Hill-Junious v. UTP Realty, LLC

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SJC-13380

NORVELLA HILL-JUNIOUS, individually and as administratrix,1 vs.

UTP REALTY, LLC.

Norfolk. April 3, 2023. – August 16, 2023.

Present: Budd, C.J., Gaziano, Lowy, Kafker, Wendlandt,

& Georges, JJ.

Wrongful Death. Consortium. Negligence, Wrongful death,

Causing loss of consortium, One owning or controlling real

estate, Duty to prevent harm, Foreseeability of harm.

Practice, Civil, Wrongful death, Summary judgment.

Civil action commenced in the Superior Court Department on

February 12, 2019.

The case was heard by Paul D. Wilson, J., on a motion for

summary judgment.

The Supreme Judicial Court on its own initiative

transferred the case from the Appeals Court.

Matthew C. Hanson for the plaintiff.

Robert P. Powers for the defendant.

Christopher Maffucci, for Massachusetts Association of

Realtors, amicus curiae, submitted a brief.

Frank J. Bailey, Selena Fitanides, & John C. La Liberte,

for PioneerLegal, LLC, amicus curiae, submitted a brief.

1 Of the estate of Drake Scott, Jr.

2

GEORGES, J. In the early morning hours of February 17,

2016, Drake Scott, Jr., was shot and killed outside the exit

door of City Limits Saloon (City Limits or nightclub), a

nightclub leasing space in a commercial property in Randolph.

Scott's mother, plaintiff Norvella Hill-Junious, filed this

negligence action in the Superior Court against the current

owner of the property, defendant UTP Realty, LLC (UTP),2 seeking

damages for wrongful death and loss of consortium. This appeal

concerns whether summary judgment was appropriately granted in

favor of UTP.

The plaintiff contends that the granting of summary

judgment to UTP was inappropriate because there was a dispute of

material fact whether UTP knew or should have known about prior

acts of violence at the nightclub, so as to create a duty to

protect the decedent from the risk of violence on the property,

2 The plaintiff named the prior owner of the property, TJB,

LLC, as a defendant in her original complaint, but she

subsequently filed an amended complaint naming only UTP and the

owner of the nightclub, City Limits, Incorporated, as

defendants.

City Limits, Incorporated, was defaulted on May 27, 2020,

for failing to respond to a final request to answer

interrogatories. See Mass. R. Civ. P. 33 (a) (4), as appearing

in 436 Mass. 1401 (2002). On March 21, 2022, judgment entered

in favor of the plaintiff against City Limits, Incorporated, in

the amount of $810,013.35. See Mass. R. Civ. P. 55 (b) (2), as

amended, 463 Mass. 1401 (2012). City Limits, Incorporated, did

not file a notice of appeal.

3

specifically, the premeditated killing by a third party. In

support of this assertion, the plaintiff relies on her expert

witness's proffer that it would be unreasonable for a commercial

landlord like UTP to purchase a property with a nightclub on it

without first inquiring about past violent acts on the property.

We conclude that, viewing the record in the light most

favorable to the nonmoving party, the execution-style shooting

of the decedent was not reasonably foreseeable to UTP in its

capacity as property owner and landlord, and there was thus no

duty on the part of UTP to protect the decedent against this

criminal act by a third party. Accordingly, we affirm the

summary judgment in favor of UTP.3

1. Background. We summarize the uncontroverted facts in

the summary judgment record, along with evidence viewed in the

light most favorable to the nonmoving party -- in this case, the

plaintiff -- reserving some facts for later discussion. See

Williams v. Board of Appeals of Norwell, 490 Mass. 684, 685

(2022).

This case concerns a commercial property located at 324-326

North Main Street in Randolph (property) that leases commercial

space to various local businesses. In January 2013, the

property was owned by TJB, LLC (TJB). At that time, Uyen Phan

3 We acknowledge the amicus briefs submitted by the

Massachusetts Association of Realtors and PioneerLegal, LLC.

4

opened a nail salon on the first floor of the property. Another

tenant, City Limits, operated a nightclub out of the basement

floor of the property. City Limits had its own building

entrance, which opened onto a right-of-way serving abutters to

the property as well as an adjacent parking lot.

The record indicates that a number of violent disturbances

and criminal incidents occurred at the property in the period

after Phan's nail salon began leasing space from TJB, many with

connections to City Limits. In 2013, there was a fight in the

property's parking lot and an assault inside City Limits. In

2014, there were reports of multiple fights occurring on the

property, a drug-related arrest outside City Limits, windows

broken by a baseball bat-wielding patron of City Limits, and a

shooting of three individuals outside City Limits. In May 2015,

gun shots were reported by a patron of the nightclub, and police

found shell casings in the parking lot. In December of that

year, another incident occurred, during which a patron of the

nightclub was hit on the head with a bottle.

In September 2015, Phan formed UTP for the purpose of

buying the property from TJB. In November 2015, approximately

three months prior to the decedent's death, TJB sold the

property to UTP, and at the time of the sale assigned City

5

Limits's lease to UTP, in addition to all other rights and

agreements attached to the property.4

On the evening of February 16, 2016, City Limits held an

"open mic" live music event in which the decedent participated.

The shooter, Gregory Wright, saw the decedent at the nightclub

and formed a plan to shoot him in retaliation for the death of

Wright's brother; Wright believed the decedent was involved in

his brother's death. At least two members of the security staff

at the nightclub were working at the nightclub that night. The

nightclub's procedure was to search everyone entering the

nightclub when security staff was working, and one security

staff member remained at the entrance to the nightclub

throughout the night. Security staff members who were present

that night reported that Wright had approached them and asked

whether the door to the nightclub was "the only exit." The

4 Under the terms of its lease, City Limits was solely

responsible for its operations and contractually obligated to

"carry on and conduct its business upon the Premises [of the

property] in compliance with all local, [S]tate, and [F]ederal

laws." The lease provided that the common areas of the property

were "at all times . . . subject to the exclusive control and

management of the Landlord," who must maintain them in a "clean

manner, in broom-swept condition free from trash and personal

effects." Also, under the terms of the lease, City Limits was

required to carry comprehensive general liability insurance with

a minimum limit of $1 million for injury or death that named the

landlord as an additional insured party. Finally, the lease

contained a provision indemnifying UTP "of and from all . . .

actions, claims, . . . [and] liabilities . . . of any nature."

The lease, however, did not place any obligation on UTP to

provide security for City Limits or its patrons.

6

security staff member who answered thought the question was

"strange."5

After midnight, while patrons were leaving City Limits as

it closed, the decedent left the nightclub and stopped to speak

to a few people outside its door. At that point, Wright, who

had left the nightclub and was present outside the front

entrance, shot and killed him.6 Police responded to the gunshots

within seconds, as they were already in the area. After a short

foot chase, police captured Wright, and he was later convicted

of murder in the first degree in connection with the incident.

Phan was not present at the property on the night of the murder.

She did not know the decedent or Wright, or anything about their

relationship to or knowledge of each other.

5 Shortly after midnight, an unidentified woman approached

Michael Tuitt, an off-duty Randolph police officer who was at

the nightclub, and told him that she had overheard a man in a

group near the restrooms state, "[T]he kid who killed my family

member is here and . . . he is going to get dealt with after the

club." Tuitt alerted the head of the security staff at City

Limits about the woman's comment and notified police.

Separately, at about midnight, a former member of the security

staff recommended that the police be contacted when the

nightclub owner asked whether he heard anything about "problems

about to occur in the parking lot."

6 The parties agree that the murder occurred outside City

Limits "at the edge of a right of way adjacent to 326 North Main

Street used in common with other abutters." A police report

described the decedent's body as lying on the pavement

"approximately seven feet outside of the front door of" City

Limits.

7

Following the shooting, the licensing board of Randolph

(board) held a hearing, during which the board received evidence

of police reports concerning City Limits and heard testimony

from police officers. On April 12, 2016, the board issued a

decision in which it made factual findings and concluded that

the hours during which City Limits could sell alcohol should be

reduced. In its findings, the board detailed the nightclub's

"pattern of operation that caused the [police] to have concerns

about its management." These concerns involved not only

numerous police calls regarding the nightclub, but also its

"failure to notify the [police]" about criminal activity. The

board's decision detailed a number of the incidents that had

occurred at the nightclub, as well as its disregard of attempts

that the police had made to suggest tactics that the nightclub

could use to mitigate outbreaks of violence. In particular,

prior to the shooting, police officers had counselled City

Limits against the use of "open mic" nights, opining that such

events were likely to give rise to violence at the nightclub.

In February 2019, the plaintiff, as administrator of her

son's estate, brought this action for wrongful death and loss of

consortium against UTP.7 The plaintiff alleged that given the

history of criminal incidents at the property, UTP knew or

7 See note 2, supra.

8

should have known of the potential dangers and threat of

violence caused by the nightclub's tenancy; UTP therefore had a

duty to undertake reasonable security measures to deter against

such foreseeable violence. UTP's breach of this duty, the

plaintiff alleged, resulted in the decedent's death.

During her deposition, Phan denied having any knowledge, at

the time that she was considering purchasing the property, of

the violent incidents or criminal activity that had occurred on

the property.8 At the close of discovery, UTP moved for summary

judgment, arguing that the decedent's murder was not reasonably

foreseeable, and therefore, no duty of care existed between UTP

and the decedent. UTP also argued that, even if it had

implemented security measures on the property, no such

reasonable measures would have prevented the decedent's death.

The plaintiff opposed UTP's motion, reiterating her

argument that because Phan knew or should have known of the

prior criminal incidents at City Limits, the decedent's murder

was a reasonably foreseeable risk that gave rise to a duty on

the part of UTP. The plaintiff also contended that although the

decedent's murder was premeditated, the question whether

8 Phan acknowledged speaking with police in March 2016, when

police executed a search warrant for two units of the property

in connection with suspected human trafficking activity.

However, she denied having knowledge of any of the alleged human

trafficking activity prior to that conversation with police.

9

additional security measures would have prevented the decedent's

death was a question of fact for a jury.

A partially agreed-to statement of material facts was

submitted in connection with the motion for summary judgment, as

well as jointly submitted exhibits. These exhibits included

Phan's deposition, the board's decision, and the report of

Russell Kolins, a security expert proffered by the plaintiff.

Kolins opined that security at City Limits was deficient in

several respects and that UTP had "failed to fulfill its duties

as a commercial property landlord," by failing to provide

adequate lighting and security for the property's common areas

and by failing to conduct a risk assessment of the property,

which would have uncovered the ways in which City Limits

"deviated from accepted security standards." After a hearing on

the motion, the judge issued a decision allowing UTP's motion

for summary judgment.

In his decision, the judge concluded that UTP did not have

a duty to protect the decedent from the shooting because such an

event was not foreseeable. The judge observed that there was no

affirmative evidence in the record that Phan knew or should have

known of the prior criminal activities at City Limits and noted

that the plaintiff did not cite any precedent in support of her

claim that a commercial landowner has a duty to inquire about

any history of past criminal activity on its property. The

10

judge did not reach UTP's alternative argument that no

reasonable security measures would have prevented the shooting.

A final judgment entered dismissing the complaint as to UTP, and

the plaintiff appealed. We transferred the case to this court

on our own motion.

2. Discussion. "We review a grant of summary judgment de

novo." Medina v. Hochberg, 465 Mass. 102, 105 (2013). "Summary

judgment is appropriate when, 'viewing the evidence in the light

most favorable to the nonmoving party, all material facts have

been established and the moving party is entitled to a judgment

as a matter of law.'" Id., quoting Augat, Inc. v. Liberty Mut.

Ins. Co., 410 Mass. 117, 120 (1991). To be successful, a moving

party "may satisfy [its] burden of demonstrating the absence of

a triable issue either by submitting evidence that negates an

essential element of the opposing party's case or by

demonstrating that the opposing party has no reasonable

expectation of proving an essential element of [her] case at

trial." Petrell v. Shaw, 453 Mass. 377, 381 (2009), citing

Flesner v. Technical Communications Corp., 410 Mass. 805, 809

(1991). Once the moving party has met this burden, the opposing

party is "required to respond by 'set[ting] forth specific facts

showing that there is a genuine issue for trial.'"

Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716

(1991), quoting Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974).

11

"A viable negligence claim requires a showing that a

defendant owes a duty of reasonable care to the plaintiff, the

defendant committed a breach of that duty, the plaintiff

suffered damage, and a causal relationship existed between the

breach of duty and the damage." Heath-Latson v. Styller, 487

Mass. 581, 584 (2021). "[T]he existence of a duty is a question

of law, and is thus an appropriate subject of summary judgment."

Jupix v. Kask, 447 Mass. 141, 146 (2006).

We have observed that "the existence of a duty of care

depends upon the foreseeability of a risk of harm that the

defendant has an ability to prevent." Heath-Latson, 487 Mass.

at 584, citing Lev v. Beverly Enters.-Mass., 457 Mass. 234, 243

(2010). In the case of a commercial landowner, this includes "a

duty to take reasonable precautions to protect persons lawfully

in common areas of rental property against reasonably

foreseeable risks." Whittaker v. Saraceno, 418 Mass. 196, 198

(1994), citing Restatement (Second) of Torts § 360 (1965).

Generally, this duty does not extend "to taking 'affirmative

steps to protect against dangerous or unlawful acts of third

persons.'" Heath-Latson, supra, quoting Luoni v. Berube, 431

Mass. 729, 731 (2000). "A landlord is not free, however, to

ignore reasonably foreseeable risks of harm to tenants, and

others lawfully on the premises, that could result from unlawful

intrusions into common areas of the leased premises."

12

Whittaker, supra at 197. Thus, in appropriate circumstances, a

landlord "may be liable for ignoring criminal activities that

occur on premises and were known or should have been known to

[the landlord]." Griffiths v. Campbell, 425 Mass. 31, 34

(1997). "[T]he cases in which we have imposed liability are

those in which a person legally on the premises is attacked, and

the owner or landlord knew of or should have known of both the

previous attacks and the potential for a recurrence based on a

failure to take measures to make the premises safer." Id. at

35.

"Notions about what should be foreseen . . . are very much

interwoven with our feelings about fair and just limits to legal

responsibility." Whittaker, 418 Mass. at 198, quoting 4 F.

Harper, F. James, Jr., & O. Gray, Torts § 20.5, at 136-137 (2d

ed. 1986). As a result, "[a]ll the circumstances are examined

in defining the scope of a duty of care based on the reasonable

foreseeability of harm." Whittaker, supra at 199, citing Flood

v. Southland Corp., 416 Mass. 62, 72 (1993). "The previous

occurrence of similar criminal acts on or near a defendant's

premises is a circumstance to consider, but the foreseeability

question is not conclusively answered" by evidence of such acts.

Whittaker, supra.

"The word 'foreseeable' has been used to define both the

limits of a duty of care and the limits of proximate cause."

13

Whittaker, 418 Mass. at 198, citing 4 F. Harper, F. James, Jr.,

& O. Gray, Torts § 20.5, at 139. "As a practical matter, in

deciding the foreseeability question, it seems not important

whether one defines a duty as limited to guarding against

reasonably foreseeable risks of harm or whether one defines the

necessary causal connection between a breach of duty and some

harm as one in which the harm was a reasonably foreseeable

consequence of the breach of duty." Whittaker, supra at 198-

199. See Belizaire v. Furr, 88 Mass. App. Ct. 299, 304-305

(2015).

On review of the summary judgment record, we conclude that

the execution-style murder that occurred here was not a

reasonably foreseeable risk that UTP had the ability to prevent,

and therefore, UTP had no duty to protect the decedent against

this sudden, unanticipated act of violence. To begin, there was

no evidence "that the defendant was affiliated in any way with,

or knowledgeable about, the [perpetrator] or any dispute that

the [perpetrator] may have had with the [decedent]." Belizaire,

88 Mass. App. Ct. at 305. Rather, the record suggests that the

shooting was not related in any way to Phan, UTP, the property,

or City Limits, and that it only occurred there because the

perpetrator happened upon the decedent there that evening.

Of course, UTP's duty is not circumscribed by what it knew;

the duty also encompasses what it should have known. The

14

plaintiff relies heavily on the evidence of prior acts of

violence at the property to argue that the harm that occurred

here was reasonably foreseeable. However, even if UTP should

have known of the prior acts of violence identified by the

plaintiff, that would not be conclusive on the question of duty.

Whittaker, 418 Mass. at 199. See Mullins v. Pine Manor College,

389 Mass. 47, 56 (1983), citing Samson v. Saginaw Professional

Bldg., Inc., 393 Mich. 393, 406–407 (1975) ("Prior criminal acts

are simply one factor among others that establish the

foreseeability of the act of [a] third party"). We must also

consider whether the harm that the plaintiff claims was

foreseeable is one "that the defendant has an ability to

prevent." Heath-Latson, 487 Mass. at 584. Here, the record

cannot reasonably support a conclusion that security measures,

including those suggested by the plaintiff's expert, such as

additional exterior lighting and an additional security presence

near the nightclub's exit, would have prevented the shooting

that occurred.9 See Petrell, 453 Mass. at 381. To the contrary,

the record indicates that despite the presence of security staff

at the nightclub and, specifically, on duty at the entrance

9 Given our conclusion on this point, the plaintiff's

proffer of expert evidence -- to the effect that UTP failed to

act as a reasonably prudent commercial landlord by failing to

inquire upon purchase about the risk profile of the property and

to implement the suggested security measures -- does not suffice

to create a genuine issue of material fact.

15

where the shooting took place, Wright brazenly devised and

executed his plan to shoot the decedent, even going so far as to

ask security staff whether the door to the nightclub was "the

only exit" in the hours before shooting the decedent. And no

rational basis exists to conclude that lighting could have

prevented the killing.

It is a well-established principle that a landlord "is not

a guarantor of the safety of persons in a [property's] common

area." Whittaker, 418 Mass. at 197. "The possibility of

criminal conduct occurring is present in almost every aspect of

daily life. In that sense the possibility of a violent attack

is always able to be foreseen." Id. at 200. The law, however,

does not "place the burden of all harm caused by random violent

criminal conduct on the owner of the property where the harmful

act occurred, without proof that the landowner knew or had

reason to know of a threat to the safety of persons lawfully on

the premises against which the landowner could have taken

reasonable preventive steps." Id. See Luisi v. Foodmaster

Supermkts., Inc., 50 Mass. App. Ct. 575, 579 (2000) (affirming

summary judgment for commercial property owner as to allegations

of inadequate security where "no reasonable preventive measures

taken by the defendants could have prevented the sudden and

unprovoked attack on the plaintiff"). Such proof is lacking in

the summary judgment record here.

16

3. Conclusion. Based on the foregoing, we conclude that

the targeted, execution-style shooting that occurred here was

not reasonably foreseeable to UTP; therefore, UTP had no legal

duty to prevent it. Accordingly, we affirm the summary judgment

entered in favor of UTP.

So ordered.