United States District Court, W.D. Missouri, Central Division
JOHN P. LIPP and STEPHANIE S. LIPP, Plaintiffs,
GINGER C, L.L.C., et al., Defendants.
NANETTE K. LAUGHREY United States District Judge
the Court is Defendant Ginger C, LLC's Motion for Summary
Judgment, [Doc. 359]. For the following reasons,
Defendant's Motion is denied.
Background [1" name="FN1" id=
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
507 South Fourth Street
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.
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”
(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.
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.
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
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.
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. 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.
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].
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.
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
December 12 - 13, 2014
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.
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.
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. 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. 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. Strzalka testified that he locked
the balcony door the night of the party 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.
the tenants of 507 South Fourth Street personally invited
Jack Lipp to the party, nor did Lukas Reichert. 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.
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.
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 ...