Kathy Virginia Ray v. Blockbuster, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-00744-COA
KATHY VIRGINIA RAY
APPELLANT
v.
BLOCKBUSTER, INC., A DELAWARE
CORPORATION, AND CRYSTAL ADAMS,
INDIVIDUALLY
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:
APPELLEES
03/23/2007
HON. W. SWAN YERGER
HINDS COUNTY CIRCUIT COURT
MICHAEL RICHARD BROWN
ROGEN K. CHHABRA
REBECCA B. COWAN
EDWARD J. CURRIE
DENISE WESLEY
CIVIL - PERSONAL INJURY
SUMMARY JUDGMENT ENTERED
REVERSED AND REMANDED-11/04/2008
BEFORE MYERS, P.J., CHANDLER, BARNES AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
The Circuit Court of Hinds County entered summary judgment in favor of
Blockbuster, Inc., and Crystal Adams. The circuit court found that Kathy Virginia Ray had
presented no material facts on the issue of duty regarding her claim of negligence against
Blockbuster and Adams. Aggrieved, Ray appeals. She argues that the circuit court erred in
relying on Brookhaven Funeral Home, Inc. v. Hill, 820 So. 2d 3 (Miss. Ct. App. 2002) as
authority in issuing its ruling and, therefore, erred in granting summary judgment.
¶2.
Finding that the circuit court was in error when it granted summary judgment to
Blockbuster and Adams, we reverse the judgment of the circuit court and remand the case
for further proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
¶3.
In April 2002, Ray exited a Blockbuster video store franchise in Clinton, Mississippi.
While she was stepping down from the curb that separated the walkway in front of the
franchise from the parking lot, she fell into a pothole, injuring herself. Ray subsequently
filed a negligence claim against the owner of the franchise – Crystal Adams; the parent
company of the franchise where she was injured – Blockbuster, Inc.; and the company that
managed the development where the franchise was located – Madison Development
(Madison).
¶4.
Madison settled with Ray during the early stages of litigation, leaving only
Blockbuster and Adams as defendants. Before trial, Blockbuster filed a motion for summary
judgment in the circuit court, arguing that it lacked any legal duty to warn Ray of the pothole
because it lacked the necessary possession and control over the parking lot needed to give
rise to liability.
¶5.
Ray responded to the motion for summary judgment, claiming that she presented
issues of material fact and citing the lease between Madison and Blockbuster in support of
her position. Specifically, she refers to paragraph ten, which reads as follows:
Lessee agrees to and does hereby indemnify and save Lessor harmless against
any and all claims, demands, damages, costs and expenses, including
reasonable attorneys’ fees for the defense thereof, arising from the conduct or
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management of the business conducted by Lessee in the demised premises, or
from any breach or default on the part of Lessee in the performance of any
covenant or agreement on the part of Lessee to be performed, pursuant to the
terms of this lease, or from any act or negligence of Lessee, its agents,
contractors, servants and employees, in or about the demised premises, the
sidewalks adjoining same and the other areas of the shopping center used by
Lessee in common with others. In the event any action or proceeding is
brought against Lessor by reason of any such claim, Lessee covenants to
defend such action or proceeding.
The lease also required Blockbuster to maintain general liability insurance “for the benefit
and protection of Lessor in an amount not less than $200,000.00 for injuries to any one
person, and not less than $500,000.00 for injuries to more than one person . . . arising out of
any one accident or occurrence.” The insurance policy was to cover “the demised premises,
the sidewalks adjoining the same[,] and other areas of the shopping center.” Ray pointed out
that the lease contemplated that Blockbuster’s customers would use the parking lot. Also,
she argued that according to an answer to her requests for admission, Blockbuster knew
about the defect for over a month, and it admitted that there were no signs warning about the
defect.
¶6.
The circuit court found that there was no genuine issue of material fact on the issue
of duty, but the court did not make any other findings.
The circuit court granted
Blockbuster’s motion for summary judgment, citing Brookhaven in support of its judgment.
It is from that judgment that Ray now appeals.
STANDARD OF REVIEW
¶7.
We review a lower court’s grant of summary judgment de novo. McMillan v.
Rodriguez, 823 So. 2d 1173, 1176-77 (¶9) (Miss. 2002). In reviewing a grant of summary
judgment, we view the evidence in the light most favorable to the nonmoving party, and
3
examine all evidentiary matters before the lower court at the time the judgment was granted.
Id. at 1177 (¶9). If no genuine issue of material fact exists upon review, then a grant of
summary judgment in favor of the moving party is appropriate. Id.
DISCUSSION
¶8.
The only issue that Ray currently presents on appeal is whether the circuit court erred
in granting summary judgment in favor of Blockbuster and Adams. She argues that the
circuit court erred in relying on Brookhaven when instead the court should have looked to
Wilson v. Allday, 487 So. 2d 793 (Miss. 1986) when ruling on the motion.
¶9.
In this case, we are confronted with a question concerning under what circumstances,
if any, a lessee may potentially be held liable to a third party for injuries sustained on
property incidental to, but not on, the leased property. Here, the leased property consists of
the building space leased by the Blockbuster franchise; the incidental property consists of
the parking lot where Ray was injured. The third party in this case is Ray, a business invitee.
¶10.
The prevailing law in this state is that liability can be imposed on a lessee for injuries
sustained by invitees, regardless of the contractual relationship between the lessor and the
lessee, so long as the lessee exercised some degree of possession and control over the
property. Wilson, 487 So. 2d at 797. In Wilson, a woman leaving a grocery store was
injured when her shopping cart became caught in a pothole in the parking lot. Id. at 795.
The grocery store shared the parking lot with other businesses, and the lease agreement
between the grocery store (as lessee) and the owner of the development (as lessor) specified
that the owner of the development would keep the parking lot in good repair. Id. at 794-95.
¶11.
In holding that the grocery store could potentially be held liable for injuries sustained
4
by its customers in the parking lot, the Wilson court stated that: “If the lessee’s use of the
premises was tantamount to possession and control, then the lessee owed a duty of ordinary
and reasonable care to its invitees upon the premises. Whether there was a breach (notice,
dangerous conditions, etc.) [then] becomes a question of fact.” Id. at 797. However, “if the
lessee’s use of the lot did not constitute control, there would be no duty owed and[,]
therefore[,] no cause of action.” Id. The Wilson court found that “a tenant may be
responsible for the condition of approaches and stairways, or a parking area.” Id. (quoting
52 C.J.S. Landlord & Tenant, § 436 (1966)). In summarizing its holding, the Wilson court
stated:
It would appear that a tenant/lessee/occupier of premises owes a duty of
reasonable care to its invitees for the demised property and such necessary
incidental areas substantially under its control (as the parking lot) and which
he invites the public to use, notwithstanding a maintenance agreement with the
landlord. While such agreement may serve as the basis for recovery against
the lessor, it does not absolve the lessee of his duty to his invitees under the
circumstances.
Id. at 798. Of importance in the supreme court’s ruling was the fact that the grocery store
in Wilson had constructed a shopping cart corral in the parking lot, which the store expected
its customers to use and which its employees visited at least twelve times a day. Id. at 797.
Aside from the shopping cart corral, the only other fact supporting the grocery store’s
possession and control of the parking lot in Wilson was the fact that the store invited its
customers to park in the lot. Id.
¶12.
The facts of the present case comport well with those of Wilson. In this case,
Blockbuster leased space in a retail development from Madison. The development contained
a parking lot, which was made available for use by the patrons and employees of the several
5
businesses leasing space in the development, including Blockbuster. The lease agreement
between Blockbuster and Madison provided that Madison was responsible for the
maintenance and upkeep of the parking lot. However, an amendment to the lease also
provided Blockbuster with a right to erect a sign in the parking lot. Additionally, the lease
required Blockbuster to carry its own insurance covering accidents or occurrences on “the
demised premises, the sidewalks adjoining the same[,] and other areas of the shopping
center.” Blockbuster was further required to defend suits arising from its acts or negligence
stemming from its rights in the parking lot and from suits “arising from the conduct or
management of the business conducted by [Blockbuster].”
According to the lease,
Blockbuster’s duty to defend also applied “in or about the demised premises, the sidewalks
adjoining same and the other areas of the shopping center used by [Blockbuster] in common
with others.”
¶13.
Furthermore, the accident did not occur in a remote area of the parking lot. The
Appellees admitted in response to the requests for admission that the defect in the parking
lot, which Ray alleged was just at the edge of the sidewalk, existed within twenty feet of the
store. The Appellees also admitted that the defect had existed in front of the store for over
a month. However, they claimed that they had notified Madison, which, according to the
lease, was responsible for repairing any defects in the parking lot. A lessor’s duty to repair
defects may, of course, serve as the basis for recovery against the lessor; however, the lessee
may also have a duty to its invitees concerning any incidental areas substantially under its
control. Wilson, 487 So. 2d at 798; see also Doe v. Cloverleaf Mall, 829 F. Supp. 866, 870
(S.D. Miss. 1993).
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¶14.
On the other hand, the situation in this case is distinguishable from the one presented
in Brookhaven, which was the only authority the circuit court relied on in granting summary
judgment. In Brookhaven, the accident occurred on a sidewalk adjacent to a funeral home.
Brookhaven, 820 So. 2d at 4 (¶2). This Court found that the plaintiff did not present
sufficient evidence that the funeral home exercised any possession or control over the
sidewalk. Id. at 7 (¶19). The sidewalk in Brookhaven was in no way connected to the
funeral home other than the fact that it was adjacent to the building. Id. Furthermore, the
fact that the funeral home offered to pay for the concrete to create steps on the dangerous
portion of the sidewalk and also received permission from the city to install a handrail after
the accident did not show that the funeral home exercised any possession or control over the
sidewalk. Id. at 6-7 (¶16). To the contrary, this Court found that those facts proved that the
City solely possessed and controlled the sidewalk. Id. at 7 (¶16).
¶15.
As the supreme court found in Wilson, we find that Ray presented sufficient evidence
to create a question of material fact for a jury to determine whether Blockbuster exercised
the requisite possession and control over the parking lot to create a duty to warn its
customers of a known dangerous condition in the parking lot directly in front of the store’s
entrance. This is not to say that Ray has proved that Blockbuster exercised any possession
and control over the parking lot, merely that she presented sufficient evidence to create an
issue of material fact. Summarized, the facts that Ray presented included the following: (1)
the lease provisions requiring Blockbuster to maintain insurance and to defend claims arising
out of incidents on the leased premises and surrounding areas, (2) Blockbuster’s right to
erect a sign in the parking lot, (3) the close proximity of the parking lot defect to the store’s
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entrance, (4) the fact that the defect existed in front of the store for more than a month
without any attempt to repair it, and (5) the fact that Blockbuster’s customers and employees
were permitted to use the parking lot. We find that these facts, when taken together, were
sufficient to create a question of material fact as to whether the Appellees owed any duty to
Ray to warn about the allegedly dangerous condition stemming from their interest in the
parking lot.
¶16.
We conclude that Ray presented sufficient evidence of the Appellees’ possession and
control of the parking lot to survive the motion for summary judgment; therefore, the circuit
court erred in granting summary judgment in favor of Blockbuster and Adams. Accordingly,
we reverse the judgment of the circuit court and remand this case for further proceedings
consistent with this opinion.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS
REVERSED AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLEES.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER AND BARNES,
JJ., CONCUR. GRIFFIS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY ROBERTS AND CARLTON, JJ.
GRIFFIS, J., DISSENTING:
¶18.
Because I believe the majority has misconstrued Wilson v. Allday, 487 So. 2d 793
(Miss. 1986), I respectfully dissent.
¶19.
The majority correctly states the holding of Wilson. However, the opinion fails to
correctly apply the law to the facts. First, the Wilson court framed the issue as follows:
whether a lessee would be liable to a third party for injuries received on
property incidental to (but not on) demised property (common area--parking
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lot) which lessor had agreed to maintain in good repair. An examination of the
relevant law would indicate that the liability of the lessee would depend on
whether or not the lessee exercised control of the premises in question.
Wilson, 487 So. 2d at 795 (emphasis added). The court then held that:
If the lessee’s use of the premises was tantamount to possession and control,
then the lessee owed a duty of ordinary and reasonable care to its invitees
upon the premises. Whether there was a breach (notice, dangerous conditions,
etc.) becomes a question of fact. Conversely, if lessee's use of the lot did not
constitute control, there would be no duty owed and therefore no cause of
action.
Id. at 797 (emphasis added). The opinion ends with the following holding:
If the lessees occupied and controlled the premises in question, then there was
a duty concurrent with both the lessee and lessor to repair the dangerous
condition or to warn invitees coming onto the premises. The judge was
correct in submitting this issue to the jury for determination. The jury
apparently concluded that the store controlled the property and therefore owed
a duty to the appellant.
Id. at 798 (emphasis added).
¶20.
Here, the parking lot was not part of Blockbuster’s leasehold. Thus, Blockbuster
could have only breached a duty owed to business invitees if it controlled the portion of the
parking lot where Ray fell. The majority finds that “Ray presented sufficient evidence to
create a question of material fact for a jury to determine whether Blockbuster exercised the
requisite possession and control over the parking lot to create a duty to warn its customers
of a known dangerous condition in the parking lot directly in front of the store’s entrance.”
¶21.
The majority’s conclusion that Blockbuster presented sufficient evidence of
possession and control is based on five factual statements:
1.
The lease provision requiring Blockbuster to maintain insurance and to
defend claims arising out of incidents on the leased premises and
surrounding areas,
9
2.
3.
The close proximity of the parking lot defect to the store’s entrance,
4.
The fact that the defect existed in front of the store for more than a
month without any attempt to repair it, and
5.
¶22.
Blockbuster’s right to erect a sign in the parking lot,
The fact that Blockbuster’s customers and employees were permitted
to use the parking lot.
Only the first two factual statements – that the lease (1) required Blockbuster to
maintain insurance and to defend claims arising out of incidents on the leased premises and
surrounding areas and (2) provided Blockbuster the right to erect a sign in the parking lot –
could possibly support a claim against Blockbuster. However, neither of these facts indicate
possession and control over the parking lot.
¶23.
The last three statements simply do not evidence “possession and control” over the
parking lot. Clearly, the parking lot where Ray fell was at a location both owned and
controlled by Madison regardless of how close it was to Blockbuster. The lease agreement
granted Blockbuster only the rights of control and possession over the interior portion of the
store. The lease expressly refused to extend Blockbuster any control of the adjacent parking
lot. The parking lot was made available for use by the patrons and employees of several
businesses located in the development.
None of these factual statements evidence
“possession and control” over the parking lot. Further, none of these facts are sufficient to
establish an issue of material fact to allow a claim against Blockbuster to survive summary
judgment.
¶24.
In Wilson, like here, the lessor of the grocery store was required, under the terms of
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the lease agreement, to maintain the parking lot for the use of the lessees and the lessees’
customers. Wilson, 487 So. 2d at 796. However, the supreme court found that there was
evidence that the grocery store exercised possession and control of the parking lot when it
constructed a cart corral on the parking lot. Id. at 797. In other words, the construction of
the cart corral indicated that the grocery store invited its customers to take carts into the
parking lot and use the cart corral; therefore, the grocery store could be liable for the dangers
that were associated with the use of grocery carts in the parking lot. The court held that
these facts were sufficient to allow the jury to determine whether the grocery store had
possession and control of the parking lot. Id. at 798. Such was not the case here; there is no
evidence that Blockbuster exercised possession and control of the parking lot.
¶25.
There are two other cases that are instructive here. First, in Brookhaven Funeral
Home, Inc. v. Hill, 820 So. 2d 3, 4 (¶1) (Miss. Ct. App. 2002), Deborah Hill fell on a
sidewalk that was located in front of Brookhaven Funeral Home. The sidewalk was owned
by the City of Brookhaven. Id. She brought an action for her injuries against the funeral
home. Id. at 5 (¶5). The jury awarded a verdict in favor of Hill for $75,000. Id.
¶26.
This Court, in an opinion written by Presiding Judge Leslie Southwick, reversed the
jury verdict and held that Hill failed to prove the funeral home’s ownership or control of the
sidewalk where she fell. Id. at 7 (¶¶19-20). The Court reasoned that in order for the funeral
home to be liable, “the defect must be to premises for which the funeral home has sole or
shared legal responsibility, not just to property in the vicinity of the funeral home.” Id. at
5 (¶9). Thus, the case was decided on “whether there was evidence to make a jury question
of the funeral home's responsibility for defects in the segment of sidewalk on which Hill
11
fell.” Id. at 6 (¶12). The Court then determined that:
[T]hese are the items of evidence that arguably created a fact question about
the funeral home's ownership, possession or control of the sloping sidewalk.
1) The funeral home notified the City after Hill's fall that improvements
should be made.
2) The funeral home agreed to pay for the concrete if the City would
construct steps to replace the sloping sidewalk.
3) The funeral home gained permission from the City to add a handrail.
4) The sidewalk is adjacent to the funeral home.
We find nothing in these facts to create an issue for the jury. Municipal
sidewalks will be adjacent either to private property or to other governmental
property. Proximity is the unavoidable reality of sidewalks and does not by
itself create a fact issue on ownership or control. Post-injury efforts to
improve the walk were consistent with the City's ownership and control over
the property; all the funeral home did was offer to pay for the concrete as an
incentive for the discretionary action of the City. The post-accident handrail
is similarly ineffective to prove the funeral home's liability.
....
Since the funeral home's occupation or ownership of the sidewalk was never
shown, we reverse and enter judgment for Brookhaven Funeral Home. . . .
Id. at 7 (¶¶18-20).
¶27.
Hill, just as the instant case, involved a question of ownership and control of the
property where the plaintiff was injured. Blockbuster is in a similar position to that of the
funeral home in Hill. Here, Ray did not offer any evidence that Blockbuster actually owned
the parking lot where she fell. Instead, the lease clearly established that Madison had
ownership, control, and possession of the parking lot. The evidence also revealed that
Madison, not Blockbuster, made the repairs to the parking lot when Ray fell. There was no
12
evidence that Madison relinquished its legal control of the parking lot to Blockbuster.
¶28.
The second case is Doe v. Cloverleaf Mall, 829 F. Supp. 866 (S.D. Miss. 1993) – a
case that was removed to federal court. In Doe, the questions before the court were: (1)
whether the defendants were fraudulently joined and (2) whether the case should be
remanded to state court jurisdiction. Id. at 869. The court had to consider the substantive
law as it applied to the resident defendants.
¶29.
In Doe, the plaintiff brought an action against Cloverleaf Mall, its management
company, and five tenants of the Cloverleaf Mall. The tenants were J.C. Penney Company,
Inc.; K& B Mississippi Corporation; Morrison, Inc.; McCrory Corporation; and McRae’s,
Inc. Id. at 868. The plaintiff was abducted at gunpoint from the parking lot of the Cloverleaf
Mall on the east side of J.C. Penney’s. Id. The plaintiff filed the action to recover the
damages that resulted from the abduction. Id.
¶30.
The district court determined that the issue was “whether the resident defendants had
a duty to maintain the mall parking lot in a reasonably safe condition for mall patrons.” Id.
at 870. The court, citing Wilson, summarized Mississippi law as follows:
Generally speaking, under Mississippi law, a tenant may be liable for injuries
occurring on those parts of the premises which are part of the leasehold; that
is, a tenant's duty to invitees extends to those parts of the premises which are
actually leased by the tenant. A tenant's duty also extends to areas of the
premises not within the leasehold but as to which the tenant has covenanted
to maintain and repair, and to areas as to which the tenant exercises actual
possession or control. And in the latter instance, that duty of care to invitees
devolves upon the tenant even though the lessor has contracted to maintain
and repair those parts of the premises.
Id. at 870 (emphasis added). The court held that the Mississippi Supreme Court followed
this rule in Wilson to find that the tenant had control over the parking lot, but the facts in
13
Wilson were distinguishable from those in the claim against Cloverleaf Mall and its tenants.
The court also provided a list of factors that would not reflect a tenant’s possession or
control over a parking lot:
The mere use of the parking lot, however, even though this use resulted in
economic benefit to these tenants, is not "tantamount to possession and
control." See Catherman v. United States, No. 90-CV-576, U.S. Dist. LEXIS
11120 (N.D.N.Y. July 21, 1992) (mere fact that defendant's patrons used
entrance for access to leased space in building could not reasonably be
asserted as divestment of landlord's possession and control of entryway);
Craig v. A.A.R. Realty Corp., 576 A.2d 688, 696 (Del. Super. Ct. 1989)
(economic benefit standing alone will not be sufficient to create duty on part
of landlord where record otherwise lacks evidence of control); St. Phillips v.
O'Donnell, 137 Ill. App. 3d 639, 92 Ill. Dec. 354, 484 N.E.2d 1209, 1212
(1985) (mere use of parking lot along with customers does not show actual
control of parking lot); Hall v. Quivira Square Dev. Co., 9 Kan. App. 2d 243,
675 P.2d 931 (Kan. App. 1984) (lessor liable for failure to maintain leased
area retained for common use of lessor's tenants where tenants and their
customers merely entitled to use common area); Leary v. Lawrence Sales
Corp., 442 Pa. 389, 275 A.2d 32 (1971).
....
A tenant's reservation of the right to make repairs or provide security should
the landlord fail to do so, where the tenant never exercises that right, cannot
give rise to a duty to make such repairs or provide such security. See
Catherman v. United States, No. 90-CV-576, U.S. Dist. LEXIS 11120, at *39
(citing DeLong v. United States, No. 82-CV-1104, slip op. at *4 (N.D.N.Y.
1983)) (right-to-repair clause in lease "does not provide any support" for
contention that tenant is in control of that area of premises);
Dopico-Fernandez v. Grand Union Supermarket, 841 F.2d 11, 14 (1st Cir.),
cert. denied, 488 U.S. 864, 102 L. Ed. 2d 135, 109 S. Ct. 164 (1988)
(reservation unto tenant of right to perform landlord's obligations upon
landlord's failure to do so could not be read to impose any obligation on
tenant); Craig v. A.A.R. Realty Corp., 576 A.2d 688 (Del. Super. Ct. 1989)
(neither right to inspect premises, nor reservation of right to inspect coupled
with right to retake control under certain circumstances amounted to control);
Tu Loi v. New Plan Realty Trust, 1992 U.S. Dist. LEXIS 19279, at *8-9 No.
91-7273 (E.D. Pa. Dec. 15, 1992) (rejecting plaintiff's contention that
landlord's retention of right to repair was tantamount to control over
premises); Underhill v. Shactman, 337 Mass. 730, 151 N.E.2d 287 (1958)
14
(where landlord was to maintain passageways and parking area for benefit of
stores in shopping center and control over these areas remained in landlord,
tenant had no duty with respect to those areas, even though tenant had right to
supply extra parking attendants and duty to carry insurance covering persons
injured "in or about the [demised] premises").
Doe, 829 F. Supp. at 872-73. Hence, the court concluded:
In this case, no facts have been alleged in support of plaintiff's allegation of
possession and control by the tenant defendants. In Catherman v. United
States, 1992 U.S. Dist. LEXIS 11120, No. 90-CV-576, (N.D.N.Y. July 21,
1992), the court, in granting summary judgment for the defendant tenant
where there was a lack of any proof that the defendant took any action
constituting control of the common area in which the plaintiff was injured,
appropriately stated:
The defendant must have taken specific action constituting
control of the . . . area in order to assume a duty to plaintiff
upon which liability for his accident may be premised. None of
the evidence before the court indicates that defendant took any
action with respect to the [area] which could be construed as an
exercise of control, nor does plaintiff suggest any evidence he
would like to discover which might indicate that defendant
exercised control over the . . . area.
See also Gladman v. Revco Discount Drug Centers, Inc., 669 S.W.2d 677
(Tenn. Ct. App. 1984) (judgment for tenant defendant for injury resulting from
fall in parking lot where parking lot remained in control of lessor under lease
agreement and tenant was not shown to have exercised control over parking
lot); Garcia v. Arbern Realty Co., 89 A.D.2d 616, 452 N.Y.S.2d 665 (2d Dept.
1982) (tenant had no duty to warn patron of defective condition in common
stairway where tenant did not lease stairwell and did not exercise any control
over it); Torres v. Piggly Wiggly Shop Rite Foods, Inc., 93 N.M. 408, 600 P.2d
1198 (N.M. Ct. App. 1979) (judgment for lessee where lease agreement did
not require that tenant care for parking lot and there was no showing that
tenant actually had or assumed control over parking lot); Kiser v. A.J. Bayless
Markets, Inc., 9 Ariz. App. 103, 449 P.2d 637 (1969) (where parking lot on
which plaintiff was injured was not part of premises leased by defendant
tenant and responsibility for maintaining parking lot was upon lessor,
plaintiff's failure to come forward with sufficient proof to show duty
warranted entry of judgment for tenant); Snyder v. I. Jay Realty Co., 30 N.J.
303, 153 A.2d 1 (1959) (judgment for tenant where landlord retained control
over common passageways and tenant exercised no measure of control over
15
such passageways); compare Coyle v. Gerritsen Ave. Shopping Center, Inc.,
176 A.D.2d 232, 574 N.Y.S.2d 58 (2d Dept. 1991) (summary judgment denied
in parking lot slip and fall where defendant tenant had occasionally cleaned
drain into which plaintiff fell); Farrar v. Teicholz, 173 A.D.2d 674, 570
N.Y.S.2d 329 (2d Dept. 1991) (issue of fact as to control where defendant
tenant regularly inspected parking lot and notified landlord of defects or hired
contractor to perform repairs).
Inasmuch as the plaintiff here neither alleged nor presented any facts which
could reasonably be found to demonstrate possession and control by the
resident tenant defendants of the mall parking lot, the court must conclude that
there is no factual basis for her allegation of possession and control by the
resident defendants. Hence, there is no reasonable possibility that the resident
defendant could be held liable and they are therefore due to be dismissed from
this action. The court will, therefore, reverse the magistrate judge's order of
remand and dismiss the resident defendants.
Id. at 873-74.
¶31.
Here, as in Hill and Doe, there is simply no evidence that Blockbuster had possession
and control of the parking lot. Therefore, there is no factual basis to support a claim against
Blockbuster. I find that summary judgment was correctly granted in favor of Blockbuster.
Accordingly, I would affirm the judgment of the circuit court.
ROBERTS AND CARLTON, JJ., JOIN THIS SEPARATE OPINION.
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