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13-P-1908 Appeals Court

CARINE BELIZAIRE, administratrix,1 vs. DEBORAH A. FURR.

No. 13-P-1908.

Suffolk. October 15, 2014. - September 11, 2015.

Present: Kafker, C.J., Trainor, & Milkey, JJ.

Negligence, One owning or controlling real estate, 

Foreseeability of harm, Duty to prevent harm. Landlord and 

Tenant, Execution of lease, Tenancy at will, Landlord's 

liability to third person. Real Property, Lease.

Civil action commenced in the Superior Court Department on 

October 13, 2010. 

The case was heard by Heidi E. Brieger, J., on a motion for 

summary judgment.

Sheldon S. Ananian for the plaintiff.

Richard E. Bennett for the defendant.

KAFKER, C.J. Carl Hentz Belizaire (the victim) was shot

and killed by an unknown assailant at a party held on September 

19, 2009, in an apartment in a two-family building (the 

 

1 Of the estate of Carl Hentz Belizaire.
2

property) owned by Deborah A. Furr (the defendant). The 

plaintiff, Carine Belizaire, as administratrix of the victim's 

estate, brought suit against the landlord claiming that she was 

negligent for failing to keep the property safe during the 

party. The defendant moved for summary judgment, and a Superior 

Court judge granted it. The plaintiff appealed. Because the 

plaintiff cannot establish essential elements of her negligence

claim,

2 we affirm.

1. Background. Summary judgment is granted where there 

are no genuine issues of material fact, and the moving party is 

entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c), 

as amended, 436 Mass. 1404 (2002). "When reviewing a grant of 

summary judgment we consider the pleadings, depositions, answers 

to interrogatories, and responses to requests for admission 

under Mass.R.Civ.P. 36, 365 Mass. 795 (1974), together with the 

affidavits." Federal Natl. Mort. Assn. v. Hendricks, 463 Mass. 

635, 637 (2012). Our review of the summary judgment record is 

de novo. Miller v. Cotter, 448 Mass. 671, 676 (2007). We make 

all permissible inferences favorable to the nonmoving party, in 

this case the plaintiff, and resolve all disputes or conflicts 

in the summary judgment materials in her favor. Carey v. New 

 

2 The complaint included a separate count labeled "wrongful 

death." The entire focus of the plaintiff's appellate argument, 

however, is on the negligence claim, and we discern no 

meaningful distinction between the two claims. 
3

England Organ Bank, 446 Mass. 270, 273 (2006). We recount the 

facts with these requirements in mind.

A. Ownership of the property. On October 7, 1997, the 

defendant purchased the two-family property at 5-7 Edson Street 

in Dorchester. The defendant lived at 5 Edson Street from 1997 

until 2007, when she moved to Brockton. While she lived at 5 

Edson Street, several of her children resided with her, 

including her sons Thomas and John and her daughter Doreen. 

Throughout the history of her ownership of the property, the 

majority of the property's residents have been the defendant's 

children, their friends, and other family members of the 

defendant. 

Of these residents, the defendant created formal, written 

lease agreements with only two: Latisha Waiters and Rasheda 

Adams. During her deposition, the defendant addressed the 

payment of rent regarding Waiters, Adams, and her children: 

Waiters was the defendant's tenant pursuant to the United States 

Department of Housing and Urban Development Housing Choice 

Voucher Program,

3 who left due to an increase in rent; Adams was 

evicted for nonpayment of rent; and the defendant had a "set-up" 

with her children to do work around the property "in exchange 

 

3 Commonly referred to as "Section 8." Figgs v. Boston 

Hous. Authy., 469 Mass. 354, 355 (2014).
4

for . . . a break on the rent." During 2009, the defendant 

received only "sporadic" payments for rent at the property. 

After Adams was evicted from 7 Edson Street in August of 

2009, the defendant did not list the apartment for rent with a 

rental agency. However, two weeks later, Andrew Korgenay4 moved 

into the apartment.5 Korgenay is a friend of the defendant's 

family, as he had grown up with her son Willie, and both the 

defendant and her son John testified that they had known 

Korgenay for twenty years. Though Korgenay had moved in, he did 

not have much furniture. The defendant testified that she and 

Korgenay had an understanding that Korgenay would rent the 

apartment along with two roommates. Korgenay had not found 

roommates by the time he vacated the apartment some three weeks 

later. No evidence of rent paid, or even an agreement on a 

rental amount, was presented to the motion judge.

B. The night in question. John Furr, one of the 

defendant's sons, testified during his deposition that he 

cohosted with Korgenay the party that took place on September 

19, 2009, at 5-7 Edson Street. John testified that the occasion 

 

4 Korgenay's name is variously spelled "Korngay," 

"Kornegay," and "Korgenay" in the documents associated with this 

case. We adopt the spelling "Korgenay" as used by the Superior 

Court judge in her memorandum of decision and order.

5 The defendant testified that her son, Willie, told her 

that Korgenay was having difficulties with his girlfriend and 

wanted to rent a room at 7 Edson Street. 
5

was intended to be a housewarming party for Korgenay, so both he 

and Korgenay "[c]alled a couple of people" to invite them to the 

party. According to John, the party "wasn't that big" and the 

attendees were comprised of their friends, many of whom were 

mutual. However, John testified that he did not know the victim

or the two people who attended the party with the victim. He 

also did not know the three other individuals who were shot that 

evening at the party. Jennifer Washington, who attended the 

party and was deposed by the plaintiff, testified that she did

not know John, Korgenay, or who threw the party. Washington 

testified that she was not invited by John or Korgenay. 

Washington attended the party with her sister Virginia, and 

her friend Edwidge Doudiou. The three arrived at the property 

between 12:30 P.M. and 1:00 A.M. on the night in question. 

After parking, they walked to the back of the house and up some 

stairs, where a woman standing outside the door charged them 

five dollars each to enter. Washington had attended similar 

types of parties at other locations and stated that usually 

there was an admission fee to enter. The three paid the 

admission fee and entered the kitchen. 

Upon entering the kitchen, Washington noticed a so-called 

"disc jockey" (DJ) in the corner. Though Washington could not 

say for sure whether the DJ was a professional, he was operating 

turntables. In the living room, where Washington estimated 
6

there were forty to fifty people, she observed several large 

speakers that were nearly her height.6 She thought that no

couches, tables, chairs, or other such furniture were present. 

Washington stated that the alcohol was not free at the party --

she was "pretty sure" her sister paid for the drink she 

consumed, though Washington did not witness the exchange. 

Roughly thirty minutes after Washington's arrival at the 

party, the victim and apparently three others were shot by an 

unknown assailant inside the apartment. The victim died, and 

his sister, as administratrix of the victim's estate, brought 

the underlying suit, alleging that it was the defendant's 

negligence, as owner of the property, that caused the victim's 

death. 

C. Prior criminal history at the property. Prior social 

gatherings at the property were limited to events like birthday 

parties and cookouts, and there was no evidence that any 

shootings or other related acts of violence ever took place at 

such gatherings. The shooting of the victim was the only 

incident of gun violence ever to occur on the property. There 

was one threat made with a gun approximately ten years prior to 

the victim's death, which appears to have involved persons 

 

6 Washington stated her height as five feet and eight 

inches, and that the speakers were roughly an inch shorter than 

her. 
7

unrelated to this case.

7 The few other reports on record of 

violence at the property involved domestic disputes, again 

unrelated to this shooting. 

2. Discussion. For the defendant "[t]o be liable for 

negligent conduct, [she] must have failed to discharge a duty of 

care owed to the [victim], harm must have been reasonably 

foreseeable, and the breach or negligence must have been the 

proximate or legal cause of the [victim's] injury." Christopher

v. Father's Huddle Café, Inc., 57 Mass. App. Ct. 217, 222 

(2003), citing Stamas v. Fanning, 345 Mass. 73, 75–76 (1962). 

See Jupin v. Kask, 447 Mass. 141, 146 (2006).

We begin our analysis with the issue of whether there was a 

tenancy in place. This distinction is important, because if a 

tenancy did exist, it limits the defendant's control over the 

premises and further attenuates her from the circumstances 

surrounding the victim's death. This substantially increases 

the plaintiff's burden in establishing that the defendant owed 

the victim a duty to protect against the criminal acts of third 

parties. See Griffiths v. Campbell, 425 Mass. 31, 34 (1997) 

(case law focuses on foreseeability of criminal conduct and 

landlord's ability to prevent that conduct); Luoni v. Berube, 

431 Mass. 729, 732 (2000) (no special relationship obligates 

 

7 No gun was found in the police search of the apartment on 

that occasion.
8

homeowner to protect social guest from other guest's hazardous 

conduct), and cases cited. See generally Restatement (Third) of 

Torts: Liability for Physical and Emotional Harm § 53 (2012)

(lessors owe duty of reasonable care to lessees and lawful 

entrants regarding premises that lessor controls).

A. Korgenay's tenancy. In her memorandum of decision and 

order, the motion judge concluded that "[a]t all relevant times, 

7 Edson Street was orally leased to Andrew Korgenay." The 

plaintiff argues that there was no oral lease and therefore no 

tenancy between the defendant and Korgenay, and that at all 

relevant times the property was under the defendant's exclusive 

control. 

Under Massachusetts law, a tenancy at will may be created 

by an oral lease. See J. W. Grady Co. v. Herrick, 288 Mass. 

304, 309 (1934); Jones v. Webb, 320 Mass. 702, 703 (1947). 

There are two essential requirements for the creation of such a 

tenancy: first, a contractual agreement between the landlord 

and the tenant, and second, that the tenant exclusively occupy 

the premises. See Central Mills Co. v. Hart, 124 Mass. 123, 125 

(1878); Rogers v. Coy, 164 Mass. 391, 392 (1895); Williams v. 

Seder, 306 Mass. 134, 136 (1940). The defendant emphasizes only 

the second requirement. While "occupation by the tenant, with 

the assent of the landlord, is indispensable" to the creation of 

a tenancy at will, Milmore v. Landau, 307 Mass. 589, 591 (1940), 
9

the contractual foundation of a tenancy at will cannot be 

ignored, see Commercial Wharf Corp. v. Boston, 208 Mass. 482, 

489 (1911); Dennett v. Nesson, 244 Mass. 299, 301 (1923); 

Williams v. Seder, supra. As such, the tenant's occupancy of 

the premises must be "for a consideration -- usually the payment 

of rent." Siver v. Atlantic Union College, 338 Mass. 212, 216 

(1958), quoting from Williams v. Seder, supra. While the 

payment of money is not a necessity, some form of consideration 

is required.

In the current case, there is little to "no evidence of any 

consideration for the granted privilege" of Korgenay's 

occupancy. Siver v. Atlantic Union College, supra. Instead it 

appears that there was an expectation that rent would be paid 

and a lease executed when Korgenay acquired roommates in the 

future. Korgenay also was a friend of the family, thereby 

providing a reasonable explanation for his presence on the 

property without consideration during the relevant time period, 

including on the night of the shooting. See ibid. Such a 

gratuitous arrangement does not create a tenancy at will. 

Compare Taylan Realty Co. v. The Student Book Exch., Inc., 354 

Mass. 777, 778 (1968).

On this incomplete record, we conclude that summary 

judgment for the defendant on the ground that there was an oral 

tenancy is problematic, as a trial appears to be necessary to 
10

resolve material issues of fact, particularly the question of 

consideration. However, even if there were no tenancy and the 

defendant retained control over the entire premises, we conclude 

that summary judgment in her favor still would be required. 

B. The role of foreseeability. "As a general rule, a 

landowner does not owe a duty to take affirmative steps to 

protect against dangerous or unlawful acts of third persons." 

Luoni v. Berube, 431 Mass. at 731. The Supreme Judicial Court 

has, however, explained that in certain exceptional 

circumstances, "[l]andlords may be liable for ignoring criminal 

activities that occur on [their] premises and were known or 

should have been known to them." Griffiths v. Campbell, 425 

Mass. at 34. More particularly, liability has been imposed in 

the rare cases "in which a person legally on the premises is 

attacked, and the owner or landlord knew of or should have known 

of both the previous attacks and the potential for a recurrence 

based on a failure to take measures to make the premises safer." 

Id. at 35. In these circumstances, the court has found that a 

"landlord or property owner may be liable for failing to prevent 

reasonably foreseeable criminal acts." Id. at 34. Compare Fund

v. Hotel Lenox of Boston, Inc., 418 Mass. 191, 193-195 (1994)

(summary judgment to defendants reversed because stabbing of 

hotel guest found to be within reasonably foreseeable risk of 

harm given numerous nonviolent crimes and occasional violent 
11

crime in hotel, and inadequate security), with Whittaker v. 

Saraceno, 418 Mass. 196, 197 (1994) (judgment for plaintiff 

reversed; landlord of commercial office building could not be 

held liable for negligence for failing to prevent attack on 

woman who worked in office building because landlord could not 

have reasonably foreseen attack where no prior attacks had 

occurred).

In this context, the "word 'foreseeable' has been used to 

define both the limits of a duty of care and the limits of 

proximate cause." Whittaker v. Saraceno, supra at 198. As the 

court further explained, "As a practical matter, in deciding the 

foreseeability question, it seems not important whether one 

defines a duty as limited to guarding against reasonably 

foreseeable risks of harm or whether one defines the necessary 

causal connection between a breach of duty and some harm as one 

in which the harm was a reasonably foreseeable consequence of 

the breach of the duty." Id. at 198-199. We conclude that the 

"attack on the [victim] was not reasonably foreseeable. There 

was no evidence that the landlord knew or reasonably should have 

known that a physical attack might occur in the [property]." 

Id. at 200. Thus, the required elements, including a duty of 

care owed to the victim, have not been established here. 

There was no evidence of prior shootings or similar violent 

incidents on the property. See Griffiths v. Campbell, 425 Mass.
12

at 34. And though the plaintiff makes much of prior drug 

activity at the property, this is insufficient to support a 

finding of foreseeability. Id. at 35 ("If we were to conclude 

that a homicide was reasonably foreseeable based on the failure 

of a [landowner] to act on a suspicion of illegal drug activity, 

we would be permitting inference upon inference to impose 

liability"). See Whittaker v. Saraceno, supra at 200 (incidents 

of malicious damage to and theft of vehicles and their contents 

did not mean physical attack on plaintiff was foreseeable). 

There was not even evidence of other large parties with 

uninvited guests similar to the one in question taking place on 

the property.8 See id. at 200-201.

Nor was there any evidence that the defendant was 

affiliated in any way with, or knowledgeable about, the

assailant or any dispute that the assailant may have had with 

the victim. The evidence submitted to the motion judge suggests 

that the victim's death was tied to events beyond the party at 

the defendant's property. In October of 2008, someone attempted 

to shoot the victim while he was alone in his car. After that 

incident, the victim's mother sent him to live with relatives in 

Connecticut. He returned to Boston in April of 2009. In July 

 

8 The plaintiff relies on cases imposing liability on tavern 

keepers or restaurant owners. The defendant here was neither. 

Contrast Christopher v. Father's Huddle Café, 57 Mass. App. Ct. 

at 222-226. Hosting an occasional party is quite different.
13

of 2009, the victim's sister bought him a plane ticket to Haiti, 

where he stayed until his return to Boston on September 16, 

2009, a mere three days before the party and his murder. There 

is no evidence that the defendant knew about or was in any way 

associated with the assailant or the underlying dispute between 

the assailant and the victim, a guest. Thus, we conclude that 

summary judgment was properly granted as the harm to the victim 

was not within the scope of foreseeable risk. See Foley v. 

Boston Hous. Authy., 407 Mass. 640, 646 (1990); Whittaker v. 

Saraceno, supra at 200-201.

Judgment affirmed.