Brandy Magnusen v. Pine Belt Investment Corporation
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CA-01235-COA
BRANDY MAGNUSEN
APPELLANT
v.
PINE BELT INVESTMENT CORPORATION
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/25/2006
HON. MICHAEL R. EUBANKS
PEARL RIVER COUNTY CIRCUIT COURT
CATOUCHE JUDGE BODY
L. CLARK HICKS
CIVIL - PERSONAL INJURY
CIRCUIT COURT GRANTED DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT
AFFIRMED - 09/04/2007
BEFORE KING, C.J., GRIFFIS, BARNES, AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
SUMMARY OF THE CASE
¶1.
In this premises liability case, Brandy Magnusen sued Pine Belt Investment Corporation after
she was attacked at a Burger King franchise owned and operated by Pine Belt. Magnusen alleged
that Pine Belt had actual or constructive knowledge that an atmosphere of violence existed at the
Burger King. Pine Belt denied liability.
¶2.
Pine Belt filed a motion for summary judgment and alleged that there was no evidence to
support a theory that a pattern of criminal activity existed in the vicinity of the Burger King. The
circuit court agreed and granted Pine Belt’s motion for summary judgment. Magnusen appeals.
Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
Around 8:00 p.m. on August 22, 2003, Magnusen intended to use the drive-through line at
Burger King in Poplarville, Mississippi. Magnusen felt as though the line was too long, so she never
ordered. As she approached the parking lot exit, a truck moved and blocked her exit. Another truck
blocked her in from behind. According to Magnusen, when she got out of her truck, six men “started
beating on [her].”1 After the six men stopped hitting Magnusen, a Burger King employee went
outside and told Magnusen that employees called an ambulance and the authorities. The employee
invited Magnusen inside so Magnusen could rinse out her mouth.
¶4.
An ambulance arrived shortly before Magnusen’s mother. Magnusen’s mother drove
Magnusen, nineteen years old at the time, to Gulfport Medical Regional Hospital. There, x-rays
revealed that Magnusen’s jaw was broken on both sides. An oral surgeon repaired Magnusen’s jaw
with plates and screws on both sides. Additionally, Magnusen’s jaw was wired shut for six months.
¶5.
On August 30, 2004, Magnusen filed a complaint in the Pearl River County Circuit Court.
Magnusen sued Pine Belt Investment Corporation, the owner of the particular Burger King franchise,
and alleged that Pine Belt was liable for her injuries because Pine Belt failed to provide adequate
security for her. Magnusen also alleged that a pattern of criminal activity existed in the general
vicinity of the premises.
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There exact motive for the attack on Magnusen is unclear. During her deposition,
Magnusen said she did not know why she was attacked. Magnusen had a Stone County license plate
at the time. Speculated theories include inter-county rivalries between Stone County and Pearl River
County and accusations of initial aggression and name-calling by unspecified people from Stone
County. An incident report from the Poplarville Police Department appears in the record, but no one
was arrested for the attack on Magnusen.
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¶6.
On October 24, 2005, Pine Belt filed a motion for summary judgment. Pine Belt claimed that
summary judgment was appropriate because there was no atmosphere of violence on the premises.
Pine Belt also submitted that there was no genuine issue of material fact as to causation.
¶7.
On May 8, 2006, the circuit court granted Pine Belt’s motion for summary judgment. The
circuit court found no genuine issue of material fact as to whether there was an atmosphere of
violence on the Burger King premises. The circuit court also found no genuine issue of material fact
existed as to whether Pine Belt proximately caused Magnusen’s injuries. Magnusen appeals.
STANDARD OF REVIEW
¶8.
This Court conducts a de novo review of orders granting or denying summary judgment.
Mantachie Natural Gas v. Mississippi Valley Gas Co., 594 So.2d 1170, 1172 (Miss. 1992).
According to Rule 56 of the Mississippi Rules of Civil Procedure, a circuit court may grant summary
judgment “if the pleadings, depositions, answers to interrogatories and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” “A fact is material if it ‘tends to resolve
any of the issues, properly raised by the parties.’” Webb v. Jackson, 583 So.2d 946, 949 (Miss. 1991)
(quoting Mink v. Andrew Jackson Cas. Ins. Co., 537 So.2d 431, 433 (Miss. 1988)).
¶9.
The moving party bears the burden of showing that no genuine issue of material fact exists.
Tucker v. Hinds County, 558 So.2d 869, 872 (Miss. 1990). Additionally, the circuit court must view
the evidence in the light most favorable to the non-moving party. Russell v. Orr, 700 So.2d 619, 622
(Miss. 1997). Furthermore, the circuit court must consider motions for summary judgment with a
skeptical eye. Ratliff v. Ratliff, 500 So.2d 981, 981 (Miss. 1986). It is better for the circuit court to
err on the side of denying the motion. Id.
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ANALYSIS
¶10.
“A claim of negligence has four elements: duty, breach, causation, and damages.” Price v.
Park Management, Inc., 831 So.2d 550 (¶5) (Miss. Ct. App. 2002). To prove that the circuit court
should not have granted Pine Belt’s motion for summary judgment, Magnusen had to demonstrate
that a genuine issue of material fact existed regarding the fact that: (a) Pine Belt owed her a duty, (b)
Pine Belt breached that duty, (c) damages, and (d) “a causal connection between the breach and the
damages, such that the breach is the proximate cause of [her] injuries.” Crain v. Cleveland Lodge
1532, Order of the Moose, Inc., 641 So.2d 1186, 1189 (Miss. 1994) (citing Lyle v. Mladinich, 584
So.2d 397, 398 (Miss. 1991)).
¶11.
The duty Pine Belt owed to Magnusen depends on whether Magnusen was a licensee, an
invitee, or a trespasser. This question of status can be a jury question, but where the facts are not in
dispute, the question of status becomes a question of law. Little v. Bell, 719 So.2d 757 (¶17) (Miss.
1998). Here, there is no factual dispute that Magnusen was on the premises of Burger King as a
drive-through customer. A person who goes upon the premises of another as a result of an express
or implied invitation of the owner or occupant for their mutual advantage is classified as an invitee.
Id. at (¶15). As such, Magnusen was an invitee and Pine Belt was duty bound to “keep the premises
reasonably safe and when not reasonably safe to warn only where there is hidden danger or peril that
is not [in] plain and open view.” Id. at (¶16). Said differently, a premises owner owes an invitee a
duty to exercise reasonable care to protect an invitee from reasonably foreseeable injury at the hands
of another. Crain, 641 So.2d at 1189. That being so, we must determine whether Magnusen’s
injury, caused by a third party, was “reasonably foreseeable.”
¶12.
An act may be considered reasonably foreseeable if the premises owner had cause to
anticipate the third party act. Id. “Cause to anticipate” a third party act may arise from (1) actual
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or constructive knowledge of the third party’s violent nature, or (2) actual or constructive knowledge
that an atmosphere of violence existed on the premises. Id. When determining whether a defendant
had actual or constructive knowledge that an atmosphere of violence existed, pertinent factors for
consideration are: (1) “the overall pattern of criminal activity prior to the event in question that
occurred in the general vicinity of the defendant’s business premises,” and (2) “the frequency of
criminal activity on the premises.” Id. at 1189-90.
¶13.
According to the affidavit of Bashir Shams, the owner of Pine Belt, “[t]here was no pattern
of violent criminal activity or other similar activity on the Burger King premises prior to the time
that . . . Magnusen was involved in the incident. There was no frequency of similar criminal activity
or other violent activity on the premises prior to the incident.” Otherwise, the circuit court
considered Magnusen’s deposition and sixteen police reports from 1998 until Magnusen’s attack in
August of 2003.
Magnusen’s deposition did not establish that Burger King had actual or
constructive knowledge that a violent atmosphere existed at Burger King. Rather, Magnusen said
she was unaware of any prior criminal activity at Burger King.
¶14.
As for those sixteen police reports, four of them involved crimes against employees. In
March of 2003, a Burger King employee complained that someone took her purse from her car while
it was parked with the doors unlocked and the driver’s side window rolled down. The report
indicates that the employee suspected that a co-worker was to blame. In September of 2002, an
employee reported that someone took her purse after she left it to take her break. In June of 2001,
an employee reported that someone hit her car and left the scene. In July of 2000, an employee
reported that some of her co-workers were making threatening comments directed at her.
¶15.
Three other police reports involved theft from Burger King. During September of 2002,
employees arrived to open the restaurant and found that someone had broken into the restaurant and
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unsuccessfully tried to break into the safe. In August of 2000, someone stole a blower motor from
the air conditioning unit on the roof of the restaurant. Finally, in December of 1999, an employee
forgot to drop off the deposit bag and, the next morning, the deposit bag was $351 short.
¶16.
Other police reports detailed random crimes committed at or around Burger King. In April
of 2003, an anonymous female called in a bomb threat at Burger King. During February of 2002,
a drunk driver passed out in line at the drive through. In December of 2002, someone tried to pass
a counterfeit $100 bill.
¶17.
Three reported incidents involved assaults on one particular employee. That employee
claimed that, in January of 2001, two men “jumped” the employee from behind and passed a note
that said they were going to kill him. The same employee filed two other reports in February of
2001. One report indicated that, as the employee was on his break, someone grabbed him by the
shirt and hit him on the left side of his head. The report detailed that the employee had no head
trauma. A second report indicated that, as the employee took out the trash, someone cut the
employee with a razor blade and then held the razor to the employee’s throat. These three reports
have no bearing on our consideration because the employee later confessed that he fabricated all of
them.
¶18.
Two more reports involve lost purses by customers. In December of 2001, a customer left
her purse in the restaurant and, when she returned, it was gone. In April of 1998, a customer left her
purse, but employees set it aside. When she went to claim her purse, the employees could not find
it.
¶19.
Finally, one report involved an assault on a customer in the drive-through line. During June
of 2003, a man approached a woman as she waited in her car. The man tried to open the woman’s
car door, but the door was locked. The man then grabbed the woman’s shirt and tried to pull her out
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of her car through the driver’s side window. The person waiting ahead of the woman left his car and
pushed the attacker away.
¶20.
In Stevens v. Triplett, 933 So.2d 983 (¶9) (Miss. Ct. App. 2005), this Court found that
summary judgment was appropriate in a premises liability case when a plaintiff presented police
reports that demonstrated “only a handful of violent crimes in the area in the five years preceding
the incident in question” and none of those crimes occurred on the defendant’s property. Here, there
is proof that some crimes occurred on Burger King’s property, but only one of those crimes could
be considered violent. After careful consideration, we agree with the circuit court that Magnusen
presented no genuine issue of material fact as to whether Burger King had actual or constructive
notice that an atmosphere of violence existed on its property. Accordingly, there is no genuine issue
of material fact that this attack on Magnusen was not reasonably foreseeable by Pine Belt and Pine
Belt owed Magnusen no duty to protect her from that unforeseeable attack. We therefore affirm the
circuit court’s decision to grant summary judgment in Pine Belt’s favor.
¶21. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ISHEE AND CARLTON, JJ., CONCUR.
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