Davis v. Regency Lane LLC

Davis v. Regency Lane, LLC, No. 1747, September Term, 2019, Opinion by Graeff, J. NEGLIGENCE — PREMISES LIABILITY — LANDLORD — THIRD PARTY CRIMINAL ACTIVITY — DUTY — CAUSATION The owner of property has a duty to use reasonable care to keep common areas safe for invitees. The status of a tenant and a guest of a tenant generally is that of an invitee, but when the property owner alleged that the decedents were using the parking lot for an impermissible purpose, the issue of the decedents’ legal status became a dispute of material fact. A landlord who is aware of criminal activity against persons in the common area has a duty to invitees to take reasonable security measures to eliminate foreseeable harm. Notice of shootings, assaults, and drug activity on the premises, combined with the property manager’s concerns about the safety of the property would put a reasonable person on notice that a shooting could occur on the property in the absence of additional security measures.

The circuit court erred in finding that summary judgment was proper because Regency owed no duty to the decedents. The circuit court properly granted summary judgment, however, on the issue of causation. Where appellants provided no evidence regarding the circumstances of the shooting, appellants could not meet their burden to show that any failure by Regency to satisfy its duty to take reasonable security measures (assuming that the decedents were invitees) was the proximate cause of the shooting. When plaintiffs fail to meet their burden of showing “a viable theory of causation” in a negligence case, summary judgment is proper.

Circuit Court for Prince George’s County Case No. CAL1825076 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1747 September Term, 2019 ______________________________________ EARL DAVIS, et al. v. REGENCY LANE, LLC ______________________________________ Graeff, Leahy, Wells, JJ. ______________________________________ Opinion by Graeff, J. ______________________________________ Filed: January 28, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-10-28 11:52-04:00 Suzanne C. Johnson, Clerk On October 30, 2016, at approximately 2:45 a.m., two teenagers, Brian Davis (age 18) and Todd Webb, Jr. (age 14), were shot and killed by an unknown assailant(s) outside an apartment owned by Regency Lane, LLC (“Regency”), appellee, in Capitol Heights, Maryland. On July 18, 2018, Mr. Davis’ parents, Earl Davis and Torcelia Hawes, and Todd Jr.’s parents, Todd Webb, Sr. and Lasherne Walker, in their individual capacities and on behalf of their sons’ respective estates, sued Regency in the Circuit Court for Prince George’s County. The complaint alleged that Regency negligently failed to exercise reasonable care in providing adequate security measures on the premises to protect tenants and invitees from foreseeable criminal activity. The circuit court granted Regency’s motion for summary judgment, ruling that appellants failed to present sufficient evidence to support their claims.1 On appeal, appellants present a single question for this Court’s review, which we have rephrased slightly, as follows: Did the circuit court err in finding that Regency did not owe a duty to Brian Davis and Todd Webb, Jr.?

For the reasons set forth below, we shall affirm the judgment of the circuit court. 1 Appellants also named in their complaint “Miles Properties, LLC” and “Miles Properties Inc.,” but these parties were never served. The ruling at issue nevertheless is a final judgment. See Worsham v. Fairfield Resorts, Inc., 188 Md. App. 42 , 45 n.1 (2009) (Judgment granting defendant’s motion to dismiss was final, appealable judgment, even though plaintiff’s complaint named a second defendant, because second defendant was never served and the judgment disposed of all claims against all parties who had been served.). FACTUAL AND PROCEDURAL BACKGROUND2 I. Shootings On the evening of October 29, 2016, Shanelle Brown hosted a party for approximately 25 family members and friends at her apartment in the Regency Lane apartment complex.

Ms. Brown’s apartment was located at 6862 Walker Mill Road, on the “backside” of the property. Mr. Davis, who was not a tenant on the property, arrived with his cousin after the party started at 9:00 p.m. At some point during the party, Todd Webb, Jr., a tenant of the complex who lived with his mother, Ms. Walker, attempted to gain entry to the party, but Ms. Brown did not let him in because she did not know him. Todd Jr.’s whereabouts between the time Ms. Brown turned him away and the shooting were unknown.

At approximately 11:30 p.m., Mr. Davis called his mother, Ms. Hawes, and asked her to call him an Uber to get home. He indicated that he would text her his location, but he never sent a follow-up message. Ms. Hawes called him several times, but he did not answer his phone. Ms. Brown testified at her deposition that, at approximately 1:00 a.m., Mr. Davis told her that he was leaving, and he went outside to wait for a taxicab.

There were a handful 2 Because this is an appeal relating to a ruling on a motion for summary judgment, the facts come from the depositions, documents, and other information obtained in discovery and submitted to the court. 2 of other people from the party in the parking lot in front of her apartment, but Ms. Brown was not sure what they were doing. At approximately 2:45 a.m., Ms. Brown heard multiple gun shots in the parking lot outside her apartment window. Mr. Davis, Todd Jr., and Ms. Brown’s cousin, Gleason Wood, were shot and killed by an unknown assailant or assailants.3 Mr. Davis and Todd Jr. did not know one another, and no witnesses were identified to testify based on personal knowledge regarding the circumstances of the shooting.4 II. Security/Criminal Activity at Regency Lane Apartments During discovery, appellants obtained documentation and deposition testimony regarding security at the apartment complex.

In Regency’s answers to appellants’ interrogatories, Regency stated that there were cameras installed on certain areas of the property, but there were no cameras at the back of the complex where the shooting occurred. It also stated that it “maintained halogen flood lights throughout certain parts of the property” and had “no trespassing” and “no loitering” signs posted. 3 Counsel for Regency stated in his argument on the motion for summary judgment that three people were killed, and three additional individuals were shot but survived. Ms. Brown testified at her deposition that Gleason Wood, her cousin, died from his gunshot wounds in December. 4 Todd Webb, Sr., testified that his son’s friends told him that “a fight broke out at the party” and shots were fired, but Todd Sr. did not have personal knowledge of these events. The parties were unable to finish deposing the party’s host, Ms. Brown, who defense counsel described as an uncooperative witness who could not be located after her initial deposition. 3 Regency also contracted with a security firm, Edward Finn, Inc. (“Finn Security”), to provide security services for Regency’s 30 apartment buildings.

Finn Security assigned one officer to three different properties, including Regency Lane Apartments, for a six- hour shift on varying days and times. The officers sent daily “Police Security Logs” to Arletta Whitaker, the Community Manager at Regency Lane Apartments. Several logs indicated that a fence surrounding the property was not secure. Ms. Whitaker stated in her deposition that there was a black iron fence surrounding the perimeter of the property, but the gate in the fence behind 6864 was not intended for tenants to use as an entry or exit point, and it had a lock on it.

A log entry for September 27, 2016, stated that the officer on duty stopped a male loitering and ordered him to leave the property. It noted that “[t]he fence to the rear of 6864 Walker Mill was left unsecure.” In another log two days later, the officer reported that the “gate to the rear of 6864 [was] open and unsecure,” and several males were observed inside 6864 and ran when the officer approached. The log entry stated: “The rear gate must be kept locked to avoid future trespassers.” Earlier logs similarly noted that the rear fence gate was left unlocked. Appellants attached a document to their answers to Regency’s interrogatories that listed all the service calls for the apartment complex received by the Prince George’s County Police Department from October 14, 2013, to December 10, 2016.

This document shows multiple service calls relating to alleged crimes against persons, including assaults, 4 robberies, and fights, as well as five reports of gunshots or shootings and multiple calls reporting drug related activity.5 In a series of emails sent to Regency’s owner, Avi Bernstein, on October 6, 2016, Ms. Whitaker, the Community Manager at Regency Lane Apartments, expressed concern about trespassers and safety on the property. Ms. Whitaker indicated that there were increased complaints about the “sale of guns and drugs” near building 6864, and when she drove by, there were “quite a few ‘new’ guys hanging inside 6862 and 6864.” She stated that, when the men ignored her explanation of the loitering policy, she called the police, who sent eight police cars in response, but they made no arrests. She then stated: “Can you PLEASE consider installing cameras in the back before something bad happens???? Residents are saying it is really bad in the late evening and night time.” She also reported that the flood lights over the rental office and on the “back side of 6840” were not working.

Ms. Whitaker further told Mr. Bernstein: “A camera definitely needs to be put facing 6864. The last row of buildings 6852-6864 are becoming a problem area.” Mr. Bernstein asked how a camera would help, to which Ms. Whitaker replied: “It would expose who is selling the drugs and whose household has all this unwanted traffic in the building.” She sent another e-mail a few minutes later stating: “I know this Property is never going to be perfect but it is getting bad. These guys are disrespectful and I am almost afraid to work here. The complaints are pretty serious.” 5 As discussed, infra¸ Regency argues that there was no evidence that it had knowledge of these incidents.

Moreover, it asserts that these records “are incomprehensible and likely inadmissible as evidence for reasons of hearsay and dubious authenticity.” 5 Ms. Whitaker was questioned at her deposition about her concerns. She did not recall the emails, but after they were shown to her, she stated that she did not recall whether Regency installed cameras in response. The cameras had been installed, however, at the time of her deposition.6 She did not know whether security was patrolling the night of the shooting. Any reports of casualties between 2013 and 2016 would have been reported to her and Mr. Bernstein.

III

Summary Judgment On July 22, 2019, Regency filed a Motion for Summary Judgment, asserting that there was no genuine dispute of fact, and it was entitled to judgment as a matter of law. Regency argued that appellants failed to establish the elements of a premises liability claim for several reasons. First, Regency argued that an owner of real property owes a duty of care only to invitees, and appellants failed to demonstrate that the decedents were invitees at the time of the incident. It asserted that appellants presented no witness with personal knowledge of the events leading to the shooting, and the only information provided suggested that the decedents were trespassers because “they were participating in an illegal dice game” and “loitering, in direct contravention of any invitation to the Premises, and of Maryland law.” Regency argued that, even assuming the decedents were invitees at some point in time, at 6 Regency stated in its answers to interrogatories that cameras had not been installed at the time of the shooting. 6 the time of the shooting, they had “exceeded the scope of their invitation by engaging in” unauthorized activities.

Second, Regency argued that, even if the decedents were invitees at the time of the shootings, appellants still failed to show that Regency owed a duty to the decedents. It asserted that appellants had not produced “evidence of sufficient prior similar criminal activity on the premises to render the incident in question reasonably foreseeable,” and they had not shown evidence of a dangerous physical condition within Regency’s control that enabled the criminal activity in this case. Third, Regency argued that appellants had failed to show how the allegedly inadequate security measures caused the decedents’ deaths or how additional security measures could have prevented the shootings. Because appellants had no witnesses with personal knowledge regarding what happened that night, they could not show that any security measures would have had an effect on the shooting.

On August 14, 2019, appellants filed an opposition to Regency’s Motion for Summary Judgment. They argued that summary judgment was inappropriate because the question of whether Regency owed a duty to the decedents involved unresolved questions of fact that must be submitted to a jury. They asserted that Regency owed a duty to the teenagers because Todd Jr., was a tenant, and therefore, he could not be a trespasser, and Mr. Davis was an invitee of Ms. Brown. Appellants argued that the only evidence that the decedents were participating in an “‘illegal” dice game was contained in an inadmissible police report.

They further argued that Regency had actual notice of the criminal activity occurring near the building, asserting that Ms. Whitaker had emailed the owner of Regency 7 alerting him to numerous complaints of drug and gun sales. Regency, however, offered no evidence that it took increased security measures. In support of their arguments, appellants attached to their motion an affidavit executed by Michael Hodge, who was proffered as a security expert. Mr. Hodge stated that the apartment building “had a history of violent crime and specifically a history of drugs and crime on the premises in the common areas and that Management was aware of the happenings before the two shooting deaths in this matter.” He stated that “security presence in this matter was lacking,” and although Finn Security provided “spotted patrols,” industry standards dictated that “continuous patrols were needed” under the circumstances to “effectively stop the escalation of crime.” Mr. Hodge also noted that proper lighting and CCTV cameras “have proven in the security field to be strong deterrents to crime in common areas and parking lots,” and such measures are “affordable” and can be “implemented fairly quickly.” Additionally, appellants attached an April 6, 2019, report prepared by Mr. Hodge, in which he stated that he had reviewed the service call records from the Prince George’s County Police Department for the apartment complex, and he determined that the premises had “a history of person-on-person violent crimes.” Mr. Hodge also reviewed Prince George’s County incident reports and “found that on 4/4/2016 there was a shooting at 6832 8 Walker Mill Road; and on 3/17/16, an assault and battery outside of the building located at 6864 Walker Mill Road, Capitol Heights, MD.”7 Mr. Hodge’s report then stated the following: The history of violent crimes on the premises serves as the basis of my opinion that Defendant Regency Lane Apartments knew or should have known that a violent attack would occur, especially when security measures on the premises are lacking or inadequate.

Because Regency knew of prior violent crimes occurring outside apartment buildings and in common areas as well as parking areas; there was a responsibility by the Defendant to implement an adequately staffed detail of security personnel to serve as a deterrence and prevention to crime, and enforce the property’s policies on loitering, and the likes. Statements obtained in discovery in this matter indicates [sic] that the attack upon Mr. Davis occurred long enough in time that reasonable personnel would have responded and prevented if they were in a reasonable position to observe and report such crime. The primary function of security measures is to “observe and report” and upon review of this matter, there are no facts to support a finding that security personnel nor closed circuit surveillance cameras strategically placed was able to fulfilled [sic] these primary functions. In sum, the report made the following conclusions: 1) Defendant Regency Apartments had a responsibility to address harmful conditions such as violent crimes against persons such as Brian Davis and Webb Jr. 2) Reasonable security measures under the history of crime at Regency Apartments required [a]dequately staffed security personnel and adequate security to observe and report crime upon the premises. 3) Failure to implement adequate security measures like personnel, policies and procedures, and security equipment will allow that type of crime that killed Mr. Davis and Webb Jr. 7 Regency states in its brief that these reports are “not contained in the Record Extract,” and we have been unable to locate them in the record.

The only information that we have regarding the incident reports is counsel’s statement at oral argument that they are different from the police service calls. 9 4) Failure to implement adequate security measures under the facts and circumstances of this matter falls below the standards of care in the security field and falls below security field guidelines, standards, customs and practices. Regency filed a reply on September 17, 2019, arguing that there was no dispute of fact because appellants had not produced any evidence regarding the circumstances of the shooting. It asserted that appellants’ failure to establish what happened that night precluded them from establishing duty, breach, or causation. Regency also renewed its arguments that it did not owe a duty to the decedents, and appellants failed to establish that additional security measures could have prevented the shooting.

On September 30, 2019, the circuit court held a hearing on the motion for summary judgment. Regency argued that, because there was insufficient evidence to show what happened on the night of the shooting, appellants could not establish the decedents’ status on the property at the time of the shooting or the elements of negligence required for their claims. With regard to the question of status, Regency proffered that the police report for the incident stated that the decedents were participating in an illegal dice game in the parking lot, which, if true, would have changed the teenagers’ status from invitees to trespassers. Although both parties agreed that the statement in the police report regarding the dice game was inadmissible hearsay, Regency argued that appellants had the burden to establish the decedents’ invitee status at the time of incident, and their failure to do so precluded recovery on their claims.

Regency further argued that, even if appellants could establish the decedents’ status as invitees, the law provided that a landlord was responsible for the criminal acts of a third 10 party only if it had notice of a dangerous condition and failed to correct it. Regency argued that appellants had failed to establish a pattern of similar criminal activity related to a specific physical condition that Regency allegedly failed to address. Because appellants were unable to produce evidence explaining what happened, they could not point to any one physical condition that potentially could have prevented the crime. For example, in reference to the unsecured gate referenced in Finn Security’s logs, appellants did not establish that the gate was unsecured at the time of the shooting or that this physical condition was used to commit the crime.

Accordingly, because appellants were not able to establish that what happened was related to a dangerous condition, they could not prove duty or proximate cause, and Regency was entitled to summary judgment. Appellants argued that Todd Jr. was a tenant of the complex, and therefore, he was not a trespasser, and Regency had “an absolute nondelegable duty to protect its tenants when they are on the property.” With respect to the argument that the decedents’ status changed to trespassers because they were engaged in an illegal activity, counsel argued that this evidence was inadmissible hearsay, and in any event, because there was no evidence that the dice game was played for money, there was no evidence that they were engaged in an illegal activity. Moreover, the teenagers were not loitering under the definition of that crime in the county code because Mr. Davis was a party attendee who was waiting for his ride home and Todd Jr. was a tenant. Accordingly, appellants argued that Regency owed a duty to both decedents to take reasonable safety measures to protect them in response to the numerous known reports of crime on the premises. 11 With respect to Regency’s assertion that they had failed to identify a pattern of similar criminal activity, appellants referred to the shooting documented in Mr. Hodge’s report, as well as numerous reports of drug and gun crimes that reasonably could have led to another shooting.

They asserted that Regency had a duty to protect tenants and their invitees, and it breached that duty when it failed to take additional security measures, such as hiring more security guards, putting up security cameras, or securing the gate, to protect the decedents from known criminal activity. Counsel argued that summary judgment was inappropriate because there were numerous disputes of material fact, including issues regarding the decedents’ status as invitees or trespassers, whether Regency had knowledge of the prior criminal incidents, and causation. On October 11, 2019, the court issued a written opinion and order granting summary judgment in favor of Regency. The court began by listing the undisputed facts, including that appellants had not identified any witness with personal knowledge of the circumstances surrounding the shooting.

The court initially addressed the issue of the decedents’ status. It stated that the question whether their status changed from invitees to trespassers at the time of shooting was a dispute of material fact, and therefore, Regency’s “motion as to the trespasser status is denied.” The court, however, ultimately granted the motion for summary judgment. It found that appellants had failed to identify a dangerous physical condition that existed, that the shooting was a result of that condition, or that past criminal activities alerted Regency to the foreseeability of the deadly shootings. The court found Mr. Hodge’s affidavit regarding 12 the criminal activity and security measures on the property to be “simply conclusory statements.” It noted that, although counsel stated in argument that “there were hundreds of calls for service” on the property during a three-year period, those calls for service were “not necessarily evidence of criminal activities because they include[d] various calls for assistance unrelated to alleged criminal activity.” The court noted that, in Rhaney v. University of Maryland Eastern Shore, 388 Md. 585 (2005), the Court of Appeals stated that “criminal acts occurring in the common areas themselves do not constitute dangerous or defective conditions,” and a duty arises only “if a dangerous and defective condition exists in the common areas that the landlord knows or should have known and foresees the harm.” To prove liability, appellants were required to present evidence to show that a dangerous physical condition existed and that the harm was a result of that condition, which the appellants failed to do.

The court explained: Here, the Plaintiffs have not identified any physical conditions or particular defect that permitted the shooting to occur. While the Plaintiffs, at oral argument, raised the issue of lighting, Plaintiffs did not provide evidence to show that lighting did or did not exist at the location of the shooting or articulate that the light in the area of the shooting was functioning or not. The Defendant is correct that there is no evidence to consider because there are no witnesses to testify as to the shooting or other evidence as to the circumstances of the shooting. To determine liability, a fact finder would need to know whether the decedents were innocent by-standers to criminal activities or were they themselves participants in the criminal activities or they were targeted for reasons other than their location at the time of the shooting.

Without evidence as to the shooting itself, a fact finder could not determine if any physical defect contributed to the shooting; and whether the Defendant had actual or constructive notice of the physical defect and failed to take reasonable steps to prevent the actual shooting. * * * 13 Defendant’s Motion for Summary Judgment is granted because there are no genuine disputes of material facts since there are no available witnesses or physical evidence to the actual shooting and the Plaintiffs cannot provide evidence to support their theory of liability. Discovery for all factual evidence closed on September 10, 2019. As a matter of law, without any facts or evidence, Defendant cannot be held liable for the shooting. Plaintiffs cannot prove past criminal activities where a physical defect facilitated similar criminal activities that would have provided Defendant with reasonable notice.

Here, we have a very heartbreaking event, the taking of the lives of two young men; however, the Defendant is not an insurer against third party criminal acts. Defendant cannot be held responsible for reasonably foreseeing the shooting or stand liable for the consequences. This appeal followed. STANDARD OF REVIEW Maryland Rule 2-501(f) provides that a court may grant summary judgment “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” The Court of Appeals has explained the relevant standard to be applied in reviewing a grant of a motion for summary judgment, as follows: We review a grant of summary judgment as a matter of law.

Eng’g Mgmt Servs. v. Md. State Highway Admin., 375 Md. 211, 229 , 825 A.2d 966, 976 (2003). “The standard for appellate review of a trial court’s grant or denial of a summary judgment motion is whether the trial court was legally correct.” Sheets v. Brethren Mut. Ins. Co., 342 Md. 634, 638 , 679 A.2d 540, 542 (1996) (citation omitted). Thus, we conduct an independent review of the record to determine whether a genuine dispute of material fact exists and whether the moving party is entitled to judgment as a matter of law.

Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14