subparagraphs a, b, e, f, g, h, i, j, k, m); (2) failure to warn of criminal activity that had occurred on their premises (counts one through five, paragraph 7, subparagraph 1, and count six, paragraph 8, subparagraph l ); and (3) allowing John Lynn to be a " resident, patron or guest" at the premises when they knew or should have known that he had engaged in criminal and/or dangerous activity on the premises and that there was a substantial likelihood that his presence posed a danger to the plaintiffs and failing to take action in its front entrance and common areas to prevent him from accessing Dye House Apartments (counts one through five, paragraph 7, subparagraphs c, d, n, o, and p, and count six, paragraph 8, subparagraphs c, d, n, o, and p).
Standard of Review
" A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002). " For the purposes of ruling on a motion to strike, the facts alleged in the complaint, though not the legal conclusions it may contain, are deemed to be admitted." (Internal quotation marks omitted.) Bridgeport Harbour Place I, LLC v. Ganim, 111 Conn.App. 197, 203, 958 A.2d 210 (2008), aff'd, 303 Conn. 205, 32 A.3d 296 (2011).
" [P]leadings should be read broadly and realistically, rather than narrowly and technically . . . That does not mean, however, that the trial court is obligated to read into pleadings factual allegations that simply are not there or to substitute a cognizable legal theory that the facts, as pleaded, might conceivably support for the noncognizable theory that was actually pleaded." (Citation omitted; internal quotation marks omitted.) Pane v. Danbury, 267 Conn. 669, 677, 841 A.2d 684 (2004). " [T]he burden [is] upon the pleaders to make such averments that the material facts should appear with reasonable certainty . . . essential allegations may not be supplied by conjecture or remote implication." (Citation omitted; internal quotation marks omitted.) Cahill v. Board of Education, 198 Conn. 229, 236, 502 A.2d 410 (1985).
Analysis
" The essential elements of a cause of action in negligence are well established: duty; breach of that duty; causation; and actual injury." (Internal quotation marks omitted.) Ryan Transportation, Inc. v. M& G Associates, 266 Conn. 520, 525, 832 A.2d 1180 (2003). " Duty is a legal conclusion about relationships between individuals, made after the fact, and [is] imperative to a negligence cause of action . . . Thus, there can be no actionable negligence . . . unless there exists a cognizable duty of care . . . The test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case." (Citations omitted; internal quotation marks omitted.) Id., 525-26.
" With respect to [the policy analysis], there generally is no duty that obligates one party to aid or to protect another party. See 2 Restatement (Second), Torts § 314, p. 116 (1965). One exception to this general rule arises when a definite relationship between the parties is of such a character that public policy justifies the imposition of a duty to aid or to protect another. See W. Prosser & W. Keeton, Torts (5th Ed. 1984) § 56, pp. 373-74; see also 2 Restatement (Second), supra, § § 314A, 315, at pp. 118, 122." Ryan Transportation, Inc. v. M& G Associates, supra, 266 Conn. 526.
Connecticut's Supreme Court has recognized that a landlord " may have a duty to take affirmative action to protect tenants and their guests from the criminal conduct of third parties." Ryan Transportation, Inc. v. M& G Associates, supra, 266 Conn. at 527. This duty, however, " generally is limited to areas of the leasehold over which the landlord has exclusive control or to situations in which the landlord has the exclusive ability to prevent the unlawful conduct." Id.
The plaintiffs' amended complaint alleges that the defendants failed to provide adequate security over the common areas to prevent access to the building by unauthorized intruders, visitors, and trespassers. It does not allege, however, that the plaintiffs' decedents were killed by an unauthorized intruder, visitor, or trespasser. If the decedents were not killed by an unauthorized intruder, visitor, or trespasser, the absence of security to prevent access by such individuals to the common areas could not logically be shown to have caused the decedents' deaths. Moreover, the complaint now specifically alleges that the plaintiffs' decedents were killed in Brittany Mills' apartment, but it does not allege that their unnamed killer gained unauthorized access to the apartment.
The amended complaint alleges that John Lynn was a " resident, patron or guest" of the Dye House Apartments but did not have a lease with the defendants and was not " an authorized tenant." It further alleges that the defendants should have excluded Lynn from the premises because they knew or should have known that he had engaged in criminal and/or dangerous activity and presented a danger to the plaintiffs' decedents.
Although this court has found no appellate authority in Connecticut on this issue, the courts in some states have held that a landlord may have a duty to evict a tenant whose conduct poses a risk to the safety of other tenants. For instance, in Giggers v. Memphis Housing Authority, 277 S.W.3d 359 (Tenn. 2009), the Tennessee Supreme Court engaged in a careful analysis concerning a public housing authority's duty to evict a tenant who had violently attacked another tenant on its premises. The offending tenant, who had not been evicted, had subsequently attacked and killed the plaintiffs' decedent. Id., 360. The court found that the earlier violent events documented by the housing authority " presented a recognizable, potential risk to other tenants within the facility" and constituted a " prima facie case of specific foresceability." Id., 367. It then considered substantial public policy issues, including the magnitude of the harm likely to occur if no action was taken, the social importance of public housing, the need to avoid creating a massive class of homeless persons with records of prior violent criminal conduct, the usefulness of alternative preventive policies, the onerousness of the imposition of a duty on the defendant, and the costs and burdens of safer conduct. Id., 367-71. After weighing all the issues, it concluded that the plaintiffs had stated a claim that precluded summary judgment. Id.
Other courts have ruled similarly. In Simmons v. New York, 168 A.D.2d 230, 562 N.Y.S.2d 119 (1990), a New York Appellate Division court held that a landlord owed a duty to remove a tenant who was known to be dealing drugs on the premises. The tenant's roommate shot the plaintiff in the back after a tenants' meeting in which the plaintiff advised other tenants about the drug dealing she had observed. Id. The court concluded that it was up to a jury to determine whether the landlord's failure to evict the alleged drug dealer served as a predicate for liability in tort. Id. See also Luisa R. v. New York, 253 A.D.2d 196, 686 N.Y.S.2d 49 (1999). Likewise, in Madhani v. Cooper, 106 Cal.App.4th 412, 416, 130 Cal.Rptr.2d 778 (2003), the California Court of Appeal held that a landlord's failure to react to numerous prior reports of a tenant's violent and threatening behavior to the plaintiff, who was also a tenant, caused a foreseeable risk of harm to the plaintiff, and public policy supported finding a duty to evict. In Estate of Hough v. Estate of Hough, 205 W.Va. 537, 519 S.E.2d 640 (1999), the Supreme Court of West Virginia reversed the dismissal of a case brought by the estate of a woman against her landlord, a mobile home park owner, who had allowed her husband to move into a mobile directly across the street from her after she had obtained a family violence protective order against her husband, of which the landlord was aware. Her husband shot and killed her in the front yard of her home and then killed himself. Id., 540. The court concluded that the plaintiff's factual allegations were sufficient to state a claim that the landlord's actions or omissions created or increased the risk of injury to the decedent from the criminal activity of her husband. Id., 545.
Courts have rejected a claim of duty, however, where an offending tenant's prior conduct was not sufficiently similar to the conduct at issue in the case to give the landlord fair notice of the potential danger. " A landlord is not obliged to institute eviction proceedings whenever a tenant accuses another tenant of harassment." Morton v. Kirkland, 558 A.2d 693, 695 (D.C.App.Ct. 1989). " To prevail in an action against the landlord predicated on the criminal acts of a fellow tenant, a complaining tenant must establish both that the criminal conduct was foreseeable and that it would have been prevented if the landlord had acted with reasonable prudence under all the circumstances." Id. " [F]oreseeability of a future criminal act by the third-party tenant/assailant--as shown by evidence of relevant prior criminal acts by the third-party tenant on the premises . . . would logically be the test for determining the existence of the duty." (Citation omitted; emphasis omitted.) Davenport v. D.M. Rental Properties, Inc., 217 N.C.App. 133, 138, 718 S.E.2d 188 (2011). " A landlord cannot reasonably be expected to control the interpersonal relationships of tenants or to predict from a criminal record whether one friend poses a threat to another friend, both of whom live in the same apartment building. To impose liability [in such a case] would induce landlords to decline housing to those with a criminal record in the absence of evidence of an actual threat to cotenants or individual tenants. That would only export the 'problem' somewhere else." Anderson v. 124 Green Street, LLC, Superior Court of Massachusetts, Suffolk County, Docket No. SU-CV-2009-2626-H (Jan. 21, 2011, Wilkins, J.) (28 Mass.L.Rptr. 119).
In Morton, supra, 558 A.2d 694-95, the tenant accused of assaulting the plaintiff had allegedly threatened other tenants on two occasions three or more years before the plaintiff was assaulted. The court found that the prior occasions were dissimilar from the assault on the plaintiff and was too remote in time to provide the foundation for a duty to evict. Id.
In this case, the court concludes that the plaintiff has not adequately set forth allegations that would give rise to a duty on the part of a landlord to evict a fellow tenant. In the first place, the plaintiffs have not identified the killer of the decedents in this complaint. Assuming, however, that John Lynn was the killer, as alleged in the original complaint, the plaintiffs have not sufficiently alleged a factual basis that would have given rise to a duty to the landlords to evict him, if he was a resident, or otherwise to exclude him, if he was a " patron or guest" of other tenants. More facts would be needed to determine whether his alleged prior " criminal" or " dangerous" activity was sufficiently recent and of such a character to put the defendants on notice of the danger he posed to tenants in the building.
A similar analysis applies to the plaintiffs' allegation that the defendants owed a duty to warn individuals lawfully on the premises that criminal activity had occurred on the premises. The allegation is simply too vague to support a duty to warn. See Spencer v. Nesto, 46 Conn.Supp. 566, 764 A.2d 224 (2000) (landlord owed no duty to warn where he had no reason to believe that tenant would assault plaintiff); see also Miller v. Tabor West Investment Co., 223 Or.App. 700, 713-14, 196 P.3d 1049 (2008) (where landlord knew that tenant had a mental illness but did not know details of his criminal or mental health history, no duty to warn was shown). More facts are needed here.
Conclusion
For the reasons stated above, the motion to strike the first amended complaint is granted.