Thelma Washington v. Casino America, Inc.,
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CA-02027-COA
THELMA WASHINGTON, IRENE EPPS, ZENESTER MOORE, LEVERN
BUCHANAN AND BETTY WREN
v.
CASINO AMERICA, INC., D/B/A ISLE OF CAPRI VICKSBURG
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANTS:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANTS
APPELLEE
08/31/2000
HON. ISADORE W. PATRICK JR.
WARREN COUNTY CIRCUIT COURT
JAMES C. PATTON JR.
CAROLINE CRAWLEY MOORE
GERALD E. BRADDOCK
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT FOR DEFENDANT
AFFIRMED - 06/25/2002
7/16/2002
BEFORE SOUTHWICK, P.J., THOMAS, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1. Thelma Washington, Irene Epps, Zenester Moore, Loevern Buchanan and Betty Wren (Appellants)
filed suit against Casino America, Inc., doing business as the Isle of Capri of Vicksburg, seeking to recover
damages allegedly sustained in an automobile accident that occurred on the premises of the Casino. The
Warren County Circuit Court granted summary judgment in favor of the Casino. The Appellants have
appealed that decision.
FACTS
¶2. All of the Appellants herein were passengers in an automobile which was owned and being driven on
the parking lot of the Casino by Washington. Washington was attempting to turn into a parking space which
had just been vacated when another vehicle collided with her automobile. Travis Lewis, a Casino security
officer, was patrolling the parking lot at the time and, having observed the two vehicles, went to the scene.
Lewis prepared a written report of the incident in which he indicated that he thought that the drivers of the
two automobiles were having an argument over the parking space. Consequently, he asked the male driver
to allow the female driver to have the parking space and told the male driver that he would assist him in
finding another parking space. The male driver then drove away. Lewis wrote in his report that it was only
after the male driver had driven away that he was informed by the female driver that an accident had
occurred. His report states that he observed only a small dent to the bumper of Washington's automobile.
The male driver, who left the scene, has never been identified.
¶3. One of Washington's passengers attempted to get the tag number of the vehicle; however, that attempt
was fruitless. An officer with the Vicksburg Police Department also came to the scene but refused to get
involved in the matter because it occurred on private property. Washington later went to the Vicksburg
Police Department and personally filed a complaint about the accident.
¶4. The suit filed by the Appellants sought to recover damages for injuries allegedly sustained in the collision
on the grounds that (1) the Casino was responsible for policing and investigating the parking lot and (2) the
failure of the Casino (a) to keep the adverse vehicle on the scene, (b) to obtain information necessary to
determine the adverse driver's identity, (c) to properly investigate the subject incident, and to otherwise
properly supervise and police the subject premises.
¶5. In its order granting summary judgment, the lower court found that the Casino merely responded to an
accident on its premises and the "fact that the [Casino's] employee responded to the accident and was
given some information, i.e., names of parties involved, did not create a duty on the part of the [Casino] to
the [Appellants] to gather and retain information, or restrain a third party from leaving the premises." The
lower court further held that the Appellants "failed to establish a legal duty owed to them by the [Casino]
that was breached."
ANALYSIS OF ISSUE PRESENTED
¶6. Mississippi appellate courts apply a de novo standard of review to a lower court's grant or denial of
summary judgment. Hudson v. Courtesy Motors, Inc., 794 So. 2d 999, 1002 (¶7) (Miss. 2001).
Summary judgment is allowed where there is no genuine issue of material fact, and the moving party is
entitled to summary judgment as a matter of law. M.R.C.P. 56(c). On appeal, the lower court's decision is
reversed only if it appears that triable issues of fact remain when the facts are viewed in the light most
favorable to the nonmoving party. Robinson v. Singing River Hosp. Sys., 732 So. 2d 204, 207 (¶12)
(Miss. 1999).
¶7. The Appellants' theory of liability against the Casino is that the Casino voluntarily assumed a
governmental function, i.e., the investigation of traffic accidents on its premises and, having done so, was
under a duty to perform that duty in a nonnegligent manner. The negligence that is alleged is in regard to the
security officer's failure to properly investigate the accident. More specifically, the Appellants claim that his
failure to obtain information on the identity of the other driver while at the same time acting in a manner
which allegedly prevented them from obtaining such information themselves left them without a means to
seek redress for their injuries. The Appellants concede the novelty of their theory and the attendant lack of
supporting authority. However, we find helpful, though not dispositive on our facts, the reasoning in the
cases of Grimm v. Arizona Board of Pardons and Paroles, 115 Ariz. 260, 564 P.2d 1227 (Ariz. 1977),
and Kassis v. Perronne, 209 So. 2d 444 (Miss. 1968).
¶8. In Grimm, a man who had been shot by a parolee and the parents of a man who was killed by the
parolee during a robbery brought action against the Arizona Board of Pardons and Paroles. Grimm,115
Ariz. at 260, 564 P.2d at 1227. The Superior Court of Pima County granted the Board's motion for
summary judgment and the plaintiffs appealed. The Arizona Supreme Court held that members of the State
Board of Pardons and Paroles owed a duty to individual members of the general public of avoiding grossly
negligent or reckless release of a highly dangerous prisoner, and that genuine issues of fact existed as to
whether release of the prisoner was grossly negligent or reckless, precluding summary judgment for
members of the Board. Id. The court stated the following in its holding:
The Board of Pardons and Paroles in this instance has narrowed its duty from one owed to the
general public to one owed to individuals by assuming parole supervision over, or taking charge of, a
person having dangerous tendencies . . . . Here the Board members voluntarily assumed responsibility
for a highly dangerous person who could be paroled only by Board action. It is black letter tort law
that while inaction is not normally a basis for liability, negligent performance of a duty
voluntarily undertaken may be a basis for liability.
Id. at 267, 1234 (citations omitted) (emphasis added).
¶9. Kassis v. Perronne involved injuries suffered by a tenant from faulty repair work done by the landlord.
In affirming a verdict in favor of the tenant, the court held:
It is well settled, however, that, although the lease does not bind lessor to make repairs, yet if he
voluntarily undertakes to make them during the term of the lease, he is liable for the want of due care
in the execution of the work. This is based upon the principle of liability for negligence, and not
because of any implied covenant to repair or implied consideration.
Kassis, 209 So. 2d at 446.
¶10. The Appellants in the case at bar point out that under the laws of this state the highway patrol, local
sheriffs and local police departments have a clear duty to investigate and report accidents pursuant to
Mississippi Code Annotated section 63-3-411 (Supp. 2001). The report of accidents contemplated by the
statute, according to the Appellants, include the making and filing of a written report which includes the
names, addresses and telephone numbers of persons involved in the accident. They argue that the Casino,
by providing a private parking lot for its patrons' use and providing security personnel to patrol the lot,
undertook to assume the duties of the local police department. Having done so, the Casino was obligated to
perform these duties in a nonnegligent manner, particularly in light of the fact that the local police lacked the
authority to investigate accidents on the Casino's premises.(1)
¶11. The Casino argues that whether it owed a duty to the Appellants is a question of law, and not of fact,
and cites to the case of Lyle v. Mladinich, 584 So. 2d 397, 400 (Miss. 1991), as authority. The cited
authority for Lyle was Harris v. Pizza Hut of Louisiana, Inc., 455 So. 2d 1364 (La. 1984). Harris holds
that, while generally there is no duty to protect others from the criminal activities of third persons, when a
duty to protect others against such criminal misconduct has been assumed, liability may be created by a
negligent breach of that duty. Harris, 455 So. 2d at 1371.
¶12. We see no need to address the question of whether the Casino assumed a duty to investigate and
report traffic accidents occurring in its parking lot. As previously observed, the trial court held that the
Appellants "failed to establish a legal duty owed to them by the [Casino] that was breached." We agree
with the trial court that no duty was breached even if, on the facts of this case, one was owed. As we
explain in the following paragraph, there simply is no genuine issue of material fact as to whether, in this
instance, the security officer was negligent in the performance of that duty.
¶13. The undisputed fact is that the security officer was acting under the misapprehension that what he was
witnessing in the parking lot when he arrived on the scene was a dispute over a parking space. The officer's
conduct in asking the male driver to allow the female driver to occupy the parking space was his attempt at
resolving that dispute and was completely reasonable. In order for the male driver to comply with the
officer's request, it was necessary that the driver move the automobile. Consequently, the officer would not
have had any reason to try to prevent the driver from moving the automobile or to question the driver's
identity.
¶14. It is also undisputed that there was no physical evidence of an automobile collision to alert the security
officer to that fact, other than a small dent on the bumper of the appellants' vehicle, which apparently was
not even noticeable to the officer until it was pointed out. Consequently, not having any way of knowing that
an accident had occurred, the security officer's conduct was beyond reproach.
¶15. It is unfortunate that the male driver took advantage of the situation and allowed the officer to believe
that it was merely a parking space dispute and not an accident that had occurred and then absconded;
however, in the absence of any evidence that the security officer knew or should have known that an
accident had taken place, there can be no finding of negligence on the part of the officer or the Casino.
¶16. Consequently, upon review of the facts in this case in the light most favorable to the Appellants, this
Court does not find a genuine issue of material fact warranting a trial on the merits. Therefore, we agree
with the learned trial judge's decision to grant summary judgment in favor of the Casino.
¶17. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1. The Appellants argue, without supporting authority, that the local police lacked the authority to
investigate the accident on the premises of the Casino. We know of no such limitation on the authority
of the local police. Indeed, Mississippi Code Annotated section 63-3-411 (Supp. 2001) does not
restrict the investigative authority of law enforcement officers to accidents occurring upon the public
roads only of this state.
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