Opinion
1572CV00075
06-18-2018
Shirley STEELE, Personal Representative[1] v. KINGS WAY CONDOMINIUM TRUST[2] et al.[3]
OPINION
Gregg J. Pasquale, Justice of the Superior Court
This action arises from John Dacey Looney’s ("Mr. Dacey Looney") murder of Richard Steele ("Mr. Steele" or "decedent") at the condominium complex where they both resided. Shirley Steele, as personal representative of the estate of Richard Steele, has filed suit against the Kings Way Condominium Trust ("KWCT") and Mr. Michael J. Looney ("Defendant Michael Looney"), Mr. Dacey Looney’s brother, for wrongful death, under G.L.c. 229, and negligence. The matter is now before the Court on Defendant Michael Looney’s motion for summary judgment. For the reasons that follow, Defendant Michael Looney’s motion is DENIED.
BACKGROUND
On March 23, 2012, Mr. Steele was assaulted by his neighbor, Mr. Dacey Looney, and later died as a result of his injuries. The assault took place at Kings Way, a condominium complex, consisting of three condominium associations and totaling 666 housing units, in Yarmouth Port.
KWTC is one of the three condominium associations within the larger Kings Way community. KWTC’s responsibilities include the managing, supervising, and maintaining of the common areas in accordance with agreed-upon bylaws for 456 units, including the decedent’s unit and Defendant Michael Looney’s unit.
The units are individually owned by unit owners while common areas are owned collectively by unit owners according to varying proportional interests. KWCT allows people from either of the trusts or the property management group to put up notices on bulletin boards in the community post office. The plaintiff contends that KWCT refused the Yarmouth Police Department and residents’ requests to post notice and tore down notices and photographs of Mr. Dacey Looney that residents posted.
From December of 2005 until the murder, Mr. Dacey Looney-who suffers from paranoid schizophrenia characterized by auditory hallucinations and persecutory delusions-resided in a two-story townhome unit owned by Defendant Michael Looney, who did not live in the unit. Mr. Dacey Looney lived in the unit per an agreement with Defendant Michael Looney that provided Mr. Dacey Looney would take care of their elderly father, would contribute whatever funds he could toward household living expenses, would abide by his psychotherapeutic treatment regimen (which included obtaining a local psychotherapist and attending regular appointments), would take his prescribed psychotropic medications, and would not drink or take drugs other than his prescribed medications.
Mr. Dacey Looney was a registered Level 3 Sex Offender. In 1992, he was convicted for an attempted rape in which he stabbed the victim in her arm. At the time of that conviction, Mr. Dacey Looney had been on probation for another attempted rape that took place in the mid-1980s. When Mr. Dacey Looney moved into Kings Way, he had completed his prison sentence for the 1992 conviction and was not on any kind of supervised release. KWCT distributed letters advising residents of Mr. Dacey Looney’s presence and Sex Offender status in December of 2005 and in January of 2006.
In 2009, Mr. Steele moved into the unit adjacent to Mr. Dacey Looney. Mr. Steele rented his unit. According to Mr. Dacey Looney, the two became friends and socialized frequently. Mr. Dacey Looney also maintains that he informed Mr. Steele of his status as a Level 3 Sex Offender. The plaintiff disputes these facts.
On the day of the murder, Mr. Steele was entertaining a houseguest, Ms. Lori Ulves. Mr. Dacey Looney visited Mr. Steele’s unit to see if Mr. Steele wanted to "hang out," but Mr. Steele rebuffed the invitation. Shortly thereafter, Mr. Dacey Looney confronted Mr. Steele and Ms. Ulves as they were leaving Mr. Steele’s unit and attacked them with a baseball bat. Mr. Steele later died as a result of his injuries. The parties agree that, at the time of the murder, Mr. Dacey Looney had stopped taking his medication as directed.
DISCUSSION
A. Standard
Summary judgment is proper where no genuine issues of material fact exist and where the summary judgment record entitles the moving party to judgment as a matter of law. Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Corr., 390 Mass. 419, 422 (1983). The moving party bears the burden of affirmatively demonstrating that no genuine issue of material fact exists for any relevant issue and that the moving party is entitled to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The moving party may satisfy this burden by submitting evidence negating an essential element of the non-moving party’s case or by demonstrating that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Comm’n Corp., 410 Mass. 805, 809 (1991). Once this burden is satisfied, the party opposing summary judgment must allege specific facts establishing the existence of a genuine issue of material fact in order to escape summary judgment. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991). While the court views the evidence in the light most favorable to the non-moving party, it does not weigh the evidence, determine witness credibility, or make its own findings of fact. Attorney Gen. v. Bailey, 386 Mass. 367, 370-71 (1982).
B. Analysis
Under the Wrongful Death Statute, G.L.c. 229, § 2(1), liability arises where a defendant’s negligence causes a decedent’s wrongful death. The plaintiff asserts that Defendant Michael Looney is liable under the statute because, as a residential property owner at Kings Way, he owed a duty of care to Kings Way residents, including Mr. Steele, and breached that duty by failing to warn Mr. Steele of Mr. Dacey Looney’s Sex Offender status and potential for violence. Defendant Michael Looney now moves for summary judgment, arguing that he breached no duty owed to the decedent. As explained below, the Court concludes that he is not entitled to summary judgment on this ground.
The plaintiff also asserts that Defendant Michael Looney was negligent in "failing to take measures to evict or remove [Mr.] Dacey Looney from Defendant Michael Looney’s Unit" and "by allowing [Mr.] Dacey Looney unrestricted, unmonitored, unsupervised access to the Premises’ common areas." However, the Court finds no merit in these claims as the plaintiff can point to no legal precedent that requires that landlords must evict their tenants for breaking rental agreements or to supervise their tenants’ behavior outside of the rented space. Were Defendant Michael Looney Mr. Dacey Looney’s legal guardian, such a duty to supervise may be attributable to the defendant. However, such a duty is beyond that of a landlord.
Defendant Michael Looney first argues that he only owed the decedent the duty of care attributable to that of a social host and that he did not breach that duty. This argument is without merit. The parties have put forward affidavits detailing the existence of a tenancy between Mr. Dacey Looney and Defendant Michael Looney. Thus, Defendant Michael Looney cannot be considered a mere social host.
Defendant Michael Looney argues this case is similar to Apple v. Tracy, 34 Mass.App.Ct. 560 (1993). In Apple, the plaintiff brought an action "charging Peter Tracy with negligence for allowing a known sex offender to visit in the Tracy home, failing to warn the neighborhood or local police to be on guard, and failing to control his guest," who sexually assaulted the plaintiff’s minor child in the woods near his home. Id. However, there are important differences between that case and the present one. In Apple, the sex offender was visiting the home; here, Mr. Dacey Looney had a written agreement memorializing his tenancy in the condo. In Apple the sex offender was on a supervised release overseen by professionals; here, Mr. Dacey Looney was not supervised by any professional but instead was answerable to his brother Defendant Michael Looney via their written agreement.
Defendant Michael Looney next contends that, even if he is considered a landlord, he cannot be held liable because he owed Mr. Steele no duty to protect him from third-party criminal activity. This argument is also unavailing. While there is no general duty to protect another from the unlawful conduct of third persons, liability may arise where a person voluntarily assumes certain obligations vis-à-vis the third person. See Mullins v. Pine Manor College, 389 Mass. 47, 53-54 (1983). Liability may also arise if there is a "special relationship" between the defendant and the injured plaintiff. Kavanagh v. Trs. of Bos. Univ., 440 Mass. 194, 201 (2003). A special relationship "is predicated on a plaintiff’s reasonable expectations and reliance that a defendant will anticipate harmful acts of third persons and take appropriate measures to protect the plaintiff from harm." Id. Here, liability may have arisen under both these circumstances.
It is unclear whether Defendant Michael Looney or Mr. Dacey Looney himself informed KWCT of his Sex Offender status or whether Defendant Michael Looney informed KWCT of the agreement he had with Mr. Dacey Looney. If so, Defendant Michael Looney may have voluntarily took on a duty to warn Kings Way residents. See Mullins v. Pine Manor College, 389 Mass. 47, 53-54 (1983) (A defendant may be held liable where his failure to carefully perform obligations he voluntarily assumes increases the risk of harm to others or causes harm because others relied upon the defendant’s performance of a voluntary undertaking). Additionally, Defendant Michael Looney may have a special relationship with other Kings Way residents as a shared owner. In exchange for the benefits of condominium living, residents and unit-owners take on additional duties or cede certain rights. In that way, unit-owners possess a special relationship with one another that may rationally imply a duty to warn to the condo association that one resident may become a danger to others due to his decompensating mental health.
While the background establishes that Defendant Michael Looney would not have been able to post on the common area bulletin board, his duty to warn could have been fulfilled by notifying KWCT, which is empowered to post such warnings in common areas.
"Ownership of a condominium unit is a hybrid form of interest in real estate, entitling the owner to both ‘exclusive ownership and possession of his unit, G.L.c. 183A, § 4, and ... an undivided interest [as tenant in common together with all the other unit owners] in the common areas ...’ Kaplan v. Boudreaux, 410 Mass. 435, 438 (1991). It affords an opportunity to combine the legal benefits of fee simple ownership with the economic advantages of joint acquisition and operation of various amenities including recreational facilities, contracted caretaking, and security safeguards. Central to the concept of condominium ownership is the principle that each owner, in exchange for the benefits of association with other owners, ‘must give up a certain degree of freedom of choice which he might otherwise enjoy in separate, privately owned property.’ " Noble v. Murphy, 34 Mass.App.Ct. 452, 455-56 (1993), quoting Hidden Harbour Estates, Inc. v. Norman 309 So.2d 180, 182 (Fla.Dist.Ct.App. 1975).
Lastly, Defendant Michael Looney contends that he owed Mr. Steele no duty because the attack was not foreseeable. See Kavanaugh, 440 Mass. 203, citing Poskus v. Lombardo’s of Randolph, Inc., 423 Mass. 637, 639-40 (1996) ("[A]ny duty to protect [the plaintiff] from the harm of another’s criminal acts extends only to those acts that are reasonably foreseeable"). However, whether Mr. Dacey Looney’s violent outburst was foreseeable is a question of fact. There is evidence in the record suggesting that Defendant Michael Looney was aware that Mr. Dacey Looney suffered from a significant mental illness, that Mr. Dacey Looney may not have been taking his medication, and that Mr. Dacey Looney was capable of violent outbursts when not abiding by his treatment regimen. This may have been sufficient to make the attack foreseeable. See Carey v. New Yorker, 355 Mass. 450, 452 (1969) ("[O]pen to the jury to find that the defendant’s employees had general knowledge of [violent customer’s] previous experience as a patron and should have realized ... the need for repressing him"); Jupin v. Kask, 447 Mass. 141, 147, 149 (2006) (Determination of reasonable care properly before the jury where Kask allowed "a mentally unstable and violent person" "unfettered and unsupervised access" to her home, where guns were negligently stored, because the possibility that the shooter "would take a gun from that home and shoot someone-was both foreseeable and foreseen").
That Mr. Dacey Looney’s previous criminal history centered on violent sex offenses did not foreclose the possibility of his future capacity for violence unrelated to sex. The occurrence or lack thereof of similar criminal incidents in the past, while typically a focus of the court’s analysis, is not conclusive. See Foley v. Boston Hous. Auth., 407 Mass. 640, 645 (1990) ("[W]here there has been a showing that the risk of a criminal assault is foreseeable, the exact nature and source of the assault need not be shown in order for liability to attach").
Accordingly, whether Defendant Michael Looney possessed a duty to warn with regard to his brother, Mr. Dacey Looney, is a question of fact inappropriate for summary judgment.
ORDER
For the foregoing reasons it is hereby ORDERED that the defendant’s motion for summary judgment is DENIED.