This is Part III 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.
WAS THE CAUSE OF THE ACCIDENT FORESEEABLE?
ACTS BY THIRD PARTIES
An apartment complex was renovating a unit and it deposited debris and tile in a nearby wooded area. A group of children subsequently entered the area and began throwing the tile. Undoubtedly, one young boy’s eye was “put out” by a flying piece of tile. The question was raised whether the apartment complex breached a duty not to create a dangerous condition. However, the Court found that the action of plaintiff’s companion was an intervening cause between the apartment complex’s placement of debris and Plaintiff’s injury. It further noted, however, that under the principles of foreseeability a defendant may be held liable for his failure to anticipate an easily-predicted intervening cause and to properly guard against it. But, a defendant may be shielded from liability if the intervening force was a superseding cause. The Court declined to impose a duty upon the complex to reasonably foresee that the discarded scrap tile pieces would be propelled by children at a high rate of speed at the plaintiff. Southland Management Co. v. Brown, 730 So.2d 43 (Miss. 1999).
A business owner has a duty to protect an invitee from acts of third parties where such acts are reasonably foreseeable. Newell v. Jitney Jungle Co., 830 So.2d 621, 623 (Miss. 2002).
Foreseeability of criminal acts can be proved in two ways:
1) that the owner or occupier had actual or constructive knowledge of the assailant’s violent nature, or
2) actual or constructive knowledge that an atmosphere of violence existed on the premises. Gatewood v. Sampson, 812 So.2d 212, 220 (Miss. 2002). See Criminal Conduct section below.
CHILDREN AS TRESPASSERS – ATTRACTIVE NUISANCE DOCTRINE
The Attractive Nuisance Doctrine applies to situations involving child trespassers who may be especially attracted to the items on the premises. Traditionally, the theory of attractive nuisance is that a landowner or occupier is subject to liability for injuries to children trespassing on the landowner or occupier’s premises. Keith v. Peterson, 922 So.2d 4 (Miss.Ct.App. 2005), cert. denied, 926 So.2d 922 (Miss. 2006). However, effective in July of 2016, pursuant to House Bill 767, the duties owned to a trespasser have been codified. This new law maintains the common law duty to avoid willful and wanton injury to adults. However, it establishes several situations with respect to children:
(2) A possessor of real property owes no duty of care to a trespasser, except a duty to refrain from willfully or wantonly injuring such a person.
(3) Notwithstanding subsection (2) of this section, a possessor of real property may be subject to liability for injury to a trespasser if:
(a) The possessor discovers the trespasser in a position of peril on the property and fails to exercise reasonable care to prevent injury to that trespasser; or
(b) The trespasser is a child injured by an artificial condition on the possessor’s property and all of the following apply:
(i) The place where the condition existed was one upon which the possessor knew or had reason to know that a child would be likely to trespass;
(ii) The condition is one of which the possessor knew or had reason to know and which the possessor realized or should have realized would involve an unreasonable risk of death or serious bodily harm to a child;
(iii) The injured child because of his or her youth did not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it;
(iv) The utility to the possessor of maintaining the condition and the burden of eliminating the danger was slight as compared with the risk to the child; and
(v) The possessor failed to exercise reasonable care to eliminate the danger or otherwise to protect the child.
Codified at Miss. Code Ann. § 95-5-31. The new law, maintains the common law defenses and immunities with respect to trespassers:
(4) This section does not create or increase the liability of any possessor of real property and does not affect any immunities from or defenses to civil liability established by another section of the Mississippi Code of 1972 or available at common law to which a possessor of real property may be entitled.
It is unclear exactly what effect this law will have on traditional Mississippi common law in this arena. But it appears to be an attempt to broaden or at least clarify the duties owed to children, even if deemed trespassers.
Traditionally, however, the attractive nuisance doctrine balances two competing interests: first, it considers the interest in protecting children and recognizes that most children will trespass on occasion and are sometimes injured, and second, it weighs the landowner’s interest in not being unreasonably burdened to ensure his property is safe to trespassing children. Harkins v. City of Carthage, 284 So.2d 530 (Miss. 1973).
The traditional doctrine is stated as:
“One who maintains dangerous instrumentalities or appliances on his premises easily accessible to children and of a character likely to attract them in play, or permits dangerous conditions to remain thereon with the knowledge that children are in the habit of resorting thereto for amusement and who fails to exercise ordinary care to prevent children from playing therewith or resorting thereto, is liable to a child . . . who is injured thereby, and who did not know and appreciate the danger incurred by him in playing with the instrumentality or in the vicinity of the dangerous condition, or was too young to be charged with such knowledge.”
Hughes v. Star Homes, Inc., 379 So.2d 301, 304-05 (Miss. 1980) (quoting Lucas v. Hammond, 150 Miss. 369, 381, 116 So. 536, 537 (Miss. 1928).
The plaintiff must prove four elements when a child enters another’s property and is injured by a dangerous condition:
1) that the owner knew or should have known of the dangerous artificial condition,
2) that the owner knew or should have known that children frequent the area
where the dangerous condition exists,
3) that it is unlikely that the child trespasser could appreciate the risk presented, and
4) that the cost to correct the dangerous condition is minimal compared to the
magnitude of the risk.
Again, traditionally, an attractive nuisance must involve an inherently dangerous instrumentality maintained on the premises which is easily accessible to children. Hughes, 379 So.2d 304-05. The Mississippi Supreme Court has held that a railroad turntable, unexploded anti-aircraft shells, dynamite or dynamite caps, or other explosives were inherently dangerous instrumentalities. Keith v. Peterson, 922 So.2d 4, 11 (Miss.Ct.App. 2005) (citing Shemper v. Cleveland, 212 Miss. 213, 54 So.2d 215 (1951); Hercules Powder Co. v. Wolf, 145 Miss. 388, 110 So. 842 (1927); McTighe, Hughey & McTighe v. Johnson, 114 Miss. 862, 75 So. 600 (1917)).