# Cheryl Brown Giggers v. Memphis Housing Authority

> Tennessee Supreme Court · February 3, 2009 · 277 S.W.3d 359

URL: https://www.frixlaw.com/law-library/cases/9523032

## Case

- **Full name:** Cheryl Brown GIGGERS Et Al. v. MEMPHIS HOUSING AUTHORITY Et Al.
- **Court:** Tennessee Supreme Court
- **Decided:** February 3, 2009
- **Citations:** 277 S.W.3d 359; 2009 Tenn. LEXIS 21; 2009 WL 249742
- **Precedential status:** Published
- **Opinion:** Concurring in part by Holder
- **Judges:** Justice Gary R. Wade
- **Cited by:** 258 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9523032

## How later opinions describe it (automated extraction)

- explaining that, “when a minimum threshold of foreseeability is established, courts must engage in an analysis of the relevant public policy considerations,” including the factors in McCall
- holding that in ruling on a motion for summary judgment, “[c]ourts must view the evidence and all reasonable inferences therefrom in the light most favorable to the non-moving party”
- explaining that courts may consider, “among other things, the presence or absence of prior similar incidents, and other circumstances” when analyzing foreseeability
- explaining that “the question of duty and of whether defendants have breached that duty is one for the jury to determine based upon proof presented at trial”
- stating that conclusory assertions “are not sufficient to shift the burden to the non-moving party” in a summary judgment case

## Opinion text

JANICE M. HOLDER, C.J.,
concurring and dissenting.
I fully concur in the majority’s conclusion that Memphis Housing Authority (“MHA”) owed a duty to its tenants to take reasonable steps to prevent them from suffering harm, and I concur in the reversal of the trial court’s grant of summary judgment. I write separately to reaffirm my view that “any discussion of foreseeability in the context of duty encroaches upon the role of the finder of fact.” Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 375 (Tenn.2008) (Holder, J., concurring and dissenting).
As I stated in my dissent in Satterfield , I favor the Restatement (Third) of Torts approach to duty and would hold that “ ‘[a]n actor ordinarily has a duty to exercise reasonable care when the actor’s conduct creates a risk of physical harm.’ ” Id. at 377 (quoting Restatement (Third) of Torts: Liability for Physical Harm § 7(a) (Proposed Final Draft No. 1, 2005)) [hereinafter Restatement (Third) of Torts]. In this case, MHA had a duty to exercise reasonable care in permitting tenants with a history of criminal behavior to live on the premises. Whether it was foreseeable to MHA that Mr. Miller would harm other tenants is relevant only to a determination of whether MHA breached its duty of reasonable care and proximately caused the death of Charles Brown, Sr. See id. Those issues should remain in the province of the jury and should not be determined by the trial court as a matter of law.
Any determination that no duty exists should be guided by the Restatement (Third) of Torts, which states that “[i]n exceptional cases, when an articulated countervailing principle or policy warrants denying or limiting liability in a particular class of cases, a court may decide that the defendant has no duty or that the ordinary duty of reasonable care requires modification.” Restatement (Third) of Torts § 7(b); see also W. Jonathan Cardi, Purging Foreseeability: The New Vision of Duty and Judicial Power in the Proposed Restatement (Third) of Torts, 58 Vand. L.Rev. 739, 787-90 (2005).
Under this framework, a no-duty rule is appropriate when we can “promulgate relatively clear, categorical, bright-line rules of law applicable to a general class of cases.” Id. cmt. a. The commentary to Restatement (Third) of Torts goes on to provide that these no-duty rules “should be articulated directly without obscuring references to foreseeability.” Id. cmt. j. While I am amenable to engaging in an analysis to determine if a bright-line rule should be recognized, I cannot concur in a balancing test that obscures these policy determinations.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9523032. Public record. Not legal advice.