Holcomb Dunbar - North Mississippi Attorneys

Mississippi Premises Liability – Part V

This is Part V, the final installment, of our 2016 Mississippi Premises Liability publication. We hope this information is helpful. But keep in mind that the application and impact of laws can vary widely based on the specific facts involved. This information it should not be used as a substitute for consultation with legal or other competent advisers.

SPECIFIC CIRCUMSTANCES

ANIMALS

Mississippi follows the “one free bite” rule. The first bite effectively provides the land owner with notice of the dangerous propensity of the animal.

There must be proof that the domestic animal exhibited some dangerous propensity or disposition prior to the alleged injury, that the owner knew or should have known of the propensity or disposition, and that the owner should have foreseen that the animal was likely to attack someone. Poy v. Grayson, 273 So.2d 491 (Miss. 1997).

An aggressively growling dog that also chases people is enough to create a jury question of whether there was notice of its dangerous propensity. Mongeaon v. A&V Enterprises, Inc., 733 So.2d 170 (Miss. 1997). However, barking is not considered a propensity separate from its natural inclinations. Poy v. Grayson, 273 So.2d 491 (Miss. 1973), recently discussed in Ringo v. Wilson, 2016WL612093 (Feb. 16, 2016).

However, the “one-free bite” rule may not apply when the type of animal involved has inherent characteristics that place the premises owner on notice of a dangerous propensity. Olier v. Bailey, 2015WL1611772 (Miss. S. Ct). Olier involved a goose who gave chase to a guest who fell when attempting to flee an attacking goose. The particular goose had not previously attacked anyone. The court, however, found that geese in general have such a propensity that a premises owner should have known there was some likelihood that it might attack guests.

APARTMENT COMPLEX MATCHING ROOMMATES

An apartment complex that matches roommates through screenings and background checks does not have a heightened duty to tenants. Galanis v. CMA Management Co., 175 So.3d 1213 (Miss. 2015). However, the Court reversed the summary judgment because the apartment failed to disclose the roommate’s previous criminal conviction under the standard premises owner’s duty of reasonable care.

COMMON AREAS

If the injury occurs in a “common area” the court will look to who had control of the area. For example, in Howell v Holiday, 2011 CA 01789-COA (Miss. Ct. App. 2013), the court found that plaintiff’s status as an invitee or licensee was a jury question. There the plaintiff tripped over an extension cord in front of defendant’s hair salon. The plaintiff was not a customer of the hair salon, but parked in the parking lot after hours to attend an event unrelated to the hair salon. Here the jury must determine who had control over the common area of the premises and responsibility for the alleged dangerous condition of the property.

THRESHOLDS

Raised thresholds are generally not considered unreasonably dangerous. In McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990), the Mississippi Supreme Court found that “a raised threshold was not unreasonably dangerous as a matter of law because the floor itself was at least two inches higher than the exterior walkway. See, Dickinson v. Vanderburg, 141 So.3d 455 (Miss. Ct. App. 2014)(affirming that undamaged thresholds, curbs and steps which are common architectural features are not unreasonably dangerous).

CRACKS IN PARKING LOTS AND SIDEWALKS

Imperfections to a parking lot are generally not considered unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 265 (Miss. 1968). Normally occurring dangers do not become hazardous simply because they contain minor imperfections.

Some examples of where Mississippi Courts have found such conditions to not be unreasonably dangerous:

Differential between sidewalk sections of three to 4 inches are not unreasonably dangerous. City of Biloxi v. Schamback, 157 So.2d 386 (Miss. 1963).

Cracks on the edge of a concrete riser are not unreasonably dangerous conditions. First Nat’l Bank of Vicksburg v. Cutrer, 214 So.2d 465 (Miss. 1968)

One-inch elevation of a sidewalk did not create a dangerous condition. Bond v. City of Long Beach, 908 So.2d 879 (Miss. Ct. App. 2005).

A crevice in the street stretching a half-inch to 3 inches by 18 inches to 2 feet was not enough to make a street unsafe. City of Greenville v. Laury, 159 So. 121 (Miss. 1936)(Cited with approval in Knight v. Picayune Tire Svcs. Inc., 78 So.2d 356 (Miss. Ct. App. 2011)).

Hole between sidewalk sections covered by grass not unreasonably dangerous. City of Meridian v. Raley, 118 So.2d 342 (Miss. 1960).

Threshold 3/4 of an inch, not unreasonably dangerous. McGovern v. Scarborough, 566 So.2d 1225 (Miss. 1990).

Three-inch depression in a sidewalk not unreasonably dangerous. City of Meridian v. Crook, 69 So. 182 (Miss. 1915)(To hold otherwise “would be equivalent to holding that sidewalks in the residence portion of our cities must not deviate three inches from a perfectly smooth surface… The practical result rendering municipalities insurers of the safety of pedestrians.” Id. at 184).

Crack in sidewalk large enough to catch the heel of a pedestrian’s shoe was not unreasonably dangerous. Rowe v. City of Winona, 159 So.2d 282 (Miss. 1964), aff’g directed verdict.

Seven and one-half inch high side walk not unreasonably dangerous. Stanley v. Morgan & Lindsey, Inc., 203 So.2d 473 (Miss. 1967).

Six-inch high curb did not create jury question following a fall. Kroger v. Ware, 512 So.2d 1 281 (Miss. 1987).

An uneven concrete gap in parking a lot was not unreasonably dangerous. Penton v. Boss Hogg Catfish Cabin, LLC, 42 So.3d 1208 (Miss. Ct. App. 2010), Aff’g summary judgment.

Pothole/crack in store’s parking lot did not create an unreasonably dangerous condition because it was of the sort that customers of a business may normally expect to encounter in a parking lot. Jones v. Wal-Mart Stores East, LP, 2016WL1314531 (April 5, 2016), Aff’g summary judgment.

TEST DRIVING A BIKE INSIDE STORE

Leaving its bicycles unlocked and readily available to customers was not an unreasonably dangerous condition in a store. Wilson ex rel. Purser v. Wal-Mart Stores, Inc., 161 So.3d 1128 (Miss. 2015).

And the retail store was not liable for injury resulting from minors who removed the bikes from the rack and rode them around the store.

TRIP OVER PARKING BUMPER

In Jones v. Imperial Palace of Mississippi, LLC, 147 So.3d 318 (Miss. 2014), the Supreme Court affirmed dismissal for the premises owners. Plaintiff alleged that a parking bumper was misaligned and jutted into his path. A casino employee testified that he had reported to his superiors that generally the parking bumpers sometimes became misaligned. However, this testimony was not specific to the particular parking bumper and there was no testimony of how long the particular bumper had been out of place. The Court specifically rejected any effort to use the general knowledge of occasional misalignment of the bumpers. The evidence must be specific to the particular dangerous condition.

CONCRETE BOLLARDS

The Mississippi Supreme Court has provided that as a matter of law, there is no duty owed by a convenience store owner to persons inside the store to erect barriers in order to prevent vehicles from driving through the store’s plate glass window. Carpenter v. Stop-N-Go Markets of Georgia, Inc., 512 So.2d 708 (Miss. 1987).

This rule has consistently been applied to injuries occurring outside the store as well. See, Heard v. Intervest Corp., 856 So.2d 708 (Miss. 1987); Blount v. The Pantry Inc., 936 So.2d 967 (Miss. Ct. App. 2006), and Stanley v. Scott Petroleum Corp., 2015 WL 148915 (Miss. Ct. App. Jan. 13, 2015)(not released for publication)(patrons at a gas station walk-up window hit by out of control vehicle).

However, in Cheeks v. AutoZone, Inc. 2014 WL 4748099 (Miss. 2014), the Mississippi Supreme Court found that AutoZone recognized the hazard by constructing and placing bollards around its entrance. The court noted that certain factual circumstances give rise to the possibility for a duty to arise, such as where the store had assumed the duty by the initial construction of the bollards.

LIABILITY TO INDEPENDENT CONTRACTOR

An independent contractor while on the premises performing work is generally deemed a business invitee. As such, the premises owner has a duty to provide him a reasonably safe place to work or give warnings about any dangers. See, Nelson v. Sanderson Farms, Inc. 969 So.2d 45, 50 (Miss. Ct. App. 2006). Additionally, the premises owner has a duty to conduct reasonable inspections to discovery dangerous conditions on the subject premises. Pigg v. Express Hotel Partners, 991 So.2d 1197, 1199 (Miss. 2008). There is however an exception to the general rules with respect to an independent contractor. A homeowner cannot be held liable for injuries to an independent contractor that “result [] from dangers of which the contractor knew or reasonably should have known. Miss. Code Ann. ¶11-1-66. See, Wilbanks v. Hickman, 2014-CA-01354-COA (Feb. 16, 2016) and Tanner v. Roseburg Forest Products of South, Limited Partnership, 185 So.3d 1062 (Miss. Ct. App. 2016) (holding that that Hoffman exception does not usurp the statutory immunity).

Miss. Code Ann. ¶11-1-66 provides:

No owner, occupant, lessee or managing agent of property shall be liable for the death or injury of an independent contractor or the independent contractor’s employees resulting from dangers of which the contractor knew or reasonably should have known.

DUTY TO RENDER AID

A property owner who holds its property open to the public is in a special relationship with those who accept the invitation to come onto their property and owes an affirmative duty to aid the injured once learning of the injury. Spotlight Skating Rink, Inc. v. Barnes ex rel. Barnes, 988 So.2d 364 (Miss. 2008). This duty includes the duty to take reasonable action to give invitees first aide and to care for them until they can be cared for by others, such as emergency medical technicians.

In 2014, the Mississippi Court of Appeals affirmed this standard and further provided that the duty to render aid does not include performing EMT-level medical rescue efforts such as CPR or using at automated external defibrillator when so trained or available. O’Gwin v. Isle of Capri-Natchez, Inc., 139 So.3d 783 (Miss. Ct. App. 2014).

Recent legislation has created a duty to a trespasser if the owner discovers the trespasser in a position of peril on the property and fails to use reasonable care to prevent injury. It is unclear exactly what effect, if any, this new legislation may have on this line of cases. See Trespasser- Standard of Care.
AUTOMATIC DOORS

Automatic doors are analyzed under the general premises liability standard. The premises owner must have actual or constructive knowledge of the particular hazard, and fail to remedy to warn its invitees. Davis v. Office Max, 131 So.3d 588 (Miss. Ct. App. 2013).

Courts have applied the res ipsa loquitur doctrine to automatic door accidents. This doctrine provides that negligence can be inferred from the particular factual circumstances. However, courts are reluctant to infer negligence and hazard that this doctrine must be applied cautiously. The elements that an injured party must carry to establish this doctrine are:

1. The premises owner had control or management of the automatic doors;
2. The type of injury was in the ordinary course of things that would not have happened if the premises owner had used proper care; and
3. The injury was not the result of the claimant’s own voluntary act.

Gray v. BellSouth Telecomm, Inc., 11 So.3d 1269, 1272 (Miss. Ct. App. 2009).

Some automatic door cases allege both premises liability and product liability claims. The concepts are distinct and apply different standards. This type of case usually arises in allegations against the door manufacturer or seller when the claimant believes the sensors were negligently manufactured or designed. See, Wolf v. The Stanley Works, 757 So.2d 316 (Miss. Ct. App. 2000).
FALLING MERCHANDISE

An owner has a duty to exercise reasonable care in displaying its products so that they will not fall and injure customers. This includes a duty to display merchandise so that it will not fall as a result of the foreseeable acts of other customers. An owner may be liable for injuries sustained when improperly displayed merchandise falls on a customer, falls into an aisle where a customer stumbles over it or falls toward a customer who is injured while attempting to avoid it.

Like the general premises liability analysis, an owner is not liable for a customer’s injuries in a falling-display case unless the owner either created the condition which caused the accident or had actual or constructive notice of the condition. If merchandise is properly displayed, the storekeeper is not liable when another person knocks over the display and injures a customer. See, 293 Premises Liability 3d § 49:17 (2014 ed.)

Res ipsa loquitur can apply to falling merchandise cases where the merchandise was within the owner’s exclusive control, such as where the merchandise was not readily accessible to customers and there was no evidence that customers moved the merchandise, or the product was heavy and there was no evidence of customer abuse or other unforeseeable or uncontrollable event.

Res ipsa loquitur does not apply in falling merchandise cases where the merchandise could have been disarranged by the customer or third persons, such as where the general public had unfettered access to the display or the article in question had actually been moved, thereby eliminating the owner’s exclusive control. Res ipsa loquitur is also inapplicable where there is direct evidence of the cause of the display fall or where the customer, without relying on res ipsa loquitur, has the available means of establishing the storekeeper’s negligence. See, 293 Premises Liability 3d § 49:17 (2014 ed.)

LIQUOR LIABILITY

Mississippi statutory law provides immunity from liability of those who lawfully sell or supply intoxicating beverages by permit. However, this liability limitation does not extend to the holder of an alcoholic beverage permit, his agent, or employee who sells to a visibly intoxicated person. Miss. Code Ann. § 67-3-73.

Social hosts are also immune from liability for serving or furnishing alcoholic beverages to persons who may lawfully consume such beverages. Further, a social host is not liable for those that consume alcohol on his premises and in his absence. These immunities do not apply if the alcohol consumption is forced by the host or he falsely represents that the beverage contains no alcohol. Miss. Code Ann. § 67-3-73.

An adult is prohibited from permitting a party to take place at their home if they are aware that minors are obtaining or consuming alcohol. Miss. Code Ann. § 97-5-49

CIRCUMSTANTIAL EVIDENCE OF DANGEROUS CONDITION

Plaintiff has a duty to show that a dangerous condition was present. That may be demonstrated with circumstantial evidence from which a jury may draw reasonable inferences of defendant’s negligence.

While inferences of negligence may be drawn from circumstantial evidence, those inferences must be the only ones that reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inferences, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts. …

Walz v. HWCC-Tunica, Inc., 2014-CA-00620-COA (Feb. 2, 2016)¶12. The Walz court affirmed summary judgment for a hotel following a fall over a box spring which was off kilter from the bed frame. The court found that there were several explanations of how the bed was moved from its frame, including by the plaintiff on one of his many returns to the room after checking in.

CRIMINAL CONDUCT

Generally criminal acts “break” the causation chain thus alleviating the premises owner from liability. However, such acts may be deemed reasonably foreseeable if the premises owner had cause to anticipate the acts.

Foreseeability for criminal acts can be established by:

1. Actual or constructive knowledge of the parties’ violent nature, or
2. Actual or constructive knowledge that an atmosphere of violence existing on the
premises.

Evidence of the existence of an atmosphere of violence may include “the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises as well as the frequency of criminal activity on the premises.” Lyle v. Mladninich, 584 So.2d 397, 399 (Miss. 1991).

The other crimes in the area or on the premises, must be similar in nature. In Ellis v. Gresham Service Stations, Inc., plaintiff produced numerous incidents of general criminal activity near the store. However, none involved unprovoked assaults. Most were crimes against the store itself. 55 So.3d 1123 (Miss. Ct. App. 2011).

Moreover, you can compare the similar crimes with the overall customer traffic. The Kroger Co. v. Knox, 2009-CA-01008-SCT (June 28, 2012). As a matter of law, in the context of Kroger’s more than three million customer visits over the course of three years; four incidents of criminal activity are wholly insufficient to establish as atmosphere of violence.

Importantly, even if the premises owner has such knowledge, a claimant must still prove that some security measure would have in fact prevented the incident. See, Davis v. Christian Brotherhood, 957 So.2d 390 (Miss. Ct. App. 2007).

In Christian Brotherhood, Lucius Davis was shot at Christian Brotherhood Apartments. Davis was living with this mother at the time. The complex was in a “high” crime area. Davis’ heirs claimed the apartment’s owners were aware of the high crime rate, and the shooting would not have occurred had it maintained security guards, lights, guarded entry, and other such security measures.

Despite the owner’s knowledge, the court noted that the apartment owner’s had previously hired security guards. And importantly, there was no evidence that any suggested security measure – gated access, security cameras, security guard, or lights – would have prevented the particular shooting from actually occurring.

Not only must the premises owner have knowledge of the criminal conduct, but also must be a cause in fact – some corrective action from a security standpoint would have prevented the incident. See Double Quick v. Lymas, 50 So.3d 292 (Miss. 2010).

ABSENT LANDLORD

Absent a specific clause within a lease, a landlord has no responsibility in keeping a leased premises in a safe condition. Titus v. Williams, 844 So.2d 459 (Miss. 2003). The Mississippi Supreme court recently reaffirmed this point and further explained that having a “right of entry” provision or even a lease tied to a percentage of gross profits are not enough to create such a duty on the landlord. Adams v. Hughes, 2015-IA-00167-SCT (May 19, 2016)(reversing and rendering in favor of landlord in an interlocutory appeal from Hinds County, Mississippi).

MULTIPLE OWNERS

An individual may be an invitee as to one owner, but a trespasser to another owner. The injured party’s status as an invitee, licensee or trespasser should be analyzed separately as to each defendant. Thus, a different standard may apply within the same set of facts. In Corley v. Evans, 835 So.2d 30 (Miss. 2003), Stacy Evans Hamrick and her father, James, owned 1000 acres of land. Stacy owned “20%” of the land, but no specific parcel was delineated. Scott Corley was shot during a crawfish boil hosted and planned by Stacy. James knew the event was occurring but took no part in the planning or hosting.

The opinion makes note that the victim was a licensee as to James Evans because, “James derived no benefit from the crawfish boil and was not involved in its promotion or staging.”

See also Elliott v. First Security Bank, 151 So.3d 1059 (Miss. Ct. App. 2014)(finding that plaintiff was an invitee to City, but a licensee as to the Bank for a fall on city sidewalk in front of the bank).

SWIMMING POOLS

Swimming pool owners have a duty to keep the premises reasonably safe and when not reasonably safe, to warn only where there is hidden danger or peril that is not in plain and open view. Handy v. Nejam d/b/a Belleview Place Apartments, 2010-CA-01513-COA (Feb. 28, 2012).

Moreover, the risk of drowning in a pool is open and obvious. Howze v. Garner, 928 So.2d 900, 904 (Miss. Ct. App. 2005). In Howze, the Court noted that the pool owner’s “failure to provide flotation devices, hire certified lifeguards, install a life-line, or [provide] brochures pertaining to pool safety does not constitute a breach of the owners’ duty to warn of hidden perils.”

MALICIOUS PROSECUTION

The required elements of malicious prosecution are:

1) the institution of a proceeding;
2) by, or at the insistence of the defendant;
3) the termination of such proceedings in the plaintiff’s favor;
4) malice in instituting the proceedings;
5) lack of probable cause for the proceedings; and
6) the suffering of injury or damage as a result of the prosecution.

All six elements must be proven by a preponderance of evidence. See, Lee v. MGM Resorts of Mississippi, 2016WL487038 (Feb. 9. 2016).

EXAMPLE:

Carl Williams and Willie Reed were shopping at Winn-Dixie when an employee for Winn-Dixie noticed Reed place meats in her purse. Williams and Reed were confronted by employees and were asked to allow the purse to be searched. However, Williams directed Reed to leave the store and he escorted her from the premises. The employees were able to obtain the license plate number of the vehicle in which they left. An affidavit was signed against Williams and he was subsequently arrested. Williams was later acquitted of the shoplifting charges, and he thereafter filed suit against Winn-Dixie for malicious prosecution. Williams v. Jitney Jungle, 910 So.2d 39 (Miss.Ct.App. 2005). The Court found that Winn-Dixie did not lack probable cause in pursuing the criminal proceedings since an employee witnessed Williams assisting Reed in stealing meat from the store. Additionally, Williams failed to produce any evidence that Winn-Dixie maliciously brought the charges against him. Malice “connotes a prosecution instituted primarily for a purpose other than that of bringing an offender to justice.” Nassar v. Concordia Rod & Gun Club, Inc., 682 So.2d 1035, 1038 (Miss. 1996). The Court affirmed the grant of summary judgment in favor of Winn-Dixie.

In addition, under Mississippi law, dismissal of the proceedings as a result of a voluntary settlement or compromise does not constitute termination in the accused’s favor. Buzz v. Moak, No. 2011-CA-00407-COA (Miss.Ct.App. Sept. 18, 2012) (citing Van v. Grand Casinos of Miss., Inc., 724 So.2d 889, 892 (Miss. 1998)).

USE OF EXPERTS

Generally, the use of an expert to theorize as to the cause or source of hazard, such a spill is insufficient to survive summary judgment. See, Cofield v. Imperial Palace of Mississippi, 147 So.3d 364 (Miss. Ct App. 20014). Cofield lacked any evidence to support the source or length of the time the spill has been on the floor. The expert’s attempt to testify to such was “mere speculation and not based on any evidence in the record.” The Mississippi Supreme Court granted further review of this opinion, but the case was settled before a new opinion was issued. See also, Alqasim v. Capitol City Hotel Investors, 989 So.2d 488 (Miss. Ct. App. 2008).

The Mississippi Court of Appeals has weighed in on the speculative nature to deciding between conflicting inferences:

while inference of negligence may be drawn from circumstantial evidence, those inferences may be the only ones which reasonably could be drawn from the evidence presented, and if the circumstantial evidence presented lends itself equally to several conflicting inference, the trier of fact is not permitted to select the inference it prefers, since to do so would be the equivalent of engaging in pure speculation about the facts.

McCullar v. Boyd Tunica, Inc., 50 So.3d 1009 (Miss. Ct. App. 2010).

 

2018