July 18, 2019–MG+M’s Jeff McLucas successfully defended the summary judgment dismissal of a wrongful death civil case stemming from the shooting, and ultimate death, of a drive-by shooting victim in Boston that occurred on a public sidewalk adjacent to a housing development. Holloway v. Madison Trinity Limited Partnership, 2019 WL 3227215, Appeals Court of Massachusetts No. 18-P-1323 (July 18, 2019).
The decedent was shot by unidentified individuals who were never apprehended, initially paralyzed and eventually passed away from complications stemming from her injuries. The Plaintiff brought negligence claims against the operator and manager of the adjacent housing development claiming that the Defendants failed to provide adequate security in the area or to warn her about the dangers presented by criminal activity in the neighborhood. Massachusetts Superior Court Justice Paul Wilson granted summary judgment in favor of the Defendants finding that there was no legally actionable duty of care running from the Defendants to the decedent in the circumstances presented by the case. MG+M successfully defended the appeal of the dismissal.
The subject shooting incident occurred on a public street and sidewalk adjacent in the neighborhood known as Orchard Gardens which was previously operated as a public housing project by the Boston Housing Authority (BHA) and known as Orchard Park. The neighborhood was substantially redeveloped in the late 1990s and subsequently operated by the Defendants pursuant to an agreement with the BHA. Orchard Park was plagued by widespread drug trafficking and violence which persisted after the neighborhood was developed into Orchard Gardens.
On a June night in 2013, the decedent (who was not a tenant of Orchard Gardens) was passing through the neighborhood on her way home when she stopped to speak with an acquaintance on a public sidewalk adjacent to one of the many public streets passing through Orchard Gardens. As she was speaking with her friend, the decedent was shot from a vehicle on the adjacent street.
The Superior Court judge found, and the Massachusetts Appeals Court affirmed, that while a person or entity that owns or controls property has a common-law duty of reasonable care to those lawfully on the premises including, in appropriate circumstances, a duty to protect against third-party criminal action, such a duty is only found where there is a “special relationship” between the injured person and the landowner. In this case, the decedent had no relationship whatsoever with the operator and manager of the housing development, much less a “special” one.
In Holloway, the decedent was never physically on the property leased by Madison Trinity from the BHA and managed by the co-Defendant, Trinity Management at any time on the night of the shooting. Rather, the decedent was a “member of the public using a public way owned by the city of Boston.” In its decision, the Appeals Court affirmed and reiterated long-standing Massachusetts law that the legal duty owned by a landowner or possessor of property adjacent to a public way is a “negative duty” to refrain from creating an unsafe condition on an adjacent sidewalk away, but no more.
The Appeals Court rejected the Plaintiff’s argument that the use of public streets and sidewalks running through Orchard Gardens by private security engaged by the Defendants to patrol the neighborhood amounted to the exercise of legal control over the sidewalk where the decedent was shot. The Court noted that the security officers hired by the Defendants had no arrest powers on the public ways and had no more authority than “any other private citizen” on the streets and sidewalks in and around Orchard Gardens. The Appeals Court refused to impose a broad-based legal duty of care because it would render landowners insurers of the safety of travelers and pedestrians on state or city owned and controlled highways and streets. The Court declined to recognize a legally enforceable duty of care on the part of property owners to warn members of the public of the risk posed by potential criminal acts on public sidewalks or streets.