When someone enters your home or a property that you own, they almost always assume that it is safe to do so. This is a pretty reasonable assumption; your guests are not going to stop and ask about any potential hazards before they knock on your door. Your obligation to provide a relatively safe environment for visitors falls under what we refer to as "premises liability". As you may have guessed, this area of the law is extremely broad. After all, any number of things could happen on your property.
In Olier v. Bailey, the Mississippi Supreme Court considered a goose attack and premises liability case. The case arose when plaintiff Janet Olier and defendant Donna Bailey got to know each other through a gardening website. The plaintiff visited the defendant to look at the defendant's plants. There was a "Beware-Attack Geese" sign in the defendant's yard, and she also warned the plaintiff there were geese in the yard. There were buckets around the porch so the geese could drink water and not walk onto the porch.
The plaintiff went past the buckets to look at a banana plant while the defendant stayed on the porch. However, as the plaintiff went over the buckets, a goose squawked at her and she stepped back on to the porch. She told the defendant she couldn't go into the yard because of the geese, but the defendant told her the geese wouldn't bite if she accompanied her. The defendant also gave her a pole to fend off birds. They left the porch and entered the yard, and the geese approached the plaintiff.
The plaintiff got scared, thought the pole was useless, and threw it on the ground. The goose nipped her in the crotch, and she turned to run. She tripped over a bucket and fell, breaking her arm.
The recent Mississippi appellate case Elliot v. First Security Bank arose out of a slip and fall. A woman sued a bank for a shoulder injury she experienced after falling on the sidewalk in front of the bank. She and her son had gone to a restaurant downtown to eat. They couldn't find parking in front of the restaurant, and the woman had a whiskey drink before dinner. After dinner, the woman and her son went back to the car. As she walked to the passenger side of the car, she tripped on the uneven pavement and fell. Although the sidewalk is owned by the city, the bank maintained an easement on it.
The woman got medical care at the local hospital. Doctors told her she had hurt her rotator cuff. She had surgery to repair her rotator cuff and went to physical therapy. The woman asserted that the injury led to medical bills, as well as job loss. The woman sued the city and the bank. She argued that, even though there was no mutual benefit to her being on the sidewalk, she should still be considered the bank's invitee. Premises liability law requires property owners to show the highest degree of care towards invitees. The woman also argued that the city's duty should be imputed to the bank because it owned a sidewalk easement. The woman settled with the city during mediation.
The bank filed a motion for summary judgment. It argued it didn't have a duty to the woman at all because it was closed, she wasn't using the ATM, and she wasn't doing business at the bank. She was only there because her car was parked there, and therefore she was not an invitee.
In Serrano v. Lauren Housing Authority, a Mississippi plaintiff sued a government entity that managed her apartment complex after a fluorescent light box in her kitchen apartment fell, resulting in pieces of drywall hitting her. She sued for breach of implied warranty of habitability as well as premises liability. The apartment complex was managed by the government entity Laurel Housing Authority. The government entity argued that it didn't know, nor should it have known, that the light box would fall and hit someone.
Under Mississippi Code Annotated section 11-46-9(1)(v), a government entity has immunity from liability for dangerous property conditions unless a plaintiff can show notice of the dangerous condition. In this case, the plaintiff had to prove the government entity had actual or constructive notice of the light box in her apartment in order to recover damages. The trial was bifurcated so that the first phase would turn on the issue of liability, and only if the government entity was found liable would the plaintiff be able to present her evidence about damages.
The plaintiff argued that the government knew the light boxes were too heavy for the particular spot in the kitchen where they were hung. The units in the plaintiff's complex had been renovated, and during the renovations, the same type of fluorescent light was installed in each unit. The plaintiff agreed that the government hadn't actually installed the light boxes, but she argued that the government did recognize the fixtures were too heavy for the drywall and was replacing them.
A recent appellate case arose when a man murdered his roommate, Andreas Galanis, in their apartment in Mississippi. The victim's mother and sister sued the murderer as well as the company that owned the apartment complex. They argued that the owner of the apartments negligently failed to warn the victim of the murderer's violent tendencies.
The company that owned the apartments began leasing apartments at the complex in 2006. It marketed the apartments to college students, and among the original tenants was the murderer. The owner hired a management company to manage the apartments. The company instituted a policy of performing background checks on everyone who applied for new leases and those tenants who renewed their leases with an outside service.
When an applicant was not eligible to lease an apartment or renew a lease because of prior criminal history, the applicant received a letter about the negative results, but the owner did not receive a list regarding the criminal record. The murderer in this case sought to renew his lease in 2007, and his background check showed a prior criminal history. The owner told him his renewal application was denied. His attorney sent a letter to the owner, explaining he wasn't a convicted felon and that he's only been charged with credit card fraud. Although he had pled guilty, his case was non-adjudicated, which meant he had submitted to probation but wasn't convicted. As a result, he was permitted to renew the lease.
In Bennett v. Highland Park Apartments, LLC, a woman and her minor children were tenants of an apartment complex. They were at home with a friend when around 8 pm, three people came into the apartment complex through an unguarded gate and forced their way into the apartment. The burglars asked where she kept drugs and money, and the woman and the guest were injured. The burglars left the property and were not apprehended.
The woman sued on behalf of herself and the kids against the apartment complex and the apartment manager. She claimed severe injuries and emotional and mental duress. The woman claimed she and her kids were invitees of the complex and that the complex failed in its duty to adequately and reasonably protect them as people who lived in the community. She claimed the complex failed to fix the gates, lighting, and surveillance cameras and failed to hire security guards. The complex denied it breached a duty owed to the woman or her kids or was otherwise responsible for the burglary.
In general, there is no duty to take affirmative steps to help another person in Mississippi. However, the rules are a little bit different for businesses, which have a duty to act with reasonable care towards patrons. In a recent appellate case, a 67-year-old woman's heart stopped while she was playing slots at the Isle of Capri-Natchez in Mississippi. She collapsed and a patron told the employees. They called an ambulance and did CPR.
The EMTs worked on her and her heart restarted, but her brain had been fatally injured from lack of oxygen. She spent a week on artificial life support, and then her husband stopped support. Her death certificated stated that her cause of death was cardiopulmonary arrest.
The husband sued the casino for wrongful death. He claimed the casino's negligence was the cause of death and that the casino had a duty to give aid to his deceased wife by timely starting CPR or using an AED. In his view, the AED would have prevented her brain death.
Recently, a Mississippi man was killed in a cargo lift accident in Bay St. Louis, and two others were injured. This was the third such accident in Hanover County, and the city has called for routine safety inspections in response, telling homeowners to inspect their lifts at least once a year. Among other things, cargo lifts may need greasing and their cables checked at the inspection. The city makes sure that the lifts and the hookups are within the code, but it recommends that cargo lifts be restricted to lifting cargo.
The accident happened on a Saturday night. The decedent built the utility lift that was attached to his home after Hurricane Katrina. Shortly before the accident, he had tack welded a new floor to the bottom of the lift. The floor fell out under the utility lift, and they fell on concrete. The decedent's friend and his friend's son survived the accident with minor injuries.
In Mississippi, if you are hurt on somebody else's property in a cargo lift or other accident, your ability to recover depends partly on your status on the property. Your status may be as an invitee, licensee, or trespasser. An invitee is somebody who enters property in response to an express or implied invitation of the owner for mutual advantage.
After a protracted and heated litigation (aren't they all?) Coxwell & Associates is pleased to announce that Martez Smith has settled his case against the Remington Hunt Club. Terms of the settlement are confidential. For those who are not regular followers of my blog (I think my Mom and father-in-law Guy Russell are my only regular readers by the way) Martez was shot three (3) times in the parking lot of the Remington Hunt Club located in Hattiesburg, Mississippi. At the time of the shooting, Martez was attending the University of Southern Mississippi and played football for the Golden Eagles. The shooting occurred on November 14, 2010. Martez suffered catastrophic injuries. He was permanently paralyzed from the waist down. Two of Martez' teammates were also shot and filed separate lawsuits. We did not represent them.
Martez' path to justice was littered with numerous obstacles. First, the corporation and individual who owned the Remington Hunt Club filed for bankruptcy. That meant Martez first had to obtain bankruptcy court approval to pursue the case against the club. While this sounds like a simple process, the case was delayed for several months in order for a hearing to be set.
The Remington Hunt Club had become a notorious haven for criminal activity prior to Martez being shot. We asked the Hattiesburg Police Department to produce all the police calls made to the Remington Hunt Club. The police reports showed that the Hattiesburg police department was called out to the club 160 times since the club opened in January 2008 to handle a range of criminal complaints from underage drinking to shootings. In fact, there were several shootings in the parking lot in the weeks prior to Martez being shot.
The ownership did little in the way to protect its customers. The club hired its own security guards but during depositions the owner did not know of any training that was given to the guards and the club did not have any policies and procedures for the guards to follow. The owner did not know what, if any, background checks were made on prospective employees. This was very obvious because several of the guards who were on duty the night Martez was shot belonged to the Gangster Disciples, a national criminal gang. A deposition of the Hattiesburg Detective who investigated Martez' shooting revealed that the Remington Hunt Club was a major gang hang out and the Gangster Disciples "ran things". The ultimate fact that we were going to use at trial was this: The person who shot Martez was identified as a Gangster Disciple. We were going to argue that the Gangster Disciple "security guards" failed to intervene to help Martez because they were actually protecting their fellow gangster.
Things got so bad for the defense that their own security expert changed his opinoins. In his deposition. I was able to get their expert to admit that the club failed to adequately train and supervise their employees, failed to screen prospective employees, and that Martez' shooting was foreseeable based on the past criminal activity at the club.
The defendant finally agreed to talk settlement but they wanted to split the insurance policy limits with Martez other two teammates. Martez was injured much more seriously than his buddies. Our medical expert, economist and vocational expert agreed that Martez' economic damages were in excess of $4 million. There was no way we were going to have Martez take less than he deserved.
We ended up having to sue the insurance company in order to get Martez his full compensation. The defendant filed a motion to continue the impending trial, a clear delay tactic. We objected and the trial judge denied the continuance request. Of course, when you sue another defendant you get more lawyers to deal with. Fortunately we were able to have a fine local defense attorney who, while not agreeing with our position, was very pragmatic. We finally ended up resolving Martez' case.
Last night, at Shuckers Waterfront Grill, a popular Miami bar and grill, the establishment's wooden deck abruptly collapsed, causing unsuspecting patrons to fall into the Biscayne Bay below, along with the tables and umbrellas lining the patio. Not only did this incident scare the patrons, who were dumped into the water as a result of the deck's unexpected collapse, but it also raised questions concerning the owner's liability for these injuries. Investigators will certainly check the owner's records to determine the last time this deck was inspected, or whether any work has been performed on the deck since the last inspection. At the time of the incident, there were around 100 customers on the deck. These patrons were cheering on the Miami Heat in the NBA Finals literally moments before being dumped into the Bay. Before police arrived, some brave bartenders and patrons rescued those still struggling to make their way out of the Bay and onto solid ground. As many as two dozen were injured as a result of the deck's collapse, and fifteen were taken to the hospital, with two in serious condition. A news article detailing the incident can be found here.
Unfortunately, situations like this arise more than you think. The premises owner, or the party occupying the land, owes a duty to the guests on his or her land, and the owner may be held responsible for any injuries that occur on the property. In Premises Liability cases, the injured party must show the following elements: 1) the owner owed a duty to the injured party, 2) the owner breached this duty, 3) the injured party suffered damages as a result of this breach, and 4) a causal connection exists between the owner's breach and the resulting injuries.
To establish these elements, the status, or classification, of the injured party must be considered to determine what duty, if any, the owner owed the injured party. In Mississippi, the injured party may be grouped into one of three categories: invitee, licensee, or trespasser. An invitee enters the premises in response to an express or implied invitation from the owner, for the mutual benefit of both parties. In the article discussed above, the patrons of the restaurant were business invitees, because they entered the restaurant under an invitation from the owner, for the mutual benefit of both parties. A licensee enters the premises, in accordance with the owner's license or implied permission, for his or her own convenience, benefit, or enjoyment. However, a trespasser enters the premises without permission, lacking either a license or invitation from the owner.
After determining the status of the injured party - whether invitee, licensee, or trespasser - the next step is to determine whether the owner breached his or her duty. According to Mississippi law, a premises owner owes a duty to an invitee to keep the premises reasonably safe, and to warn of dangers that are hidden from plain view. However, the owner merely owes licensees and trespassers the duty to not willfully or wantonly injure these visitors.
Next, causation must be considered. In simple terms, the injured party must prove that his or her injury was proximately caused by the owner's breach of duty. Proximate Cause is the cause which ultimately produced the plaintiff's injury; or the act which, if it did not occur, the injury would not have resulted. Lastly, the injured party must establish damages resulting from his or her injury on the owner's premises.
While Premises Liability cases can be difficult to litigate, the attorneys at Coxwell & Associates are more than capable of handling these cases. If you, or a loved one, have any legal questions regarding Premises Liability, or any other legal issue, do not hesitate to call us. For more information, please visit our website.