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Lipp v. Ginger C, L.L.C.

United States District Court, W.D. Missouri, Central Division

January 19, 2017

JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
v.
GINGER C, L.L.C., et al., Defendants.

          ORDER

          NANETTE K. LAUGHREY United States District Judge

         Before the Court is Defendant Ginger C, LLC's Motion for Summary Judgment, [Doc. 359]. For the following reasons, Defendant's Motion is denied.

         I. Background [1" name="FN1" id= "FN1">1]

         Plaintiffs, the surviving parents of Jack Lipp, filed suit alleging negligence against Defendants Ginger C, L.L.C., American Campus Communities (ACC), and Roland Management. The suit stems from Lipp's death, which occurred after he fell off a balcony at 507 South Fourth Street in Columbia, Missouri while attending a party on December 12-13, 2014. Plaintiffs allege Jack Lipp fell because of a defective railing on the balcony.

         A. 507 South Fourth Street

         Defendant Ginger C leases housing for students, with approximately 50 units rented to students in 2015. On October 22, 2014, Defendant Ginger C closed on a contract to purchase the property located at 507 South Fourth Street from Derrow Properties, LLLP. Derrow sold the property to Ginger C on an “as is basis, ” without providing a seller's disclosure statement. Ginger C's sole member, Nakhle Asmar, testified that Ginger C performs “due diligence” when it purchases properties.

         City of Columbia Ordinance § 22-192 provides in pertinent part that, upon the transfer of legal title of any dwelling, the transferee shall either: “Apply for a certificate of compliance or a provisional certificate of compliance” or:

(2) Apply to transfer an existing certificate by complying with subsection (b) of this section.
(b) If the transfer of title occurs within eighteen (18) months of the last satisfactory city rental inspection, and if there have been no complaints regarding the property, the transferee may cause an existing certificate to be transferred for the unexpired portion of the term for which it was issued upon making written application to the community development department, on forms to be supplied by the community development department, within fifteen (15) days from the date of the transfer of title and upon payment of a ten dollar ($10.00) transfer fee per building.

         Mr. Asmar testified to his understanding of this provision: “I have 15 days to look into whether the property has a certificate of compliance. And if it does, whether the certificate is transferable or whether a new certificate is - an application for a new certificate is required. So, 15 days from the day of purchase you initiate the application.”[2" name="FN2" id= "FN2">2] [Doc. 409-1, p. 12]. Ginger C did not file the application for certificate of compliance until November 20, 2014, 29 days after closing on the property.

         The property was leased to four tenants at the time of closing, and Derrow assigned its lease with the tenants to Ginger C. The lease agreement between Ginger C and the tenants of the property provides:

LESSOR or LESSOR's agent shall be entitled and shall have the right at all reasonable times to inspect said premises for any damage or destruction or to determine whether or not LESSEE is performing and observing the covenants and agreements herein contained, and for the purpose of making any necessary repairs.

[Doc. 404');">404');">404');">404');">404');">404');">404');">404-2, p. 2]. When Ginger C took over the lease, the tenants received a notice that stated in part, “[f]or maintenance, please call Roland.” The notice provided Defendant Roland Management's cell phone number as well as Mr. Asmar's cell phone number and email address.

         Mr. Asmar testified that Roland Management typically performed repairs “[i]f something were broken and reported to us.” There was a balcony on the second floor of the property.[3] The only way to access the second story balcony from the interior of the property was through the door in one of the bedrooms.[4" name= "FN4" id="FN4">4] Christopher Strzalka, the tenant whose bedroom could access the balcony, testified that he kicked the balcony railing off of the balcony prior to September 2014. One of Derrow's maintenance employees made a temporary repair to the balcony railing with two inch by four inch boards in September 2014 after Strzalka had kicked it off. Ginger C was made aware of the balcony condition and the temporary repair.

         Before Ginger C closed on the property, Mr. Asmar “walked around the outside” of the home with his realtor. After closing, Derrow employees took Mr. Asmar into the house for a final walk-through and did so without informing the tenants, opening the home with the landlord's own set of keys. Mr. Asmar and the Derrow employees say they did not walk through any of the tenants' bedrooms during the inspection. The Derrow employees testified that the tenants of the property had been problematic and that there had been “half a dozen calls for repairs, ” but that the only question Ginger C asked was “do the tenants pay rent.” [Doc. 430');">430');">430');">430, p. 25].

         Ginger C argues that “no tenant of 507 South Fourth Street contacted Mr. Asmar to complain about the property prior to Jack Lipp's injuries.” Plaintiffs deny this, noting that Mr. Asmar informed the Columbia Police Department that the tenants had complained to him about the balcony's condition. Ginger C objects to this statement because it cites to the Columbia Police Department's “Followup Report, ” [Doc. 409-16], which Ginger C maintains is “unauthenticated and inadmissible hearsay . . . that does not even support the proposition” Plaintiffs stated. The Court disagrees; the police department record is admissible under Fed.R.Evid. 803(8)(A)(iii), and Mr. Asmar's statement is admissible under Fed.R.Evid. 801(d)(2).

         Ginger C and Defendant Roland Management contend that Roland Nabhan first visited the property the day Jack Lipp fell from the balcony. Similarly, Ginger C contends that “[n]either Ginger C nor anyone on its behalf performed maintenance at 507 S. Fourth Street before the party of December 12-13, 2014.” Plaintiffs deny this, noting Mr. Nabhan's testimony that he attends City of Columbia inspections on Ginger C properties and had keys to the home, and citing to a City of Columbia HVAC Inspection Report, [Doc. 409-17]. Ginger C argues the HVAC Inspection Report is “objectionable, inadmissible hearsay.” Through the Parties' limited briefing on the admissibility of this evidence, it appears this Inspection Report is admissible under Fed.R.Evid. 803(6), but this finding is subject to reconsideration during pretrial evidentiary motions.

         B. December 12 - 13, 2014

         Two of the tenants of 507 South Fourth Street, Michael Novak and Christopher Strzalka, were members of the Pi Kappa Phi fraternity at the University of Missouri in the fall of 2014.

         Lukas Reichert, who did not live at the property, served as the “rush chairman” for PKP Fraternity that semester. Novak and his roommates agreed to host a party on Friday, December 12, 2014 and gave Reichert permission to invite potential new members of the fraternity to attend. Reichert informed current and potential new members-“rushees”-about the party. The record reflects that PKP was actively recruiting new members on December 12, 2014, and encouraged potential new members to attend the party. Novak and the other tenants invited other non-fraternity friends to attend as well. There is differing testimony as to how many people attended the party, anywhere from “50-60” to “200, probably less.” See [Doc. 430');">430');">430');">430, p. 8]. Attendees were not asked to show identification upon entering the party, and none of the tenants asked any guest to leave.

         The only way to access the second story balcony from the interior of the property was through the door of Strzalka's bedroom, which he left open for “people he knew” to place their coats and purses.[5] At some point in the evening, two people went inside Strzalka's bedroom and locked the door. After learning this, Strzalka knocked and eventually kicked the door open.[6] No key was needed to access the balcony, but it did have a deadbolt that could be locked or unlocked from the inside. Novak testified that he had a conversation with the other tenants and with Lucas Reichert about locking the balcony door.[7] Strzalka testified that he locked the balcony door the night of the party[8] because he didn't want any guests to go out there, “because it was unsafe.” Even so, Columbia Police believe party attendees had been urinating off the deck throughout the night due to long bathroom lines inside the house.

         None of the tenants of 507 South Fourth Street personally invited Jack Lipp to the party, nor did Lukas Reichert.[9] Molly Yrigoyen, whose brother Peter was a member of the PKP Fraternity, invited Jack Lipp to the party around 11:00 p.m. and he arrived sometime thereafter. Ms. Yrigoyen testified that she saw Lipp speaking with “older guys in the frat, ” although she did not know their names.

         Around 1:00 or 1:30, student Scott Campbell walked out of Strzalka's bedroom and saw Jack Lipp walk into the bedroom. No more than 15 minutes later, Campbell exited the party and saw Lipp lying on the driveway directly below the second story balcony. He was unconscious and bleeding from his head. On December 25, 2014, Lipp died from his injuries.

         On December 13, 2014, the morning after the party, Roland Management placed a deadbolt on the balcony door in order to render it unusable. It took ...


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