from the District Court of Laramie County The Honorable
Steven K. Sharpe, Judge
Representing Appellants: Douglas W. Bailey and Henry F.
Bailey, Jr. of Bailey, Stock, Harmon, Cottam, Lopez, LLP,
Cheyenne, Wyoming. Argument by Mr. Douglas W. Bailey.
Representing Appellee: Loyd E. Smith of Murane &
Bostwick, LLC, Cheyenne, Wyoming.
DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
Appellants Larry Warwick and Gregory Gilbert (collectively
referred to herein as "the plaintiffs") lived in a
senior living apartment complex owned and operated by
Appellee Accessible Space, Inc. (ASI). Another tenant, Larry
Rosenberg, shot them, and they sued ASI claiming it was
negligent for failing to protect them from Mr. Rosenberg. The
district court granted summary judgment in favor of ASI,
concluding it had no duty to protect the plaintiffs from Mr.
Rosenberg's unforeseeable criminal action. We affirm the
The dispositive issues in this case are:
1. Whether the district court erred by concluding ASI did not
owe a common law duty to protect the plaintiffs from Mr.
Rosenberg's criminal action.
2. Whether ASI's alleged failure to comply with the
requirements of its leases with the plaintiffs, resident
handbook, and personnel policies was the proximate cause of
ASI owns and operates Heritage Court Apartments (HCA), a
housing complex for low-income seniors in Cheyenne, Wyoming.
HCA is an independent living facility and does not provide
personal assistance to tenants. In order to qualify to live
at HCA, the residents must meet age and income requirements.
They also must pass a criminal background check. Mr.
Rosenberg satisfied these requirements and began residing at
HCA in 2007. Mr. Gilbert and Mr. Warwick moved into HCA
ASI had a written lease with each tenant, and the lease
incorporated the requirements of a resident handbook. The
resident handbook stated lease termination and eviction may
result from noncompliance with the terms of the lease. The
handbook listed potential violations of the lease, including:
"violation of the housing community's smoke-free
housing policy"; "interference with the management
of the building"; "conduct that disrupts the
livability of the building by disturbing the peace, health or
safety of other residents"; "assault, harassment,
or threat directed at [m]anagement, vendors, or other
residents"; "open or visible possession, use or
discharge of weapons, including but not limited to firearms,
knives, and explosives of any kind"; and "reports
of prostitution, gambling or public drunkenness." The
handbook also provided a process for tenants to lodge
complaints and grievances with ASI management.
In October and November of 2015, Mr. Rosenberg filed written
complaints with ASI about Mr. Warwick parking his truck,
which was leaking oil, in the parking lot, smoking too close
to the building, threatening to "kick [Mr.
Rosenberg's] ass," and having a "dirty
mouth." He also complained about Mr. Gilbert being
allowed to host poker games at the facility because, in his
view, it violated the lease prohibition on gambling. In July
2016, he again complained that various members of ASI
management were allowing Mr. Gilbert's poker games. Mr.
Rosenberg also had disagreements with ASI site liaison, Matt
Wilson, over other matters, including use of the HCA grill
and repair of Mr. Rosenberg's shower.
On September 14, 2016, Mr. Gilbert and Mr. Wilson sat outside
the entryway of the HCA building smoking and talking. Mr.
Rosenberg walked up and shot them both with a .22 caliber
rifle. Mr. Rosenberg then entered the building and knocked on
Mr. Warwick's door. When Mr. Warwick answered, Mr.
Rosenberg shot him with a .22 caliber pistol. Mr. Rosenberg
went back outside and, observing Mr. Gilbert was not dead,
shot him again. Shortly thereafter, Mr. Rosenberg fatally
shot himself. Mr. Wilson died from his gunshot wounds.
Miraculously, the plaintiffs survived, although they continue
to suffer from their injuries.
The plaintiffs filed suit against ASI alleging negligence and
seeking compensatory and punitive damages. They asserted ASI,
as a landlord, had a duty to exercise reasonable care to
protect them from Mr. Rosenberg's criminal action. They
also asserted their leases required ASI to take certain
actions to protect them. After extensive discovery, ASI moved
for summary judgment, claiming it did not owe the plaintiffs
a duty to protect them from Mr. Rosenberg's unforeseeable
criminal action and, in any event, its alleged negligence was
not the proximate cause of the plaintiffs' injuries. The
plaintiffs responded, maintaining there were numerous issues
of material fact as to what ASI should have done to protect
them from Mr. Rosenberg's action and whether ASI had
notice Mr. Rosenberg posed a threat to them.
After a hearing, the district court granted summary judgment
in favor of ASI. The court concluded ASI did not have a duty
to protect the plaintiffs from Mr. Rosenberg's criminal
action. The plaintiffs filed a timely notice of appeal. More
facts will be provided as necessary to the discussion of the
Summary judgment is authorized under Wyoming Rule of Civil
Procedure 56(a) when "the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." This Court
reviews the district court's order granting summary
judgment de novo and may affirm a summary judgment
on any legal grounds appearing in the record. Bear Peak
Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124,
¶ 10, 403 P.3d 1033, 1040 (Wyo. 2017); Int'l
Assoc. of Firefighters Local Union No. 5058 v.
Gillette/Wright/Campbell Cnty, Fire Prot. Jt. Powers
Bd., 2018 WY 75, ¶ 19, 421 P.3d 1059, 1064 (Wyo.
[W]e review a summary judgment in the same light as the
district court, using the same materials and following the
same standards. We examine the record from the vantage point
most favorable to the party opposing the motion, and we give
that party the benefit of all favorable inferences that may
fairly be drawn from the record. A material fact is one
which, if proved, would have the effect of establishing or
refuting an essential element of the cause of action or
defense asserted by the parties.
Sullivan v. Pike and Susan Sullivan Found., 2018 WY
19, ¶ 15, 412 P.3d 306, 310 (Wyo. 2018) (quoting
Rogers v. Wright, 2016 WY 10, ¶ 7, 366 P.3d
1264, 1269 (Wyo. 2016)) (other citations omitted).
"The party requesting a summary judgment bears the
initial burden of establishing a prima facie case
for summary judgment." Hatton v. Energy Elec.
Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 13 (Wyo. 2006).
When the moving party does not have the ultimate burden of
persuasion, it establishes a prima facie case for
summary judgment by showing a lack of evidence on an
essential element of the opposing party's claim. See,
e.g., Rammell v. Mountainaire Animal Clinic, P.C., 2019
WY 53, ¶¶ 27-28, 442 P.3d 41, 49 (Wyo. 2019)
(defendant presented evidence showing plaintiff could not
establish the elements of tortious interference with
contract); Mantle v. N. Star Energy & Constr.
LLC, 2019 WY 29, ¶ 116, 437 P.3d 758, 796 (Wyo.
2019) (defendant presented evidence showing plaintiff could
not establish transfers were fraudulent).
Once the summary judgment movant establishes a prima
facie case for summary judgment, the burden shifts to
the opposing party to present materials demonstrating a
genuine dispute as to a material fact for trial.
Hatton, ¶ 9, 148 P.3d at 12-13. "'The
opposing party must affirmatively set forth material,
specific facts in opposition to a motion for summary
judgment[.]'" Jones v. Schabron, 2005 WY
65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005) (quoting
Downen v. Sinclair Oil Corp. 887 P.2d 515, 519 (Wyo.
1994)). The evidence presented in a summary judgment
proceeding must be admissible and competent. Id.;
The plaintiffs claim ASI was negligent for failing to protect
them from Mr. Rosenberg's criminal action. In general, to
establish a negligence claim, the plaintiff must show: 1) the
defendant owed the plaintiff a duty to conform to a specific
standard of care; 2) the defendant breached the duty by
failing to act in accordance with the standard of care; 3)
the defendant's breach of the duty of care proximately
caused the plaintiff's injury; and 4) the plaintiff's
injury is compensable by monetary damages. Berry v.
Tessman, 2007 WY 175, ¶ 6, 170 P.3d 1243, 1245
(Wyo. 2007); Hatton, ¶ 10, 148 P.3d at 13.
Because of the fact-specific nature of negligence claims,
summary judgment generally is not favored in such actions.
Lucero v. Holbrook, 2012 WY 152, ¶ 6, 288 P.3d
1228, 1231 (Wyo. 2012); Uinta County v. Pennington,
2012 WY 129, ¶ 11, 286 P.3d 138, 142 (Wyo. 2012) (citing
Cook v. Shoshone First Bank, 2006 WY 13, ¶ 12,
126 P.3d 886, 889 (Wyo. 2006)). However, "'[t]he
existence of duty is a question of law, making an absence of
duty the surest route to summary judgment in negligence
actions.'" Erpelding v. Lisek, 2003 WY 80,
¶ 13, 71 P.3d 754, 757 (Wyo. 2003) (quoting Daily v.
Bone, 906 P.2d 1039, 1043 (Wyo. 1995)). See
also, Lucero, ¶ 6, 288 P.3d at 1231.
The law recognizes a duty when,
"upon the facts in evidence, such a relation exists
between the parties that the community will impose a legal
obligation upon one for the benefit of the other-or, more
simply, whether the interest of the plaintiff which has
suffered invasion was entitled to legal protection at the
hands of the defendant."
Hendricks v. Hurley, 2008 WY 57, ¶ 17, 184 P.3d
680, 684 (Wyo. 2008) (quoting Goodrich v. Seamands,
870 P.2d 1061, 1064 (Wyo. 1994)). A legal duty may arise from
a contract, a statute or the common law. Sorensen v.
State Farm Auto. Ins. Co., 2010 WY 101, ¶ 11, 234
P.3d 1233, 1236 (Wyo. 2010). The plaintiffs do not claim any
statute imposed a duty upon ASI to protect them from Mr.
Rosenberg's action. They assert, instead, such duty arose
from the common law and by contract through their leases, the
resident handbook, and ASI's personnel policies.
Wyoming Case Law
Property owners "'must use ordinary care to keep the
premises in a safe condition and [are] charged with an
affirmative duty to protect visitors against dangers known to
[them] and dangers discoverable with the exercise of
reasonable care.'" Amos v. Lincoln Cnty. Sch.
Dist. No. 2, 2015 WY 115, ¶ 20, 359 P.3d 954, 960
(Wyo. 2015) (quoting Hendricks, ¶ 12, 184 P.3d
at 683). We applied this general rule in Krier v. Safeway
Stores 46, Inc., 943 P.2d 405 (Wyo. 1997), to determine
a landlord's responsibility to protect a tenant's
employee from criminal action. Daryl Krier was an employee of
a Safeway store located in a building owned by Maurice Brown.
Id. at 407-08. Mr. Krier arrived to work early one
morning and encountered a burglar who had entered the store
through a skylight he accessed by climbing an antenna
fastened to the side of the building. Id. The
burglar murdered Mr. Krier, and his estate and members of his
family brought a negligence action against the Safeway store
and Mr. Brown. Id. at 406-07. The plaintiffs
asserted "Brown knew or should have known that the
antenna was an 'invitation' to criminal activity and
the tragic result to Krier [was] a foreseeable consequence of
its presence." Id. at 412.
In evaluating whether Mr. Brown owed a duty to Mr. Krier, we
started with the principle that an unreasonable risk of harm
from criminal acts on a property is a dangerous condition.
Krier, 943 P.2d at 411 (discussing Restatement
(Second) of Property, Landlord and Tenant § 17.3
(1977)). A landlord has a duty to take reasonable steps to
protect its tenants if it "'knows, or has reason to
know, either from what has been or should have been observed
or from past experience, that criminal acts against its
[tenants] on its premises are reasonably
foreseeable[.]'" Krier, 943 P.2d at 414-15
(quoting McClung v. Delta Square Ltd. P'ship,
937 S.W.2d 891, 902 (Tenn. 1996)). See also,
Johns v. Hous. Auth. for City of Douglas, 678 S.E.2d
571, 573 (Ga.Ct.App. 2009) ("A landlord's duty to
exercise ordinary care to protect a tenant from third-party
criminal attacks extends only to foreseeable criminal
We reviewed the circumstances surrounding the store and the
antenna to determine whether the burglar's attack was
reasonably foreseeable. Krier, 943 P.2d at 415-16.
We acknowledged "'[a]s a practical matter, the
requisite degree of foreseeability essential to establish a
duty to protect against criminal acts will almost always
require that prior instances of crime have occurred on or in
the immediate vicinity of defendant's
premises.'" Id. at 415 (quoting
McClung, 937 S.W.2d at 902). See also,
Connelly v. Family Inns of Am., Inc.,540 S.E.2d 38,
41 ( N.C. Ct. App. 2000) ("The most probative evidence
on the question of whether a criminal act was foreseeable is