-: SJC-13380, Norvella Hill-Junious, the UTP Realty LLC.
-: [Chief Justice Budd] Attorney Hanson,
whenever you're ready.
-: Chief Justice Budd, Your Honors,
if it may please the court, I am attorney Matthew Hanson.
I represent the appellant plaintiff, Norvella Hill-Junious,
and the Estate of Drake Scott.
In this negligent security case,
Norvella Hill-Junious, the appellate,
alleges that the defendant property owner was negligent,
negligent for failing to provide
reasonable security measures that would prevent and deter
against foreseeable crime.
The crime, in this case, a murder, was foreseeable
because like the violence and the gun crimes
that happened before it,
it happened outside the tenant's nightclub
in the wee hours of the morning
outside of a live music event
where people were accumulating around the parking lot.
This is a series of circumstances
many people, in this case, many parties,
including the Randolph Police Department,
agreed was a recipe for violence.
-: What's the rule that we should have?
When should a owner of a piece of property
that has a club in it know that there's danger
and they need to take special precautions?
-: Sure, well, and of course,
I think that's what brings us here,
because many of the cases that came before it
dealt with residential apartments, commercial properties
where there were no prior crimes,
and I think the answer to that question, dare I say it,
and I know we're here to address
mostly the question of duty,
but when you get sort of down the rung of questions,
so duty, foreseeability, and all these elements,
eventually you get to a point of
what's the use of the property?
A property owner buying a 10-year-old property
is not going to check for asbestos, nor should they have to,
but if they're buying a property that's 75 years old,
they very well may have to, especially if there's insulation
and there's powder coming from it.
If the use of the property is to have something
that has a heightened propensity for violent crime,
like a nightclub, this is not normal.
Most commercial properties don't have a nightclub
with live music.
-: Are you arguing that that creates a special relationship?
-: I don't know that I'd say,
it does follow the same track,
sort of with Pine Mullins and the Fund v. Hotel Lennox case,
where they address the relationship between
a person at a hotel or a college student.
-: So a landlord who doesn't run a nightclub,
but rents to someone who runs a nightclub,
has a special relationship to the nightclub's patrons?
-: Well, yes, but I believe the circumstances here
are slightly different because the person was harmed
in the common areas of the property.
And I think that's important,
because if they were hurt inside of the bar,
we would not be suggesting to you that the owner
of the property has any right to go inside the bar
and do anything.
And I think that's been addressed in previous cases.
This panel, I believe, addressed it in the Heath case
in 2021, I don't believe that's in the briefs
of the record appendix,
but I do understand that was an issue
where the property owner had no right to the property
because they were listing it through an Airbnb.
So if it happens inside of the club, no,
the landlord or the property. -: I don't think
that was the reasoning of (indistinct).
I think there was no duty,
there was no duty in that situation to protect an individual
from a third person and that it wasn't foreseeable.
And here you have, I think, steps from the nightclub,
a clear retaliatory shooting that has nothing to do
with what's going on in the nightclub.
It has nothing to do with the open mic.
It has to do with a family member
had been allegedly killed by the decedent previously.
So it's nothing about the danger of the nightclub
and duty is an issue alone.
I think that Heath Lanson versus Skyler
is really not a helpful case for you.
-: I would disagree respectfully,
because if my memory serves me correctly,
one of the issues that were addressed in Heath
as well as I think Griffiths, Whitaker
and most of the cases cited in the briefs,
when you get to the question of duty,
you're looking at whether there were prior crimes,
and I don't believe there was similar prior crimes,
other shootings, murders, things like that
in Heath, and I would submit not in Whitaker,
not in Griffiths
and many of the cases cited. -: Weren't there gaps
in security, I mean the hotel case I vaguely remember.
I mean people are being attacked in this hotel
through the same sort of negligent security.
And don't we focus on the connection between
the negligence that's identifiable and the injury?
Here this could have happened anywhere.
These guys could have met on the street.
They could have met at a restaurant,
they could have met, you know, at a traffic light.
There's nothing about the nightclub except for the fact
that they came there together accidentally.
It just seems different from these other cases.
-: It may be different
if we look at this as a targeted killing,
I know that it was a premeditated crime,
at least from the prosecutorial standpoint,
but a lot of these crimes,
the Sharp verse Peter Pan Bus case.
-: But it wasn't, there was nothing about what the nightclub,
again, the hotel doesn't have its doors locked.
So this guy comes in and rapes somebody,
that's not going on here.
The fact that it's a nightclub and they did an open mic
has nothing to do with why this person was shot.
As Justice Lowy just pointed out it,
there's no connection between the two.
-: Well, I would disagree.
This is a negligent security case,
so of course we're talking about security
and the Randolph Police as well as I believe our expert
and other people have said security deters crime.
Now this gentleman, Gregory Wright, the murderer,
he ran, he ran, he tried to get away.
The Sharp versus Peter Pan bus case tells us
detailed, uniformed security officers do deter crime.
-: So if the duty is to have armed security in Jeeps
roaming every parking lot, that's easy, right?
It's gonna deter crime.
The question is whether or not,
A, there's no special relationship
and B, whether it's foreseeable
if there's no special relationship.
And we have here one incident of a guy getting conked
on the head with a beer bottle, that's it.
-: If I may address. -: On her watch, essentially.
-: Sure and if I may address that.
On that issue, let's remember the Randolph police
went to that incident, it's essentially a brawl
outside the nightclub or develops into a brawl
outside the nightclub.
Police from neighboring departments come
due to the sheer number of people.
So when we talk about what could happen,
yes, somebody was stabbed or hit with a beer bottle,
this is something that requires police
from all districts to come.
That's how big of a deal this is.
I just wanna touch upon though the security issue
and whether or not this is going to deter crime.
I don't think we can look at this as
something that can be disposed of on summary judgment,
because we don't believe the security officer
or detailed security officer would prevent crime.
-: Well isn't duty a legal question, right?
-: Well if we go back to that,
if we're going back to duty, I would say.
-: You know the answer to that,
so it's amenable to summary judgment.
-: Duty is a question for summary judgment, of course,
question of law.
I would submit to this, there is a question of duty
in negligent security cases.
Duty is contingent upon foreseeability.
That's how we get here.
Here, there were prior crimes.
The question, and I believe this is what the court
took (indistinct) was whether the property owner
has a duty of inquiry beyond just, you know,
were there prior crimes?
Because ultimately what we're saying here
is there were prior crimes, there was another shooting,
there was more violence, there was gun crimes
that didn't involve shooting of people,
but people were firing guns off in the parking lot.
This is not normal behavior.
This is not something that somebody can just ignore.
-: What about the amicus point?
So we're going to impose some sort of duty of landlords
when they purchase to go and check for x amount of years
about the crime.
What's that gonna do to ability to get loans,
the cost of insurance? -: Sure.
-: The value of property.
What are the implications as the amicus brief points out
for the folks living there?
-: Sure and to address that, two points.
First, we're not suggesting that there should be
a general rule that all property owners,
somebody buying a single family home and Airbnb-ing it,
that should not be the general rule here.
We're specifically asking that the use of the property
come into play and when you're buying a commercial property
with a dangerous nightclub,
at that point, yes, you should ask the question.
But more directly to your point about the amicus briefs,
and I try to be very measured in my response.
I do a lot of plaintiff's negligent security work.
The vast majority of victims,
the people who have lost their loved ones,
the people who are hurt are people of color
and people from marginalized communities.
The briefs say nothing about that.
But if we're gonna talk about these things
that are outside of the context of the law, duty,
foreseeability, then I would ask that we at least
speak the truth about them in context.
So to Justice Lowy's point about mortgages and insurance,
who bears the burden of these cases?
Of course, its insurance companies.
Now, which first generation immigrants,
which I know is cited in one of the amicus briefs,
where's their burden?
To be frank, if they're so wealthy
that they can buy multi-million dollar commercial properties
without a mortgage or a bank to escrow liability
insurance payments, then yes, if they're that rich,
they may be left with a judgment to pay.
But whether they're a middle class
white person from Nebraska,
whether they're a first generation immigrant
or they're a person of color, regardless of the case,
most people buy property with liability insurance.
-: I think the policy issues are really complicated
and over our head.
But I mean, we say in these cases
that we don't impose liability for the criminal acts
of third parties except in exceptional circumstances, right?
-: True, yes. -: Is this really
what we're talking about here?
Is this really an exceptional circumstance
or is this gonna be anytime you run a restaurant
in a high crime neighborhood
or a nightclub in a high crime neighborhood,
I mean, what are we talking about here?
I mean.
-: I think why we're here is why it's so rare.
Most of the cases involve either
residential apartment complexes,
where there are no prior crimes,
or they involve commercial property like a hotel
or a college campus where the case was allowed
past summary judgment.
Very rarely do I think you're gonna find a property owner
say, you know what?
I keep having shootings and crime and violence
on my property, but what am I gonna do?
I'm only the owner.
I don't think you're gonna see that very often
because there aren't that many commercial properties
with nightclubs that are inviting crime.
-: I thought the interesting part of your argument,
or one of 'em was that she had worked or owned
the nail salon in the adjoining property,
so she had to have known.
-: Well, yes.
And that was sort of originally why we appealed the case.
Of course, the question changed a little bit
when the court took it to (indistinct),
but yeah, originally what we're saying here is,
look, there's foreseeability.
If we're just going by duty
and then duty hinges upon foreseeability,
it's there because there's prior crimes.
Now she says.
-: It predates her three month ownership,
but you get the problem of her in the,
I guess in the deposition saying,
I didn't know anything about this.
-: She says, I don't know.
And so the veracity of her statements are taken as true.
We offered affirmative evidence to the contrary.
And the trial judge essentially says, well, I believe her.
I don't think that's a function of a judge.
I believe it needs to go to a jury.
I think once we take the function away from the jury
of deciding who to believe, and we've put,
I think we've put forth some incredible evidence to suggest
she's not telling the truth, or if she's telling.
-: What was that incredible evidence?
Just remind me.
-: Sure, so on the issue of I suppose
whether she's being forthright about her knowledge
of the property and what's going on.
-: Yeah, what was your incredible evidence?
-: Sure, so she's there when this stuff happens.
Additionally.
-: Stuff happens during the day when the nail salon is open,
or is the nail salon an all night nail salon?
-: No, no, it's not an all night nail salon.
And admittedly, if these crimes are happening
after midnight, she's not there.
She has people come into her nail salon
who go to the club in the evening, they talk about it.
More importantly, there was a human trafficking ring
busted up at the property via a police raid.
She says she knew nothing about it.
She says that the.
-: The human trafficking ring leads to murder,
is that what you're suggesting?
-: I'm not, I'm not suggesting that.
-: Speaking to the crimes that might relate
somehow to the murder.
-: Well, we're talking about affirmative evidence
that contradicts her veracity.
And that's not necessarily related to the murder itself.
We're just talking about is this somebody we should believe
when it comes to operation of a commercial property?
And when her tenants are complaining to police
about a human trafficking ring
and they have to raid the property and she says,
no, that didn't happen, they're probably just racist
or they are in other people's businesses and they shouldn't,
I think we can disbelieve her.
-: So on summary judgment on this question of law,
you're suggesting that the judge defer summary judgment
and put special questions to the jury
to resolve whether she should have known?
-: I think when we do the inquiry of knew
or should have known when we get from duty
to foreseeability and then prior crimes,
and then do we believe her when she says,
I didn't know about the prior crimes?
When we get to that level and we're testing the veracity
of the statements of the witnesses,
yes, I believe we have to let that go to a jury.
We can't take that function away.
-: If not believing her is not affirmative evidence
that she knows, it's just, so you need affirmative evidence.
-: I would say the affirmative evidence is she was there,
she was a tenant at the building
combined with the additional affirmative evidence
that she essentially is not,
she's not doing anything at the property
she is supposed to.
-: Is there anywhere in the depositions about the,
going back to Justice Wendlandt's point,
anything in the depositions
about the hours of the nail salon?
-: I believe there is and I don't know the exact hours,
but I think we can assume it closes in the early evening.
I think it's six or seven o'clock.
I'm not going to suggest it was, you know,
midnight or one o'clock in the morning
when most of the crimes take place.
But like I said earlier,
I think when you're talking about a rare instance
of somebody buying a commercial property
with a nightclub in it, the duty of inquiry
follows the use of the property.
And we see that all the time with landlords
and property owners.
You buy a property with a laundromat,
you may do a phase one environmental test.
There's all sorts of special situations.
-: You have to know about a shooting in 2009,
is that part of the duty?
-: I would say that if you inquired about
maybe what happened during your own tenancy,
you might find that out.
Is it part of the duty?
Negligent security law doesn't necessarily have a look back
period that at least that I found where they said it's
10 years or five years.
But we looked at 2014 and we cited 2005 and 2009.
There was other murders, other shootings.
But if you look at just during her tenancy,
the period of time when she says,
no, I didn't know anything,
there's three people being shot outside the club.
There's another gun crime where they find bullet casings
in the parking lot and they hear gunshots.
And I believe there's even a third one.
And there's other violent attacks
where the police are called to the parking lot.
So there's a tremendous amount of foreseeable
similar violent crimes, the question is just.
-: Is there a murder beside the one in 2005?
-: In the sense that somebody died?
No, other people were shot and they thankfully lived.
Justice Lowy: Okay.
-: Any other questions?
Okay, thank you. -: Thank you.
-: Attorney Powers.
-: Good morning, Your Honors, please the court.
Robert Powers on behalf of the appellee, Yu Yun Fan,
she is the sole owner of UTP Realty.
Your Honor, nobody here disputes that the death at issue,
the execution of Mr. Scott was a tragedy.
It was, it was senseless,
but the law cannot lay on a man or a woman's shoulder
or more onerous burden than a judgment
that they are responsible for causing the death
of another person.
And this is not a case, your Honor,
where that judgment not to be rendered.
The judge got it right below, the circumstances of this case
were not created by my client.
She did not control the circumstances
under which Mr. Scott was murdered.
She had no ability to prevent this targeted assassination.
My client.
-: Are you arguing no duty or are you arguing no causation?
Which goes to the jury.
-: Your Honor.
-: How is this a question of law?
I mean that's really the question here.
There's no duty given that there were these shootings,
the murder, whatever in the history of this property
related to the nightclub that she's now inheriting.
Why is there no duty to do something?
I'm not sure what, but.
-: The general rule is there is no duty
on anyone to prevent criminal acts
by a third party. -: Right, yeah,
but we're beyond that. -: Except in rare,
exceptional circumstances.
Our argument is that on the facts of this case,
that there is no duty, but there's also an issue here,
your Honor, with regards to not necessarily causation,
but proximate causation and proximate causation as well.
-: But can we stick with the duty?
-: Absolutely. -: Yeah.
Because I'm wondering why there isn't a special relationship
in light of the history of violence at the nightclub.
-: Your Honor, my client merely owned the property.
-: [Justice Wendlandt] Yeah.
-: She was not operating the nightclub.
As Judge Wilson noted below,
this would be a solid case against the nightclub,
but that's not the case at hand.
The case at hand is against a property owner.
Now, in this case, Ms. Vann operated a nail salon,
so she's closer than an individual, a mere property owner,
a commercial property owner who just leased
the entire premises to somebody
and no longer exercise control.
But still, there is no evidence in the record
that she exercised any control over the operation
of City Limits and its control and the ability to take.
-: But I thought the killing happened in the common areas.
-: Your Honor, if we look at the record,
we see that Mr. Scott had left the premises
and there was a report in the record
where one of the responding officers noticed
that Mr. Scott's body was lying about seven feet
from the front door.
This front door opened up onto a access way
to a parking lot, to other commercial businesses.
There was a very small.
-: But see now you're getting into factual disputes.
I'm not sure how this is helpful for you
on summary judgment.
Let's assume that the murder happened in the common area.
What's your client's duty in light of the history
of violence at the property?
-: In the common area?
Your Honor, I'd still say that there is no duty
because the duty end of the case law
is not only the foreseeability, okay?
But the ability with that knowledge to be able to take
preventative steps, something that might have stopped
what happened from happening.
-: And you're saying that's part of the definition of duty?
-: Absolutely, your Honor, prior cases.
-: Not just foreseeability,
but the ability to prevent this particular crime.
-: I think the.
-: I'm not suggesting it's not, I'm just asking.
-: I think that the cases decided by this court
and by the appeals court have always said
that you need to look to the totality of the circumstances.
It's not just a question of listing prior crimes.
It's not sufficient to just list crimes
that go back 10 years
that have nothing to do with an individual.
The question is in the totality of the circumstances,
was it foreseeable to the defendant
and was the defendant with that understanding
in a position to take reasonable preventative steps?
-: In one sense there's significant case law,
but in another sense, the foreseeability
or should have known and the duty to prevent violence
from a third person,
the context in which we've discussed that
has been in the residential context, the Hotel Lennox case,
that has been referenced,
not necessarily a good case for you,
but that's not about duty, that's about causation.
Duty wasn't contested in that case.
So we don't really have any help
from that Hotel Lennox case.
So why is it that we should carry over our law
from residential to commercial in this context
as it relates to preventing harm from third persons?
-: I don't know, your honor, that there is a distinction
between residential and commercial
when it comes to the prior cases.
For instance, in the Luisi versus Food Master case,
you had the operator of the store and you had the landlord
who leased the property to the operator of the store.
And in that case there a patron of the store was stabbed.
Another patron came in, they took a knife from a display
and they unprovoked stabbed another patron.
The case against the store
was not ripe for summary judgment.
The decision was that needed to go to the jury
because the question of whether or not
they had displayed the knives in a fashion
that created that opportunity for what happened,
that's something that goes to the jury.
But with regards to the landlord,
the issue was decided on duty.
The landlord, the commercial landlord did not have a duty
in those circumstances.
The general rule doesn't say it's the general rule
that applies this way to commercial
and this way to residential properties.
The general rule is that you are not responsible
for the criminal conduct of a third party, okay?
Except in rare exceptional circumstances.
And you look at the totality of the circumstances
facing the defendant to determine the duty.
-: Well, you also have the benefit of the appeals court case
Bellazar where we talk about, okay, if you have a lease
that further attenuates your duty, right?
So here you have a lease, the nightclub owner is responsible
for policing and security in its own facility,
that helps you, we'd be pushing the law a lot
if we hold your client, 'cause we'd not only be
creating a duty of, you know,
the person operating the facility, the nightclub,
but would be extending it to a landlord
who's given out a lease.
Any cases like that?
I mean, I think that's your best argument, right?
-: It is a solid argument, Justice Kafker.
Justice Lowy: Just a coincidence that he wrote that.
(laughs)
-: My apologies then I was unaware of it.
(laughs)
But it is true that in a myriad of areas in the law
that you can look to a contract to determine,
you know, it bears on the issue of duty
and you know, in this case here,
when you've got a commercial landlord
who cedes control to the tenant, yes,
that is one of the factors that ought to be considered
in the totality of the circumstances
in determining whether or not.
-: And the, I mean, I guess to Justice Wendlandt's
question though, which is the harder one, right?
Okay, so it happens in the common area,
but it's not like there's a defect in the common area
or any security problem in the common area
that causes the problem, right?
It's just, you know, if there's a defect,
it's the security within the building, right?
It's within the nightclub.
Do they have enough cops in there, right?
-: Exactly, Your Honor.
You know, the fact that this murder happened
within several feet of the front door does not, you know.
-: And it's not like they threw him out the door, right?
They don't take two guys fighting
and throw them out of the bar and say, go settle it outside.
They don't do that here, right, or do they?
-: No, Your Honor, there is absolutely no evidence
of any interaction between. -: That might be
a little different, right? -: It it would be,
but this case needs to be decided on these facts
and the facts in this case, there was no interaction, okay,
between Drake Scott and Mr. Wright.
-: Well, but what the plaintiff is saying
is if you look at the previous incidents,
there's lots of fights in the club that spill out
into the parking lot.
And that if you have police officers in uniform there,
that that's going to prevent or at least make it less likely
that you're going to have a shooting
steps from the nightclub.
So their view is, well, look,
if you did any due diligence here,
you'd see all these fights
that spilled out into neighborhood, into the parking lot,
including one while you've been landlord.
And so you should know that
having some sort of security there and police officers there
is important for security, in fact, it's your duty to do so.
-: Those are not the facts of this case, Your Honor.
I mean, you say lots yet we go back 10 years to the murder,
okay?
And in the 10 years before. -: Well, February 23rd,
parking lot fight, March 7th, 2004, parking lot fight,
June 6th, 2004, fight in club spills into the parking lot,
July 25th, fight in parking lot.
-: All of which predate my. -: I'm just saying
this is not something that's rare,
its something that keeps on happening.
As a matter of fact, the Randolph licenses
was really concerned about it as the police department.
-: Exactly, Your Honor, except that in this record,
there is no evidence that the town of Randolph
or the police department went to my client
and said anything about this, they went to City Limits.
-: Is there anything in the lease about security?
-: The lease cedes control on operations
and obligates City Limits to conduct their business
in accordance with the law.
There is nothing in the lease specifically
with regards to providing a specific type
or amount of security or to ensure against the loss.
There's nothing of the like and so in that regards,
your Honor, it's a rather simple lease.
But you know, it's also important here, your Honor,
to understand that when we're talking about,
well, a police officer outside of the front door
might have made a difference here,
that the police were outside the front door.
Detective Tuit, who was inside the premises
when he had heard, you know,
about the possibility of trouble brewing afterwards,
had put in a phone call and he testified when he stepped out
of the front door, okay, that within five to 10 seconds
Mr. Wright was being chased by police.
They were right outside the door.
And there was a witness.
-: That's not the point though.
The point is that if the patrons know the police are there,
it's not that some person who was frequenting the club
told an off-duty police officer who made a call.
I'm not saying they're right,
but you have to address the argument,
which is you've got all of these fights
spilling into the parking lot.
You've got shootings that have happened in the parking lot.
And the question that arises in that circumstance,
it doesn't matter simply whether the landlord knows,
you also have to analyze under case law,
whether they should have known,
whether they should have had a police detail there
when it's not every single strip mall,
but when there's an active nightclub.
-: Your Honor, I think for the reasons outlined
in the amicus briefs, okay, for this court to expand a duty
on an individual property owner like my client,
to pay for a police detail to protect a business
who she's just simply leased the property to
and they're responsible for their operations
and no evidence that she knew about what was going on
at 12 o'clock or one o'clock in the morning,
no evidence that the town ever spoke to her,
that would be unfair.
As I said, you know, at the outset, your Honor, laying.
-: Couldn't she pass along the cost to the tenant
through what's called rent? (laughs)
-: Your Honor, certainly, you know,
if you've got a sophisticated commercial entity,
that's probably one of the things
that they're going to talk about.
But when you're talking about a woman
who immigrated here from Vietnam.
-: And is that how we define the duty based on
the commercial landowner?
-: I am not suggesting that Your Honor,
what I'm suggesting is that the rule has to apply
across the board, and the rule is
the totality of the circumstances.
And the judge below looking at the totality
of the circumstances here made a judgment.
That's the province of the court,
the sole province of the court to determine.
And in this case here, Judge Wilson determined
that there was no duty on the facts of this case.
That was the correct decision,
and I would urge the court to affirm the decision
in favor of my client,
thank you. -: Thank you.