AUBREY MITCHELL, INDIVIDUALLY AND ON BEHALF OF ALL THE HEIRS AT LAW AND WRONGFUL DEATH BENEFICIARIES OF DEVIN R. MITCHELL, DECEASED, AND MYRTLE MITCHELL, INDIVIDUALLY AND AS THE NATURAL MOTHER AND NEXT FRIEND OF AUBREONNA D. MITCHELL, A MINOR
RIDGEWOOD EAST APARTMENTS, LLC, UAH PROPERTY MANAGEMENT, L.P. AND TAVARIS FRANSHAY COLLINS
OF JUDGMENT: 06/09/2015
COUNTY CIRCUIT COURT, HON. JAMES T. KITCHENS, JR. JUDGE
COURT ATTORNEYS: WILLIAM ROLAND WALTER WILLIAM DUKES ROBERT
B. MARSHALL, JR. DAVID RANDALL WADE JEFFREY GRAY BAKER
ATTORNEYS FOR APPELLANTS: DAVID RANDALL WADE DENNIS C. SWEET,
III JEFFREY GRAY BAKER HOUSTON
ATTORNEYS FOR APPELLEES: WALTER WILLIAM DUKES DRURY SUMNER
DICKINSON, P.J., KITCHENS AND KING, JJ.
In the early-morning hours of January 1, 2012,
sixteen-year-old Devin Mitchell was shot to death outside the
apartment of his cousin, Queenie Walker, at Ridgewood East
Apartments in West Point, Mississippi. Mitchell's family
sued Ridgewood East, alleging, inter alia, premises
liability. The Circuit Court of Clay County granted summary
judgment to Ridgewood East. Finding that no genuine issue of
material fact exists with regard to whether Mitchell's
murder was foreseeable to Ridgewood East Apartments, we
affirm the judgment of the Circuit Court of Clay County.
AND PROCEDURAL HISTORY
On December 31, 2011, Queenie Walker, a tenant of Ridgewood
East Apartments since 2003, invited her cousins, Devin
Mitchell, then sixteen years of age, and Aubreonna Mitchell,
then fourteen years of age, to spend the night at her
apartment. At midnight, Devin, Aubreonna, and Walker's
three daughters went outdoors to celebrate the new year.
Around 1:00 a.m. or 1:30 a.m., Devin visited with Porsha
Ewing, who also resided at Ridgewood East, outside the window
of her nearby apartment, for about an hour. The girls
returned into Walker's apartment, but Devin remained
outside. Because it was late, Walker called for Devin to
return inside also. Devin replied, "I'm coming . . .
As Devin was returning, three, four, or five shots rang out
from above Walker's apartment. Walker realized that Devin
had been shot when she saw him on the ground "not
moving" just fifteen feet from the door to her
apartment. Walker's daughter dialed 911 on a cellular
telephone, because Walker "was shaking so bad."
According to the incident report prepared by police, the call
was received at 2:55 a.m. on January 1, 2012. Walker went out
to Devin and assured him that help was on the way.
At her deposition, Walker testified that "the guy"
came down the stairs and that she asked him what he had done
and "started screaming at him" and "cursing at
him." Walker stated that "the guy" was Tavaris
Collins, that he was "[r]unning around after the
shooting, " and that his eyes were dilated and "he
looked spaced out" and appeared to be "on
something." According to Walker, Collins had put away
the gun he had used in the shooting and was wielding a
different Tech-9 handgun, which he set on the ground "as
if he was trying to show me . . . that he didn't do
it." Collins was arrested when the police arrived,
around 2:57 a.m.
Devin was taken by ambulance to the Clay County Hospital,
from which he was transported by helicopter to a Tupelo
hospital where he died of a bullet wound to the head.
According to an affidavit of the Ridgewood East Apartments
property manager, Felecia Finley, Collins was not a resident
of the complex. He was a visitor of Yashia Davis, who had
been a resident of the apartment complex since 2010. Davis
lived at Ridgewood East Apartments with her two children.
Porsha Ewing testified at Collins's criminal trial that
Collins had been staying at Ridgewood East with his
girlfriend, Davis, for two years. Collins was the father of
one of Davis's children and he would stay to babysit his
child while Davis worked.
On September 7, 2012, Devin's parents, Aubrey Mitchell,
individually and on behalf of the heirs at law and wrongful
death beneficiaries of Devin Mitchell, and Myrtle Mitchell,
individually and as the natural mother and next friend of
Aubreonna Mitchell, a minor (collectively the Mitchells),
filed their first amended complaint against Ridgewood East
Apartments, Antelope Investment Properties,  which conducted
its business as Ridgewood East Apartments, UAH Property
Management, L.P., the management company which operated
Ridgewood East Apartments, Collins, and nine Doe defendants,
in the Circuit Court of Clay County (collectively Ridgewood
East). The Mitchells alleged, inter alia, that
Ridgewood East had actual or constructive knowledge of the
prior violent criminal conduct of Collins and that an
atmosphere of violence existed at Ridgewood East at the time
of the shooting.
On March 18, 2014, Ridgewood East designated Bruce A. Jacobs,
Ph.D., as an expert in criminology. The trial court denied
Ridgewood East's first summary judgment motion, which had
been filed on October 9, 2013. Ridgewood East filed its
second motion for summary judgment on March 31, 2014, arguing
that no genuine issue of material fact existed with respect
to foreseeability. Attached to the motion was Jacobs's
affidavit. Jacobs, who examined crime data from the West
Point Police Department for the three-year period preceding
the shooting, opined that no atmosphere of violence existed
at Ridgewood East. Having reviewed the police report of the
incident, area crime data, and the deposition testimony of
the witnesses, he concluded that no evidence existed that
tended to put Ridgewood East on notice that Collins posed a
threat to residents.
The Mitchells responded on July 11, 2014, and sought further
discovery. Attached to the response were various West Point
Police Department incident reports from 2009 to 2013
involving Ridgewood East. On February 27, 2015, the Mitchells
designated John A. Harris, B.S., M.S., as an expert in the
field of premises liability and security. Harris stated in
his affidavit, which was filed on March 29, 2015, that, in
his professional opinion and within a reasonable degree of
certainty, the shooting was foreseeable because it was
reasonably foreseeable that: (1) residents and guests of the
apartment would celebrate New Year's Eve, (2) on New
Year's Eve, residents and guests "may engage in the
use of drugs or alcohol, " (3) residents and guests
might violate the 10:00 p.m. curfew on New Year's Eve,
(4) residents and guests would violate the apartment handbook
rule against public drunkenness, (5) residents and guests
might violate the apartment handbook "rule against
weapons on the property in the absence of management or
security officers on the property at the time" to ensure
the rule's enforcement, (6) a resident or guest could be
injured if the apartment's rules and policies were not
enforced; and that it was unreasonable "for a reasonably
prudent apartment manager/operator to shift the entire burden
of enforcing the complex's policies and rules to the
residents or even to the guests at the complex, " and
that Ridgewood East's breach of the duty of care
applicable to "reasonably prudent apartment owners,
managers and operators" caused or contributed to the
Ridgewood East's second motion for summary judgment was
heard on May 15, 2015. The trial court entered its order
granting summary judgment to Ridgewood East on June 16, 2015.
It found that, while Collins had lived on, or visited daily,
the property for approximately two years, the apartment
possessed neither actual nor constructive knowledge of his
presence, since he had not been added to Davis's lease
and no complaints previously had been filed involving him.
The trial court further found that the Mitchells had not
rebutted the conclusions of Dr. Jacobs, and that Harris's
affidavit did not address whether an atmosphere of violence
existed at Ridgewood East or whether Ridgewood East was on
notice of Collins's violent nature. The trial court
determined that no genuine issue of material fact existed
with regard to foreseeability.
The Mitchells filed a motion for relief from summary judgment
pursuant to Mississippi Rule of Civil Procedure 60(b) on June
26, 2015, which the trial court denied on September 1, 2016.
Aggrieved, the Mitchells filed a notice of appeal on
September 28, 2015.
The Mitchells argue on appeal that Collins himself
constitutes an unreasonably dangerous condition and that
Ridgewood East had constructive knowledge both of his
presence at the complex and of his violent
nature. They further assert that Ridgewood East,
by incorporating into the tenants' written lease
contracts property rules and policies, assumed the duty to
prevent rule and policy violations and thereby rendered
third-party criminal acts foreseeable.
We review a trial court's grant of summary judgment
de novo. Borries v. Grand Casino, Inc., 187
So.3d 1042, 1045 (Miss. 2016) (citing Davis v. Hoss,
869 So.2d 397, 401 (Miss. 2004)). "The judgment sought
shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Miss. R. Civ.
P. 56(c). The movant bears "the burden of demonstrating
that no genuine issue of fact exists, " while the
nonmovant "should be given the benefit of every
reasonable doubt." Borries, 187 So.3d at 1046
(citing Tucker v. Hinds Cty., 558 So.2d 869, 872
(Miss. 1990)). The evidence is to be viewed in the light most
favorable to the nonmoving party. Stribling Inv., LLC v.
Mike Rozier Constr. Co., Inc., 189 So.3d 1216, 1219
(Miss. 2016) (citing Cade v. Beard, 130 So.3d 77, 81
(Miss. 2014)). "The party opposing the motion must be
diligent and, by allegations or denials, must set forth
specific facts showing that there are genuine issues for
trial." Porter v. Grand Casino of Miss., Inc.,
181 So.3d 980, 983 (Miss. 2016) (citing Davis, 869
So.2d at 401).
Whether Ridgewood East had constructive knowledge of
Tavaris Collins's violent nature.
The Mitchells argue that, because Ridgewood East is federally
subsidized and subject to the regulations of the United
States Department of Housing and Urban Development (HUD),
which authorizes public housing projects to obtain criminal
history records, Ridgewood East had constructive knowledge of
Collins's violent nature. Ridgewood East responds that the
HUD regulations merely authorize criminal background checks
but do not mandate them. According to Ridgewood East, even
assuming a duty to conduct a background check existed, the
Mitchells presented no evidence to support their claim that
Ridgewood East knew of Collins's presence on the property
and, therefore, had constructive knowledge of his violent
Plaintiffs must, in order to recover on a negligence claim,
demonstrate "that the defendant breached a particular
duty owed to the plaintiff, and that the breach of duty
proximately caused damages." Adams v. Hughes,
191 So.3d 1236, 1240 (Miss. 2016) (quoting Kroger Co. v.
Knox, 98 So.3d 441, 443 (Miss. 2012)). While "those
in control of real property have a duty, if reasonably
possible, to remedy most dangerous conditions on their
property and to warn of those they cannot eliminate, that
duty presupposes the defendant knew, or should know, of the
dangerous condition." Id. This analysis applies
to premises-liability cases involving thirty-party assaults:
"[w]here the alleged dangerous condition is the threat
of an assault, the requisite cause to anticipate the assault
may arise from (1) actual or constructive knowledge of the
assailant's violent nature, or (2) actual or constructive
knowledge that an atmosphere of violence exists on the
This Court has considered cases involving actual knowledge of
the assailant's violent nature. In the case of
Galanis v. CMA Management Company, 175 So.3d 1213,
1214 (Miss. 2015), the mother of Andreas Galanis, who had
been murdered by his roommate, Bobby Batiste, filed a
premises-liability action against the owners and management
of the apartment complex where the murder had occurred. The
trial court granted summary judgment, having determined that
the owners and management could not be held liable for
failing to warn Galanis of Batiste's violent tendencies.
Id. at 1214. This Court reversed the judgment and
remanded the case because evidence in the record showed that
Batiste had filed a "resident concern form" in
which he complained about a prior roommate. Id. The
letter indicated that Batiste could not "take it
anymore" and that he did not "want to get
violent." Id. at 1215. Batiste continued that
he hoped "this get[s] resolved soon because I really
don't want to take matters in[to] my own hands."
Id. The Court held that the apartment complex had
actual knowledge of Batiste's violent tendencies.
Id. at 1218.
In another case, the assailant, who had days before shot and
grazed the victim, returned to the apartment complex, where
he shot and killed the victim. Thomas v. Columbia
Group, LLC, 969 So.2d 849, 852 (Miss. 2007). The
Court reversed and remanded the trial court's grant of
summary judgment because the complex had knowledge of the
assailant's violent nature:
The apartment manager at Shady Lane knew about the first
shooting at least two days after it happened. Even if she did
not hear about the shooting until two days after it happened,
it was still several days before the second shooting,
resulting in Thomas's death, occurred. There is even
testimony that the apartment manager "knew something
like this was going to happen, " and that she was going
to do something about it.
Id. at 854-55. The Court held that, based in part on
"the manager's statement that she was going to ban
and evict [the assailant] as well as improve security, "
the record presented a genuine issue of ...