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Warwick v. Accessible Space, Inc.

Supreme Court of Wyoming

September 3, 2019

LARRY WARWICK and GREGORY GILBERT, Appellants (Plaintiffs),
v.
ACCESSIBLE SPACE, INC., Appellee (Defendant).

          Appeal 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.

          Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.

          KAUTZ, JUSTICE.

         [¶1] 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 summary judgment.

         ISSUES

         [¶2] 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 their injuries.

         FACTS

         [¶3] 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 later.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 issues.

         STANDARD OF REVIEW

         [¶9] 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. 2018).

[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).

         [¶10] "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).

         [¶11] 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.; Rule 56(c)(2).

         DISCUSSION

         [¶12] 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.'"[1] 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.

         [¶13] 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.

         Common Law Duty

         1. Wyoming Case Law

         [¶14] 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.

         [¶15] 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 acts.").

         [¶16] 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 ...


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