PHA May Be Liable for Failing to Evict Criminal

Facts: A resident was killed by a stray bullet when a fellow resident fired a gun in the direction of the site's security office. As a result, survivors of the incident sued the PHA for negligently failing to evict the criminal resident at the first instance of violent behavior.

The residents alleged that the PHA didn't evict the criminal resident following an aggravated assault against another resident at the same site in 1998. The suing residents also claimed that that the PHA had a “one-strike” policy in place during 1998 that should have resulted in the resident's eviction after the aggravated assault. Although the PHA didn't evict the resident, it placed him on probation for one year following the 1998 incident. The resident wasn't involved in any other altercations during the probationary period.

The residents also claimed that the PHA didn't properly investigate the resident's criminal background and that they breached the victim's lease agreement by failing to safely maintain the site.

The PHA argued that it owed no duty to the residents with respect to the criminal actions and that it was immune from liability because it could be considered a governmental entity under the Tennessee Governmental Tort Liability Act.

The trial court denied the PHA's request for a judgment without a trial. The PHA appealed, and the appeals court reversed the lower court's decision. The residents asked the state supreme court to reverse the appeals court's decision.

Ruling: The Tennessee Supreme Court reversed the intermediate appellate court's decision, and the case was sent back to the trial court for further proceedings.

Reasoning: The court reasoned that there's no express federal legislation barring negligence lawsuits against PHAs and that permitting the residents to proceed with their negligence claim wouldn't pose an obstacle to the congressional purpose of promoting safe public housing.

HUD regulations give PHAs the discretion to evict residents to promote public housing that's safe and free from crime. Allowing the negligence claim to proceed doesn't restrict the PHA's exercise of discretion or obstruct the purpose of public housing. Instead, allowing the negligence claim to stand promotes safe public housing for residents by providing a remedy when a PHA exercises its federally vested discretion in a negligent manner. Also, its eviction decisions didn't involve planning or policy, but were operational in nature, and therefore weren't subject to immunity under the state's tort liability act.

• Giggers v. Memphis Housing Authority, April 2012