Case of the Day – Friday, February 24, 2023

Toga, Toga!!

So you heard about the sweethearts of Sigma Chi? The story broke about eight years ago about how the Sigma Chi frat brothers at Southern Methodist University – who lived off-campus in an upscale place called Maison des Animaux – harassed the O’Connells, their next-door neighbors, for sport. Oh, the highjinx of these fun-loving rascals! Among other pranks, they liked to urinate on the O’Connells’ fence, write obscenities in the snow in their yard, spit on the O’Connell house and throw raw meat onto the patio (prime cuts of beef, we hope).

It all started with a noise complaint, something to do with the brothers’ 24/7 partying. As the Grinch might have said, “The noise, noise, noise, noise, noise!” Mr. O’Connell said he “brought it to their attention and said ‘you can’t do that.’ They told me they pay rent and they can do whatever they want. It’s their right.”

The O’Connells now, after a year of abuse, had the media worked into a righteous froth. So that should take care of that. But were the brothers right? Can they do whatever they want until you’re finally able to get a crew from Action News to show up with cameras and a scowling investigative reporter?

Consider the poor aggrieved neighbors, the Rileys, in today’s case. They didn’t have an Eyewitness News crew. But they did have a lawyer. The house next door to the Rileys was owned by a landlord who rented it to some dopers. But not just any dopers. This wasn’t just boom boxes blasting the Grateful Dead and the wafting smell of freshly decriminalized marijuana. Nope, the neighbors here were good capitalists, appearing to run a brisk retail operation, with traffic at all hours of the night and unsavory customers. Imagine a 24-hour McDonald’s drive-thru window, but handing out nickel bags instead of Big Macs and Eggs McMuffin. [Editor’s note – we had a lively debate over how to pluralize McDonald’s famous breakfast sandwich. The Editor won.]

The traffic was accompanied by the screeching of tires, the occasional and casual vandalism toward the Rileys’ property, cursing and shouting, and the discharge of firearms. Someone even shot the Rileys’ dog.

Now we’ll put up with a lot, but we won’t put up with that. You shouldn’t shoot a dog. (See this post for more details). The Rileys felt the same. They complained in winter 1999, but nothing changed. The police raided the place, but all they found was some personal-use marijuana. The Rileys complained to landlord Richard Whybrew again. The Attorney General complained to Mr. Whybrew. Nothing happened. Mr. Whybrew said the tenants were paying their rent, so he wasn’t going to do anything. Apparently, he believed that money talks, and neighbors walk.

Riley v. Whybrew, 185 S.W.3d 393 (Ct.App.Tenn. 2005). The Rileys lived in a house in a subdivision next to a house Richard Whybrew leased to the Parkers. Problems ensued.

Shortly after the Parkers moved in, the Rileys began experiencing problems with their tenant neighbors. A high number of unknown persons would come to the Parkers’ house at all hours of the day and night, with horns honking, tires squealing and loud voices. They would drive up, engage in a brief conversation or transaction with a resident at the Parkers’ home, and leave after a few minutes. The Rileys overheard many conversations about the sale of drugs, as well as frequent profane and abusive language. On several occasions, firearms were discharged at the Parkers’ residence at various times during day and night. Some activities were directed toward the Rileys: chemicals were put in their gas tanks, a laser pointer was aimed at Timothy Riley, personal property was stolen from the Rileys’ home, and when the Rileys were seen by the Parkers or their visitors, they were taunted, cursed at or stared at menacingly. The Rileys’ dog was even shot by a visitor to the Parkers’ home.

Of course, sometimes your neighbor’s harassment is a little more subtle …

A month later, the police conducted a raid on the Parkers’ residence, and Marina Parker was arrested for possession of marijuana. Despite the arrest, the disturbing activities at the Parkers’ home continued. As a result, the Rileys employed an attorney to notify Whybrew of the problems. In February 2000, the attorney sent Whybrew a letter informing him that his rental property was “being used for illegal activities, in violation of the housing and zoning codes, and probably in violation of the terms of [the] lease.” Later that month, Whybrew received a letter from the director of the Narcotics Prosecution Unit of the Office of the Shelby County Attorney General about the drug trafficking. The letter noted that the amount of controlled substance found at the Parkers’ home was not enough to compel Whybrew to evict the Parkers, but stated that Carter wanted Whybrew to be aware of the situation. A year later, the Rileys again complained to Whybrew, who said the Parkers had a lease and paid their rent on time, and he did not plan to take action against them.

The Rileys sued Whybrew, the Parkers, and ten “John or Jane Doe” defendants, seeking damages for infliction of emotional distress and asking for abatement of the nuisance. Whybrew asserted that the other defendants were the sole cause of any injuries suffered by the Rileys. Whybrew maintained that the Rileys failed to state a claim upon which relief could be granted and asked the trial court to dismiss the complaint. The trial court granted summary judgment to Whybrew.

Held: The case was reinstated, and the Rileys were entitled to a trial. The Court of Appeals found that a material question of fact existed as to whether Whybrew negligently allowed the tenants’ illegal behavior to continue, and that issue precluded summary judgment against the Rileys on their nuisance claim. The Court agreed that even if Whybrew had had knowledge of his tenants’ illegal activities – including drug use, discharging firearms and harassment – his failure to stop the Parkers’ activities could only be characterized as negligence. Thus, as a matter of law, it could not constitute the intentional infliction of emotional distress.

However, the claim of negligent infliction of emotional distress was related to the claim of negligence for landlord’s failure to abate the nuisance caused by the Parkers’ illegal activities, and as such, the Rileys’ claim for damages for emotional distress was not a stand-alone claim, and could be heard even absent expert medical testimony as to their damages. Most importantly, the Court ruled, while Whybrew argued that there was no breach of any duty to the Rileys because there was no proof that he was aware of the Parkers’ illegal activities until February 2000 (and the Parkers moved from the residence after being served with this lawsuit two months later), it disagreed and held that the Rileys had established a genuine issue of material fact on the claims of maintaining a nuisance and negligent infliction of emotional distress, sufficient to withstand a motion for summary judgment.

The case went back to trial.

– Tom Root