J. Pasquale, Justice of the Superior Court
action arises from John Dacey Looneyâs ("Mr. Dacey
Looney") murder of Richard Steele ("Mr.
Steele" or "decedent") at the condominium
complex where they both resided. Shirley Steele, as personal
representative of the estate of Richard Steele, has filed
suit against the Kings Way Condominium Trust
("KWCT") and Mr. Michael J. Looney ("Defendant
Michael Looney"), Mr. Dacey Looneyâs brother, for
wrongful death, under G.L.c. 229, and negligence. The matter
is now before the Court on Defendant Michael Looneyâs motion
for summary judgment. For the reasons that follow, Defendant
Michael Looneyâs motion is DENIED.
March 23, 2012, Mr. Steele was assaulted by his neighbor, Mr.
Dacey Looney, and later died as a result of his injuries. The
assault took place at Kings Way, a condominium complex,
consisting of three condominium associations and totaling 666
housing units, in Yarmouth Port.
one of the three condominium associations within the larger
Kings Way community. KWTCâs responsibilities include the
managing, supervising, and maintaining of the common areas in
accordance with agreed-upon bylaws for 456 units, including
the decedentâs unit and Defendant Michael Looneyâs unit.
units are individually owned by unit owners while common
areas are owned collectively by unit owners according to
varying proportional interests. KWCT allows people from
either of the trusts or the property management group to put
up notices on bulletin boards in the community post office.
The plaintiff contends that KWCT refused the Yarmouth Police
Department and residentsâ requests to post notice and tore
down notices and photographs of Mr. Dacey Looney that
December of 2005 until the murder, Mr. Dacey Looney-who
suffers from paranoid schizophrenia characterized by auditory
hallucinations and persecutory delusions-resided in a
two-story townhome unit owned by Defendant Michael Looney,
who did not live in the unit. Mr. Dacey Looney lived in the
unit per an agreement with Defendant Michael Looney that
provided Mr. Dacey Looney would take care of their elderly
father, would contribute whatever funds he could toward
household living expenses, would abide by his
psychotherapeutic treatment regimen (which included obtaining
a local psychotherapist and attending regular appointments),
would take his prescribed psychotropic medications, and would
not drink or take drugs other than his prescribed
Dacey Looney was a registered Level 3 Sex Offender. In 1992,
he was convicted for an attempted rape in which he stabbed
the victim in her arm. At the time of that conviction, Mr.
Dacey Looney had been on probation for another attempted rape
that took place in the mid-1980s. When Mr. Dacey Looney moved
into Kings Way, he had completed his prison sentence for the
1992 conviction and was not on any kind of supervised
release. KWCT distributed letters advising residents of Mr.
Dacey Looneyâs presence and Sex Offender status in December
of 2005 and in January of 2006.
2009, Mr. Steele moved into the unit adjacent to Mr. Dacey
Looney. Mr. Steele rented his unit. According to Mr. Dacey
Looney, the two became friends and socialized frequently. Mr.
Dacey Looney also maintains that he informed Mr. Steele of
his status as a Level 3 Sex Offender. The plaintiff disputes
day of the murder, Mr. Steele was entertaining a houseguest,
Ms. Lori Ulves. Mr. Dacey Looney visited Mr. Steeleâs unit to
see if Mr. Steele wanted to "hang out," but Mr.
Steele rebuffed the invitation. Shortly thereafter, Mr. Dacey
Looney confronted Mr. Steele and Ms. Ulves as they were
leaving Mr. Steeleâs unit and attacked them with a baseball
bat. Mr. Steele later died as a result of his injuries. The
parties agree that, at the time of the murder, Mr. Dacey
Looney had stopped taking his medication as directed.
judgment is proper where no genuine issues of material fact
exist and where the summary judgment record entitles the
moving party to judgment as a matter of law. Mass.R.Civ.P.
56(c); Cassesso v. Commissioner of Corr., 390 Mass.
419, 422 (1983). The moving party bears the burden of
affirmatively demonstrating that no genuine issue of material
fact exists for any relevant issue and that the moving party
is entitled to judgment as a matter of law. Pederson v.
Time, Inc.,404 Mass. 14, 17 (1989). The moving party
may satisfy this burden by submitting evidence negating an
essential element of the non-moving partyâs case or by
demonstrating that the non-moving party has no reasonable
expectation of proving an essential element of its case at
trial. See Flesner v. Technical Commân Corp., 410
Mass. 805, 809 (1991). Once this burden is satisfied, the
party opposing summary judgment must allege specific facts
establishing the existence of a genuine issue of material
fact in order to escape summary judgment. See
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