Opinion
16-P-919
05-24-2017
FRANCHESKA NIEVES, as personal representative, v. GERALD CHENELLE, individually and as trustee, & another.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Mirta Rivera was killed in her bed when someone on the second floor fired a rifle through her first-floor bedroom's ceiling. The plaintiff, as personal representative of Rivera's estate, brought this negligence suit against the owner and property managers of the apartment building, asserting that they had a duty to take certain actions with respect to the occupants of the second-floor apartment, and their failure to do so was the proximate cause of Rivera's death. Because the law does not permit a finding of liability in these tragic circumstances, we are constrained to affirm the judgment that resulted from the allowance of the defendants' motion to dismiss.
Even accepting all of the plaintiff's allegations as true, as we must, her complaint states no claim upon which relief may be granted. Our conclusion rests substantially on the grounds set forth in the Superior Court judge's detailed and thoughtful order on the defendants' motion to dismiss. This case is controlled by Griffiths v. Campbell, 425 Mass. 31, 34-35 (1997), in which the Supreme Judicial Court declined to find liability where no prior acts of violence put the landlord on notice of a heightened potential for the tenant's criminal conduct. We agree with the judge's conclusion that the factual differences between this case and Griffiths do not permit a different result, and we are bound by the holding of Griffiths, which this court recently applied in Belizaire v. Furr, 88 Mass. App. Ct. 299, 304-305 (2015). Although the plaintiff argues that the connection between drug crime and gun violence has grown in recognition since Griffiths and that the foreseeability analysis of that decision should change accordingly, we are bound by Griffiths, and this court said only three years ago in Belizaire that "prior drug activity at the property[] . . . is insufficient to support a finding of foreseeability." Belizaire, supra at 305.
The defendants' request for appellate attorney's fees is denied.
Judgment affirmed.
By the Court (Meade, Hanlon & Sacks, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: May 24, 2017.