Slips, Trips or Falls, The Real Law
Interrupting the news last night was a lawyer telling anyone who slips, trips or falls in a place of business or store to call so they can help you get you ‘the money you deserve.’ Having spent a good portion of the last 20 years handling these type of cases, typically referred to as premises liability lawsuits, I thought there was way too much left out of that commercial. According to the commercial any fall meant you could get a fat check. Life most things in life, there much more to this story.
Premises liability is a legal concept which establishes the duty owed to someone injured on a landowner’s property as a result of conditions or activities on the property. In Mississippi, premises liability is distinguished by the classification of the complaining party between:
• licensee, and
To review these types of claims, you must first determine into which category they fall. A property owner has a different level of responsibility to the injured party, or claimant, depending on their status at the time.
1. WAS THE CLAIMANT AN INVITEE, LICENSEE, OR TRESPASSER?
A trespasser is “one who enters upon another’s premises without license, invitation or other right.” Hughes v. Star Homes, Inc., 379 So. 2d 301, 303 (Miss. 1980) (citing Kelley v. Sportsmen’s Speedway, Inc., 224 Miss. 632, 80 So. 2d 785 (1955). The Mississippi Supreme Court added that a trespasser enters another’s property “merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement or express or implied assurance of safety from the owner or person in charge.” Titus v. Williams, 844 So.2d 459 (Miss. 2003) (citing White v. Miss. Power & Light Co., 196 So.2d 343, 349 (Miss. 1967)).
Mississippi codified the definition of a trespasser in the 2016 legislative session. See, Miss. Code Ann. 95-5-31. This law defines trespasser as “a person who enters upon the property of another without permission and without an invitation, express or implied, or other legal right.”
A man left the lounge area of the Quarter Inn, a restaurant and lounge in Vicksburg, Mississippi, and climbed through an open window leading to an adjacent rooftop terrace. It was a small window, three feet off the ground and 24 inches by 32 inches. Further, a locked glass door with “NOT AN EXIT” stenciled on the glass was only four feet away from the window. The man fell through the rooftop approximately twenty feet to the ground. The Court noted that he was an invitee at the time he entered the Quarter Inn, however, he became a trespasser when he climbed onto the rooftop terrace. Leffler v. Sharp, 891 So.2d 152 (Miss. 2004).
The local Parent Teacher Association was holding a Winter Carnival at East Tate Elementary School. Anthony Gammel planned on attending the Winter Carnival and parked across the street from the school in the school’s bus parking lot. Anthony was struck by a motorist and killed as he attempted to walk across the roadway to the school. The Court noted the bus parking lot was limited to bus parking only and not used as parking for the general public. The Court held that Anthony was a trespasser on the school’s property when he chose to park in the bus parking lot. Additionally, the Court noted that Anthony lost his status as a trespasser the moment he stepped off the bus parking lot onto the public roadway, and thus was unable to establish any duty owed at the time of the accident by the school. Gammel v. Tate County School District, 995 So.2d 853 (Miss.Ct.App. 2008).
“A licensee is one who enters upon the property of another for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner…” Little v. Bell, 719 So. 2d 757, 760 (Miss. 1998) (quoting Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978)).
A “social guest” is classified as a licensee, or someone who enters a landowner’s or occupier’s premises for his own benefit, pleasure or convenience and with the implied permission of the owner or occupier. Grammar v. Dollar, 911 So.2d 619 (Miss.Ct.App. 2005).
Nuñez was visiting her family and riding an ATV when she crashed into a barbed-wire fence and thrown from the ATV. She alleged that the ATV’s steering and brakes failed and that the owner, Spino, was aware of the problems but failed to warn. In finding that Nuñez was a licensee, the Court noted that she was on Spino’s property riding his ATV for her own pleasure and benefit and was clearly a social guest. The Court further noted that although Nuñez on occasion does some work for Spino, she was merely visiting her family and was not performing any work on the date of the jury. Nuñez v. Spino, 14 So.3d 82 (Miss.Ct.App. 2009).
Plaintiff fell on a walkway and was injured while viewing a neighborhood outdoor Christmas display at the Millers’ residence. Every year the Millers decorated their property with lighting displays and other items symbolic of Christmas and allowed visitors to walk about the property and view the displays. The Millers did not charge admission or receive any form of monetary compensation from visitors to the property. In finding Daulton to be a licensee, the Court noted that the landowner did not receive any tangible form of consideration or obtain any business advantage from the visitors. Daulton v. Miller, 815 So.2d 1237 (Miss.Ct.App. 2001).
An invitee is a person who goes onto the premises of another at the express or implied invitation of the owner or occupant for their mutual advantage. Hoffman v. Planters Gin Co. Inc., 358 So. 2d 1008, 1011 (Miss. 1978); Langford v. Mercurio, 254 Miss. 788, 183 So. 2d 150 (1966); Wright v. Caffey, 239 Miss. 470, 123 So. 2d 841 (1960). A mutual advantage is needed to create invitee status.
Moreover, the benefit received cannot be psychological but must be tangible. Rankin v. Matthews, 2015-CA-00553-COA (2016)(citing Daulton v. Miller, 815 So.2d 1237, 1240 (Miss. Ct. App. 2001)). In Rankin, the Court of Appeals specifically rejected the musician/plaintiff’s assertion that enjoying a free music concert in his garage was a “mutual benefit” such that would convert Rankin into an invitee. ¶13. See also, K.T. v. Klien Road Church of God, 2015-CA-00880-COA (2016)(Mississippi law does not recognize an intangible benefit as a benefit to the landowner in premises liability cases.)
A hired housekeeper has been found to be an invitee in determining the homeowner’s duty of care owed toward the housekeeper. Vaughn v. Ambrosino, 881 So.2d 847 (Miss.Ct.App. 2003).
Church members who do not exceed the scope of the church’s invitation are invitees while attending church for church services or other related functions. Clark v. Moore Memorial United Methodist Church, 538 So.2d 760 (Miss. 1989).
A customer who went to a laundromat as a patron and allegedly tripped and fell on a soft drink can in the parking lot would be considered a business invitee for purposes of premises liability. Ballard v. Watkins, 938 So.2d 298 (Miss.Ct.App. 2006).
A drive-thru restaurant patron that never placed an order because the drive-thru line was too long but instead decided to exit the drive-thru line in an effort to leave the restaurant’s premises was found to be an invitee. Magnusen v. Pine Belt Inv. Corp., 963 So.2d 1279 (Miss.Ct.App. 2007).
A teenager who was visiting his uncle at his uncle’s apartment complex and drowned while swimming in complex’s swimming pool was held to be an invitee. Handy v. Nejam, 2010-CA-01513-COA (2012). The Court noted that the teenager entered the premises as his uncle’s guest and was presumed to be an invitee under the law.
2. WHAT IS IT THAT YOU THE ARE REQUIRED TO DO ONCE THE STATUS IS DECIDED ?
TRESPASSER – STANDARD OF CARE
The duty owed to trespassers is merely to refrain from willfully or wantonly injuring him or her. Little v. Bell, 719 So.2d 757 (Miss. 1998) (citing Adams v. Fred’s Dollar Store of Batesville, 497 So.2d 1097 (Miss. 1986)). An owner or occupier has no duty to protect a trespasser from conditions on the premises.
Traditionally, a homeowner is not liable for injuries resulting from passive negligence, which is “the failure to do something that should have been done.” Titus v. Williams, 844 So.2d 459 (Miss. 2003). However, Governor Bryant signed into House Bill 767 in 2016 which codifies the duties owed to a trespasser. It maintains the common law duty to avoid willful and wanton injury, but also establishes several situations with respect to children or an adult who is in a “position of peril”:
(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 law also contains a final paragraph which appears to maintain the common law defenses and immunities. It is unclear exactly how this statute will be applied and what, if any, effect it will have on the ultimate outcome of a case other than perhaps broadening the “attractive nuisance” doctrine and extending a duty to a trespasser in peril. Nevertheless, subsection (4) specifically reserves the common law immunities and defenses:
(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.
The injured party, Bracknell, failed to present any evidence that the private property owner’s association wantonly or willfully injured him. Bracknell was the guest of a resident, however, his guest pass expired. The association did not enforce its rules and regulations to remove guests whose guest passes expired, and it did not enforce its restriction prohibiting guest boats on the private lake. Subsequently, another guest of one of the property owners whose pass had also expired was driving his personal boat, which was prohibited, and crashed into Bracknell causing injury. The Court found that the owner’s association’s lack of attention did not differ from ordinary negligence and did not rise to wanton or willful. Green v. Dalewood, 919 So.2d 1000 (Miss.Ct.App. 2005).
A septic tank had just been installed on a lot when a young child who lived adjacent to the lot climbed into the tank. As the child climbed from the tank the a 100-pound concrete cover fell on his head, killing him. The boy was found to be a trespasser and the development company was found not to have violated the standard of care owed to him, to wantonly or willfully injure him. Hughes v. Star Homes, Inc., 379 So.2d 301 (Miss. 1980). The Court then turned to the attractive nuisance doctrine and held that the defendants were entitled to a peremptory instruction because there was nothing inherently dangerous about the septic tank and thus the attractive nuisance doctrine did not apply. Id. at 305.
LICENSEE – STANDARD OF CARE
As with a trespasser, a landowner or occupier owes a licensee a duty to refrain from willfully or wantonly injuring him. Adams vs. Fred’s Dollar Store, 497 So.2d 1097, 1100 (Miss. 1986).
In Doe v. Jameson Inn, Inc., a minor female who was the guest of a guest of a registered guest entered the hotel for the express purpose of smoking marijuana. 56 So.3d 549 (Miss. 2011). She was subsequently raped in the hotel room. In finding that the minor was not an invitee, the Court noted that the element of mutual benefit was lacking because the hotel received no benefit by virtue of the minor’s child’s presence on the premises. Id. at 555.
In Turnipseed v. McGee, the Court held that it is the landlord’s duty to exercise reasonable care to keep safe the areas of the premises over which he retains control, and if negligent, and “injury results to a tenant or to a person there in right of the tenant, he is liable in tort.” 236 Miss. 159, 109 So.2d 551, 554 (Miss. 1959).
Relying on Turnipseed, the Court in Lucas v. Miss Housing Authority No. 8 held that an invited guest of an apartment tenant was an invitee to the apartment complex when he was on the premises to use the swimming pool in the common area. 441 So.2d 101 (Miss. 1983). The Court stated that “[i]t would be unconscionable to establish a principle of law that [the apartment complex] owed to the six-year-old child of a tenant the duty to use reasonable care not to injure him and, yet, owed to his six-year-old invited guest, swimming in the same pool, only the duty not to willfully or wantonly injure him.” Id. at 103. See also Doe v. Mississippi State Fed’n of Colored Women’s Club Housing for the Elderly in Clinton, Inc. 941 So.2d 820 (Miss.Ct.App. 2006). Again, in relying on the language expressed in Turnipseed and restated in Lucas, a minor was held to be an invitee by virtue of her occasional weekend visits with her father, who was a tenant of the subject apartment complex.
However, compare the above cases with Price v. Park Management, Inc., where the tenant of an apartment complex and his guest were attacked in the tenant’s apartment. 831 So.2d 550 (Miss.Ct.App. 2002). The Court held that the duty owed to the tenant was to keep the premises in a reasonably safe condition, but the duty owed to the guest of the tenant was that of a trespasser, to refrain from wantonly or willfully injuring him. Id. at 551. The Court noted that it is “well settled that social guests of the tenant are owed no special duty by the landlord, but merely the duty owed by the landlord to trespassers that the landlord not wantonly or willfully injure the guest.” Id. (citing Lucas v. Buddy Jones Ford Lincoln Mercury, 518 So.2d 646, 647 (Miss. 1988)).
INVITEE – STANDARD OF CARE
An invitee is owed the highest duty of care. A landowner or occupier must provide a premise that is reasonably safe and when not reasonably safe to warn hidden dangers or perils, not in plain and open view. Mayfield v. Hairbender, 903 So.2d 733 (Miss. 2005), noted there is a two-part test requiring separate inquiries: (1) whether the owner kept the premises reasonably safe, and (2) whether the owner warned of hidden dangers of which the owner knew or, in the exercise of reasonable care, should have known. Id. at 738. Breaching either duty supports a claim of negligence. Id.
The injured party, an invitee, fell in Home Depot. However, she did not know what caused her to fall. She could only speculate that a pallet or wood piece may have caused her to slip and/or trip, and such speculation contradicted her deposition testimony that she did not know what caused her fall. The Court found that no proof was presented that the injury was the result of negligence by Home Depot and that Home Depot had no knowledge of a dangerous condition. Rod v. Home Depot USA, Inc., 931 So.2d 692 (Miss.Ct.App. 2006).
The Court held it was a question of fact for a jury whether or not Holiday Inn knew or should have known of a loose mirror in its bathroom that subsequently fell and injured Pigg’s minor son an invitee, when he closed the bathroom door on which the mirror hung. Pigg v. Express Hotel Partners, LLC, 991 So.2d 1197 (Miss. 2008).
A hotel guest slipped on a rubber shower mat when exiting the shower. He claimed the mat twisted or slipped causing him to fall. The Court found there was no evidence of a dangerous condition or that the defendant had any knowledge of a dangerous condition. Stanley v. Boyd Tunica, Inc., 29 So.3d 95 (Miss.Ct.App. 2010). A “property owner cannot be found liable for the plaintiff’s injury where no dangerous condition exists.” Id. at 97-98 (citing Delmont v. Harrison County Sch. Dist., 944 So.2d 131, 133 (Miss.Ct.App. 2006)).
Skating rink did not breach a duty owed to its patron that allegedly tripped and fell over a toy while skating. She claimed the toy was thrown onto the floor from the adjacent arcade. However, no evidence was presented that the skating rink employees threw the toy or had any knowledge that the toy was on the skating rink floor. Sullivan v. Skate Zone, Inc., 946 So.2d 828, 832 (Miss.Ct.App. 2007). The Court rejected the “mode of operation” theory of premises liability, which holds that “when an owner of a self-service establishment has actual notice that his mode of operation creates certain risks of harm to customers, and those risks are foreseeable, it is not necessary for the plaintiff to prove notice of the hazard that caused the injury.” Id. (quoting Byrne v. Wal-Mart Stores, Inc., 877 So.2d 462, 466-67 (Miss.Ct.App. 2003)).
But note, the Mississippi Court of Appeals ruling in OIC-Lula, Inc. v. Rueben Smartt, 2014-CA-01459-COA (2016), noting the placement of a wet-floor sign twenty minutes before a fall was not sufficient warning even though Plaintiff walked through that area because when he did, the floor was not wet.
Status Definition Duty Owed
Trespasser Enters property without license, invitation or other right. Refrain from willful or wanton injury (Unless “in peril” or a child injured by an artificial condition – see above)
Licensee Enters property for his own convenience, pleasure or benefit pursuant to the license or implied permission of the owner Refrain from willful or wanton injury
Invitee Enter property with express or implied invitation of the owner or occupant for their mutual advantage Provide a reasonably safe premise and when not reasonably safe to warn only where there is hidden danger or peril that is not plain and open view
There is much more to making a claim for a slip, trip or fall before someone has to issue a check. If your business has been sued or you’d like a review of your business’s premises and procedures before someone’s hurt and calls that lawyer I watched on T.V. last night, call Jonathan Masters at Holcomb Dunbar Attorneys to discuss your issues. 662.234.8775.