United States District Court, S.D. Mississippi, Eastern Division
FREDRICK ROGERS, YAMINAH BERRY, ARIEANNA BERRY, DEMETREOUS BERRY, FOR AND ON BEHALF OF THEMSELVES AND ALL OTHERS THAT MIGHT BE ENTITLED TO RECOVER FOR THE WRONGFUL DEATH OF JACQUELINE BERRY, PLAINTIFFS
SUNBELT MANAGEMENT CO., WOODBRIAR ASSOCIATES, LTD, AND BRIARWOOD ASSOCIATES, LTD, DEFENDANTS
For Fredrick Rogers, for and on behalf of themselves and all others that might be entitled to recover for the wrongful death of Jacqueline Berry, Yaminah Berry, for and on behalf of themselves and all others that might be entitled to recover for the wrongful death of Jacqueline Berry, Arieanna Berry, for and on behalf of themselves and all others that might be entitled to recover for the wrongful death of Jacqueline Berry, Demetreous Berry, for and on behalf of themselves and all others that might be entitled to recover for the wrongful death of Jacqueline Berry, Plaintiffs: Corey D. Gibson, LEAD ATTORNEY, COREY D. GIBSON, PLLC, Collins, MS; Oby T. Rogers, LEAD ATTORNEY, OBY T. ROGERS, ATTORNEY, Collins, MS.
For Sunbelt Management Co., Briarwood Associates, LTD, Defendants: Patrick Marvin Tatum, LEAD ATTORNEY, UPSHAW, WILLIAMS, BIGGERS & BECKHAM, LLP - Jackson, Ridgeland, MS; Marc A. Biggers, UPSHAW, WILLIAMS, BIGGERS & BECKHAM, LLP - Greenwood, Greenwood, MS.
MEMORANDUM OPINION AND ORDER
Keith Starrett, UNITED STATES DISTRICT JUDGE.
This matter is before the Court on the Defendants' Motion for Summary Judgment  and Motion to Strike Affidavit of Yaminah Berry . Having considered the submissions of the parties, the record, and the applicable law, the Court finds that the Motion for Summary Judgment should be denied and that the Motion to Strike Affidavit of Yaminah Berry should be granted in part and denied in part.
This is an action for wrongful death brought under a theory of premises liability arising from the shooting death of Jacqueline Berry at the Briarwood Apartments in Jefferson Davis County, Mississippi. The Briarwood Apartments are located in an unincorporated area just outside the City of Prentiss. Plaintiffs
Fredrick Rogers, Yaminah Berry, Arieanna Berry, and Demetreous Berry are the biological children of Jacqueline Berry, deceased. Defendants Sunbelt Management Co. and Woodbriar Associates, Ltd. (hereinafter collectively referred to as " Defendants" or " Sunbelt" ) own, operate, and/or manage the Briarwood Apartments. It appears that " Briarwood Associates, Ltd." is not a separate entity, but instead is the former name of Woodbriar Associates, Ltd. ( See 1st Am. Certif. & Agreement of Ltd. P'ship [18-1].)
In December of 2012, Jacqueline Berry lived with Mary Hammond, a family member, at the Briarwood Apartments. ( See Y. Berry Dep. [50-2] 29:21-25.) Yaminah Berry, Jacqueline Berry's daughter, also lived at the subject premises in a separate apartment. ( See Y. Berry Dep. [50-2] 7:1-6, 30:20-31:2.) Plaintiffs claim that shortly after midnight on December 15, three individuals attempted to break into Yaminah Berry's apartment in order to commit a robbery. Yaminah Berry, Jacqueline Berry, Devon Brown, and others were inside the apartment at that time. Plaintiffs claim that one of the intruders, James " Jamie" McLaurin, began firing shots into the apartment during the attempted break-in, and that one of the shots struck and killed Jacqueline Berry. For purposes of summary judgment, Defendants have " accept[ed] as true the position that Jamie McLaurin pulled the trigger that caused Jacqueline Berry's death." (Defs.' Brief in Supp. of Mot. for SJ  at p. 2.) Jamie McLaurin, Eddie Harris, and Adrian Demetrius Speights were all arrested for capital murder in connection with the death of Jacqueline Berry. ( See Recommendation for Prosecution [50-6]; Aff. in State Cases [56-1 at ECF p. 2]; Justice Court Subpoenas [56-1 at ECF pp. 14-16].) However, it does not appear that a grand jury indictment has been returned on any of these individuals as of the date of this opinion.
On June 11, 2013, Plaintiffs, individually and on behalf of all other wrongful death beneficiaries of Jacqueline Berry, filed suit against Sunbelt in the Circuit Court of Jefferson Davis County, Mississippi. ( See Compl. [1-1 at ECF p. 2].) Plaintiffs claim that the Defendants had actual or constructive knowledge of the Briarwood Apartments being dangerous and unsafe due to the existence of prior criminal incidents; that there were no guards or other appropriate security measures in place at the Briarwood Apartments; and, that the shooting death of Jacqueline Berry was a foreseeable event in light of the numerous prior crimes committed at the subject premises. Count one of the Complaint alleges negligence and asserts that Plaintiffs are entitled to recover damages under Mississippi's wrongful death statute, section 11-7-13 of the Mississippi Code. In count two, Plaintiffs claim that the conduct of the Defendants was gross, willful, wanton, and reckless, justifying an award of punitive damages.
On July 5, 2013, Sunbelt removed the proceeding to this Court on the basis of diversity of citizenship jurisdiction under Title 28 U.S.C. § 1332. ( See Notice of Removal .) The Notice of Removal asserts that the Plaintiffs are citizens of Mississippi, while the Defendants are citizens of Alabama. Sunbelt contends § 1332(a)'s amount in controversy requirement is met due to the Plaintiffs seeking
damages for wrongful death and punitive damages. The Court is satisfied that federal subject matter jurisdiction exists pursuant to § 1332.
On June 27, 2014, Defendants filed their Motion for Summary Judgment . On July 28, 2014, Defendants filed their Motion to Strike Affidavit of Yaminah Berry (" Motion to Strike" ) . Yaminah Berry's affidavit is an exhibit to Plaintiffs' Response in Opposition to Defendants' Motion for Summary Judgment . ( See Y. Berry Aff. [54-3].) The subject motions have been fully briefed and the Court is ready to rule.
I. Motion to Strike 
Defendants argue that the Court should strike and not consider Yaminah Berry's affidavit in ruling on summary judgment because the affidavit contradicts her prior deposition testimony. It is well accepted in the Fifth Circuit that a " nonmovant cannot defeat a motion for summary judgment by submitting an affidavit which directly contradicts, without explanation, his previous testimony." Albertson v. T.J. Stevenson & Co., 749 F.2d 223, 228 (5th Cir. 1984) (citations omitted); see also S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (" [T]his court does not allow a party to defeat a motion for summary judgment using an affidavit that impeaches, without explanation, sworn testimony." ) (citations omitted). However, the Fifth Circuit has also held that in ruling on summary judgment, a trial " court must consider all the evidence before it and cannot disregard a party's affidavit merely because it conflicts to some degree with an earlier deposition." Kennett-Murray Corp. v. Bone, 622 F.2d 887, 893 (5th Cir. 1980) (citations omitted). A party's conflicting testimony generally gives rise to an issue of credibility and it is the jury's role to weigh testimony and resolve credibility issues. See id. at 893-94; see also EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 608, 612 n.3 (5th Cir. 2009) (reversing the trial court's grant of summary judgment and noting that the " very fact . . . the magistrate judge questioned Netterville about perceived discrepancies between her deposition and affidavit tends to indicate that the . . . judge was weighing evidence and resolving conflicts in the summary judgment evidence, and failing to give the plaintiff the benefit of all favorable inferences that could be drawn" ).
Defendants specifically challenge the following statements contained in the affidavit:
In the five (5) years preceding my mother, Jacqueline Berry's, death on December 16, 2012, I personally observed the following conduct at Briarwood: drugs sales, people shooting guns and people fighting with guns and without guns. I also was a witness to Stacy Hall being shot at the apartments across the street from Briarwood.
. . . .
My lawyer has read to me the portion of the Defendants' brief that deals with James McLaurin being an invited guest in my home prior to my mother being shot. Nothing could be further from the truth. I was scared to death of James McLaurin as he was loud, usually carried a gun and quite often displayed it while at Briarwood. James McLaurin had never been in my apartment before the day of my mother's death and on the day of her death he barged into my apartment uninvited. I did not ask him to come in. He just walked in and demanded to use a phone charger.
. . . .
On April 21, 2011 I personally observed James McLaurin shot [sic] ...