Monica Martin v. Rankin Circle Apartments
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-02216-COA
MONICA MARTIN, MOTHER, GUARDIAN, AND
ON BEHALF OF THE MINOR CHILDREN: DENISE
PATRICE MARTIN, PASCHA MONIQUE SMITH,
PATRICK CARNELIOUS SMITH, JR., AND PAYCO
MONTAY SMITH
APPELLANT
v.
APPELLEES
RANKIN CIRCLE APARTMENTS D/B/A
MISSISSIPPI INDUSTRIAL COLLEGE HOMES,
INC., D/B/A MISSISSIPPI INDUSTRIAL COLLEGE
HOMES, INC. OF THE CHRISTIAN METHODIST
EPISCOPAL CHURCH; BROWN & ROBINSON
SYSTEMS & SERVICES, P.A.; MARY FRANCES
ROBINSON IN HER CAPACITY AS AN EMPLOYEE
OF BROWN & ROBINSON SYSTEMS & SERVICES;
AND ROBERT YOUNG, IN HIS CAPACITY AS AN
EMPLOYEE OF BROWN & ROBINSON SYSTEMS
& SERVICES, ALL JOINTLY AND SEVERALLY
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEYS FOR APPELLEES:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
10/13/2004
HON. ANDREW K. HOWORTH
MARSHALL COUNTY CIRCUIT COURT
BARRETT JEROME CLISBY
D. REID WAMBLE
DION JEFFERY SHANLEY
JOHN D. BRADY
CIVIL - WRONGFUL DEATH
SUMMARY JUDGMENT FOR DEFENDANTS
AFFIRMED - 06/27/2006
BEFORE MYERS, P.J., SOUTHWICK AND IRVING, JJ.
SOUTHWICK, J., FOR THE COURT:
¶1.
The Marshall County Circuit Court granted summary judgment to defendants in a premises
liability and wrongful death case. The event that led to the suit was the fatal shooting of a man in
the parking lot of an apartment complex. On appeal, the victim’s heirs allege that a common law
premises liability legal standard should not have been applied, as they seek recovery based on
tortious breach of the implied warranty of habitability. Further, even under the premises liability
standard, the heirs allege that the victim was an invitee who was owed a duty of reasonable care in
providing a safe premises. We conclude that the trial court applied the proper standards and the
status of the victim was irrelevant in the grant of summary judgment. We affirm.
FACTS
¶2.
On April 27, 2001, Patrick Smith was shot and killed by Dontral Campbell in the parking lot
of the Rankin Circle Apartments in Holly Springs. Rankin Circle is owned by a division of the
Christian Methodist Episcopal Church and managed by Brown & Robinson Systems. They, along
with Mary Frances Robinson and Robert Young, are the defendants in this suit. Plaintiffs are
Monica Martin, who was Patrick Smith’s girlfriend and mother of his children; Smith’s mother; and
other relatives. We will at times refer to all plaintiffs as “Martin.”
¶3.
The victim Smith and Monica Martin were the parents of four children and were said to be
planning to be married. The shooting occurred after a series of events that was set in motion months
earlier when Martin learned that Smith may have fathered another woman’s child.
¶4.
At about noon on the day of the shooting, Martin completed her shift at work and drove from
Oxford to Holly Springs to visit her sister who lived at Rankin Circle, the apartment complex at
which the shooting later occurred. When she arrived, Smith’s brother asked her to take him to a
restaurant. Martin agreed. On the way, Martin noticed that she was being followed by LaKenya
Hubbard, the woman who allegedly had been impregnated by Smith. Martin took Smith’s brother
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to a restaurant. Then she drove back to Rankin Circle. When she arrived she noticed Smith was
frying fish with various other people. She drove through Rankin Circle, exited, and started toward
another residential area. Martin described her actions as “joy-riding.”
¶5.
At some point during the drive, Martin again noticed she was being followed by Hubbard.
Various other people were in Hubbard’s vehicle. Hubbard would follow Martin for a time, then
Martin would tauntingly follow Hubbard. After a while, Martin stopped at another apartment
complex where Hubbard had parked. While both vehicles were parked, someone from the Hubbard
car approached Martin. Martin rolled down her window. The Hubbard emissary began to question
Martin as to the nature of her business with Hubbard. After a discussion, the person returned to the
Hubbard group, and Martin drove away.
¶6.
Martin returned to Rankin Circle. There, she picked up Patrick Smith and informed him of
the earlier encounter with Hubbard. The two agreed to return to the complex where Martin had left
Hubbard. They were followed in another car by their four children and various friends.
¶7.
En route to the other location to find Hubbard, they noticed Hubbard and others on a street
near Rust College. Martin immediately made a U-turn to follow them.
Martin caught up to
Hubbard. Both groups stopped at a residence owned by one of Hubbard’s cousins, Cedric Hampton.
There were a number of people gathered at the Hampton residence.
¶8.
Smith exited the car and confronted Hubbard about her earlier following of Martin. He told
Hubbard that he did not want a relationship with her. He also told her to leave Martin alone. Others
exchanged angry words, with Martin at some point refusing to fight Hubbard.
¶9.
Smith got back into the car and headed back to Rankin Circle. As the Smith group was
parking, Hampton appeared, flanked by another male, and confronted Smith. Soon Dontral
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Campbell, the person who would kill Smith, arrived and joined in the argument in favor of Hampton.
The argument ended and Campbell and Hampton got into Hampton’s car and drove away.
¶10.
Martin then decided that she wished to resume riding in her car. She and her four children
departed, this time without Smith. A half hour later, Martin returned to Rankin Circle. It was
around 11:00 p.m. She saw a group of people assembled. Smith and Campbell were again arguing.
The nature of this argument is unclear, as there are many perspectives about it in the record.
Regardless of details, the argument was an angry one.
¶11.
There is some conflict in the record as to when a gun first appeared. There is also conflict
as to when the participants learned that Campbell was carrying a weapon, though most recognized
Campbell as being armed. The argument raged, culminating in Campbell’s shooting Smith twice
in the side. Some bystanders dragged Smith between two cars to shield him from further shots.
Campbell fired a few more shots and fled. Smith died hours later.
¶12.
Martin testified that before moving to Oxford, she had lived in Rankin Circle for seventeen
years in the same building and apartment. Martin said that she and Smith met at Rankin Circle as
children. She had known property manager, Mary Frances Robinson, for her entire life.
¶13.
Robinson’s testimony was that she was aware of dangerous conditions at Rankin Circle and
did her utmost to address the safety problems there. These are the measures that she was shown to
have taken: (1) She kept regular business hours at her Rankin Circle office. (2) She arranged with
Officer Robert Young of the Holly Springs Police Department to provide part-time security for the
complex, in exchange for a rent-free apartment. This arrangement was still in place during April
2001, but Young was not present on the evening of the shooting. (3) In addition to Young, Robinson
herself patrolled the complex. She had attended apartment security workshops given by the U.S.
Department of Housing and Urban Development. Also, she had been appointed as an auxiliary
4
policewoman by the mayor of Holly Springs. She had previously made a “citizen’s arrest” of two
people by forcing them in her car and driving them to the police station. (4) She posted “No
Loitering” signs and a notice that guests should be inside their apartments while on the property. (5)
Robinson filed numerous trespassing complaints during the previous year against undesirables who
had been loitering on the property. (6) She maintained a list of people whom she would not allow
on the property. (7) She placed additional lighting in the Rankin Circle parking lot prior to the
shooting. (8) She gated the complex, but local authorities forced her to remove the gate so that there
would be proper access and exit in case of a fire.
¶14.
Robinson said she knew the shooter Campbell and was aware of his criminal record. She
was also aware that Campbell had shot two other people, including Campbell’s own brother.
¶15.
Rankin Circle was subsidized by HUD under the Section Eight program, a feature of which
was providing grant money to reimburse local law enforcement agencies for security protection.
Robinson testified that she was unaware of any private security company then doing business in
Marshall County. As part of its regulation of the complex, HUD performed an annual evaluation
of the property and did not require that the property manager provide security personnel.
¶16.
Holly Springs Chief of Police John Deal testified that Rankin Circle constituted a high crime
area, specifying domestic violence and drug crime. Every witness giving testimony in the record
agreed that Rankin Circle was a high crime area despite Robinson’s efforts.
DISCUSSION
¶17.
On summary judgment, the trial judge applied caselaw concerning the liability of business
premises owners for the acts of criminals on their property. The plaintiffs argue that the circuit judge
applied the wrong legal standard. Instead, we are urged to apply a warranty of habitability.
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¶18.
Since the trial judge granted a motion for summary judgment, we review his decision from
the same perspective and applying the same standards as should have been used below. The
evidence such as affidavits, depositions, and documents, along with all inferences that could be made
from that evidence, are viewed by us in the light favorable to the non-moving party. Travis v.
Stewart, 680 So. 2d 214, 216 (Miss. 1996). We evaluate anew whether the evidence submitted on
the motion reveals that there is no dispute of material fact and whether because of such lack of
dispute, the moving part is entitled to judgment as a matter of law. M.R.C.P. 56 (c); McCullough v.
Cook, 679 So. 2d 627, 630 (Miss. 1996). Summary judgment cannot substitute for a trial to resolve
disputes of material fact, but neither should a trial on undisputed material facts substitute for a
summary judgment. Wolf v. Stanley Works, 757 So. 2d 316, 319 (Miss. Ct. App. 2000).
¶19.
We have summarized the evidence already.
At points we indicated that there was
understandable disagreement about certain details in the events that occurred late at night among
groups of people antagonistic towards each other. The trial judge determined that such facts as were
genuinely disputed were immaterial. Martin’s appellate challenge to that ruling is not so much that
there were material factual disputes, but rather that the undisputed facts did not prove the defendants
entitled to judgment as a matter of law.
¶20.
There are five issues presented to us on appeal. All approach the question of the proper legal
theory to apply, and whether disputes of material fact arise under that theory. We reorganize the
appellate complaints into two parts. First we will discuss the law and relevant facts that Martin
argues should have been applied. Then we examine what the trial court actually did. In that division
we seek proper resolution of the legal ramifications of the shooting on these premises.
1. Implied warranty of habitability
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¶21.
There is an implied warranty of habitability for residential leases. The warranty was first
recognized in a Supreme Court concurring opinion in 1991. O’Cain v. Harvey Freeman & Sons, 603
So. 2d 824, 831 (Miss. 1991) (Sullivan, J., concurring, joined by court majority). The event that led
to the O’Cain litigation was an assault on the tenant of an apartment. The alleged negligence was
an inadequate lock on the sliding door from the patio into the apartment. Id. at 825-26. The plaintiff
was not the assaulted tenant but instead was a roommate who claimed emotional distress from the
assault on her friend. The O’Cain majority found that a claim could be presented under traditional
negligence principles: if the lock was defective, was a latent defect of which the tenant or guest had
no knowledge, and was a proximate cause of allowing the criminal access, and if that entry and the
injuries claimed by the plaintiff were reasonably foreseeable, the elements of a negligence suit
existed. Id. at 829-31. The concurring opinion agreed with allowing the litigation to proceed, but
addressed more generally the tension that the judge found between long-existing caveat emptor rules
applicable to landlords’ obligations to tenants and the realities of a “shift away from agrarian life.
. . . ” Id. at 831 (Sullivan, J., concurring). The concurring justices, which constituted a majority of
the court, believed that the “[m]ore progressive courts” had implied a warranty of habitability into
the “modern landlord-tenant relationships,” effectively ending caveat emptor. Id.
¶22.
The concurrence favored an implied warranty of habitability for residential leases:
Such a holding would be in line with the recent legislative enactment of the
Residential Landlord and Tenant Act (RLTA), H.B. No. 293, Regular Sess. 1991
(effective July 1, 1991), which requires a landlord to “comply with the requirements
of applicable building and housing codes materially affecting health and safety” and
to “[m]aintain the dwelling unit, its plumbing, heating and/or cooling system, in
substantially the same condition as at the inception of the lease····” RLTA, H.B. No.
293, section 12(a) & (b) (Emphasis added). Although the legislature did not expressly
impose a duty upon landlords to provide and maintain fit and habitable premises, by
allowing tenants the right to repair defects and receive reimbursement of the
expenses of such repairs which violate the obligations of the landlord, see RLTA,
H.B. No. 293, section 8, the Legislature has implicitly recognized an implied
warranty of habitability with the standard being the building and housing codes.
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Id. at 832. Under that implied warranty, the landlord owed a duty “to use reasonable care to provide
safe premises at the inception of the lease.” Id. at 833.
¶23.
How to interpret the O’Cain concurring opinion is best answered by examining the
clarifications and elaborations since then. The Mississippi Supreme Court’s first application of
O’Cain emphasized that the implied warranty of habitability does not create negligence per se for
housing code violations. Sweatt v. Murphy, 733 So. 2d 207, 210 (Miss. 1999). Quoting the O’Cain
concurrence, the Sweatt court endorsed this formulation of the warranty:
Recognizing that building and housing codes which affect health and safety generally
are often governed locally, I advocate that the bare minimum standard for an implied
warranty of habitability should require a landlord to provide reasonably safe premises
at the inception of a lease, and to exercise reasonable care to repair dangerous
defective conditions upon notice of their existence by the tenant, unless expressly
waived by the tenant.
Id., quoting O’Cain, 603 So.2d at 833 (Sullivan, J., concurring).
¶24.
The warrantied safety that the plaintiffs argue their deceased was not provided was freedom
from criminal actions. Unlike O’Cain, here there is no allegation of an undeniably repairable defect
in the property such as a broken lock. Instead, the claim is based on the atmosphere of violence and
crime at this apartment complex and the defendants’ failure to remove the threats. At summary
judgment, the plaintiffs claimed such defects as that there was no effective management plan to deal
with crime, that community counseling and seeking feedback from residents would have helped
develop such a plan, and that the security guard was absent the night of the shooting. Whether this
warranty is relevant to such crime prevention considerations is what we now examine.
¶25.
We have reviewed each of the thirteen reported precedents starting with O’Cain that interpret
Mississippi law and use O’Cain or the warranty that it recognized in the premises liability context.
Only in the O’Cain concurring opinion is the implied warranty of habitability discussed as relevant
to a landlord’s duty to protect against criminal conduct. We have quoted relevant excerpts from that
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opinion. It is evident that those judges are using the vehicle of the O’Cain appeal to urge the
abandonment of caveat emptor in the landlord-tenant relationship. Reliance by the concurrence on
the then-recent Residential Landlord and Tenant Act, which is not focused on protections against
criminals but instead on more general standards arising under local housing codes, is also an
indication of the reach of the warranty. O’Cain, 603 So. 2d at 832.
¶26.
Three of the later opinions citing O’Cain involve injuries arising from crimes, but those
opinions refer to the O’Cain majority opinion and its analysis of general premises liability. O’Cain,
603 So. 2d at 830. We will later review those three opinions. Before doing so, we look at the more
common uses of O’Cain. The vast majority of the implied warranty litigation concerns general
physical defects on the premises. E.g., Stonecypher v. Kornhaus, 623 So.2d 955 (Miss. 1993) (seller
of home liability to purchaser for a tree which fell on the property); Green v. Dalewood Property
Owners Association, Inc., 919 So.2d 1000 (Miss. Ct. App.2005) (association of owners allegedly
failed to keep premises reasonably safe for visitor).; Sample v. Haga, 824 So.2d 627 (Miss. Ct.
App.2001) (landlord liability for death of guests in house fire); Houston v. York, 755 So.2d 495
(Miss. Ct. App.1999) (landlord and contractor negligence in installation of a fireplace mantel that
fell and injured tenant). This utilization is consistent with the O’Cain concurrence’s focus, that
tenants were impliedly owed in all leases compliance with basic housing standards.
¶27.
We now examine the three opinions that refer to O’Cain when analyzing responsibility to
protect tenants against criminals. In one precedent, an employee of a lawyer whose office was in a
high-crime area was assaulted. Simpson v. Boyd, 880 So. 2d 1047, 1052 (Miss. 2004). The issue
of negligence per se was discussed, since there was a local ordinance that required buildings to have
emergency exits. Quoting the O’Cain majority opinion and not the concurrence, the court found that
“the question of superceding intervening cause [arising from the actions of a criminal] is so
9
inextricably tied to causation, it is difficult to imagine a circumstance where such an issue would not
be one for the trier of fact.” Id. at 1053, quoting O’Cain, 603 So. 2d at 830. We will discuss in the
next section of our opinion the question of intervening cause.
¶28.
Another precedent applying Mississippi law and citing O’Cain in relation to a crime on
premises also just referred to the majority opinion and not to the concurrence. Whitehead v. Food
Max of Mississippi, Inc., 163 F.2d 265 (5th Cir. 1998). The property on which the assault occurred
was a grocery store and no warranty of habitability was discussed.
¶29.
A decision from this Court also cited the O’Cain majority opinion and never mentioned the
concurrence or a warranty. Price v. Park Management, Inc., 831 So.2d 550 (Miss. Ct. App. 2002).
We concluded that a landlord was not liable where a tenant’s guest was assaulted on the premises.
This Court found that a landlord owed the guest only the duty to refrain from wanton or wilful injury.
Id. at 551-52. More recently, we cited Price for the same principle. Minor Child v. Miss. State Fed.
of Colored Women’s Club Housing for the Elderly in Clinton, No. 2005-CA-00055 (Miss. Ct. App.
March 21, 2006). Apparently the plaintiff in neither case raised the habitability warranty. Two
expert commentators have found Price inconsistent with another one of our precedents. WEEMS &
WEEMS, MISSISSIPPI LAW OF TORTS, § 5-6 (Supp. 2005) (comparing Price to Joiner v. Haley, 777
So. 2d 50, 52 (Miss. Ct. App. 2000), and finding that the guest in Price would under Joiner have
been owed reasonable safety). We will review Joiner next.
¶30.
The remaining decisions citing O’Cain do not involve criminal conduct as the source of
injury. The suits concern defects in the leased property that caused an accidental injury. The first
and most thorough explanation of the interplay of the implied warranty of habitability and general
premises liability rules was in an opinion by Chief Judge McMillin of this Court. Joiner, 777 So.
2d 50. In that suit, the plaintiff alleged that a building project on a rented house had been left in a
10
dangerous condition. Construction of a second floor balcony was commenced then stopped, with
a doorway into thin air one floor above a concrete patio left unsecured. The plaintiff as a guest at
a party held by the renter of the house opened the door and stepped out in order to get fresh air. She
was seriously injured in the fall. Id. at 51. We concluded that there was “no reason why Joiner
should not be permitted to advance a claim sounding in tort against the premises owner, the cause
of action having as its foundation a tortious breach of the implied warranty of habitability standard
announced in O’Cain rather than requiring Joiner, as a matter of law, to proceed under previouslyexisting premises liability decisions.” Id. at 52. We found fact issues of whether this second-floor
doorway into nothingness “was an unreasonably dangerous condition affecting the habitability of the
premises,” and whether the efforts that were taken to secure the door against inadvertent opening
were reasonable. We also concluded that a guest of a tenant would be a proper plaintiff to assert
damages arising from breach of the warranty. Id.
¶31.
Our opinion in Joiner could not alter that a suit under the warranty “is, in essence, a
negligence action” in which the “the standard tort defenses” such as “intervening cause” would
apply. Sweatt, 733 So. 2d at 211-12, quoting O’Cain, 603 So. 2d at 833. Though the implied
warranty arises because of a contractual relationship, breaches of the warranty sound in tort.
¶32.
We will discuss in the next section a standard tort defense that is significant in the final
resolution of this case: the knowledge of the injured person of the dangers on the premises will
prevent recovery for a failure to warn. We find that this defense is consistent with the obligation of
a landlord under the warranty to “provide reasonably safe premises at the inception of a lease, and
to exercise reasonable care to repair dangerous defective conditions upon notice of their existence
by the tenant, unless expressly waived by the tenant.” Sweat, 733 So. 2d at 210, quoting O’Cain,
11
603 So. 2d at 833 (Sullivan, J., concurring). The dangers of crime at Rankin Circle were well-known
by all and steps were taken to address the problems.
¶33.
We find no support in the precedents that the Supreme Court has created dual and
inconsistent principles for gauging the reasonableness of landlords’ general conduct as to crime, one
arising from the usual negligence analysis and the other applicable to the “in essence” negligence
actions that assert a warranty of habitability. The implied warranty of habitability is not a useful
alternative perspective to view whether defendants should have had security guards, a crime
management plan, or other heightened measures to respond to an atmosphere of crime. In O’Cain,
the possible defect in a lock on the apartment door, and whether that defect led to a criminal assault,
are the kind of issues that fit smoothly within the “bare minimum” building and housing code
standards that O’Cain relied upon when a majority of the court abandoned the traditional caveat
emptor doctrine for real property leases. O’Cain, 603 So. 2d at 832. The plaintiffs are seeking far
more than bare minima at Rankin Circle Apartments.
¶34.
Though some states have analyzed liability for third party criminal acts against tenants as part
of the warranty of habitability, others have not found the warranty controlling. 1 FRIEDMAN
ON
LEASES, § 10:1:9 [F], at 10-69 (5th ed. 2005). Whatever the doctrinal label, the result of a claim that
an atmosphere of violence existed is the one reached under premises liability rules.
¶35.
We now turn to the present legal standards for determining whether there has been a tortious
breach of the premises liability duties owed by a landlord to a tenant.
2. Premises liability
¶36.
Much attention is given on appeal to, and for the trial judge and defendants, controlling
authority is found in a relatively recent Supreme Court precedent. Titus v. Williams, 844 So. 2d 459
(Miss. 2003). The plaintiffs deny the relevance of Titus because it is a common law premises
12
liability decision and not one based on a tortious breach of the implied warranty of habitability.
However, we have already compared the analysis that would arise under the warranty theory and find
that it leads us into negligence law. A careful review of Titus is in order.
¶37.
Milton Titus, III was shot and killed by a third party in the parking lot of a convenience store.
The store did not employ a security guard, though a guard had been used by previous owners. The
subject store and surrounding area was well known for its illegal activity, including fights and drug
deals. The shooting came out of an argument over a woman when Titus, who was not privy to the
initial argument, appeared and entered the argument. The situation quickly worsened and Titus was
killed. Id. at 462-64. Titus’s heirs brought suit against the convenience store. The Supreme Court
affirmed the circuit court’s grant of summary judgment to the defendants.
¶38.
The court started with the issue of whether the dangerous conditions constituted active or
affirmative negligence by the store owners. See Hoffman v. Planters Gin Co., 358 So. 2d 1008
(Miss. 1978). The Titus court interpreted Hoffman as finding that a premises owner owed a duty of
ordinary care even to an invitee, when an affirmative act of the owner “subjects a licensee to unusual
danger or increases the hazard to the licensee when the presence of the licensee is known.” Titus,
844 So. 2d at 465. The court found negligence that created the conditions leading to injury, such as
failure to prevent criminal conduct, but that did not initiate the injury-causing actions themselves,
could not be the basis for applying the Hoffman affirmative negligence doctrine. Id. at 466. The
court analyzed this as an absence of proximate cause, which is defined as the “cause which in natural
and continuous sequence unbroken by any efficient intervening cause produces the injury and
without which the result would not have occurred.” Id., quoting Delahoussaye v. Mary Mahoney’s,
Inc., 783 So. 2d 666, 671 (Miss. 2001). The court held the Titus store owner was not actively
13
negligent despite that “an atmosphere of violence” existed on the store premises, the owner knew
this, and failed to rectify the problems. Titus, 844 So. 2d at 466-67.
¶39.
The Titus court retained the distinctions between an invitee, licensee, and trespasser in
premises liability cases. Id. One of the issues raised by the plaintiffs in our appeal is that they
should be considered invitees. The common law analysis employing these distinctions is a three-step
process. First, a determination is made of one’s status as invitee, licensee, or trespasser. Second,
a determination is made of the duty owed the person by the premises owner. Third, a determination
is made of whether the premises owner breached the duty. Id. at 467.
¶40.
For invitees, the owner must keep the premises reasonably safe and warn only of hidden
danger. Invitee status falls on those who enter property at the express or implied invitation of the
owner or occupant to their mutual advantage. A licensee enters property only for his own advantage
but also has the implied permission of the owner. A trespasser is a person who enters without any
right at all – be it express or implied – and does so merely for his own purposes. Property owners
owe both trespassers and licensees the duty to refrain from willful or wanton injury. Id. The
defendants in our case believed Smith was a trespasser.
¶41.
The court found that, although initially a licensee, Titus became a trespasser on the store
property when he returned intent upon fighting. Id. The status, though, was irrelevant. The broadest
duty owed anyone who enters on a landowner’s property was to provide reasonably safe premises
and to warn of hidden dangers. The key holding in Titus is “that the duty to warn disappears entirely
when it is shown that the injured person did, in fact, observe and fully appreciate the peril.” Id.,
quoting Ill. Cent. R.R. v. Crawford, 244 Miss. 300, 315, 143 So. 2d 427, 431 (1962).
¶42.
Turning now to the undisputed facts in the present case, it is evident that the deceased Smith
was fully cognizant of the developing dangers around him. To the extent his heirs argue that
14
allowing a atmosphere of danger to exist at this location was a breach of the defendant’s duty, the
deceased had been participating in that atmosphere for a substantial period of time before the actual
shot was fired. He had been in a position to “observe and fully appreciate the peril” that was
imminent, given the day’s events of which he had clearly been a part. Moreover, the deceased was
not a stranger to these apartments and whatever atmosphere existed there. Martin testified that she
and the deceased, Patrick Smith, met during their childhood at Rankin Circle. Smith had some
contact with Rankin Circle for a significant portion of his life.
¶43.
What we have at most in the present case is that the defendants “furnished the condition” in
which the shooting occurred but did not “put in motion” the shooting itself. Titus, 844 So. 2d at 466,
quoting Newell v. Southern Jitney Jungle Co., 830 So. 2d 621, 623 (Miss. 2002). In Newell, the
Supreme Court held that it would not attach strict liability to property owners for injuries occurring
on the premises “as a result of criminal acts by third parties.” Id. at 624. In our case, the shooter
Campbell’s appearance at the complex is an intervening cause as is recognized both in premises
liability decisions such as Titus and in the warranty of habitability cases such as Sweatt. Nearly
every witness testified to knowing of Campbell’s reputation for criminal activity and violence and
that Patrick Smith was involved with drugs. The defendants did not “put in motion” the events
leading up to the shooting. The deceased needed no further warnings than he received.
¶44.
Martin argues that an outcome-changing distinction is that the shooting in Titus occurred at
a store instead of a residential area. We find no relevance to the duty owed based on that distinction.
As in Titus, there was here an absent property owner (the Christian Methodist Episcopal Church) and
a landlord who operated and controlled Rankin Circle (Mary Frances Robinson). To the extent there
was an “atmosphere of violence” surrounding Rankin Circle, Robinson had tried to address the
problem. An equally important condition underlying the shooting was the accelerating animosities
15
arising during the fatal night’s driving encounters among the principals in this event. It is true that
the implied warranty of habitability applies in residential situations, but we have already discussed
why that warranty does not assist the plaintiffs here.
¶45.
The Mississippi Supreme Court has refused to make owners the insurers of an invitee’s
safety. Strict liability is not imposed on them in premises liability cases. Corley v. Evans, 835 So.
2d 30, 41 (Miss. 2003). Unless those boundaries are crossed, the judgment here was correct.
3. Other issues
¶46.
The plaintiffs argue other theories, such as negligent infliction of emotional distress. We find
that our conclusions as to the defendants’ non-negligent performance of their duty under premises
liability principles removes the necessary negligence or even intentional conduct that must be found
under the other theories.
¶47. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE AND
ROBERTS, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.
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